Subject-Matter Index

Advocate’s own matrimonial proceedings. See Duties to client—confidentiality

Advocates’ Rules of Professional Conduct. See Professional etiquette—codes of conduct

Affidavits. See Duties to court—presentation of case

Assistance in drafting summing-up. See Duties to court—assistance with judge’s summing-up

Availability for hearing. See CIVIL PROCEDURE (Adjournment—availability of counsel)

Bill of costs. See Costs—taxation of costs

Choice of advocate. See Duties to client—conflict of interest

Closing speeches in criminal case. See CRIMINAL PROCEDURE (Closing speeches)

Codes of conduct. See Professional etiquette—codes of conduct

Complaint against advocate. See Disciplinary proceedings—Registrar’s handling of complaint

Confidentiality. See Duties to client—confidentiality. Removal of advocate—discretion of court

Conflict of interest. See Duties to client—conflict of interest. Removal of advocate—discretion of court

Costs

litigants in person

if advocate involved in litigation in personal capacity chooses to act as litigant in person, will be so treated by court—if advocate instructs firm in which partner or employed, client–advocate relationship arises: Lovering v. Atkinson Ferbrache Richardson Advocates & Notaries Public (Royal Ct.), 2018 GLR N [1]

maximum recoverable rate

maximum recoverable rate provided in Court of Appeal (Civil Division) (Costs and Fees) (Guernsey) Rules 2012, r.3(2) unless court orders otherwise, which will be rare—no uplift justified in case concerning dissolution of limited partnership—value of claim not huge (US$23m.); legislation not new (Limited Partnerships (Guernsey) Law 1995); and trial of 9 or 10 days not extraordinary: In re CRGF LP (C.A.), 2023 GLR 378

personal liability

advocates may be liable for costs if “sufficient dereliction of duty” linked to wasted costs—dereliction sufficient if advocate falls “far short” in duties to client or court—no requirement that conduct inappropriate—sufficiently linked if, on balance of probabilities, costs would not have been incurred but for advocate’s conduct—Royal Court unable to follow new test under English Civil Procedure Rules: Braun v. Brantridge Estates Ltd. (Royal Ct.), 2014 GLR N [5]

automatic breach of duty if action becomes périmée unless due to client’s instructions—seriousness of breach depends on consequences of péremption—sufficiently serious to warrant wasted costs order if became périmée despite extensions to time limit; advocate failed to apply for further extension; was not in appropriate contact with client; and application to restore case to roll fails—when nothing to suggest wasted costs application would be made unless action became périmée, advocates only liable for costs incurred after péremption: Braun v. Brantridge Estates Ltd. (Royal Ct.), 2014 GLR N [5]

court not to make wasted costs order unless breach of duty can be dealt with in summary judgment—may order payment of wasted costs if facts readily available to court, are in documentary evidence, and advocate had fair and full opportunity to present his case—order not substitute for negligence claim by client: Braun v. Brantridge Estates Ltd. (Royal Ct.), 2014 GLR N [5]

failure to comply with time limit usually insufficient to warrant wasted costs order—may be sufficient if limit imposed by court order or rules of court and missed due to advocate’s oversight: Braun v. Brantridge Estates Ltd. (Royal Ct.), 2014 GLR N [5]

serious dereliction of duty to court causing loss to party to proceedings justifies wasted costs order against advocate personally: Mourant Ozannes v. Braun (C.A.), 2014 GLR 285

sufficient dereliction of duty in failing to observe appeal procedure, necessitating extension of time, justifies order for payment of both parties’ costs by advocate personally: E v. E (C.A.), 2007–08 GLR 133

“research” expenses

no allowance normally made for “researching the law” in ordinary proceedings—discretion under Royal Court Costs and Fees Rules 2000, r.7.1 permits allowance for extra “research” in novel specialized proceedings and for specialist knowledge and experience of advocate: Barrett v. Environment Dept. (Royal Ct.), 2005–06 GLR N [3]

taxation of costs

Beddoe application—legal advice obtained by trust company making application for individual trust is allowable item in taxation of indemnity costs—advice may be of lasting professional and commercial benefit to company and court may not attribute entire costs to individual trust application: Brown v. Orion Trust Ltd. (Royal Ct.), 2003–04 GLR N [16]

bill of costs stating hours per item but not stating recoverable hourly rates of fee-earners—court to decide reasonableness of rates in favour of paying party—may reduce recoverable rate to estimated rate at time work done, with proportionate reduction for fee-earners remunerated at lower rates: Ogier v. Grand Havre Holdings Ltd. (Royal Ct.), 2009–10 GLR N [2]

Crown Advocate. See EVIDENCE (Witnesses—Crown Advocate as witness)

Disciplinary proceedings

hearing in private

appeal against Royal Court decision upholding Chambre’s finding of misconduct heard in private: An Advocate v. Registrar of la Chambre de Discipline (C.A.), 2020 GLR 327

private reprimand. See Disciplinary proceedings—sanction for professional misconduct

Registrar’s handling of complaint

unlawful (i.e. beyond powers under Guernsey Bar (Bailiwick of Guernsey) Law 2007) for Registrar to recast plaintiff’s complaint that advocate deceived court as complaint of misleading court—plaintiff refused leave to pursue application for judicial review as setting aside Registrar’s decision would serve no useful purpose—complaint had effectively been dealt with, time had passed, and advocate’s conduct had met practitioners’ usual standards: Merrien v. Registrar of la Chambre de Discipline (Royal Ct.), 2022 GLR 225

sanction for professional misconduct

fundamental purpose to maintain reputation of profession—court to (a) assess seriousness of conduct; (b) consider purpose of sanctions; and (c) choose most appropriate sanction—consistency in imposing sanctions desirable but uniformity impossible because cases depend on individual facts: Registrar of la Chambre de Discipline v. Advocate (Royal Ct.), 2017 GLR 84

private reprimand for advocate advising guarantors’ spouses regarding security over family homes as advocate in same firm acting for lender—matter too serious for no order but misconduct at lower end of spectrum of culpability and significant delay in concluding complaint: Registrar of la Chambre de Discipline v. Advocate (Royal Ct.), 2017 GLR 84

private reprimand for advocate drawing up and facilitating execution of wills for client with declining mental capacity but assessed by psychiatrist to have testamentary capacity, in circumstances of family discord and pending guardianship application: An Advocate v. Registrar of la Chambre de Discipline (C.A.), 2020 GLR 398

Duties to client

breach of duty. See Costs—personal liability

conduct of defence. See Professional negligence—investigation of competence

duty to clients not to antagonize jurors or launch unnecessary, easily rebuttable attacks on witnesses: Marsh v. Law Officers (C.A.), 2000–02 GLR 406

in extreme circumstances, trial may be unfair and judgment unsafe if counsel conducts defence incompetently—allegation of incompetence to be evident on court transcript—not enough to criticize (lack of) particular line of argument or cross-examination: Marsh v. Law Officers (C.A.), 2000–02 GLR 406

confidentiality

advocate with confidential information relevant to ongoing litigation may be restrained from representing other side if disclosure would affect merits, quantum or settlement—if obtains confidential financial information about opposing firm by acting for advocate of that firm in personal proceedings, that advocate may restrain representation—if information concerns ongoing proceedings involving partner in advocate’s firm, that partner may also restrain representation—undertakings to ensure compliance with non-disclosure may be acceptable to court: Ozannes v. Dinning (C.A.), 2003–04 GLR 491

pre-nuptial agreement—no breach of confidentiality to disclose client’s financial assets to other party to agreement unable to obtain legal advice before signing: E v. E (Royal Ct.), 2003–04 GLR N [22]

restraining order

advocate’s and firm’s undertaking to court not to disclose former client’s confidential information may be more pragmatic option than restraining order, given size of Guernsey Bar and inevitability of advocates’ movement between firms, and may discharge burden of proof of no real risk of disclosure: Ozannes v. Beetle Holdings Ltd. (C.A.), 2003–04 GLR 43

former client may apply to prevent advocate or firm from acting for opposing parties if real (not necessarily substantial) risk of disclosure of confidential or privileged information to opponents—principles to be applied: Ozannes v. Beetle Holdings Ltd. (C.A.), 2003–04 GLR 43

conflict of interest

firm may be enabled to act in conflict of interest situation if gives acceptable undertakings to reduce risk of disclosure, e.g. individual advocate’s undertaking to observe confidentiality, firm’s undertaking to ensure compliance, restriction of access to information within firm and removal of advocate from affected proceedings: Ozannes v. Dinning (C.A.), 2003–04 GLR 491

individual advocate may be restrained from acting in litigation if risks disclosure of confidential information by also privately representing partner in other side’s firm—in small community, litigants not to be deprived of choice of advocate or firm unless exceptional circumstances—exceptional if disclosure of information would affect merits, quantum or settlement of claim: Ozannes v. Dinning (C.A.), 2003–04 GLR 491

restraining order

advocate’s and firm’s undertaking to court not to disclose former client’s confidential information may be more pragmatic option than restraining order, given size of Guernsey Bar and inevitability of advocates’ movement between firms, and may discharge burden of proof of no real risk of disclosure: Ozannes v. Beetle Holdings Ltd. (C.A.), 2003–04 GLR 43

former client may apply to prevent advocate or firm from acting for opposing parties if real (not necessarily substantial) risk of disclosure of confidential or privileged information to opponents—principles to be applied: Ozannes v. Beetle Holdings Ltd. (C.A.), 2003–04 GLR 43

Rules of Professional Conduct—Rule 46 prevents advocate or firm acting for clients if conflict of interest (or significant risk)—may do so if obtains consent (Rule 49)—conflict of interest if advocates in same firm advise both lender and guarantors’ spouses regarding security over family homes: Registrar of la Chambre de Discipline v. Advocate (Royal Ct.), 2016 GLR 261

Rules of Professional Conduct—Rule 46 prevents advocate or firm acting for clients if conflict of interest (or significant risk)—private reprimand for advocate advising guarantors’ spouses regarding security over family homes as advocate in same firm acting for lender: Registrar of la Chambre de Discipline v. Advocate (Royal Ct.), 2017 GLR 84

duty to act in client’s interests

duty to advise client that guilty plea, showing remorse, may result in reduced sentence—to emphasize that client not to plead guilty unless in fact committed offence charged: Hutchinson v. Law Officers (Royal Ct.), 2011–12 GLR N [25]

wasted costs orders. See Professional negligence—wasted costs

Duties to court

application for service out of jurisdiction. See CIVIL PROCEDURE (Service out of jurisdiction—guidance for advocates)

assistance with judge’s summing-up

judge seeking counsel’s assistance on point to be included in summing-up should prepare draft for consideration—counsel to comment to ensure draft accurately addresses point—comments to be independent of counsel’s views of correctness of court’s decision: Dodd v. Law Officers (C.A.), 2015 GLR 123

breach of duty. See Costs—personal liability

family proceedings

duty to assist court in furthering overriding objective of dealing with cases justly (Family Proceedings (Guernsey & Alderney) Rules 2009, r.1(2)) might in family proceedings include highlighting court’s failure to provide clear reasoning, so that can avoid unnecessary further proceedings: In re C (A minor) (Royal Ct.), 2013 GLR 139

litigants in person

when one party appears as litigant in person, advocate of other party to be scrupulously fair and transparent in dealings with court and litigant, so all relevant facts and issues for determination clear: Virani v. Guernsey Intl. Trustees Ltd. (C.A.), 2000–02 GLR 472

presentation of case

advocate personally responsible for accuracy of everything placed before court—duty to check factual submissions based on true facts and ensure affidavits contain true and complete factual statements—reliance on instructing lawyers from outside jurisdiction insufficient: Masood v. Zahoor (Royal Ct.), 2007–08 GLR N [18]

advocates to ensure all formalities complied with before signing application for order confirming change of company name: In re Tetragon Credit Income Fund Ltd. (Royal Ct.), 2005–06 GLR N [23]

defence advocates owe duty to court not to waste time on speculative or trivial matters unlikely to be productive: Marsh v. Law Officers (C.A.), 2000–02 GLR 406

expert evidence to assist court in understanding matters outside knowledge of ordinary people—counsel to guard against introducing expert evidence of no practical assistance to Jurats in determining factual issues of case: Thompson v. Masterton (Royal Ct.), 2003–04 GLR 332

important that counsel properly identify issues requiring expert evidence, but should be careful to avoid invasion of privacy in doing so (e.g. to guard against uninhibited searches through victim’s medical records): Thompson v. Masterton (Royal Ct.), 2003–04 GLR 332

plaintiff’s counsel normally completes case, including adducing expert evidence, before defendant counsel begins—if experts called from abroad, may be necessary to call out of usual order—defence counsel to be prepared to open sufficiently to make purpose of hearing evidence in unusual order clear to Jurats: Thompson v. Masterton (Royal Ct.), 2003–04 GLR 332

since Seneschal not usually legally qualified, advocates to work together to prepare and present case before Seneschal’s Court, by adequately setting out material facts and filing defences, so that Seneschal knows issues to be decided and can reach reasonable decision—court’s conclusion unsatisfactory if case not fully and properly argued: de Carteret v. Mann (Royal Ct.), 2005–06 GLR N [28]

skeleton arguments—no requirement in Royal Court Civil Rules 2007 that skeleton argument signed by qualified Guernsey advocate: X v. Guernsey Fin. Servs. Commn. (Royal Ct.), 2021 GLR 405

skeleton arguments—to be concise and brief—to amount to agenda for hearing, summary of main points and arguments to be developed orally, notes of citations, references and cross-references—to avoid need for unnecessary dictation by advocate and laborious note-taking by court: Channing v. States (Royal Ct.), 2015 GLR N [1]

sentencing

duty on prosecution counsel to assist court as to sentencing issues when asked: Burton v. Law Officers (C.A.), 2011–12 GLR 438

skeleton arguments. See Duties to court—presentation of case

wasted costs orders. See Professional negligence—wasted costs

Duty of care to third parties. See SUCCESSION (Wills—testamentary capacity)

Equality of arms. See Removal of advocate—discretion of court. HUMAN RIGHTS (Right to fair trial—equality of arms)

Fee-earners. See Costs—taxation of costs

Foreign counsel. See Right of audience—foreign counsel

Hourly rates. See Costs—taxation of costs

Incompetence of counsel. See Professional negligence—impact on criminal conviction

Incorrect drafting of deed. See TRUSTS (Rectification—incorrect legal advice to settlor)

La Chambre de Discipline. See Professional etiquette—codes of conduct

desirable to warn unrepresented party to obtain independent legal advice before signing financial document (e.g. pre-nuptial agreement) prepared for advocate’s client, especially if gross inequality of bargaining power: E v. E (Royal Ct.), 2003–04 GLR N [22]

aim of Employment Protection (Guernsey) Law 1998 to enable parties to use Employment and Discrimination Tribunal without legal representation—parties presumed to have knowledge of law and Tribunal’s procedure: CAMS Ltd. v. Cluer (Royal Ct.), 2011–12 GLR N [21]

Litigants in person. See Costs—litigants in person. Duties to court—litigants in person

Litigation privilege. See Professional privilege—litigation privilege

McKenzie friend. See Right of audience—McKenzie friend

Maximum recoverable rate. See Costs—maximum recoverable rate

Personal liability

accuracy of information given to court. See Duties to court—presentation of case. CIVIL PROCEDURE (Affidavits—advocate’s responsibility for accuracy)

costs. See Costs—personal liability

Preparation of bundles. See CIVIL PROCEDURE (Appeals—preparation of bundles)

Presentation of case. See Duties to court—presentation of case

Private communication to judge. See Professional etiquette—private communication to judge

Professional etiquette

codes of conduct

Advocates’ Rules of Professional Conduct not binding on court but convenient starting point for considering legal matters covered by Rules—legitimate for court to consider when exercising discretion on those matters: Ogier v. Jeffreys (Royal Ct.), 2009–10 GLR 88

Rules of Professional Conduct—Rule 46 prevents advocate or firm acting for clients if conflict of interest (or significant risk)—may do so if obtains consent (Rule 49)—conflict of interest if advocates in same firm advise both lender and guarantors’ spouses regarding security over family homes: Registrar of la Chambre de Discipline v. An Advocate (Royal Ct.), 2016 GLR 261

Rules of Professional Conduct—Rule 46 prevents advocate or firm acting for clients if conflict of interest (or significant risk)—private reprimand for advocate advising guarantors’ spouses regarding security over family homes as advocate in same firm acting for lender: Registrar of la Chambre de Discipline v. An Advocate (Royal Ct.), 2017 GLR 84

private communication to judge

should as far as possible avoid private communication with judge in advance to ascertain his view of law applicable in his court—may occasionally be appropriate on procedural matters: Barclay v. Beaumont (Royal Ct.), 2007–08 GLR N [17]

Professional misconduct

appeals

appeal against Royal Court decision upholding Chambre’s finding of misconduct heard in private: An Advocate v. Registrar of la Chambre de Discipline (C.A.), 2020 GLR 327

nature of appeal to Royal Court against Chambre’s finding of misconduct: An Advocate v. Registrar of la Chambre de Discipline (C.A.), 2020 GLR 327

not possible or desirable to provide exhaustive definition of professional misconduct—professional misconduct is any culpable conduct sufficiently grave to lead Chambre to make disciplinary finding—not synonymous with professional incompetence or violation of Rules of Professional Conduct: An Advocate v. Registrar of la Chambre de Discipline (C.A.), 2020 GLR 327

disciplinary proceedings. See Disciplinary proceedings—sanction for professional misconduct

testamentary capacity

advocate to take appropriate steps to satisfy himself client has testamentary capacity: An Advocate v. Registrar of la Chambre de Discipline (C.A.), 2020 GLR 327

Professional negligence

cause of action

availability in Guernsey of action in either contract or tort for professional negligence, based on proximate relationship between parties, precludes reliance on French doctrine of non-cumul to bar action in tort arising out of contractual relationship: Yaddehige v. Credit Suisse Trust Ltd. (Royal Ct.), 2007–08 GLR N [4]

effect on trial

in extreme circumstances, trial may be unfair and judgment unsafe if counsel conducts defence incompetently—allegation of incompetence to be evident on court transcript—not enough to criticize (lack of) particular line of argument or cross-examination: Marsh v. Law Officers (C.A.), 2000–02 GLR 406

impact on criminal conviction

conviction to be quashed if professional negligence or incompetence of defence counsel prejudices fairness of trial, e.g. gives inevitably unfavourable impression of accused to Jurats—rare that incompetence sufficient to prejudice fairness of trial: Law Officers v. Holliday (C.A.), 2000–02 GLR 9

investigation of competence

if advocate’s competence questioned by client, proper for Bailiff to direct inquiry into it and require independent report by another advocate—inappropriate for advocate to continue to represent client on appeal if alleged incompetence creates ground of appeal—appellate court itself to decide whether incompetence made out and may call affidavit or oral evidence and allow cross-examination: G v. Law Officers (C.A.), 2013 GLR 190

wasted costs

if wasted costs order appropriate, court to make it and not fear diminishing legal profession’s public stature in small Island—to contrary, profession more likely to be brought into disrepute if public perception that serious breaches of professional duty unpunished, with litigants obliged to incur extra costs: Mourant Ozannes v. Braun (C.A.), 2014 GLR 285

mere negligence not sufficient to justify wasted costs order—“serious dereliction of duty to court” requires gross negligence or gross neglect of duty to court not client—action for professional negligence more likely to be brought against client’s own advocates: Mourant Ozannes v. Braun (C.A.), 2014 GLR 285

Professional privilege

discovery of legal advice may be refused if advice not relevant to matter in issue—no discovery if no reliance by client on legal advice in making decision, e.g. wife’s decision to enter into judicial separation agreement influenced by husband’s alleged controlling behaviour, not by legal advice: A v. A (Royal Ct.), 2000–02 GLR 461

discovery of legal advice refused if breaches fundamental principle of privilege between advocate and client—attempts to curtail extent of privilege to be considered cautiously—court to consider whether fair adjudication possible without waiving privilege: A v. A (Royal Ct.), 2000–02 GLR 461

instructions to, consultations and discussions with, and opinion from leading counsel privileged if not to be used in evidence and counsel not to be called as witness—privilege not necessarily waived by quotation from opinion in earlier proceedings: Thommessen v. Butterfield Trust (Guernsey) Ltd. (Royal Ct.), 2009–10 GLR 102

privilege in legal advice belongs to client, not lawyer—if privilege waived over one document, right to inspect arises—extent of collateral waiver depends on transaction in respect of which disclosure made—loss of privilege determined by fairness: Morton v. Channel Islands Sec. Exch. Ltd. (Royal Ct.), 2016 GLR N [8]

litigation privilege

confidential instructions to English solicitors to engage in discussions with and obtain information from third parties privileged if for dominant purpose of use in litigation—privilege later waived if information used in making report to court: Thommessen v. Butterfield Trust (Guernsey) Ltd. (Royal Ct.), 2009–10 GLR 102

waiver. See Professional privilege—legal advice privilege. Professional privilege—litigation privilege

Professional reputation

protection

risk of embarrassment of advocate by disclosure in interlocutory proceedings of alleged impropriety not sufficient justification for private hearing—principle of open justice fundamental, risk part of work, and no reason to protect legal more than other professions: IFS Invs. Ltd. v. Manor Park Ltd. (Royal Ct.), 2003–04 GLR 77

wasted costs. See Professional negligence—wasted costs

Registrar’s handling of complaint against advocate. See Disciplinary proceedings—Registrar’s handling of complaint

Removal of advocate

discretion of court

may exceptionally require advocate to cease representing client if partners and other members of advocate’s firm to be witnesses in litigation conducted by him—to consider risk of disclosing confidential information, professional embarrassment of cross-examination, equality of arms, and adverse effect on administration of justice by perception of possible conflict of interest between advocate’s duties to partner, court and client: Ogier v. Jeffreys (Royal Ct.), 2009–10 GLR 88

Restraining order. See Duties to client—confidentiality. Duties to client—conflict of interest

Retainer contract

terms of business

term reducing time for bringing action for negligence or breach of contract

clause in advocates’ terms of business reducing time for bringing action for negligence or breach of contract to 3 years from date of work or termination of legal services not particularly onerous or unfair: Smith v. Carey Olsen (Guernsey) LLP (Royal Ct.), 2020 GLR 236

empêchement d’agir suspends prescription in favour of plaintiff suffering impediment making it practically impossible to commence or continue action—inapplicable to contractual provision reducing time for bringing action for negligence or breach of contract: Smith v. Carey Olsen (Guernsey) LLP (Royal Ct.), 2020 GLR 236

erreur—plaintiff businessman instructed advocates in 2011—advocates’ terms of business, signed by plaintiff, included clause reducing time for bringing action for negligence or breach of contract to 3 years from date of work or termination of legal services—plaintiff unable to set aside contract for erreur: Smith v. Carey Olsen (Guernsey) LLP (Royal Ct.), 2020 GLR 236

la convention fait les lois des parties—plaintiff businessman instructed advocates in 2011—advocates’ terms of business, signed by plaintiff, included clause reducing time for bringing action for negligence or breach of contract to 3 years from date of work or termination of legal services—legal services terminated in 2012—proceedings commenced in 2018 time barred: Smith v. Carey Olsen (Guernsey) LLP (Royal Ct.), 2020 GLR 236

Right of audience

corporate employee

Guernsey Financial Services Commission may be represented at court by duly appointed employee, even if not qualified Guernsey advocate: X v. Guernsey Fin. Servs. Commn. (Royal Ct.), 2021 GLR 405

foreign counsel

no statutory or inherent jurisdiction to grant rights of audience to non-Guernsey advocate: Smith v. Carey Olsen (Royal Ct.), 2019 GLR 1

McKenzie friend

courts of Bailiwick recognize McKenzie friends—guided by practice of English courts—former solicitor disqualified for allegations including dishonesty permitted to act as McKenzie friend: Smith v. Carey Olsen (Royal Ct.), 2019 GLR 1

Specialist knowledge. See Costs—“research” expenses

Terms of business. See Retainer contract—terms of business

Withdrawal of representation. See Removal of advocate

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