Select a region
A bid to use a centuries-old legal procedure to stop parish operatives carrying out branchage work has been thrown out by the Royal Court after being described as "a flight of legal vanity".
When a contractor working for the Parish of Trinity embarked on roadside maintenance in line with the Island's 109-year old branchage law, landowner Nikki de Gruchy used an even-older legal injunction to block the work.
The case resulted from a dispute between the parish and Ms Gruchy. While the parishioner claimed the road – Rue Becq – had been illegally widened over the years and now encroached on her land, Constable Philip Le Sueur cited a statutory duty under the 1914 Loi sur La Voirie to maintain a clearance of at least 12 feet above all parish roads.
In raising the Clameur de Haro, which has been enshrined in Jersey law for hundreds of years and involves a "wronged" individual issuing a public cry while down on one knee, Ms de Gruchy stopped the mechanical hedge-cutter in its tracks – literally.
Seven weeks after the legal process began in the leafy Trinity lane, the matter was the subject of a Royal Court hearing lasting more than three hours. But this time it was Ms de Gruchy who was stopped in her tracks – as the court ruled she had wrongly raised the Clameur, lifted the injunction and fined her £1,000.
Pictured: Rue Becq runs just west of Route de la Trinité. (Google Maps).
Solicitor General Matthew Jowitt said that while the Clameur was "a significant and perhaps colourful aspect of our customary law", there were other more proportionate courses of action such as judicial review or an order of justice.
"The money was spent [by Ms de Gruchy] on a flight of legal vanity," he said.
On behalf of the parish, Advocate Christopher Scholefield said the Clameur was not proportionate because of the relatively small amount of money involved – fines totalling £400 for breaches of the branchage law – and because the work was limited to "trimming a few twigs".
Pictured: The case was heard in the Royal Court this week.
Referring to "a troubling mismatch between the problem and the remedy which bedevils this particular case", Mr Scholefield said Ms de Gruchy had been unable to show that she owned the land where the work was planned.
He said that she had "driven a coach and horses" through the court's rules and procedures.
"It [the Clameur] was the wrong remedy done at the wrong place, at the wrong time and for the wrong reason," Mr Scholefield continued.
Advocate Hiren Mistry, representing Ms de Gruchy, said she had the right of possession of the land in question and had never given up this right. Rue Becq had been significantly enlarged beyond its original width of eight feet, he added, and Ms de Gruchy "might have taken a pick-axe" to the road surface laid on top of her land".
Pictured: Bailiff Sir Timothy Le Cocq presided over the case
Presiding over the case alongside Jurats Gareth Hughes and Alison Opfermann, Bailiff Sir Timothy Le Cocq said Ms de Gruchy had failed to show the she had been in possession of the land, or that she had suffered "wrongful interference" inherent in Clameur proceedings.
"We are satisfied that the Clameur was used wrongly, and it is hereby raised," he said.
The court then considered the question of what penalty should be imposed. Mr Jowitt said the case was a "pretty egregious example" of wrongful raising of a Clameur, and that there should be an element of deterrent in any fine.
Sir Timothy agreed with the need to deter those who might repeat the move, adding: "An act of this nature has had a draconian effect and cost a lot of time, effort and money to meet."
After imposing the £1,000 fine, to be paid within four weeks, the opposing parties came to an understanding about the next steps.
Mr Scholefield said that Ms de Gruchy would carry out branchage work in the company of a parish official by the end of November, and that there would be direct negotiations about the width of the road and related issues.
A full judgment, including consideration of what legal costs may be payable, is expected to be issued at a later date.
The origins of the Clameur de Haro are unclear but ‘Haro’ could be a contraction of ‘Ha! Rou!’ so refer to a direct appeal to the Norman king Rollo, the Viking founder of the Norman dynasty in 911, who was renowned for his strict integrity and justice.
The ancient legal procedure can be invoked by any individual who believes they have been wronged in law, and involves them getting down on one knee and making a plea to the Duke of Normandy in French.
The Clameur is recognised in both Jersey and Guernsey law, providing it is correctly raised. In practical terms, it is an immediate injunction which bypasses the normal process of having to go to the Royal Court first, giving the instigator, known as the ‘criant’, a self-help remedy.
Although a quirk of Channel Island law, it is still considered an important and relevant tool available to all islanders who have a land dispute with another party, and has been recognised and praised by senior UK judges.
The last attempt at a Clameur de Haro was in February 2021. However, the Royal Court judged that it had been incorrectly raised. It was the first time that the medieval ritual had been performed in two decades.
It was also raised in Guernsey earlier this year.
Haro! Haro! Clameur raised in Trinity branchage row
EXPLAINED: Haro! Haro! Haro! Help me my Prince!
Clameur de Haro raised for the first time in 20 years
Haro, goodbye... Ancient property plea fails
Comments
Comments on this story express the views of the commentator only, not Bailiwick Publishing. We are unable to guarantee the accuracy of any of those comments.