The Role of the Courts and the Legal Profession

The Role of the Law

Communities and business prosper in times of peace and harmony. One of the roles of the Court and the legal system is to resolve and discourage disorderly conflicts between citizens so as to maintain the peace. The old Norman customary law books talk about the maintenance of the Duke of Normandy's peace. Serious conflicts are classified as criminal and less serious as torts. Contracts are of course obligations created by actual or implied agreement. There is then constitutional and more recently, regulatory laws to ensure the smooth running of the state.

The legal profession helps to satisfy these requirements. The judiciary and lawyers assist to make it a secure and safe place. Whilst lawyers may not be popular, their growth in number and expertise is evidence of their they need. A strong and independent judiciary and legal profession provide one of the cornerstones of any democratically free and financially successful community.


The Jersey Legal Profession

The legal profession is fused in that advocates may appear in all Courts and may perform all the work of a solicitor. A solicitor or ecrivain performs all the usual work of a solicitor but may appear only in the Petty Debts Court. To qualify as an advocate it is necessary to have passed the English or French bar exams, or the English solicitors final exams and in either case a set of Jersey exams which may include exams at Caen University. Alternatively solicitors may qualify by only taking Jersey exams. Many of the locally qualified advocates and solicitors have worked outside Jersey. There are presently approximately 92 practising advocates and 42 practising solicitors. In addition, many offices have English qualified assistants. There are also about 26 English qualified solicitors practising as English solicitors in Jersey. At one time the number of advocates was limited to 8.


Legislation

As regards legislation, Jersey statute laws tend to be simple and short. The Income Tax (Jersey) Law 1961 has been amended from time to time in minor respects. In general and in substance it has remained the same in contrast to most other countries.

New important laws are reviewed by the Law Society through a number of sub-committees. In particular the Financial and Commercial Law Sub-Committee liaises with the government authorities and other professional bodies to ensure the interests of the island are protected and enhanced. The Law Society in this way also originates ideas for law changes too.


The Courts

As regards the judicial system. The main civil court is the Royal Court presided over by the Bailiff, the Deputy Bailiff or a Commissioner who are lawyers sitting with two Jurats who may or may not be lawyers. The Bailiff will decide questions of law and the Jurats questions of fact, and in case of disagreement, the Bailiff will have a casting vote.

The Court of Appeal is composed of three judges drawn from a panel comprising the Bailiff or Deputy Bailiff, the Bailiff of Guernsey and a panel of highly respected senior English or Scottish Q.C.'s, who often are on their way to high judicial office in England or Scotland. The Privy Council is the ultimate Court of Appeal.

It is one thing to encourage use of an offshore centre, it is another to prevent abuse. The dividing line has to be drawn.

The Courts have shown that abuse of the Islands facilities will not be tolerated and assistance will be given to, for example, victims of fraud. In accordance with international law rules the Court will not however generally assist foreign revenue authorities.


The Laws

Certainty and uniformity in the law is important. Jersey unlike some other offshore jurisdictions has the benefit of official law reports. There is access to all decisions of the Royal Court from the late 19th Century, although it was only from 1950 that reasons were given.

In banking, company, trust and financial matters generally, the statutes are based upon English law principles and English common law is used as a guide. For contracts the similarities between French common law and English common law are substantial but where they conflict French common law principles are preferred. In matters relating to land and succession the statutes are generally based upon Jersey and Norman principles.

Jersey is a well and long established independent legal jurisdiction, having a Parliament to enact law affecting its internal domestic affairs and an independent Court system for interpreting and developing Jersey law. This is strengthened by the smooth working of the Courts, by the quality of the laws produced and the judgments delivered, and by the quality and integrity of professional advice given. In all these aspects lawyers play a part.

Many of the uses and attractions of the island, upon which the States of Jersey and the Island as a whole now rely for revenue, have been discovered and implemented by lawyers. Hill Samuel, the first merchant bank to set up in Jersey in the mid 1960's, operated from a lawyer's office.


Representing the Interests of Clients

Lawyers are at the forefront of dealing with tensions between individual citizens, companies and the authorities. They advise on how these competing interests and desires can be managed and ordered. They also advise on and negotiate settlement of disputes or ultimately argue the case before Court.


The Needs of an International Financial Centre

To attract and retain foreign business and assets it is necessary to demonstrate certain qualities. The choice of whether to use an offshore finance centre and, if so, which one will include answering questions on:

1.    Does the jurisdiction have modern legislation to meet requirements of the commercial and financial expectations of the international community?

2.    Does it have an international reputation for a good judicial system?

3.    Is there a substantial infrastructure and what is the quality of professional advice?

4.    Does it have a reputation for acting responsibly and is it concerned as to its good name as a financial centre?

5.    What is the reputation of the jurisdiction's regulators and executive officers?

6.    Is it a secure and reliable place?

7.    Has the jurisdiction in its recent history experienced sensational financial failures?