Subject-Matter Index

Civil procedure. See Reception of English law—civil procedure

Common law

applicability of common law

customary law of servitudes in force as stated in late 13th century Grand Coutumier de Normandie, with reference to Coutume Reformée where silent—authoritative commentators largely concentrate on Coutume Reformée—modern Guernsey legislation modifies some details: Duquemin v. Dunstan Invs. Ltd. (Royal Ct.), 2003–04 GLR 537

Guernsey law of contempt of court entirely customary and similar to English common law of contempt—recognizes “unhelpful” distinction between civil and criminal contempt—civil enforces compliance with court order, criminal punishes disobedience: Tchenguiz v. Hamedani (C.A.), 2015 GLR 154

indecent assault is Guernsey customary law offence, developed with guidance of English common law decisions and commentators—subject to Guernsey legislation, e.g. Offences against Girls (Availability of Defences) Law 1956, s.2: Ascolese v. Law Officers (Royal Ct.), 2015 GLR 196

development of common law. See COURTS (Role of judiciary—judicial law-making). TRUSTS (Development of Guernsey law—mixed English and Guernsey customary principles)

disuse of common law

customary law of prescription now in disuse—originally 20 years for serious “public crimes,” and year and day for “minor crimes” (frequently causes en adjonction giving rise to both criminal and civil consequences)—abolition of civil aspects of causes en adjonction caused prescription of criminal aspect to lapse: Bach v. Law Officers (C.A.), 2007–08 GLR 354

insufficiency of common law

if Norman-based customary law applicable in Guernsey contains insufficient detail, court to consider other French authorities, e.g. Coutumes d’Orléans: In re Middlebrook (Royal Ct.), 2005–06 GLR N [16]

repeal of common law by statute

any Guernsey common (customary) law right not to pay UK tax or licence fee may be validly superseded by statute—no customary right to avoid television licensing or fee following valid extension of Communications Act 2003, s.363 to Guernsey: Elkington v. Law Officers (Royal Ct.), 2015 GLR 227

Contempt of court. See Common law—applicability of common law

Coroners. See Reception of English law—inquests

Criminal procedure. See Reception of English law—criminal procedure

Customary law. See Common law

Decisions of European Court of Human Rights. See Precedent—decisions of European Court of Human Rights

Decisions of European Court of Justice. See Precedent—decisions of European Court of Justice

Inherent jurisdiction

Royal Court. See COURTS (Royal Court—jurisdiction)

Judicial law-making. See COURTS (Role of judiciary—judicial law-making)

Justice

natural justice

fair hearing—in appeals from income tax assessment, taxpayer to address Tribunal first and be given final right of reply, since burden on taxpayer to show deductions allowable—proceeding otherwise not necessarily breach of natural justice: Income Tax Administrator v. Tremoille Properties Ltd. (Royal Ct.), 2000–02 GLR 295

opportunity to be heard

contested determination of wasted costs application—principles of English CPR, r.46.8(2) and Practice Direction 46, para. 5.7 to be broadly followed in Guernsey: Mourant Ozannes v. Braun (C.A.), 2014 GLR 285

if judge conducts own research and relies on it when passing judgment, must notify parties of results of research and invite submissions on further arguments disclosed: Income Tax Administrator v. Cachemar Ltd. (Royal Ct.), 2005–06 GLR 161

reasons for decision—court to give adequate reasons for decisions (particularly in light of European Convention, art. 6)—adequacy depends on circumstances of case (reasons may be implicit in decision)—losing party must know reasons so as to consider whether to appeal: Bohan v. Bithell (Royal Ct.), 2014 GLR 347

reasons for decision—under both local and European Convention law, appellant entitled to know basis of adverse decision in reasonable detail—no reliance on matter not raised with appellant either at trial or pre-trial if no evidence that affected mind of original decision-maker and never previously mentioned to applicant: Thomas v. Housing Dept. (Minister) (Royal Ct.), 2007–08 GLR 251

open justice. See CIVIL PROCEDURE (Hearing—hearing in private)

Natural justice. See Justice—natural justice

Non-cumul. See Reception of English law—tort

Per incuriam. See Precedent—binding force of own previous decision

Precedent

binding force of English decisions

English Court of Appeal decisions not binding but generally followed—where two conflicting lines of English authority, Guernsey Court of Appeal may choose which line to follow: States v. Miller & Baird (C.I.) Ltd. (C.A.), 2005–06 GLR 295

insolvency—English decisions in insolvency matters of assistance in Guernsey (especially if legislation identical) but not binding: In re Montenegro Invs. Ltd. (Royal Ct.), 2013 GLR 345

binding force of Judicial Committee decisions

not binding in Guernsey if on appeal from another jurisdiction—Guernsey court only bound by ratio of decision not necessarily by reasoning of majority: In re X (A Bankrupt) (Royal Ct.), 2015 GLR 248

not binding in Guernsey if on appeal from another jurisdiction—persuasive guidance to Guernsey courts if authoritative statement of English trusts law, subject to Guernsey law or other local features: A Ltd. v. H.M. Procureur (C.A.), 2003–04 GLR 593

binding force of own previous decision

Court of Appeal not bound by own earlier decision but should be followed (especially when already endorsed by another Court of Appeal) unless court convinced that earlier decision wrong in principle: Environment Dept. (Minister) v. Johns (C.A.), 2007–08 GLR 174

Court of Appeal not bound by own earlier decisions, but only departed from for good, clear reasons: Pirito v. Curth (C.A.), 2003–04 GLR 218

Court of Appeal not bound by own previous decision—at liberty to depart from previous decision if appeal raises important constitutional and procedural issues—may select 7-judge court to give added weight to decision to review previous 3-judge judgment: Wicks v. Law Officers (C.A.), 2011–12 GLR 482

Court of Appeal not to depart from own comparatively recent decision, especially in area of law where certainty particularly important, e.g. real property—may depart from decision if satisfied that clearly wrong: Jubilee Scheme 3 Ltd. v. Capita Symonds Ltd. (C.A.), 2011–12 GLR 25

Court of Appeal usually bound by own previous decision but entitled to depart from it if given per incuriam in ignorance of statutory provision to contrary—if previous decision purports to interpret statutory provision, normally binding but may depart from it if obiter or distinguishable on facts—once departs from it, later court may give own authoritative interpretation: E v. E (C.A.), 2007–08 GLR 374

Royal Court has no power to reconsider and change own order simply because believes incorrect in law or otherwise unjust—no error if law as believed to exist at time of previous decision now changed, and therefore no error to correct: Sherry v. R. (P.C.), 2013 GLR 64

decisions from other Crown Dependencies

if conflicting decisions from Jersey and Isle of Man, Royal Court may choose to follow that which helps provide just solution to complex commercial issue, bearing in mind importance of Guernsey financial industry: Manches LLP v. Inter Global Fin. Ltd. (Royal Ct.), 2009–10 GLR 283

not essential to follow Jersey authorities, as common approach may be desirable but not essential—criteria for leave to appeal from Royal Court to follow established English rules since evolved and adopted in Guernsey before Woolf reforms in England and Royal Court Rules based on pre-Woolf English rules: McNamara v. Gauson (Royal Ct.), 2009–10 GLR 387

decisions of European Court of Human Rights

by Human Rights (Bailiwick of Guernsey) Law 2000, s.2(1), Guernsey courts to take account of relevant judgments of European Court of Human Rights when deciding issues involving Convention rights—following European case-law may result in departure from established English or Guernsey case-law: In re X (Royal Ct.), 2007–08 GLR 161

duty under Human Rights (Bailiwick of Guernsey) Law 2000, s.2(1) to “take into account” relevant judgments of Court, effectively requires them to be followed—when decision on subject-matter restricted to European Court, e.g. “margin of appreciation,” Guernsey court nonetheless to be guided by Court’s judgments: Thomas v. Housing Dept. (Minister) (Royal Ct.), 2007–08 GLR 251

to consider judgments of European Court of Human Rights when deciding issues involving Convention rights, but to be considered with caution: Law Officers v. Le Billon (C.A.), 2011–12 GLR 128

decisions of European Court of Justice

legitimate for court to consider Advocate General’s opinions and judgments of European Court of Justice when deciding issues involving European legislation, but to do so with caution, e.g. if case-law deals with Directive as a whole, but Guernsey legislation only incorporates small section: Law Officers v. Le Billon (C.A.), 2011–12 GLR 128

decisions of Scottish courts

since Scottish system of children’s hearings provided framework for Children (Guernsey & Alderney) Law 2008, relevant Scottish decisions persuasive authority: In re C (A minor) (Royal Ct.), 2013 GLR 139

ratio decidendi

ratio of appeal judgment depends on result of decision—if appeal court declines to exercise alleged power because inappropriate, Royal Court may choose not to follow majority reasoning in favour of recognizing existence of power, and to follow minority reasoning refusing to recognize existence: In re X (A Bankrupt) (Royal Ct.), 2015 GLR 248

sentencing decisions

reference to previous decisions—previous decisions of no precedent value unless considering consolidated appeals and fully informed of relevant facts: Law Officers v. Ingram (Royal Ct.), 2005–06 GLR 194

wrong to try to decide whether sentence correct by reference to unrelated cases—too difficult to discover whether aggravating/mitigating circumstances similar and weight given to them by previous court—public interest requires “correct” sentence—courts to avoid perpetuating sentencing errors by following earlier decisions without adequate information: McCarthy v. Law Officers (C.A.), 2007–08 GLR 414

Ratio decidendi. See Precedent—ratio decidendi

Reception of English law

applicability of UK statute

registration

registration in Guernsey by local Order-in-Council may only be for information, without operative effect—to be operative, statute to be made applicable to Guernsey by own terms or applied by UK Order-in-Council, e.g. registration in Guernsey of Bankruptcy Act 1914 only for information but mutual assistance provisions (ss. 122–123) applicable to Channel Islands by own terms—Insolvency Act 1986, s.426 applies to Channel Islands by own terms and also by Insolvency Act 1986 (Guernsey) Order 1989: In re X (A Bankrupt) (Royal Ct.), 2015 GLR 248

repeal

if UK Act applied to Guernsey, repeal for purposes of UK may not repeal operation in Guernsey which may need to be explicit: In re X (A Bankrupt) (Royal Ct.), 2015 GLR 248

arbitration

English authorities on interpretation of Arbitration Act 1979 highly persuasive in interpreting Arbitration (Guernsey) Law 1982 since 1982 Law based on 1979 Act: Tostevin v. Newhouse (Royal Ct.), 2013 GLR 49

banking law

as Guernsey’s banking system developed on English banking principles, Guernsey courts to have regard to them in comparable matters: Macaulay v. Grater (Royal Ct.), 2003–04 GLR 15

civil procedure

civil contempt of court—may obtain guidance from English common law, since similar to Guernsey customary law of contempt: Tchenguiz v. Hamedani (C.A.), 2015 GLR 154

exclusive jurisdiction clause—in absence of relevant Guernsey authority, court may follow English principles in relation to displacing exclusive jurisdiction clause—may be displaced only if strong reasons to do so: Carlyle Capital Corp. Ltd. v. Conway (Royal Ct.), 2011–12 GLR 371

in absence of direct guidance as to exercise of discretion under Royal Court Civil Rules 1989, r.41(2) in relation to applications for specific discovery, court may look to principles under English RSC, O.24, r.13: Klabin v. Technocom Ltd. (C.A.), 2000–02 GLR 439

in absence of Island authority, principles of English CPR, r.46.8(2) and Practice Direction 46, para. 5.7 to be broadly followed in Guernsey for procedure on contested determination of wasted costs application: Mourant Ozannes v. Braun (C.A.), 2014 GLR 285

in absence of relevant provisions in Royal Court Civil Rules 1989 for discovery and inspection of documents, court may have regard to English Rules of Supreme Court, O.24 and related authorities: A v. A (Royal Ct.), 2000–02 GLR 461

in exercising discretion under Royal Court Civil Rules 1989, r.36(2) to strike out action for want of prosecution, court guided by English approach before Civil Procedure Rules 1998—to take flexible approach and not undertake cumbersome analytical exercises: Scanfield Ltd. v. Carr (Royal Ct.), 2000–02 GLR N [16]

in interpreting Royal Court Civil Rules 1989, r.36, court to be guided by English RSC, O.18, r.19 and commentary—duty under r.36 and inherent jurisdiction to strike out to identify issues between parties, but only if obvious that case unarguable—prolonged argument only heard if soundness of pleadings doubtful and striking out obviates need for trial or reduces preparation: IFS Invs. Ltd. v. Manor Park (Guernsey) Ltd. (Royal Ct.), 2003–04 GLR 308

interest on damages—Guernsey courts to continue to follow English practice in awarding interest on special damages in personal injuries and clinical negligence cases—calculated as one-half of rate payable on Short Term Investment Account in England (currently one-half of 6%) from date special damages incurred: Buckley v. Ronez Ltd. (Royal Ct.), 2009–10 GLR 120

leave to appeal—established English criteria for leave followed by Royal Court since evolved and adopted in Guernsey before Woolf reforms in England and Guernsey rules based on pre-Woolf English rules: McNamara v. Gauson (Royal Ct.), 2009–10 GLR 387

security for costs

in absence of Guernsey authority on application for security, court may follow CPR and modern English case-law—under CPR, r.25.13(2), may consider plaintiff’s residency outside jurisdiction; reason to believe corporate plaintiff will be unable to pay its debts; whether individual plaintiff has taken steps in relation to his assets making it difficult to enforce costs order against him: Fairhead v. Praxis Holdings Ltd. (Royal Ct.), 2015 GLR N [4]

in absence of Guernsey authority on application in respect of foreign plaintiff, court may follow CPR and modern English case-law: Ashdene Consultants Ltd. v. Bachmann Group Ltd. (Royal Ct.), 2005–06 GLR N [22]

service out of jurisdiction—court may have regard to English legal and procedural principles, but Royal Court Civil Rules 2007 offer greater flexibility than English counterpart: Cobra Business Ventures Ltd. v. Green Field Capital Ltd. (Royal Ct.), 2011–12 GLR N [27]

since Royal Court uses English civil procedure rules as guidance in interpretation of Royal Court Civil Rules, should adopt English “change of practice” of last 10 years and be prepared to make more “issue-based” costs orders: Shaham v. Lloyds TSB Offshore Treasury Ltd. (Royal Ct.), 2007–08 GLR 323

company law

court to adopt English approach when creditor presenting petition for compulsory winding up, i.e. anyone not named as creditor entitled to present petition does not become so named because company insolvent: In re Synergy Capital Ltd. (Royal Ct.), 2011–12 GLR 605

desirable for Guernsey company and commercial law to develop in accordance with principles from English and other common law jurisdictions, since have greater experience of relatively complex disputes—Royal Court’s discretion to give active assistance to recognized foreign liquidators explained and developed: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2013 GLR 354

disqualification of directors—in absence of principles laid down by Guernsey courts, may consider English guidance, but to bear in mind Guernsey-specific public interest in maintaining reputation as properly regulated international centre for financial services, and need for deterrent element: Guernsey Fin. Servs. Commn. v. Taylor (Royal Ct.), 2011–12 GLR N [20]

English cases to be followed when applying “just and equitable” ground for winding-up, as legislation the same: Hubert v. Circuit Skips Ltd. (Royal Ct.), 2000–02 GLR N [6]

English principles consistently adopted to supplement customary law or statute in suitable cases where compatible with Guernsey principles—fund ascertainment principle applicable in Guernsey as helpful to fair distribution of property on insolvent liquidation—appropriate to adopt English principle, since Guernsey company law originally based on English legislation—preferable to recognize this source rather than doctrines developed under civil law based systems, e.g. Scotland: Flightlease Holdings (Guernsey) Ltd. v. Flightlease (Ireland) Ltd. (Royal Ct.), 2009–10 GLR 38

schemes of arrangement—English decisions in insolvency matters of assistance in Guernsey (especially if legislation identical) but not binding—Guernsey statutory regime less prescriptive than English, giving court greater scope and flexibility: In re Montenegro Invs. Ltd. (Royal Ct.), 2013 GLR 345

criminal law

as indecent assault is Guernsey customary law offence, may obtain guidance from English common law—subject to Guernsey legislation, e.g. Offences against Girls (Availability of Defences) Law 1956, s.2: Ascolese v. Law Officers (Royal Ct.), 2015 GLR 196

criminal contempt of court—may obtain guidance from English common law, since similar to Guernsey customary law of contempt: Tchenguiz v. Hamedani (C.A.), 2015 GLR 154

English law on diminished responsibility (Homicide Act 1957, s.2) to be followed in Guernsey: Law Officers v. Harvey (Royal Ct.), 2000–02 GLR 189

criminal procedure

English authorities and guidance on disclosure by prosecution in criminal prosecutions not binding—highly persuasive and to be followed in Guernsey because of considerable English experience of complex disclosure matters: Law Officers v. Taylor (Royal Ct.), 2011–12 GLR 8

mitigation of sentence—assistance to authorities—court will follow English case-law in determining mitigation for offender’s providing early and useful assistance to authorities—generally, one-half to two-thirds reduction in sentence appropriate, taking into account quality and quantity of information supplied, willingness of offender to confront and give evidence against others, and degree to which puts himself and family at risk by informing: Richards v. Law Officers (C.A.), 2000–02 GLR 247

money laundering

anti-money laundering procedures under English Proceeds of Crime Act 2002 not adopted in Guernsey—significant differences between English and Guernsey financial services industries—Guernsey’s limited regulatory resources require tighter controls on transfer of funds under Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law 1999, s.39(3): Customs & Excise, Immigration & Nationality Service (Chief Officer) v. Garnet Invs. Ltd. (C.A.), 2011–12 GLR 250

detailed reasons given why English sentencing guidelines for money laundering unsuitable for Guernsey—most importantly, assessment of harm not merely financial—difference between jurisdictions means greater direct adverse consequences for Guernsey’s reputation, business and whole community—deterrent sentencing more effective in small community: Doyle v. Law Officers (C.A.), 2015 GLR 370

older English common law rules on disclosure by prosecution in criminal prosecutions not binding—Guernsey courts to follow more modern decisions interpreting English common law as modified by statute if lay down applicable and fair test devised after dangers of non-disclosure became more obvious: Taylor v. Law Officers (C.A.), 2011–12 GLR 81

cross-border insolvency

desirable for Guernsey company and commercial law to develop in accordance with principles from English and other common law jurisdictions with greater experience of relatively complex disputes—Royal Court’s discretion to give active assistance to recognized foreign liquidators explained and developed: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2013 GLR 354

damages for personal injury

Guernsey courts to continue to follow English practice in awarding interest on special damages in personal injuries and clinical negligence cases—calculated as one-half of rate payable on Short Term Investment Account in England (currently one-half of 6%) from date special damages incurred: Buckley v. Ronez Ltd. (Royal Ct.), 2009–10 GLR 120

Guernsey courts to follow English practice if appropriate, as Guernsey tort law based on English, but taking account of legal and economic differences—Guernsey courts limited to award of lump sum damages—desirable to consider legislation allowing periodical payments, or develop Guernsey common law to allow structured settlements including component of periodical payments for future earning-related losses: Simon v. Helmot (P.C.), 2011–12 GLR 517

Guernsey courts to follow English practice if appropriate, as Guernsey tort law based on English, but taking account of legal and economic differences—Guernsey courts limited to award of lump sum damages because no legislation allowing periodical payments; no statutory discount rate; Guernsey rate of price inflation higher than English; income tax rates lower in Guernsey; statistical information about prices and income less complete and less reliable in Guernsey: Helmot v. Simon (C.A.), 2009–10 GLR 465

equitable principles

generally followed and applied in Guernsey—doctrine of proprietary estoppel may be relied on in appropriate cases: Roger v. Roger (C.A.), 2003–04 GLR 1

extension of time for appeal

in absence of Guernsey rules for extension of time in appeals in family proceedings, proper to reply on English rules for civil appeals generally: E v. E (C.A.), 2007–08 GLR 133

family law

removal of children from jurisdiction—as no Guernsey authority, court may extract principles from English authorities and consider if useful guidance (possibly with modifications) in Guernsey: M v. F (Royal Ct.), 2014 GLR 310

residence order—court follows English guidance in determining residence order to be made—welfare of children first consideration—shared residence rule, not exception, as reflects notion that parents should share responsibility for children—unnecessary to make shared residence order if harmonious relationship between parents: DE v. DE (Royal Ct.), 2011–12 GLR 301

split hearing—court follows English guidance in determining whether appropriate—only to be ordered if court considers case cannot properly be decided without fact-finding hearing first: DE v. DE (Royal Ct.), 2011–12 GLR 301

financial services

since vital that Guernsey financial services industry’s reputation remains strong and that law adapts to provide just solutions to complex situations arising, court may generally have regard to more developed English systems, e.g. insolvency law, for guidance in matters not covered by Guernsey legislation—not to import English legislative provisions where incompatible or inconsistent with Guernsey procedures, e.g. process of discharging and releasing liquidators: In re Kingston Mgmt. (Guernsey) Ltd. (Royal Ct.), 2011–12 GLR 670

income tax

in absence of relevant Guernsey authority, English test applied for whether payment constitutes revenue or capital expenditure for purpose of deductions—court to balance various factors pointing one way or other, e.g. nature and effect of payments and of benefits obtained in return: Income Tax Administrator v. Tremoille Properties Ltd. (Royal Ct.), 2000–02 GLR 295

inquests

English Coroners Rules 1984 followed in Guernsey subject to necessary modifications, e.g. coroner’s jurisdiction vested in Magistrate’s Court and no jury used—also subject to “procedural aspect” of European Convention, art. 2(1) requiring expansion of Coroners Rules, r.36(1)(b) to give narrative verdict determining not “how” but “by what means and in what circumstances” death occurred when deceased in custody of agents of state (e.g. in prison): In re Schofield (Magistrate’s Ct.), 2009–10 GLR 353

“issues-based” costs orders. See Reception of English law—civil procedure

judicial review

in absence of specific rules of court in Guernsey, courts guided by English practice on judicial review—“guidance” offered by Practice Direction No. 3 of 2004 allows Guernsey procedure to be more flexible than English: Litchfield v. Environmental Health & Pollution Regulation (Director) (C.A.), 2014 GLR 175

land law

court to be very cautious in applying English case-law, since Guernsey property law very different and has developed own jurisprudence—Guernsey law to be interpreted in light of own terminology, context and history: Waterman v. McCormack (C.A.), 2000–02 GLR 283

equitable presumptions of English law (e.g. advancement or resulting trust) not incorporated into Guernsey land law—applying Norman law principle, joint owners prima facie entitled to property or proceeds of sale in equal shares: Pirito v. Curth (C.A.), 2003–04 GLR 218

inappropriate to apply English equitable principles affecting land, e.g. constructive trust or proprietary estoppel, if application would cause hardship—Guernsey land law based on Norman not English law—hardship need only be merely contingent and not definite, e.g. potential hardship to property owner if mortgagee were to take saisie proceedings: Bougourd v. Woodhead (Royal Ct.), 2009–10 GLR 487

parole criteria

court may adopt English parole criteria—appropriate because similarities in two systems and transfer of Guernsey prisoners to English prisons—to adopt additional factors if appropriate: Bradley v. Parole Review Cttee. (Royal Ct.), 2005–06 GLR 335

inappropriate to continue to adopt English parole criteria once English and Guernsey parole systems diverge—parole in England abolished for offenders serving less than 4 years and automatic release substituted at 50% of sentence—guidance from English developments in law and practice reduced in relevance: Webster v. Parole Review Cttee. (Royal Ct.), 2003–04 GLR 559

Parole Review Committee and court to follow parole criteria of Parole Board for England and Wales, but English case-law to be considered cautiously, since Guernsey parole regime different: Baker v. Parole Review Cttee. (Royal Ct.), 2011–12 GLR N [10]

schemes of arrangement. See Reception of English law—company law

sentencing

adoption of English sentencing practices for Guernsey cases involving child pornography—detailed discussion of nature of material, extent of offenders’ involvement, non-custodial and custodial sentencing, aggravating and mitigating factors, and future development of Guernsey sentencing in this field: Gunter v. Law Officers (C.A.), 2011–12 GLR 147

attempted murder—court may have regard to English Sentencing Guidelines Council’s non-binding guidelines in determining sentences—guidelines not to be imported wholesale, since local considerations may justify heavier sentence: Jones v. Law Officers (C.A.), 2011–12 GLR 471

burglary—starting points and sentencing bands for burglary suggested by English Sentencing Guidelines Council considered but not adopted wholesale in Guernsey because of Guernsey-specific considerations—need for deterrent element in sentencing for rare crime may point to imposition of heavier sentence: Duncombe v. Law Officers (C.A.), 2011–12 GLR N [8]

deterrent sentencing necessarily has greater impact in small community—important consideration in rejecting English Sentencing Council’s Guideline for money laundering offences in Guernsey and selecting own sentencing levels: Doyle v. Law Officers (C.A.), 2015 GLR 370

Guernsey court not bound to follow English sentencing patterns and guidance but if novel offence in Guernsey (e.g. assault on police with firearm), may seek guidance from English authorities: aggravation by preparation and premeditation, occurring at night in street, length of time before weapon surrendered, officer’s justified fear of death or serious injury, accused expressed intention that police shoot him: Granger v. Law Officers (C.A.), 2014 GLR N [9]

Guernsey courts not bound by English sentencing decisions and guidance, and no presumption in favour of following them, but court may take them into account if appropriate: Burton v. Law Officers (C.A.), 2011–12 GLR 438

Guernsey courts to determine appropriate sentencing levels for Island—may derive assistance from sentencing practice in England and Wales (or any other jurisdiction), but no presumption that should be followed: Leonczuk v. Law Officers (C.A.), 2019 GLR N [3]

in determining whether “exceptional circumstances” to merit suspended sentence for drug trafficking offence (immediate custodial sentence usual), court to consider English case-law—defendant’s good character, youth and early guilty plea not “exceptional,” since common to many cases: Law Officers v. Pang (Royal Ct.), 2003–04 GLR N [23]

rape—in absence of relevant Guernsey authority, court may consider English case-law and Sentencing Guidelines Council’s guidelines for starting points and sentencing ranges, bearing in mind that special local factors, e.g. size of Island, and interests and concerns of local people, may justify higher starting point and longer sentence: Burton v. Law Officers (C.A.), 2011–12 GLR 438

robbery—starting points and sentencing bands from English Sentencing Guidelines Council considered but not adopted in Guernsey because Guernsey-specific considerations point to heavier sentence for offences against person: Bryant v. Law Officers (C.A.), 2011–12 GLR N [11]

starting points—Guernsey courts may have regard to English starting points but not automatically to treat as appropriate for Guernsey—Island has separate cultural and legal heritage, social issues and criminal landscape—courts to select own sentencing policies: Doyle v. Law Officers (C.A.), 2015 GLR 370

wholesale adoption of English Sentencing Guidelines Council’s recommendations on sentences for violent offences not possible because less severe than “Guernsey-specific” policies adopted by courts: Ryder v. Law Officers (C.A.), 2009–10 GLR 288

wrong to treat English sentencing practices as correct for Guernsey unless significant differences in social or other conditions—Guernsey courts to determine appropriate sentencing levels for Island and may then consider sentencing levels of other jurisdictions to assist in reaching final conclusion: Wicks v. Law Officers (C.A.), 2011–12 GLR 482

tort

English common law of tort has persuasive force in Guernsey, except where precluded by Guernsey customary law or statute—not possible when different statutory structures or underlying conditions in the two jurisdictions not truly comparable: Simon v. Helmot (P.C.), 2011–12 GLR 517

Guernsey tort law largely based on English law—basis of English law of nuisance being obligations between neighbouring landowners may suggest that Guernsey law of nuisance still open to influence by coûtume and civil law principles (as basis of Guernsey land law)—doctrine of voisinage nevertheless not adopted: Birnie v. States (Royal Ct.), 2015 GLR N [5]

Guernsey tort law largely based on English law—English availability 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]

trusts

decision of Judicial Committee not binding in Guernsey if on appeal from another jurisdiction—persuasive guidance to Guernsey courts if authoritative statement of English trusts law, subject to Guernsey law or other local features: A Ltd. v. H.M. Procureur (C.A.), 2003–04 GLR 593

development of Guernsey trusts law dependent on English model, rather than Scots law—exclusion of trustee’s liability for gross negligence permitted (prior to change by Trusts (Amendment) (Guernsey) Law 1990, s.1(f)) as based on interpretation of English model: Spread Trustee Co. Ltd. v. Hutcheson (P.C.), 2011–12 GLR 164

English concept of trust long recognized and adopted in Guernsey—Guernsey trusts law mirrors English trusts law in so far as compatible with Guernsey statutory and customary law—allows both vested and non-vested discretionary beneficiaries to inspect trust documents: Stuart-Hutcheson v. Spread Trustee Co. Ltd. (C.A.), 2000–02 GLR 388

since no Guernsey authority on variation under Trusts (Guernsey) Law 1989, s.52, proper to rely on persuasive English and Jersey authorities based on comparable statutory provisions: In re H Trust (Royal Ct.), 2007–08 GLR 118

Trusts (Guernsey) Law 1989 not codification, but to be construed as consistent with English trusts law—in s.22, no distinction between disclosure of information and trust documents themselves—compliance with s.22 duty to provide full and accurate information to beneficiaries about state and amount of trust property may require disclosure of both documents and information: Bathurst v. Kleinwort Benson (Channel Islands) Trustees Ltd. (Royal Ct.), 2003–04 GLR N [32]

Trusts (Guernsey) Law 2007, s.57 is simplified version of English Variation of Trusts Act 1958—English authorities to be considered bearing in mind that Guernsey and English legislation not identical: In re M Settlement (Royal Ct.), 2011–12 GLR 276

undue influence

Guernsey law of undue influence similar to English law—fundamental question whether one party’s free volition invaded by person using influence—persons claiming through party influenced to show actual undue influence or circumstances giving rise to presumption of undue influence—if undue influence presumed, burden on person using influence to rebut presumption: Hitchins v. Hill (Royal Ct.), 2011–12 GLR 336

Role of judiciary. See COURTS (Role of judiciary—judicial law-making)

Sentencing. See Reception of English law—sentencing

Trusts. See Reception of English law—trusts