Mallet v. Richardson: Raising the Clameur?

The case of the day, Mallet v. Richardson (Jersey Royal Ct. 2014), involves a conflict between antique customs and modern international rules on service of process.

Richardson, a hip-hop impresario and former state senator from Miami, Florida, had purchased a couple of acres of land in Jersey and was preparing to start construction work on a large home that would be more suitable for La Boca Vista than the rural community in Saint Ouen. The home was to include an eight-car garage, a recording studio, a helicopter pad, and an underground bunker whose purpose was a bit mysterious. No doubt many of his new neighbors were unhappy at the prospect that Richardson might succeed in spoiling the character of their community, which had lasted hundreds of years. But a few of the neighboring landowners, including Mallet, had a more particular concern: the new monstrosity would block their access to pasture land that they had used since time immemorial to graze their herds of sheep. And so Mallet did what any proud Jerseyman would do. On the day construction was to begin, with the bulldozers’ bemused drivers looking on, Mallet dropped to his knees, raised his hand, and called out:

Haro! Haro! Haro! A l’aide, mon Prince, on me fait tort. Notre Père qui est aux cieux. Ton nom soit sanctifié. Ton règne vienne. Ta volonté soit faite sur la terre comme au ciel. Donne-nous aujourd’hui notre pain quotidien. Et nous pardonne nos offenses, comme nous pardonnons à ceux qui nous ont offensés. Et ne nous induis point en tentation, mais délivre-nous du mal.

This, of course, was the famous clameur de haro, a procedure unique to the Channel Islands. If the plaintiff, or “criant,” performs the procedure correctly, in the presence of witnesses, the defendant is required to stop the act that the criant claims is wrongful until a court can decide the matter. You might think the clameur is a mere legal relic, but it has occasionally been used in modern times:

One of the most recent Jersey Clameurs was raised in the 1980s when Wayne Le Marquand tried to demolish a bank in a field owned by George de Carteret. Mr Le Marquand brought a digger into the field on 8 July 1988 and by 23 August found himself before the Royal Court, paying £10 as an amende de Clameur de Haro and contributing £500 to the Crown to cover the costs of the Clameur. There has only been one Clameur cried since, but its caller failed to study the rules before yelling.

On 25 November 1994 John Barker raised the Clameur de Haro against his younger brother James in the Royal Square—a grave error, which could have led to him being fined. Instead, it just led to the whole thing being ignored because the Clameur had not been properly invoked and had fallen on deaf ears.

But did Mallet raise the clameur correctly? This became the key question, because Richardson’s solicitor, who was on the scene, signaled the bulldozer drivers to proceed, and Mallet asked the court to find Richardson in contempt. Richardson’s defense was that he was in Miami at the time of the clameur and that a ruling against him would be inconsistent with the Hague Service Convention (the UK has extended the Convention’s application to Jersey). The Convention, as we know, requires that where the defendant’s address is known (as Richardson’s was), all judicial documents that have to be transmitted abroad must be transmitted by one of the methods permitted by the Convention. You may say that the outcome of the case should be obvious: the clameur is an oral process, and there is no document to be transmitted. Therefore the Convention should not apply. But the court took the issue seriously, noting the concerns of the Convention’s drafters about notification au parquet and similar procedures that do not provide a defendant abroad with actual notice of the proceedings. The court reluctantly concluded that Mallet was right about the Convention, but it nevertheless ruled in favor of Richardson. Its holding rested on a point of Jersey law, not the interpretation of the Convention: even though the bulldozer drivers and the solicitor were Richardson’s agents, in order to raise the clameur properly against Richardson, Richardson himself had to be present to hear it. As one commentator has explained:

A Clameur may also be committed by subordinate persons or “gens de son mainpast,” (i.e. a group of subordinates such as servants and others under the protection of the recipient of the Clameur. The recipient must however be present and must be capable of hearing the clameur being raised. Thus the clameur may not be raised against absent person even if he has instructed others to carry out a wrongful act and at whose instance wrongful act is done: Where the absentee has instructed the wrongful act, then the clamour appears to be able to be lawfully raised against the subordinates

In other words, Mallet could have properly acted against the bulldozer drivers themselves, but because he was trying to act against Richardson, his clameur failed for procedural reasons.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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