2010
- No in Annual SeriesDatePartiesCourtDetails
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Guernsey Judgment 40/201029.11.10In re the NAO SettlementRoyal Court
Trusts (Guernsey) Law, 2007 - co-trustee's application for approval to enter into a Settlement Agreement - proceedings before the French courts - application of the principles in Public Trustee v Cooper - 2007 Law gave discretion to the Bailiff to sit alone or with Jurats - held that it is appropriate to sit with Jurats when exercising discretion in trust cases - application granted.
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Guernsey Judgment 39/201016.11.10Hitchins et al v HillRoyal Court
Evidence in Civil Proceedings (Guernsey and Alderney) Law, 2009 - reforming statute had been enacted but not yet brought into force - application for pending trial to be postponed until the 2009 Law came into force - significant impact of the existing Hearsay Rule on the present case - injustice of excluding important evidence outweighs injustice of further delay - application granted.
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Guernsey Judgment 38/201010.11.10Taylor v Law Officers of the CrownRoyal Court
Application for Judicial Review of the pre-trial ruling by Judge of the Royal Court - no statutory provision for interlocutory appeal to the Royal Court from ruling by another trial judge in that Court - what would effectively be a new appellate jurisdiction should be introduced by statute, not by judicial decision - application refused - trial should proceed without further delay.
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Guernsey Judgment 37/201008.11.10 & 16.11.10Law Officers v TaylorRoyal Court
(i) Criminal trial on indictment - money laundering offences - defendant's pre-trial application for disclosure by prosecution of investigation materials - factors of materiality and public interest - application refused. (ii) Defendant's pre-trial application for adjournment - allegation of abuse of process by prosecution - burden of proof on the defendant on the civil standard of the balance of probabilities - defendant sought to call witnesses in support of the abuse of process allegation - nature of abuse of process - English and Guernsey authorities reviewed - reliance on grounds of delay and misconduct by the prosecuting authorities - need for a Practice Direction on the making of abuse of process applications - application dismissed (see Judgment 38/2010).
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Guernsey Judgment 36/201001.11.10Law Officers v BurtenshawRoyal Court
Criminal appeal from the Magistrates Court - appeal from conviction on two counts, assault on police and resisting police - appellant was not advised by the Judge of her right to give evidence or remain silent, immediately prior to her giving evidence from the witness - whether this constituted a major procedural irregularity - appellant had been advised of her rights at the beginning of the trial - no such thing as a 'perfect' trial but this was a fair one - appeal dismissed.
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Guernsey Judgment 35/201014.10.10Arkus v Balchan ManRoyal Court
Royal Court Civil Rules, 2007 (Rule 82) - application for security for costs - evidence rather than bare assertion essential to establish ground of cost of enforcing a judgment in a foreign jurisdiction - application granted but in the reduced sum of £10,000.
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Guernsey Judgment 30/201026.08.10Bougourd & Bougourd v Woodhead & WoodheadRoyal Court
Right to enjoy real property - plaintiffs' application for declaration that they are entitled to enjoy a dwelling pursuant to a contract or a proprietary estoppel or a constructive trust - alternatively that the plaintiffs are entitled to compensation from the defendants if their entitlement to occupy is terminated as a result of any order in saisie or in matrimonial proceedings between the defendants - held by the Jurats that the payment made by the plaintiffs to the defendants was subject to an express trust that it would be used to purchase a dwelling to be owned solely by the defendants but in which the plaintiffs would have the right to reside for as long as they chose to do so - on the facts of this case it was not appropriate to apply the English law doctrines of constructive trust and proprietary estoppel - helpful to consider modern French law on rights of enjoyment over real property.
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Guernsey Judgment 28/201024.06.10re Thomas Le Normand deceasedRoyal Court
Succession - Law Reform (Inheritance and Miscellaneous Provisions) (Guernsey) Law, 2006 - Administrator's application for directions as to distribution - held that siblings of the half blood are to share equally with siblings of the whole blood as heirs of the deceased, who died without issue and intestate.
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Guernsey Judgment 27/201018.06.10Bird v Environment DeptRoyal Court
Island Development (Guernsey) Law, 1966 - appeal from refusal of application to erect a replacement radio mast - application for leave to amend cause to allege a breach of Article 1 of the European Convention on Human Rights - procedure for pleading a Human Rights point - application for leave to amend adjourned for full argument as part of the hearing of the substantive appeal. (See Judgment 6/2008)
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Guernsey Judgment 24/201016.06.10Discain Project Services Ltd v Charles Le Quesne (Guernsey) LtdRoyal Court
Building dispute - parties had agreed to resolve by a non-standard form of adjudication - adjudicator's decision to be final and binding - Discain issued proceedings to challenge the adjudicator's awards as to costs and as to his fees and expenses - allegation that the adjudicator acted contrary to the principles of fairness and natural justice - adjudicator did not inform the parties of his decision on quantum and liability before considering the issue of costs - adjudicator's decision on costs and his fees and expenses set aside on grounds that the parties should have been given the opportunity to make further submissions on those issues after being informed by the adjudicator of his decision on the substantive issues - see more
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Guernsey Judgment 23/201020.05.10Le Tissier v Tostevin and de Carteret in re David Tostevin (deceased)Royal Court
Will of Personalty - application to rectify - Jurats satisfied that there was clear and compelling evidence that a mistake had been made in the drafting of the will - application granted.
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Guernsey Judgment 22/201015.04.10In re T (a minor)Royal Court
Children (Guernsey and Alderney) Law, 2008 - application to change surname of a child of the marriage - Child Welfare checklist (s.4)
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Guernsey Judgment 21/201013.04.10IFS Investments Ltd et al v Manor Park (Guernsey) Ltd et alRoyal Court
Cause 817 - péremption - application under Royal Court Civil Rules, 2007 (Rule 50) to restore action to the Rôle des Causes à Plaider - matters to be taken into account in the exercise of the Court's discretion - impecuniosity of applicant - extent of delay - application dismissed. Cause 987 - application to strike out or dismiss the action - (a) whether the cause disclosed no reasonable grounds for bringing an action - whether plea of fiduciary duty could be sustained - lack of particulars alone not a ground for striking out parties to have an opportunity to make further submissions as to whether the plea of fiduciary duty could be remedied by particulars - (b) whether the cause should be dismissed for want of prosecution - effect of Exceptions de Fond having been raised by the defendants - held that plaintiffs not guilty of such inordinate and inexcusable or contumelious delay as to justify dismissal for want of prosecution - application dismissed.
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Guernsey Judgment 19/201009.04.10A J Troalic & Sons v KinseyRoyal Court
Employment Protection (Guernsey) Law, 1998 - finding of constructive unfair dismissal - appeal by employer - proper approach to review of Tribunal's decision - held that the Tribunal had taken account of all the circumstances and had reached a finding that was open to it - Tribunal could not be criticised for not considering a reduction in the award under s.23(2) when the point had not been raised in writing or oral argument - appeal dismissed.
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Guernsey Judgment 18/201007.04.10Arun Estate Agencies Ltd v Kleinwort Benson (Guernsey) Trustees LtdRoyal Court
Trusts (Guernsey) Law, 2007 - Royal Court Civil Rules, 2007 (Rule 35) - trust set up to provide retirement benefits for employees - mistake as to ability to claim deductions for UK Corporation Tax purposes - application to set aside the trust and return assets to the Applicant which had been paid by it into the trust - proper parties to the present action - Court required by the Trust Deed to apply English law to determine the present application - held that the Court had no power to attach conditions to the relief sought - application granted on the grounds that the Trust Deed contained a fundamental error which prevented the purpose of the trust being put into effect.
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Guernsey Judgment 17/201026.03.10Swallow Apartments Ltd v Environment DeptRoyal Court
Island Development (Guernsey) Law, 1966 - appeal from refusal of permission for change of use from self-catering accommodation (Tourist Use Class 15) to permanent residential use - relevant Policies of the Rural Area Plan - decision held not to have been unreasonable and appeal dismissed by 8 votes to 1.
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Guernsey Judgment 16/201026.03.10Harper v Environment DeptRoyal Court
Island Development (Guernsey) Law, 1966 - appeal from decision by Environment Department refusing permission to demolish dwelling and erect three new dwellings - relevant Policies of the Urban Area Plan - decision held not to have been unreasonable - appeal dismissed by unanimous decision of the Jurats.
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Guernsey Judgment 15/201018.03.10In re Mischca Trust & Butterfield Trust (Guernsey) v Thommessen et alRoyal Court
The Trusts (Guernsey) Law, 2007 - trustee's application to sanction settlement of actions - application of the principles in Public Trustee v Cooper - creation of IFAS declared to be a valid exercise of the trustee's powers. (See also Judgment 10/2010).
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Guernsey Judgment 14/201022.03.10McNamara v GausonRoyal Court
1. Action in damages - péremption - Plaintiff's application to restore action to the Rôle des Causes à Plaider - Royal Court Civil Rules, 1989 (Rule 50(b)) still applicable - principles to be taken into account in exercise of the Court's discretion - principles applicable to application to restore and application to strike out compared - Plaintiff's failure to comply with Practice Direction No. 2 of 2008, providing for uniform case management - loss of prescription defences if the action were to be restored - application to restore refused. 2. Application for leave to appeal - interlocutory decision - Plaintiff not out of time - criteria to be considered on an application for leave to appeal - permission will be given unless an appeal would have no real prospect of success - grounds of appeal each considered - held that there was no real prospect of success and that no point of general principle was involved - leave to appeal refused. 3. Decision by Single Judge adjourning to Ple
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Guernsey Judgment 10/201011.03.10U Bergmanis v Law Officers of the CrownRoyal Court
Criminal appeal from the Magistrate's Court - appeal from conviction for being in charge of a motor vehicle with excess alcohol - statutory defence pleaded that there was no likelihood of the defendant driving while the proportion of alcohol in his breath still exceeded the prescribed limit - finding on the facts (as opposed to the law) in the court below could only be set aside if perverse - credibility of the defendant's evidence - appeal dismissed
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Guernsey Judgment 9/201008.03.10International Committee Red Cross v Thommassen & ButterfieldRoyal Court
Application by ICRC to be indemnified on a full indemnity basis out of the assets of the Trust or of IFAS - this application distinguished from a 'Beddoes Order' - principles relevant to the Court's jurisdiction to make pre-emptive costs orders - application dismissed
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Guernsey Judgment 8/201011.02.10In re Q (an infant)Royal Court
Adoption (Guernsey) Law, 1960 - putative father's application to be joined as a party - not a 'parent' within the meaning of the Law - principles on which the Court should exercise its discretion to join as a party - whether any 'family life' to be respected under Article 8 of the European Convention on Human Rights - application refused
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Guernsey Judgment 7/201010.02.10P v PRoyal Court
Matrimonial Causes (Guernsey) Law, 1939 - Wife's application for ancillary relief - late disclosure by Husband of deterioration in his financial position - principle of equal sharing - costs awarded to the wife
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Guernsey Judgment 6/201028.01.10L v ORoyal Court
Action for debt - claim against estate of the defendant - application to register claim against the realty of the defendant, which had passed to her heir upon her death - established principle that 'les meubles sont le siège des dettes' - plaintiff must first exhaust the personal estate of the deceased before proceeding against the real estate - the application was struck out
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Guernsey Judgment 5/201027.01.10Ferbrache v C R Homes (Guernsey) LimitedRoyal Court
Contract - Plaintiff alleged breach of contract by developer of apartments - transmission of noise from flat above - Jurats held that there was a breach of contract in that the ceiling of the Plaintiff's apartment was not built in the manner required by the contract - held that both as a matter of law and as a question of fact there was no basis for implying into the contract any term relating to (1) transmission of noise between the apartments or (2) construction in such a manner as to permit full enjoyment by the Plaintiff of his dwelling - held that the noise problem was caused not by the breach of contract but by the reconfiguration of the upper apartment after it had been sold by the Defendant - no basis for compensatory damages - Jurats awarded damages to the Plaintiff in the nominal sum of £100
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Guernsey Judgment 4/201014.01.10Helmot v SimonRoyal Court
Personal injuries claim - injuries to cyclist in road traffic accident - hearing on issues of loss and damage only (liability having been admitted by the defendant) - Jurats directed that they are to have regard to the Judicial Studies Board Guidelines 9th edition (2008) and comparable English cases - Jurats' findings on the multiplier and discount rate to be applied to the award - findings on past and future care costs, accommodation costs and loss of employment etc - rates of interest to be payable on general damages and on past loss
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Guernsey Judgment 3/201013.01.10Bougourd & Bougourd v Environment DeptRoyal Court
Island Development (Guernsey) Law, 1966 - appeal from refusal of retrospective application to carry out development - permission had been granted to enlarge a dwelling - development carried out beyond that permitted - burden on the Department to establish that its decision was reasonable - adequacy of the reasons given by the Department for its decision - reliance on paragraphs (a), (c) and (e) of s.17 of the Law - Jurats dismissed the appeal by a majority of 5 to 3
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Guernsey Judgment 2/201006.01.10S J Brehaut v Law Officers of the CrownRoyal Court
Criminal Appeal from the Magistrate's Court - sentence appeal - driving at 47 mph in a 25 mph zone - held that Appellant's mistaken belief that it was a 35 mph zone was no mitigation - held that 2 months licence suspension was not manifestly excessive - appeal dismissed