Guernsey Law Reports 2007–08 GLR Note 17
BARCLAY v. BEAUMONT (Seigneur of Sark) and GUILLE (Seneschal of Sark)
ROYAL COURT (Talbot, Lieut. Bailiff): October 15th, 2007
Land Law—passing of conveyance—procedure in Sark
The plaintiff wished to buy a Sark tenement. In accordance with Sark customary law, the Seneschal demanded the payment of a treizième of the purchase price (to be paid to the Seigneur for his personal benefit) as a pre-condition to the Seigneur’s giving his congé to the transaction and before the conveyance could be passed before the Seneschal’s Court. The plaintiff objected to paying the treizième on the ground that the demand was unlawful and sought a declaration to this effect.
In preliminary correspondence with the Seneschal, the plaintiff’s advocate sought his agreement to the proceedings being heard in the Royal Court in Guernsey, rather than in the Seneschal’s Court in Sark (though the Seneschal’s Court was by statute the sole court for the Island). He maintained that it would be inappropriate for the Seneschal’s Court to assume jurisdiction, given that the defendants were the Seigneur and the Seneschal and the dispute was as to their implementation of the customary law concerning them both.
The Seneschal made clear his view that the proper forum was Sark, that his court “[could] only, must and will, apply the law as it is, be it customary law or statute law” but nevertheless provided an address for service of process in Guernsey.
The present proceedings for the declaration against the defendants were therefore commenced in Guernsey. The plaintiff submitted that they were not brought against the Seneschal as a judge but rather as an administrative officer of the Seneschal’s Court who was refusing to pass the conveyance without the congé of the Seigneur and the payment of the treizième. The defendants applied to strike out the proceedings under the Royal Court Civil Rules 1989, r.36(1) on the basis that they were frivolous, vexatious and possibly scandalous
Held: (1) The action would be struck out as disclosing no reasonable cause of action and as being frivolous and vexatious. The Seneschal’s role as the Judge of the Seneschal’s Court, when deciding whether to pass a conveyance, was judicial and he did not act merely as the equivalent of a land registrar. He had by law to decide as a matter of fact in these circumstances whether (a) the parties named in the conveyance were before the court or represented through valid powers of attorney; (b) both consented to the transaction set out in the conveyance and to the terms of the conveyance; (c) the congé of the Seigneur had been given or, if appropriate, waived by him; and (d) the treizième had been paid, or paid into court, or, if appropriate, waived by the Seigneur. After making these findings, the Seneschal would then be in a position to pass the conveyance, for registration by the Greffier in the records of the Island (Les Records de l’Ile de Serque).
(2) An advocate should, as far as possible, avoid engaging in correspondence before the filing of the cause, directly with the judge, to ascertain his view of the law applicable in his court. There were circumstances in which such an approach might be appropriate, e.g. on procedural matters, but it was not appropriate in the present case.
2009
Law Report
None
Guernsey Law Reports 2007–08 GLR Note 17