In the royal court of guernsey, civil division, 8th may 2008
An anonymised judgment on a preliminary point raised important issues regarding the sources of law that may be considered in cases heard in Guernsey. Furthermore, attention is given to the particular situations which will give rise to matters being considered analogous.
Curatelle - the concept
The concept of curatelle derives from the Roman Law principles of curatela and is a well-developed area of Guernsey law. After considering the differences between a curateur aux biens (a similar concept to that of a “guardian”) and a trustee, the Court decided that this application was concerned with the customary law concept of curatelle and that statutory provisions under the Trusts (Guernsey), Law, 1989 (as amended) and under the Trusts (Guernsey) Law, 2007 would not apply. The reasoning behind this was that a curateur, whilst having a fiduciary duty, did not take the legal title to the property entrusted to his care.
As the application was solely based on customary law, the Court was able to consider many sources of law in reaching its decision.
An application was brought before the Royal Court of Guernsey in which the curateur sought directions from the Court for approval and authority to place the assets of X into a settlement. The issue was whether the Court had the jurisdiction to consider the merits of the application, in the absence of any directly relevant Guernsey cases.
Even today some areas of Guernsey law are founded on the customary law of Normandy. Customary law is not, however, static and evolves in the way most appropriate to Guernsey, its population and its society. Sometimes the evolution is based on the development of the English common law and, in some cases, English statutory law. At other times, the evolution has followed the laws of modern France and of Commonwealth countries. In all cases though, the development of the customary law in Guernsey is limited by established legal principles of Guernsey law, and by Guernsey statute and subordinate legislation.
Norman customary law has little authority on curatelle. There was no Guernsey authority relating to the particular jurisdiction issue, and with no recourse to the Norman customary law, Roman Law, English Law, French Law, the law of Louisiana and Scots Law were all considered in the submissions of Counsel. No statute or subordinate legislation was considered as providing an appropriate remedy, and in terms of established legal principles, the supervisory jurisdiction of the Royal Court in such matters was not disputed.
In considering whether the current application was covered by the law of curatelle the Court applied the leading Guernsey case of Morton v Paint (1996). In this case it was held that “the very organism of the common law is its constant adaptability to changing social conditions”. As the common law was held to be adaptable, it was appropriate to argue that no legislative intervention was necessary, and that authorities from other jurisdictions could be considered persuasive. The application of Morton v Paint was in this case influenced by earlier Scottish case law, having also considered Roman, French and Louisiana law.
The evolution of Scottish law was considered, and its origins in various sources, including customary law and civil law. The court was advised that Scottish courts may turn for guidance to other systems of law, particularly those founded on similar historical bases.
In this case, the historical base relating to curatelle was considered sufficiently similar. As well as a historical base, facts must also be similar, and the interpretation of the “persuasive” court. The Courtreferred to Vaudin v Hamon  AC 569:
“If an argument based on analogy is to have any force, it must first be shown that the system of law to which appeal is made in general, and moreover the particular relevant portion of it, is similar to that which is being considered, and then that the former has been interpreted in a manner which should call for a similar interpretation in the latter”
In this case, it was held that the system of law and the facts were indeed analogous to that of a Scottish matter, In re D’s Curator Bonis, noter  SLT 2. This was considered to be persuasive authority and the Court granted the application.
Modern Guernsey law, some of which even today retains its origins from customary Norman law, is readily adaptable to the evolving needs of the community it serves. Where there is a lacuna in the case law or legislation, the Guernsey Courts will consider authorities from a range of sources and may be persuaded by foreign case law where it is properly considered to be analogous. The application of the principles set out in Morton v Paint demonstrates again the usefulness and creativity of Guernsey law where such application is appropriate. Where analogy can be found, the customary law can thus provide remedies even where no statutory provisions apply.