Subject-Matter Index

Administrative misfeasance

maintenance of highway

if highway authority acts to clean oil spillage on road surface, duty to do so without negligence—may be liable for misfeasance if done negligently and hazard remains—total failure to act may be nonfeasance, for which no liability: De Carteret v. States (Royal Ct.), 2003–04 GLR 612

Administrative nonfeasance. See Administrative misfeasance—maintenance of highway

Alternative remedies. See Judicial review—alternative remedies

Amenability to judicial review. See Judicial review—amenability to judicial review

Appeals

costs

security for costs

may be ordered unless appellant shows resources insufficient to meet costs order against him—if insufficient, court to balance injustice in stifling potentially meritorious claim against injustice to respondent of being unable to recover costs of successful defence—to inquire into grounds of appeal to ascertain that genuine and, if so, not normally to make order stifling appeal: Canivet Webber Fin. Servs. Ltd. v. Guernsey Fin. Servs. Commn. (C.A.), 2007–08 GLR N [25]

no “impairing of essence” of right of access to courts guaranteed by European Convention on Human Rights, art. 6 by making order for security for costs on appeal, especially since substantive merits of appeal examined before making order: Canivet Webber Fin. Servs. Ltd. v. Guernsey Fin. Servs. Commn. (C.A.), 2007–08 GLR N [25]

grounds of appeal

unreasonableness—decision of Jurats as matter of fact that Committee decision reasonable conclusive even though by majority—minority disagreement not to be taken as indicative of possibility of unreasonableness: Environment Dept. (Minister) v. Johns (C.A.), 2007–08 GLR 174

hearing de novo

Royal Court to disregard outcome of earlier appeal to Housing Department, since Department considers application afresh on appeal and court to do same—to consider all relevant factors anew and conduct balancing exercise in deciding whether licence decision correct: Boulton v. Housing Dept. (Minister) (Royal Ct.), 2009–10 GLR N [9]

statutory appeal. See Appeals—terms of statutory appeal

terms of statutory appeal

grounds of appeal under Sea Fishing Licensing (Bailiwick of Guernsey) Law 2012, s.17 closely resemble grounds for claiming Wednesbury unreasonableness—“lack of proportionality” under s.17(2)(d) may be broadly equivalent to “unreasonableness” but decision unnecessary here: Channing v. States (C.A.), 2015 GLR 389

tribunals. See Tribunals—appeals

unreasonable decision

fettering discretion

discretion of public authority not to be fettered by reliance on opinion of another Department—abdication of responsibility unreasonable—if implementing policy, not only to decide whether applicant within policy guidelines but also whether exception should be made to policy: Kinley v. Housing Dept. (Minister) (Royal Ct.), 2009–10 GLR 157

if implementing policy, to decide whether applicant within policy guidelines or whether exception justified as proportionate—although open market residents not normally granted housing licences, proportionate exception may be justified, e.g. if States development policy forces long-term resident out of home, cannot afford other open market property, strong Guernsey familial connections, and granting licence sets precedent for very few other open market residents: Campbell v. States Housing Auth. (Royal Ct.), 2000–02 GLR 367

public authority may have and implement policy if (a) conforms with law; and (b) prepared to treat as not inflexibly binding and depart from it in appropriate circumstances: Channing v. States (C.A.), 2015 GLR 389

Civil servants

redundancy. See EMPLOYMENT (Redundancy—civil servants)

Committee for Affairs of Jersey and Guernsey. See Judicial review—Committee for Affairs of Jersey and Guernsey

Coroner’s inquests. See Judicial review—Coroner’s inquests

Costs. See Appeals—costs

Decisions of administrative bodies

reasons for decision

no general duty on FIS to give reasons for refusing consent to dealing with funds under Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law 1999, s.39(3), since may risk revealing sensitive information about inquiries to suspects—in public interest to give reasons if able to do so without frustrating inquiry, but failure to give reasons in such case not procedural impropriety: Customs & Excise, Immigration & Nationality Service (Chief Officer) v. Garnet Invs. Ltd. (C.A.), 2011–12 GLR 250

Delay. See Judicial review—delay

Fettering discretion. See Appeals—unreasonable decision

Guernsey Financial Services Commission. See Judicial review—Guernsey Financial Services Commission

Hearing de novo. See Appeals—hearing de novo

H.M. Procureur. See Judicial review—H.M. Procureur. CRIMINAL LAW (Fraud—investigation by H.M. Procureur)

Judicial review

alternative remedies

leave to apply for judicial review only very rarely granted if statutory appeal procedure: X Ltd. v. Guernsey Fin. Servs. Commn. (Royal Ct.), 2017 GLR 1

amenability to judicial review

application for judicial review of FIS’s refusal of consent to dealing with funds under Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law 1999, s.39(3) on suspicion of money laundering may be refused if applicant’s control of funds in fact curtailed by bank’s refusal to undertake instruction to transfer and broad application of consent regime under s.39(3) justified: Customs & Excise, Immigration & Nationality Service (Chief Officer) v. Garnet Invs. Ltd. (C.A.), 2011–12 GLR 250

availability of alternative remedy not necessarily bar to judicial review of alleged unreasonable decision, but court may refuse judicial review if private law action better suited, e.g. because detriment not in fact caused by administrative decision and allows for necessary in-depth investigation of evidence: Customs & Excise, Immigration & Nationality Service (Chief Officer) v. Garnet Invs. Ltd. (C.A.), 2011–12 GLR 250

availability of alternative remedy precludes judicial review unless exceptional circumstances, particularly if statutory appeal procedure: X Ltd. v. Guernsey Fin. Servs. Commn. (Royal Ct.), 2017 GLR 1

change of Public Sector Remuneration Committee’s long-standing policy to grant full redundancy benefit enhancement amenable to judicial review if generally applicable to members of pension scheme and each has equal chance of being detrimentally affected: Bichard v. States (Royal Ct.), 2005–06 GLR 388

provisional decision of Guernsey Financial Services Commission that minded to exercise enforcement powers not amenable to judicial review—not final decision with legal effect: X Ltd. v. Guernsey Fin. Servs. Commn. (Royal Ct.), 2017 GLR 1

Committee for Affairs of Jersey and Guernsey

Committee’s decision to recommend Privy Council to give Royal Assent to projet de loi amenable to judicial review in UK if relevant Order in Council made both in right of Guernsey and in right of UK—may nonetheless be undesirable to exercise jurisdiction as Guernsey courts have stronger claim to entertain challenge to Bailiwick legislation allegedly breaching human rights: R. (Barclay) v. Justice Secy. (No. 2) (UK Supreme Ct.), 2014 GLR 201

Committee’s decision to recommend Privy Council to give Royal Assent to projet de loi amenable to judicial review in UK if wrongly states involves no breach of UK’s obligations under European Convention: R. (Barclay) v. Justice Secy. (UK Supreme Ct.), 2009–10 GLR 314

Coroner’s inquests

in absence of statutory appeal provision, Royal Court has power to review decisions of Coroner as part of general jurisdiction to review decisions of inferior bodies—may quash verdict of inquest in appropriate circumstances: Kirk v. Law Officers (Royal Ct.), 2000–02 GLR N [23]

delay

although guideline for “prompt” commencement of proceedings is maximum 3 months from decision to be reviewed, court always to consider whether that period too long—in circumstances of individual case, 10 weeks may be more than ample time to commence review of planning decision, allowing time to consider alternatives, gather information, communicate between advocates, etc.: Groucutt v. Environment Dept. (Minister) (Royal Ct.), 2015 GLR 406

burden of proving delay justifiable lies on applicant—inability to explain delay of 11 months from granting of licence challenged to application for review defeats claim: Litchfield v. Environmental Health & Pollution Regulation (Director) (C.A.), 2014 GLR 175

no statutory time limit—under Practice Direction (Royal Ct.) (Judicial Review) (03/04), para. 6, proceedings to be instituted “promptly”—depends on circumstances of particular case—as rule of thumb, application to be made within 3 months of claim first arising—challenges to search warrants and orders for production of special material expected to be brought well within 3-month period—unfair to dismiss application made within 8 weeks if applicants relying on earlier case suggesting 3-month limit: Bell v. Judge of Royal Ct. (C.A.), 2016 GLR 77

under Practice Direction No. 3 of 2004, judicial review to be brought promptly—whether brought “promptly” depends on circumstances—judicial review may still be permitted if delay reasonable, e.g. because difficulties in communicating with relevant (foreign) authorities, and no hardship caused to body under review or any third party: Customs & Excise, Immigration & Nationality Service (Chief Officer) v. Garnet Invs. Ltd. (C.A.), 2011–12 GLR 250

under Practice Direction No. 3 of 2004, para. 6, proceedings to be instituted “promptly”—inappropriate for Guernsey court to define further but English statutory limit of 3 months from claim first arising usually good guide—unjustifiable delay will defeat application and court therefore to consider whether good reasons for delay; hardship, prejudice or detriment to any third party; and requirements of good administration: Litchfield v. Environmental Health & Pollution Regulation (Director) (C.A.), 2014 GLR 175

under Practice Direction No. 3 of 2004, para. 6, proceedings to be instituted “promptly”—litigant in person refused leave to pursue judicial review proceedings for inordinate delay: Merrien v. Registrar of la Chambre de Discipline (Royal Ct.), 2022 GLR 225

existence of remedy

remedy of judicial review exists in Guernsey—inherent jurisdiction of courts to control excess or abuse of power by executive bodies essential to rule of law—previous informal system of remedying failures in administration or government out of date and inappropriate for Guernsey as important international finance centre: Bassington v. H.M. Procureur (C.A.), 1997–99 GLR 180

Guernsey Financial Services Commission

issue of notice that Commission minded to exercise enforcement powers not amenable to judicial review—provisional stage in decision-making process, not final decision with legal effect—alternative remedy to challenge final decision, i.e. appeal under Financial Services Commission (Bailiwick of Guernsey) Law 1987: X Ltd. v. Guernsey Fin. Servs. Commn. (Royal Ct.), 2017 GLR 1

H.M. Procureur

exercise of powers under Criminal Justice (Fraud Investigation) (Bailiwick of Guernsey) Law 1991 to investigate serious or complex fraud amenable to judicial review: Bassington v. H.M. Procureur (C.A.), 1997–99 GLR 180

Holland v. H.M. Procureur (Royal Ct.), 2000–02 GLR N [22]

Income Tax Director

decision to issue notice pursuant to Income Tax (Guernsey) Law 1975, s.75B not non-justiciable—decision made under domestic law not Tax Information Exchange Agreement: A v. Income Tax Director (C.A.), 2016 GLR 382

lawfulness of decision to issue notice pursuant to Income Tax (Guernsey) Law 1975, s.75B to be assessed by Guernsey courts, not courts of requesting country—recourse to courts of requesting country not alternative remedy precluding judicial review: A v. Income Tax Director (C.A.), 2016 GLR 382

leave to apply

applicant for judicial review not first required to seek leave—misconceived or delayed application may be struck out summarily: States v. Jersey Fishermen’s Assn. Ltd. (C.A.), 2005–06 GLR 226

not granted unless arguable ground for judicial review having real prospect of success and no discretionary bar, e.g. delay or alternative remedy available: X Ltd. v. Guernsey Fin. Servs. Commn. (Royal Ct.), 2017 GLR 1

preliminary application normally required for permission to proceed, followed by substantive hearing if permission granted—for court to decide whether just and best use of resources to divide proceedings in this way—separate hearing at permission stage may be unjust to applicant by increasing expense and delay: Litchfield v. Environmental Health & Pollution Regulation (Director) (C.A.), 2014 GLR 175

legitimate expectation of applicant

legitimate expectation of full redundancy benefit enhancement if previous clear policy of Public Sector Remuneration Committee to grant it changed without full consultation with Pensions Consultative Committee—consultation to include consideration of all relevant factors, e.g. reasons for change, close analysis of States’ financial position and whether feasible to grant smaller enhancement rather than none: Bichard v. States (Royal Ct.), 2005–06 GLR 388

litigants in person. See Judicial review—delay

locus standi

applicant living 30 metres from potential source of pollution assumed to have sufficient interest to apply for judicial review of decision licensing waste wood incinerator: Litchfield v. Environmental Health & Pollution Regulation (Director) (C.A.), 2014 GLR 175

court first to consider applicant’s locus standi (whether “sufficient interest in matter”)—may consider twice if necessary (a) on initial application for permission to continue proceedings (when generally undesirable to consider in great detail), and (b) when determining substantive issue (applicant’s interest closely involved in legal and factual context, justifying more serious consideration): Litchfield v. Environmental Health & Pollution Regulation (Director) (C.A.), 2014 GLR 175

Parole Review Committee

in quashing Committee’s decision to refuse parole, Wednesbury standard of unreasonableness to be established—not to apply test for Jurat unreasonableness: Baker v. Parole Review Cttee. (Royal Ct.), 2011–12 GLR N [10]

permission to proceed. See Judicial review—leave to apply

Privy Council

decision to authorize Royal Assent to projet de loi amenable to judicial review in UK if based on incorrect statement by Committee for Affairs of Jersey and Guernsey that involves no breach of UK’s obligations under European Convention: R. (Barclay) v. Justice Secy. (UK Supreme Ct.), 2009–10 GLR 314

decision to recommend Royal Assent to projet de loi amenable to judicial review in UK if relevant Order in Council made both in right of Guernsey and in right of UK—may nonetheless be undesirable to exercise jurisdiction as Guernsey courts have stronger claim to entertain challenge to Bailiwick legislation allegedly breaching human rights: R. (Barclay) v. Justice Secy. (No. 2) (UK Supreme Ct.), 2014 GLR 201

procedure

Guernsey courts guided by English practice in absence of specific Guernsey rules but more flexibility permitted than in England—conduct of proceedings determined by directions of presiding judge “as he sees fit” (Practice Direction No. 3 of 2004, para. 7)—inappropriate to lay down general criteria for courts to apply—each case to be reviewed in light of own circumstances: Litchfield v. Environmental Health & Pollution Regulation (Director) (C.A.), 2014 GLR 175

implied in Practice Direction No. 3 of 2004, para. 7 that court may dismiss application without hearing respondent if satisfied that no case fit for further consideration—formalities applicable to issue of summons should in any case make it virtually impossible for claim to be commenced in these circumstances: Litchfield v. Environmental Health & Pollution Regulation (Director) (C.A.), 2014 GLR 175

proper respondent

applicant refused permission to proceed with judicial review of Guernsey Bar’s handling of his complaint against advocate—Guernsey Bar wrong respondent—no realistic prospect of success as La Chambre de Discipline responsible for complaints, not Guernsey Bar: A v. Guernsey Bar (Royal Ct.), 2020 GLR 63

Royal Court

decision of judge, exercising power granted to Bailiff under Police Powers and Criminal Evidence (Bailiwick of Guernsey) Law 2003, Schedule 1 to order production of special material, not decision of court (no customary rights of appeal)—amenable to judicial review on usual grounds: Bell v. Judge of Royal Ct. (C.A.), 2016 GLR 77

interlocutory ruling of Royal Court (Full Court) in criminal trial not amenable to judicial review by Royal Court (Ordinary Court)—as would effectively involve creation of interlocutory appellate procedure, any change to be made by statute and not by judicial decision: Law Officers v. Taylor (Royal Ct.), 2011–12 GLR N [2]

States of Guernsey

ordinances enacted by States probably subject to judicial review if made on basis of incorrect legal advice: Jersey Fishermen’s Assn. Ltd. v. States (Privy Council), 2007–08 GLR 36

Legitimate expectation of applicant. See Judicial review—legitimate expectation of applicant

Maintenance of highway. See Administrative misfeasance—maintenance of highway

Misfeasance. See Administrative misfeasance

Nonfeasance. See Administrative misfeasance—maintenance of highway

Privy Council. See Judicial review—Privy Council

Public officers

judicial review. See Judicial review—amenability to judicial review. Judicial review—legitimate expectation of applicant

redundancy. See EMPLOYMENT (Redundancy—civil servants)

vicarious liability of States of Guernsey

customs officers

States and Customs & Immigration Department not vicariously liable for torts of customs officers committed during law enforcement activities—officers remain personally liable and subject to action for damages Le Huray v. States (Royal Ct.), 2011–12 GLR 61

vicariously liable for torts of customs officers in exercise of law enforcement powers (e.g. arrest, detention, etc.), since those powers conferred by delegation from Chief Revenue Officer or Department—no exercise of original authority even when engaged in joint law enforcement operations with police: Le Huray v. States (C.A.), 2011–12 GLR 396

police officers—States and Home Department not vicariously liable for torts of police officers who, though public servants, carry out operational duties (e.g. arrest, detention and charge) as independent officials exercising original authority under law and not as employees—officers remain personally liable Le Huray v. States (Royal Ct.), 2011–12 GLR 61

Le Huray v. States (C.A.), 2011–12 GLR 396

Public Sector Remuneration Committee

change of policy. See Judicial review—amenability to judicial review. Judicial review—legitimate expectation of applicant

Royal Court. See Judicial review—Royal Court

Security for costs. See Appeals—costs

States of Guernsey

judicial review. See Judicial review—States of Guernsey

vicarious liability. See Public officers—vicarious liability of States of Guernsey

Tribunals

appeals

Guernsey Tax Tribunal. See INCOME TAX (Guernsey Tax Tribunal)

no power for Utility Appeals Tribunal to extend time for appeal under Regulation of Utilities (Bailiwick of Guernsey) Law 2001, s.15(4), since extension without statutory authority would effectively confer extra jurisdiction not intended by States—proceedings taken outside time limit invalid: Cable & Wireless Guernsey Ltd. v. Office of Utility Regulation (Dir. Gen.) (Royal Ct.), 2007–08 GLR N [7]

Child, Youth & Community Tribunal. See FAMILY LAW (Children—care requirement)

Employment & Discrimination Tribunal. See EMPLOYMENT (Employment & Discrimination Tribunal)

jurisdiction

inherent jurisdiction. See EMPLOYMENT (Employment & Discrimination Tribunal—regulation of Tribunal’s procedure)

tribunal regulated by statute cannot confer jurisdiction on itself, even if all necessary parties to decision consent—mistaken extension of time for appeal not excusable as mere “procedural irregularity,” since non-compliance with time limit not irregularity but mistake going to jurisdiction—decision without jurisdiction invalid: Cable & Wireless Guernsey Ltd. v. Office of Utility Regulation (Dir. Gen.) (Royal Ct.), 2007–08 GLR N [7]

Unreasonable decision. See Appeals—unreasonable decision

Vicarious liability of States of Guernsey. See Public officers—vicarious liability of States of Guernsey