Parish of St Saviour v Karava et al 30-Dec-25 (Royal Court : Hearing (Civil) : MacRae : Vue de Justice) [2025] JRC 339 (30 December 2025)

judgment the bailiff: 1. A Vue de Vicomte took place in this case on 9 October 2024. The Viscount's record notes that six Experts marked and delineated un chemin publique de quatre pieds belonging to the Parish of St Saviour in the vicinity of La Rue à La Dame.

2. The Plaintiff opposed the registration of the record of the Viscount and, on 26 September 2025, the Court ordered a Vue de Justice. Pursuant to the Royal Court Rules, a Vue de Justice consists of twelve Experts - the six Experts who acted at the Vue de Vicomte and six additional Experts summoned for the purpose of the Vue de Justice.

3. The Court ordered that a directions hearing take place on 13 November 2025 and made an observation to the effect that counsel might wish to consider whether or not the composition of the panel on a Vue de Justice was compliant with Article 6 ECHR.

4. Rule 14/2 of the Royal Court Rules that deals with the Vue de Justice and provides that the Vue de Justice shall be held before the Bailiff and "the number of Experts required for a Vue de Justice is twelve, that is to say, six Experts in addition to those whose decision is challenged" .

5. Prior to the directions hearing in November, counsel for the Plaintiff filed a small bundle of material dealing with, inter alia , the directions which the Court ought to make by way of preparation for the Vue de Justice (most of which were uncontentious) and also filed some materials germane to the Article 6 issue to which I have referred. Most helpful and most recent was the decision of Sir William Bailhache sitting as a judge of the Court of Appeal in Morris v Schlaefer [2023] JCA 120, an application for leave to appeal, where a Vue de Vicomte had taken place and had not been appealed to a Vue de Justice.

6. The Court made the following observations: "38. The Vue de Vicomte and the Vue de Justice well pre-date the European Convention on Human Rights. These two mechanisms for fixing boundaries also pre-date the Royal Court (Jersey) Law 1948, which made the Bailiff the sole judge of law. It follows that in any case where there is difficulty in establishing a boundary because there is an issue of construction of documents in relation to the title of the parties, that issue of construction is a matter for the Bailiff alone, and whether one has the same panel of experts assisting him or not can make no difference in law to the outcome, which depends upon his judgment alone, even though he may find helpful the views of the experts who have been appointed to assist him in the process. In that context, it is interesting to reflect that if this action had gone to trial other than through the summary process, the question of whether encroachments existed or not would be one of mixed law and fact - the law governing the construction of the contracts or, for that matter, the Vue de Vicomte, and the facts, namely what was visible on site in relation to the established boundary lines and restrictions. Although an application for summary judgment is one which would not normally require the presence of Jurats, it was absolutely a matter for the Bailiff's discretion to invite Jurats to join him in the hearing of the application, because their views on whether there was anything reasonably to be argued in relation to the facts - the positioning of the encroachments having regard to the law which established the boundary - could be of importance.

39. The Article 6 rights to a fair trial in respect of civil matters are more limited than those in respect of criminal matters. In the determination of his civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly, save in those cases which fall within the exceptions set out in Article 6.1 of the Convention.

40. Here, it is important to note that the Vue does not of itself determine the civil rights and obligations of the citizen. The conclusions of the Vue do not have an impact until recorded in the Rolls of the Court. At that point, the tribunal ordering registration (the Royal Court) provides an impartial and independent tribunal. The decision of the Royal Court in registering the record of the Vue is thus compatible with Article 6 of the Convention.

41. The Rules cannot override the Royal Court (Jersey) Law 1948. The only decisions for the experts on the Vue de Justice would be decisions on the facts. It would be for the Bailiff to explain to the experts what their duty is in accordance with Rule 14/1(10) and 14/2(6). It would be open to either party to challenge for cause any of the experts who had participated in the Vue de Vicomte. By contrast, of course, the Vue de Justice might well find it helpful to understand fully the process which had led to the decision of the Vue de Vicomte which was the subject of the appeal.

42. One can see the argument that the Vue de Justice may not be an Article 6 compliant form of appeal. Indeed, it may well be that it would be desirable for the Bailiff to ensure that these Rules receive further consideration and perhaps modernisation. However, for the reasons I will come onto shortly, I do not regard this as a good ground of appeal in this case." 7. At paragraph 43, Commissioner Bailhache went on to explain that, as there had not been a Vue de Justice, there was no room for an argument as to whether or not such a tribunal constituted a fair and impartial one. However, he noted at the end of paragraph 43: "The Applicant should have appealed to the Vue de Justice and made his complaints about the structure of the Court at that point arguing, if he wanted to take the point, that the Rules should be read down to be ECHR compliant. That argument might have succeeded." 8. I note from Le Gros that at customary law, after the six Experts had given their opinion at the Vue de Vicomte and the twelve Experts (including the original six) at the Vue de Justice, it was then possible for there to be a final appeal to the Grande Vue de Justice which consisted twenty-four people, including the twelve Experts who had been present at the Vue de Justice.

9. In any event, it is the Vue de Justice which now constitutes the final tribunal of appeal - Royal Court Rule 14(2).

10. I have been provided with some ECHR case law which perhaps in the circumstances adds little to the observations made by Commissioner Bailhache and my own views in relation to this matter. Nonetheless, I note that in Driza v Albania (judgment 2 June 2008), the European Court of Human Rights found a violation of the principle of impartiality in a case where six of the judges in a fifteen judge panel had already ruled on or expressed opinions on the case and were required to decide whether they had erred in their earlier decision or views. The Court noted that whether the composition of the panel affected the appearance of the impartiality was dependent upon all the circumstances.

11. In San Leonard Band Club v Malta (judgment 29 October 2004), the European Court of Human Rights it was held that a Court of Appeal in which the trial judges were called upon to ascertain whether or not they themselves had committed an error of legal interpretation in their previous decision could raise doubts as to their impartiality and a violation of Article 6(1) of the Convention was found. In the Malta case, the Court said this: "61. In the instant case, the concerns regarding the Court of Appeal's impartiality stem from the fact that its bench was composed of the same three judges who had previously heard the merits of the case and adopted the impugned judgment of 30 December 1993.

62. The Court accepts that the situation could raise doubts in the applicant company's mind about the impartiality of the Court of Appeal. However, it has to decide whether those doubts were objectively justified. The answer to this question depends on the circumstances of the case.

63. In this connection, the Court observes that, as regards the request for a retrial, the Court of Appeal was essentially called upon to ascertain whether its previous judgment of 30 December 1993 was based on a misinterpretation of law. Thus, the same judges were called upon to decide whether or not they themselves had committed an error of legal interpretation or application in their previous decision, being in fact requested to judge themselves and their ability to apply the law." 12. There is plainly a risk that the Vue de Justice procedure as set out in the Royal Court Rules is not compliant with the Convention and indeed the customary law recognition that parties are entitled to a fair hearing by an independent and impartial tribunal when their civil rights are being determined. The determination of a boundary is a determination of civil rights.

13. Accordingly, the Royal Court Rules need to be amended before the Vue de Justice is heard. The Court received evidence from the Viscount to the effect that it is more difficult to find a panel of Experts these days as there are fewer law firms providing a conveyancing service and conflicts of interest may arise from previous or current client relationships with the parties to the dispute. "Experts" includes conveyancing clerks as well as advocates and solicitors who are experienced in conveyancing matters. In any event, bearing in mind that both the Vue de Vicomte and Vue de Justice are to determine their decisions by a majority, both ought to consist of an odd not, as currently configured, an even number of Experts. The number of Experts required for a Vue de Vicomte should be reduced to an odd number below six, and the number of Experts required for the Vue de Justice an odd number greater than six. In addition, the right to peremptory challenge (which was abolished in 2018 for juries) should cease but the right to a challenge for cause be retained. Other minor adjustments need to be made to the Rules and, in particular, it is to be made clear that the Experts required for a Vue de Justice are not to include any of those whose decision was challenged. Nonetheless, it will be necessary for the Experts on the Vue de Justice to understand the decision made at the Vue

de Vicomte and, in such circumstances, it will usually (perhaps always) be necessary for the fore-person of the panel of Experts at the Vue de Vicomte to attend in order to give evidence to explain the decision made at the Vue de Vicomte. Authorities Morris v Schlaefer [2023] JCA 120. Driza v Albania (judgment 2 June 2008). San Leonard Band Club v Malta [2004] ECHR 411 . Royal Court Rules. Page Last Updated: 20 Jan 2026 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII