The Clameur can be lawfully raised in cases where someone who is in possession of land
(real property), having had that property for a year and a day and where they are at immediate peril (appert peril) of having that possession (and the rights extending from that lawfully possession and enjoyment) disturbed or interfered with by some specific wrongful act.
it may only be raised against the party carrying out the act and not against the person who instigated it.
Ownership of property for a year and a day
The raising of the Clameur de Haro to protect the possession of real property is an action arising out of possession of real property (an "action possessoire") and can only be raised on proof that the Criant (also referred to as the "adjoint") has been in simple possession of the land for a year and a day preceding the clameur. It is not necessary to prove title as such, although the court could, if necessary, in deciding the question of possession, have regard to title as well as to acts of possession in respect of the land during earlier years. The Criant raised a Clameur de Haro to enjoin digging work which was being carried out on the defendant's behalf upon a piece of land, which both parties believed to be in their possession. Since the basic question of possession was one of fact, the court resolved not to order an inspection (Vue de Vicomte) but had to hear the evidence itself, and it was right that, in the meantime, the injunction imposed by the clameur would remain in force. The court determining that an action possessoire required only simple possession of the land for a year and a day which condition was satisfied where the Criant genuinely believed this to be the case, at which point the question of actual ownership for dispute land became irrelevant.
The need for a recognised wrong
The interpretation of the actionable cause is clear in the words of the initial proclamation "on me fait tort!" There must therefore be a recognisable claim in tort which immediately threatens to interfere with the possession or quite enjoyment of the real property. Quiet enjoyment is a quaint legal term which means the right to carry out any act which is lawfully possible (i.e for which there is adequate rights in law such as easements and where planning permission is granted) and where there is no actionable tort on any other party.
Where a Clameur is raised against a party where there is no actionable cause for the clamour then the Clameur is improperly raised and the full sanctions of the penalty for wrongful Clameur can be utilised.
In the cases which have been dismissed, the clamour appears to have been raised against an arguable tort genuinely perceived by the Criant, where the Criant intended to prosecute the tort and where there was a prima-facie case of a tort arising.
The requirement of Good Faith
The Clameur is an equitable claim. Any party raising a Clameur it has a duty to raise the claim in good faith. Where any subsequent evidence of bad-faith is evidenced, then the right to equitable relief ceases.
It is thought that there are no cases in the Channel Islands directly upon this point, as the cases where there may have been doubt about the integrity of the claim did not carry any evidence of a bad-faith application.
There is adequate caselaw in the early cases before the English Court of Chancery which sets out that the Crown prerogative to grant equitable remedies is extinguished, and finally exhausted, upon the remedy being sought in bad faith.
Where bad-faith is shown, no subsequent equitable right to protect against the same complaint is possible. The Crown's gift of equitable relief is permanently exhausted by any bad faith and it is unlikely that the relief can be ressurected. (For itinerant judges, this is definitely the case, although it would technically remain in the Crown's prerogative, exercised by the Monarch personally, to ressurect the relief).
Thus where the Complainant petitioned the Crown about a surplus of rats escaping from premises and spoiling the Complainant's use of land, and the evidence is that rats were present in the premises complained about but had not entered the Complainant's land, the injunctive relief will be revoked and if rats do escape into the Complainant's land at a later date, no equitable remedy will usually be available.
No Clameur against a lawful act in the absence of a tort recognised by law
Applying this caselaw to Clameur cases would seem to indicate that where a Clameur is raised against a lawfully occurring act, permitted at law and with the authority of law, and where no tort arises, then the Clameur is in bad faith and the Crown (and Criant) has a duty upon notice to vacate the Clameur and no subsequent right of redress via a clamour can be possible because the equitable remedy is permanently exhausted.
This "purely lawful act" is recognised in the case of re Sarre (née Young) (ROYAL CT.: Birt, Deputy Bailiff and Jurats Potter and Le Breton), April 7th, 2000 where the Royal Court considered the raising of the Clameur de Haro against the Viscount's officer who is simply putting into effect a court order. Although there may have been an "appert peril" and the action was agasint real property, the Viscount's officer was acting with lawful authority and had himself committed no tort in attempting to put into effect the court order. The court found that is not open to a defendant to raise the Clameur de Haro against a Viscount's officer who was therefore simply putting into effect a court order.
The position may have been different where the Viscount's officer had taken some form of unlawful step or where there was a defect in the Court Order or where the authority of the court was lacking (for example because a law had been repealed or where the Court did not have jurisdiction (such as a court order made in breach of an exclusive jurisdiction clause). There does not appear to be any authority on this issue as the Court is extremely careful in cases of the Clameur to ensure that the Criant proves a prima-facie actionable tort at the time of registration.
Can it be raised against servants or absentees from the Island?
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.
Can I Clameur a Planning Decision?
In most cases, No.
A number of cases have considered whether there is a cause of action over planning permission, these have decided that where the act complained about is the grant of planning permissions, or any activity in exercise of the right granted by planning permission per-se, is not subject to Clameur.
The correct process in such cases is the commencement of judicial review of the planning authority or appeal against the decision.
This inability to challenge planning decisions reflects a failure in two of the elements of the items required for the Clameur. The first problem stems from the underlying principal of the Clameur that it is a possessory rights and cannot be used to recover a property right which has already been lost; in the case of planning permission, the rights lawfully lost under the planning permission are extinguished and therefore any use of the Clameur is incorrect. The second element is the fact that there is no tort act arising purely by carrying out operations permitted under planning permission and building regulations. (Obviously new torts arise where there are events such as carriage of mud onto a Criant's premises, dropping grit from cranes used in building operations onto the Criant's premises and drifting of smoke from asphalt treatments into the Criant's premises, etc. In one case in historic Norman texts, it is suggested that there must be a significant tort. In that case, it would appear that there was no right of redress where small quantities of sawdust arising from the ordinary rubbing down of woodwork on a domestic building in order to repaint dropped onto the Criant's garden. It would however be different where the garden contained plants of a particularly sensitive nature existed under the woodwork prior to the sanding of the wood.
The right to raise a Clameur is the right to a possessory remedy. Therefore where the right claimed is already lost then no Clameur can be raised. (This reflects the inability to challenge a planning decision because the decision expires rights such as rights to light).
Caselaw makes it clear that a Clameur cannot be raised in relation to a lease where repossession has already occurred as the possession has been lost and there is then no right to a possessory remedy. (This does not mean that the Clameur cannot be raised where a piece of land is temporarily occupied by someone to dig an unauthorised hole. In such cases, there is no loss of possession but simply a trespass).
Comment which is not part of caselaw, although persuasive, has been made in the Courts in relation to Clameurs raised by Maurice Kirk that if a Clameur is raised to recover a lost right, upon legal advice, then the court may have to determine whether the Clameur was abusively used and whether damages and costs are awarded. In such cases, any costs and damages awarded against the Criant may result in a parallel claim against any advising Advocate.
Certain costs rules apply in some of the Channel Islands which may operate to limit costs recoverable in normal actions; however this rule may not apply where there is a breach of human rights in relation to the raising or registration of a Clameur which involves any organ of the State or public authority as the Human Rights Act mandates the Court to consider the inconvenience and damage caused to the person whose rights were infringed and the legal, and travel costs incurred.
In practice, where a Clameur is properly raised against a State public authority, the practice is for the public authority to pay the advocat's fees of the infringed party.
The Timetable of the Clameur
For many years and prior to the Royal Assent of the Human Rights legislation in the Channel Islands, the extension was automatically granted for a year and a day and there was no monitoring to see if the Criant prosecuted the Clameur and its underlying cause.
Many people have suggested that the Clameur fails to survive under the Human Rights Act. This is not true. It is simply the timetable that changes.
Since the Royal Assent of the Human Rights legislation in the Channel Islands, the old rules have been superceded. The Article 6 rights to a fair trial in a reasonable period require the Court registering the Clameur to have regard to its draconian nature and to impose appropriate timetables. There is no doubt that the year and a day period is no longer valid.
The likely new timetable for a Clameur