- Guernsey Law Reports
- Subject-Matter Index
- SubjWORDS_AND_PHRASES
Subject-Matter Index
“After”
presumed that clause extending time for payment “after” specified day not to include that day (e.g. 21 days after May 1st runs from May 2nd to 22nd): Smith v. Atlantique Holdings Ltd. (C.A.), 2013 GLR 279
“As judged by trustee”
commercial situation “as judged by trustee” calls for subjective exercise of trustee’s judgment—since not objective question, no need for expert commercial witnesses as to relevant circumstances at time exercises judgment: Woodbourne Trustees Ltd. v. Generali Worldwide Ins. Co. Ltd. (Royal Ct.), 2009–10 GLR 131
“As of right”
appeal apparently “as of right” under Court of Appeal (Guernsey) Law 1961, s.16, for civil matter over £500, still requires leave of Court of Appeal by Judicial Committee (General Appellate Jurisdiction) Rules Order 1982, Schedule II, r.2—inherent jurisdiction to refuse leave if appeal clear abuse of process: Pirito v. Curth (C.A.), 2005–06 GLR 34
no appeal “as of right” to Judicial Committee under Court of Appeal (Guernsey) Law 1961, s.16, unless money claim for £500 or more—inapplicable to claim in which no sum in dispute, e.g. claim to impose or raise freezing order: Garnet Invs. Ltd. v. BNP Paribas (Suisse) S.A. (C.A.), 2009–10 GLR 1
“Behaviour”
in divorce petition for unreasonable behaviour, “behaviour” is actions, omissions or course of conduct by one party affecting other and with some reference to marriage—may include conduct after marriage regarding pre-marital matters, e.g. breaking pre-marital promise or disclosure of facts after marriage which should have been disclosed before—may occur whether parties living together or separated: F v. F (Royal Ct.), 2003–04 GLR N [29]
“Benefit”
wide construction to be given to concept of “benefit” in exercising discretion to vary under Trusts (Guernsey) Law 2007, s.57—includes not only financial benefit, but also social and moral benefit, e.g. encouraging beneficiaries to progress career and settle in life by not giving them substantial assets when too young: In re M Settlement (Royal Ct.), 2011–12 GLR 276
“Community”
in considering risk to community posed by applicant for parole with intention of living abroad, “community” may include community outside Guernsey: Bradley v. Parole Review Cttee. (Royal Ct.), 2005–06 GLR 335
“Contributions for support”
in Matrimonial Causes (Guernsey) Law 1939, art. 47, “contributions for support” include payments to assist other spouse to repay debts incurred during marriage—payment may be to spouse or direct to creditor—properly dealt with under art. 47 rather than by separate civil proceedings in Royal Court: C v. C (C.A.), 2005–06 GLR 199
“Covenant”
court’s power under Real Property (Reform) (Guernsey) Law 1987, s.18 to discharge or modify oppressive or unreasonable “covenants” allows discharge or modification of servitudes—“covenant” to be interpreted in general sense of agreement between persons in which they contract to do or allow something, or prevent or refrain from doing something, and so includes servitudes: Duquemin v. Dunstan Invs. Ltd. (Royal Ct.), 2003–04 GLR 537
“Creditor”
in absence of applicable definition of “creditor” in Companies (Guernsey) Law 2008, s.408, word to be given ordinary meaning, i.e. person to whom debt payable—may also encompass future and contingent creditors: In re Synergy Capital Ltd. (Royal Ct.), 2011–12 GLR 605
“Decision”
under Court of Appeal (Guernsey) Law, s.16, appeal as of right only from “decision” of Court of Appeal—“decision” final, not merely interlocutory: Spread Trustee Co. Ltd. v. Hutcheson (C.A.), 2009–10 GLR 403
“Duty”
under Offences against Police Officers (Bailiwick of Guernsey) Law 1963, s.1(2), “duty” may include, inter alia, keeping peace, detecting and preventing crime, protecting property from criminal injury and bringing offenders to justice: Bullock v. Law Officers (Royal Ct.), 2003–04 GLR N [14]
“Erect”
permission to “re-erect” structure not inherent in permission to “erect” under Island Development (Guernsey) Law 1966, s.14(1)(b)—separate and distinct operations requiring separate and new planning permissions, even if original erection demolished, destroyed, or taken down: Bird v. Environment Dept. (Minister) (Royal Ct.), 2007–08 GLR 272
“Essential ancillary works”
large building part of proposed development not “essential ancillary works” if developers express unequivocal intention to process products from other sites: Barrett v. Island Dev. Cttee. (C.A.), 2003–04 GLR 152
“Exceptional circumstances”
“exceptional circumstances” to be shown under Law Reform (Miscellaneous Proceedings) (Guernsey) Law 1987, s.1(7) before order made or continued in aid of foreign proceedings—additional and positive factors needed, depending on case, but court unwilling to lay down restrictive guidelines—powers of Guernsey courts more limited than English courts’ power to refuse order if inexpedient: Garnet Invs. Ltd. v. BNP Paribas (Suisse) S.A. (C.A.), 2009–10 GLR 1
“Execution”
for purposes of Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters, art. 14, restriction preventing reimbursement of costs for “execution” of letter of request not to include challenge to letter of request, whether during initial or subsequent hearing: Universal Trading & Inv. Co. Inc. v. Bassington Ltd. (Royal Ct.), 2014 GLR N [12]
“Expenditure”
relevant “expenditure” to trigger assumption in Drug Trafficking (Bailiwick of Guernsey) Law 2000, s.4(3)(b) that defendant’s expenditure in 6-year period prior to institution of proceedings met from proceeds of drug trafficking may include “virtuous” expenditure, e.g. mortgage repayments, household bills and child maintenance: Gilbert v. Law Officers (Royal Ct.), 2005–06 GLR N [30]
“Family life”
“family life” to be given respect under European Convention, art. 8 if dependent child—as between parent and adult child, no “family life” unless they can show additional elements of dependence: de Sousa v. Law Officers (C.A.), 2014 GLR 107
“Final judgment in the proceedings”
only registrable without leave of court if “final judgment in the proceedings” within meaning of Law Reform (Miscellaneous Provisions) (Guernsey) Law 1987, s.6—if no final substantive judgment, leave required for registration: Wrench v. Albany Hotel Ltd. (Royal Ct.), 2007–08 GLR N [20]
“For the benefit of”
wide construction to be given to concept of “benefit” in exercising discretion to vary trust under Trusts (Guernsey) Law 1989, s.52—includes not only financial benefit but also “social benefit” to family by facilitating long-term care of mentally disturbed beneficiary, providing educational and other social benefits, protecting immature beneficiary by postponing date of entitlement to funds, or maximizing tax-planning benefits: In re H Trust (Royal Ct.), 2007–08 GLR 118
“Forthwith”
payment ordered to be made “forthwith” to be made on next available business day, e.g. after no longer than 3 days if order made on December 24th (followed by 2 days’ bank holidays): Kaduna Ltd. v. Durtnell (R.) & Sons Ltd. (C.A.), 2003–04 GLR 208
“Fraud”
to justify stay under Arbitration (Guernsey) Law 1982, s.24(2) and allow court to adjudicate on dispute involving fraud, strict interpretation to be given to “fraud” as meaning “deceit” and involving dishonesty—mere allegation of “equitable fraud” insufficient—fraud to be clearly alleged and specifically pleaded: Ferbrache v. Kirk (Royal Ct.), 2007–08 GLR N [3]
“Home”
European Convention, art. 8(1) requires respect for residence in particular property, rather than whole Island—includes “home from time to time” and art. 8(1) therefore engaged by refusal of housing licence for home to which applicant proposes to move: Forrest v. Housing Dept. (Minister) (Royal Ct.), 2013 GLR N [3]
place where individual and family entitled to live in peace free from official interference—important part of human dignity and protected as such, rather than item of property: Thomas v. Housing Dept. (Minister) (Royal Ct.), 2007–08 GLR 251
“Indecent”
in absence of definition in Protection of Children (Bailiwick of Guernsey) Law 1985, s.3(1)(a), Magistrate to decide whether film of young girl “indecent”, i.e. whether offends against recognized standards of propriety in today’s society, without assistance of expert evidence: Mauger v. Law Officers (Royal Ct.), 2003–04 GLR N [13]
“Information”
under Trusts (Guernsey) Law 1989, s.22, beneficiary’s right to “information” includes documents: Stuart-Hutcheson v. Spread Trustee Co. Ltd. (C.A.), 2000–02 GLR 388
“Interest in property”
in Matrimonial Causes (Guernsey) Law 1939, art. 46, “interest in property” refers only to allocation or division of assets—allocation of spouse’s liabilities (e.g. debts to third parties) to other spouse not within scope of art. 46: C v. C (C.A.), 2005–06 GLR 199
“interest in property” in Matrimonial Causes (Guernsey) Law 1939, art. 46 includes encumbrances on property—may use art. 46 to order variation of mortgage liabilities on matrimonial home as part of fair allocation of parties’ assets—powers to be used to deal with widest range of property and give maximum flexibility in reaching equitable division of parties’ property: E v. E (C.A.), 2007–08 GLR 374
“Interested party”
under Companies (Guernsey) Law 2008, s.408, “interested party” is person interested in company in respect of which winding-up application pursued, in sense broadly equivalent to, but distinct from, way in which persons named in s.408 (i.e. creditors, members and directors of company) are interested: In re Synergy Capital Ltd. (Royal Ct.), 2011–12 GLR 605
“Just and equitable”
role of Guernsey Financial Services Commission in seeking “just and equitable” winding up of fiduciary under Regulation of Fiduciaries, Administration Businesses and Company Directors, etc. (Bailiwick of Guernsey) Law 2000, s.34, to act on behalf of members of company when desirable—court to focus on whether winding up for benefit of members: Guernsey Fin. Servs. Commn. v. Claridges Trustees Ltd. (Royal Ct.), 2007–08 GLR N [19]
“Les meubles sont le siège des dettes”
customary law rule that “les meubles sont le siège des dettes” remains applicable—action for payment for payment of deceased’s debt on intestacy to be brought first against heirs to personal estate and only if personalty insufficient against heirs to real estate: L v. O (Royal Ct.), 2009–10 GLR 362
“Likely to suffer”
child “likely to suffer” significant impairment to health or development, under Children (Guernsey and Alderney) Law 2008, s.35(2), if real possibility (i.e. possibility that cannot sensibly be ignored having regard to nature and gravity) of significant impairment: In re K (A Minor) (Royal Ct.), 2014 GLR 227
“Manifestly excessive”
recommendation for deportation “manifestly excessive” if fails to achieve proportionate balance between offender’s Convention rights and factors in favour of deportation: Fernandes v. Law Officers (C.A.), 2014 GLR N [8]
“Material circumstances”
in exercising discretion under Housing (Control of Occupation) (Guernsey) Law 1994, s.6A to consider further application for housing licence, court to consider whether “significant change in any material circumstances”—phrase to be given ordinary meaning in absence of guidance in legislation—“material circumstances” are those relevant to decision-making process, including factors Board took into account in refusing original application: Carr v. Housing Dept. (Minister) (Royal Ct.), 2011–12 GLR N [22]
“Medicinal product”
for purposes of Import and Export (Control) (Guernsey) Law 1946, “medicinal product” as defined by art. 1(2) of Council Directive 2001/83/EC, i.e. (a) any substance or combination of substances presented as having properties for treating or preventing disease in human beings, or (b) any substance or combination of substances which may be used in or administered to human beings either with view to restoring, correcting or modifying physiological functions by exerting pharmacological, immunological or metabolic action, or to making medical diagnosis: Law Officers v. Le Billon (C.A.), 2011–12 GLR 128
“Miscarriage of justice”
“miscarriage of justice”—no settled meaning but used to describe wide variety of circumstances in which accused treated unfairly, so that convicted when demonstrably innocent, or otherwise should not have been convicted: A v. Law Officers (Royal Ct.), 2013 GLR 22
“No real prospect”
no leave to appeal to Court of Appeal if appeal has “no real prospect of success”—may nevertheless be granted if applicant willing to comply with conditions as to payment into court and security for costs advanced by respondent: Musa Holdings Ltd. v. Newmarket Holdings (Guernsey) Ltd. (Royal Ct.), 2013 GLR 383
summary judgment granted under Royal Court Civil Rules 2007, r.19(2) if defendant has “no real prospect of successfully defending claim”—“real” distinguished from fanciful or merely arguable—court to assess on evidence available to it, avoiding mini-trial if possible: Musa Holdings Ltd. v. Newmarket Holdings (Guernsey) Ltd. (C.A.), 2014 GLR 41
“Obstructs”
under Offences against Police Officers (Bailiwick of Guernsey) Law 1963, s.1(2), “obstructs” means makes more difficult for police to execute duties: Bullock v. Law Officers (Royal Ct.), 2003–04 GLR N [14]
“Obtain”
no confiscation order unless trafficked goods “obtained” by offender—courier or custodian unlikely to “obtain” goods, since requires ownership with power of disposition or control: In re Butler (Royal Ct.), 2015 GLR N [2]
“Permissible management expenses”
in Income Tax (Guernsey) Law 1975, s.169, expenses “laid out or expended wholly and exclusively for the purpose of managing the company” in context of investment companies encompass cost of dealing in investments, safe custody, the collection of income and implementing administrative measures: Income Tax Administrator v. Cachemar Ltd. (Royal Ct.), 2005–06 GLR 161
in Income Tax (Guernsey) Law 1975, s.169, “management” to be given broad construction, to include both making and executing management decisions—cost of acquiring or disposing of capital assets not “permissible management expense”: Income Tax Administrator v. Cachemar Ltd. (C.A.), 2005–06 GLR 314
“Permission”
Land Planning and Development (Guernsey) Law 2005, s.75 prohibits challenge to “permission”—by interpreting so as to make Convention-compliant (Human Rights (Bailiwick of Guernsey) Law 2000, s.3), “permission” limited to final permission document—preliminary resolution of Board at open planning meeting may be challenged: Groucutt v. Environment Dept. (Minister) (Royal Ct.), 2015 GLR 406
“Personal property”
“personal property” under Matrimonial Causes (Guernsey) Law 1939, as amended, art. 46 includes tenancies (including States tenancies): L v. L (Royal Ct.), 2005–06 GLR N [4]
“Perversely”
contractual discretion not to be exercised perversely—“perversely” means so perverse that no reasonable body, properly directing itself to applicable law, could have reached such a decision: Woodbourne Trustees Ltd. v. Generali Worldwide Ins. Co. Ltd. (Royal Ct.), 2011–12 GLR N [5]
“Possessions”
under European Convention, First Protocol, art. 1, most rights with economic value are “possessions”—not limited to tangible assets—funds standing to credit of customer in bank account not customer’s property and therefore not “possessions,” but customer’s right to demand payment of money from bank of economic value and therefore a “possession”: Customs & Excise, Immigration & Nationality Service (Chief Officer) v. Garnet Invs. Ltd. (C.A.), 2011–12 GLR 250
“Preventing crime”
under Offences against Police Officers (Bailiwick of Guernsey) Law 1963, s.1(2), “preventing crime” includes setting up police speed trap at roadside, as both deterrent and detection method: Bullock v. Law Officers (Royal Ct.), 2003–04 GLR N [14]
“Prima facie case”
in resisting application to strike out derivative action, requirement to show “prima facie case” means stronger case than “arguable case”—plaintiff to show case not spurious or speculative, is serious, bona fide on reasonable grounds, in interests of company and sufficiently strong to continue: Jackson v. Dear (Royal Ct.), 2013 GLR 167
“Private life”
broad concept covering all aspects of physical identity and psychological integrity, right to establish and develop relationships with others and with outside world—personal autonomy and individual’s right to live as chooses underlie Convention guarantees: Thomas v. Housing Dept. (Minister) (Royal Ct.), 2007–08 GLR 251
social ties established by long residence in Guernsey and presence of sibling and remoter relatives in Island are aspects of “private life” eligible to be given respect under European Convention, art. 8—less weight to be given to them if absence of dependency: de Sousa v. Law Officers (C.A.), 2014 GLR 107
“Provided”
for purposes of Companies (Transitional Provisions) Regulations 2008, reg. 10, open contractual offer to future directors on terms of articles “provided” when articles adopted, not when offer accepted by director, e.g. on appointment—not affected by change of numbering if no change of wording so as to make fresh “provision”: Perpetual Media Capital Ltd. v. Enevoldsen (Royal Ct.), 2013 GLR 310
under Companies (Transitional Provisions) Regulations 2008, reg. 10, legal protection “provided” when recipient actually receives protection offered—open offer to future directors by articles of association “provided” when director accepts appointment: Perpetual Media Capital Ltd. v. Enevoldsen (C.A.), 2014 GLR 57
“Public”
in Companies (Guernsey) Law 1994, s.96B(1), “protection of public” interpreted widely to include members of public anywhere (not limited to Guernsey), including clients of companies being wound up and those affected by their work, e.g. beneficiaries of trusts: Guernsey Fin. Servs. Commn. v. Claridges Trustees Ltd. (Royal Ct.), 2007–08 GLR N [19]
“Question of law”
no leave required to appeal to Court of Appeal under Court of Appeal (Guernsey) Law 1961, s.15(d) if “question of law” contested in Royal Court, parties expected it to be decided there and remains live issue to be decided on appeal—may be question of law embedded in question of mixed law and fact: Ferbrache v. C & R Homes (Guernsey) Ltd. (C.A.), 2009–10 GLR 455
“Question of law alone”
for purposes of Court of Appeal (Guernsey) Law 1961, s.24(a) appeal unlikely to be as of right on “question of law alone” if goes beyond assertion that wrong decision or direction on law—if extends to whether decision unreasonable or cannot be supported on evidence, becomes question of mixed law and fact, requiring leave to appeal under s. 24(b): Taylor v. Law Officers (C.A.), 2007–08 GLR 207
“Reasonable cause of action”
under Royal Court Civil Rules 1989, r.36, court may order proceedings to be struck out if no “reasonable cause of action” disclosed—“reasonable cause of action” one with some chance of success when considering only allegations in pleadings: IFS Invs. Ltd. v. Manor Park (Guernsey) Ltd. (Royal Ct.), 2003–04 GLR 308
“Reconstruction”
“reconstruction” within Companies (Guernsey) Law 2008, s.111(1)(a) means business not terminated or sold but carried on in altered but substantially same way as originally intended by investors—not necessary that all assets pass to reconstructed company or that all shareholders remain same: In re Montenegro Invs. Ltd. (Royal Ct.), 2013 GLR 345
“Reference”
to justify order for disclosure of document under Royal Court Civil Rules 1989, r.41(2), “reference” in affidavit to document must be direct allusion or express reference to documents or class of documents, insufficient merely to give reader strong grounds to suspect existence of particular document: Klabin v. Technocom Ltd. (C.A.), 2000–02 GLR 439
“Repair”
“repair” equivalent to “mending” and connotes making good defects—cleaning oil spillage on road surface not therefore “repair” but may be administrative misfeasance if done negligently and hazard remains: De Carteret v. States (Royal Ct.), 2003–04 GLR 612
“Sentence”
under Court of Appeal (Guernsey) Law, s.24, “sentence” includes confiscation order made under Drug Trafficking (Bailiwick of Guernsey) Law 2000 for purposes of enabling appeal: Gilbert v. Law Officers (Royal Ct.), 2005–06 GLR N [30]
“Significant impairment”
“significant impairment” to child’s health or development in Children (Guernsey and Alderney) Law 2008, s.35(2) not same as “significant harm” in s.31 of English Children Act 1989—definition of significant harm may nevertheless assist interpretation of significant impairment: In re K (A Minor) (Royal Ct.), 2014 GLR 227
“Special circumstances”
for purposes of obtaining indemnity costs under Royal Court Civil Rules 1989, r.48(4)(a), “special circumstances” usually concern conduct of party—inadequacy of recoverable costs not special circumstance: Silver Falcon Enterprises Ltd. v. Cochrane (Royal Ct.), 2000–02 GLR N [12]
in Court of Appeal (Civil Division) (Guernsey) Rules 1964, r.12(5), “special circumstances” to include appellant’s impecuniosity or residence outside jurisdiction, appeal abuse of process or vexatious, or real danger respondent unable to enforce costs order: Smith v. Atlantique Holdings Ltd. (C.A.), 2013 GLR 260
under Royal Court Civil Rules 1989, r.48(4)(a), incident occurring at sea not of itself “special circumstance” in which court may order costs on indemnity basis, as otherwise all such incidents would attract indemnity costs—seriously inadequate payment into court could constitute “special circumstance,” e.g. when court considering adequacy of offer to settle claim: Thompson v. Masterton (Royal Ct.), 2003–04 GLR 332
“Special reasons”
disqualification from driving if convicted of driving with excess alcohol mandatory, but “special reasons” for not disqualifying driver may be established—probably only found if dire emergency, driving necessary and no reasonable possibility of assistance from others, e.g. emergency services or friends—high blood-alcohol level and danger to public militate against finding special reasons: Law Officers v. Leadbeater (Royal Ct.), 2005–06 GLR N [25]
“Submit”
in jurisdiction clause, if “submit” used in intransitive sense (e.g. parties agree to “submit to jurisdiction”), suggests non-exclusivity of clause—if used in transitive sense (e.g. parties agree to “submit all disputes” to jurisdiction), suggests exclusivity of clause: Winnetka Trading Corp. v. Bank Julius Baer & Co. Ltd. (C.A.), 2009–10 GLR 260
“Surplus accommodation”
property not “surplus accommodation” under Strategic and Corporate Plan 2005, Policy 7 unless Environment Department decides to permit change of use in accordance with Rural Area Plan: Grand Havre Holdings Ltd. v. Environment Dept. (Minister) (Royal Ct.), 2005–06 GLR N [8]
“Terms of the trust”
under Trusts (Guernsey) Law 2007, s.80, “terms of the trust” means written or oral terms of trust and any other terms applicable under its proper law—includes terms of deed executed later than trust instrument: In re P Trust (Royal Ct.), 2011–12 GLR N [18]
“Terms of trust”
under Trusts (Guernsey) Law 1989, s.73(1), “terms of trust” includes written oral terms and other terms applicable under proper law: Stuart-Hutcheson v. Spread Trustee Co. Ltd. (C.A.), 2000–02 GLR 388
“Transaction”
in Protected Cell Companies Ordinance 1997, s.27, definition of “transaction” sufficiently wide to include amalgamation proposal—supports view that in amalgamation of protected cell company with non-cellular company, assets and liabilities of non-cellular company attach to individual cell which has, by s.11, to be identified or specified in any future transaction affecting it: In re AB Intl. Fund PCC Ltd. (Royal Ct.), 2007–08 GLR 347
“Value of matter in dispute”
for appeal as of right to Judicial Committee under Court of Appeal (Guernsey) Law 1961, s.16, “value of matter in dispute” requires money claim for £500 or more—inapplicable to claim in which no sum in dispute, e.g. claim to impose or raise freezing order on funds of any value: Garnet Invs. Ltd. v. BNP Paribas (Suisse) S.A. (C.A.), 2009–10 GLR 1
leave required to appeal to Court of Appeal under Court of Appeal (Guernsey) Law 1961, s.15(d) if “value of matter in dispute” less than £200—sum “in dispute” is that awarded in Royal Court judgment against which appeal brought—value of original sum sought in cause or at trial, if different, not relevant as no longer in issue: Ferbrache v. C & R Homes (Guernsey) Ltd. (C.A.), 2009–10 GLR 455
“Wilful misconduct”
meaning of “wilful misconduct” in Trusts (Guernsey) Law 2007, s.39(7)(a) explained: Zaleski v. GM Trustees Ltd. (Royal Ct.), 2015 GLR N [7]
“Within”
specified period “within” which act to be done may in context be intended to include all days within that period, including first day: Smith v. Atlantique Holdings Ltd. (C.A.), 2013 GLR 279
“Without prejudice as to costs”
offer to settle made “without prejudice as to costs” less significant than payment into court or offer to settle made under Royal Court Civil Rules 2007, r.62—but always important and court to consider how much weight to give it in circumstances of case: Buckley v. Ronez Ltd. (Royal Ct.), 2009–10 GLR 120
“Wrong in principle”
recommendation for deportation “wrong in principle” if fails to consider material factor supporting offender’s Convention rights, or unjustifiably considers significant factor in favour of deportation: Fernandes v. Law Officers (C.A.), 2014 GLR N [8]