WHEN a parish contractor took on roadside maintenance in line with the Island’s 109-year old branchage law, a neighbouring landowner used an even-older legal tool to block the work.
But after stopping the mechanical hedge-cutter in its tracks, literally, by invoking the ancient injunction known as a Clameur de Haro, parishioner Nikki de Gruchy’s manoeuvre was chopped down by the Royal Court this week after being described as “a flight of legal vanity”.
The case resulted from a dispute between the parish and Ms de Gruchy involving Rue Becq in Trinity. While the parishioner claimed the road had been illegally widened over the years and 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 triggered a process which culminated in a Royal Court hearing lasting more than three hours.
Solicitor General Matthew Jowitt told the court 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.
“This was 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”.
Advocate Scholefield said Ms de Gruchy had been unable to show that she owned the land in question.
He said: “It [the Clameur] was the wrong remedy done at the wrong place, at the wrong time and for the wrong reason.”
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, with a road surface laid on top of the land she owned.
Presiding over the case alongside Jurats Gareth Hughes and Alison Opfermann, the Bailiff, Sir Timothy Le Cocq, said Ms de Gruchy had failed to show that she had been in possession of the land, or that she had suffered “wrongful interference” inherent in Clameur proceedings.
“We are satisfied the Clameur was used wrongly,” 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, arguing there should be an element of deterrent.
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.”
After the imposition of a £1,000 fine by the court, to be paid by Ms de Gruchy within four weeks, the opposing parties came to an understanding about next steps.
Advocate Scholefield said 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.
Earlier in the day participants in the hearing had taken part in a visit to the site. A full judgment, including consideration of legal costs, is expected at a later date.
