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2008

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No in Annual Series
Date
Parties
Court
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Guernsey Judgment 1/200808..01.08G E Le Prevost v Law Officers of the CrownRoyal CourtCriminal appeal from the Magistrate's Court - exceeding speed limit - appeal against sentence of £150 fine and 2 months' suspension of driving licence - suspension held not to be manifestly excessive - appeal dismissed
Guernsey Judgment 2/200816.01.08GFSC v Claridges Trustees Ltd, Claridges Trust Co Ltd, First Nominees Ltd et alRoyal CourtCompanies (Guernsey) Law, 1994 (s.96B) - Regulation of Fiduciaries, Administration Businesses and Company Directors etc (Bailiwick of Guernsey) Law, 2000 (s.34) - applications by the Commission for the four Respondent Companies to be wound up - application granted under s.96B of the law of 1994 (See Judgment 8/2007)
Guernsey Judgment 3/200821.01.08Glass v Administrator of Income TaxRoyal CourtIncome Tax (Guernsey) Law, 1975 (s.80) - appeal by way of Case Stated from decision of the Guernsey Tax Tribunal - whether transaction was in the nature of capital or income - definition of ″business″ - held that payment received by the Appellant constituted ″an adventure in the nature of trade″ - appeal dismissed
Guernsey Judgment 4/200828.01.08In re The V SettlementRoyal CourtTrusts (Guernsey) Law, 1989 (s.62) - application by the trustee for authority to make a loan to the son of the Settlor - presiding judge retired with the Jurats to consider the application - Court satisfied that the trustee's opinion that he should exercise his discretion to make the proposed loan was one which an ordinary, reasonable and prudent trustee properly instructed could have properly formed - costs of all the parties to be met out of the trust fund on the indemnity basis
Guernsey Judgment 5/200831.01.08Yaddehige v Credit Suisse Trust Ltd, Collas Day and Fortis ReadsCourt of Appealexceptions de fonds - the test in Cherub Investments Ltd - correct focus must be on the factual assertions made by the Plaintiff - prescription - empêchement d'agir - whether on the facts as pleaded the Plaintiff could succeed on the empêchement issue. - Plaintiff's appeal allowed, appeals of the First and Third Respondents dismissed.
Guernsey Judgment 6/200808.02.08Bird v Environment DepartmentRoyal CourtIsland Development (Guernsey) Law, 1966 - appeal from refusal of application to erect a replacement radio mast - permission had been given in 1968 ″to re-site″ a mast on the premises, which mast was removed in 2005 - Appellant sought declaration that the 1968 permission 'to re-site' a mast remained valid - duration of a grant of development permission - held that the permission granted in 1968 was valid for twelve months only and was fully implemented within that period - therefore it was no longer valid - declaration refused
Guernsey Judgment 7/200827.02.08Bate v Housing DepartmentRoyal Court(i) Housing (Control of Occupation) (Guernsey) Law, 1994 - Appellant had been granted an employment related housing licence - appeal from decision of the Department not to reconsider an earlier decision not to grant a non-employment related licence - construction of s.6 of the Law - decision of the Department held to be ultra vires and unreasonable - appeal allowed and Department directed to consider the Appellant's application Royal Court Civil Rules, 1989 (Rule 48) - application for costs on indemnity basis - recoverable costs awarded.
Guernsey Judgment 8/200826.02.08Thomas v Housing DepartmentRoyal CourtEuropean Convention on the Protection of Human Rights and Fundamental Freedoms 1950 (Art.8) - right of respect for private and family life - Housing (Control of Occupation) (Guernsey) Law, 1994 - housing licence to be subject, inter alia, to condition that part of the Appellant's house be let to a locally qualified lodger - circumstances in which the State can legitimately interfere with private and family life - Convention rights in Guernsey courts - whether Article 8 engaged - proportionality - the condition requiring the taking in of a lodger held to be ultra vires and unreasonable - appeal allowed
Guernsey Judgment 9/200812.03.08R J Bach and K Bach v Law Officers of the CrownRoyal CourtIsland Development (Guernsey) Law, 1966 - carrying out development without permission - appeal from conviction before the Magistrates Court - conversion of adjoining dwellings with a single dwelling - held that prescription did not apply against the Crown or the Law Officers in criminal matters - no unjustifiable delay such as to constitute abuse of process - European Convention on Human Rights (Article 6) - no breach of right to a hearing ″within a reasonable time″ - appeal dismissed
Guernsey Judgment 10/200817.03.08Wrench v Albany Hotel LtdRoyal CourtLaw Reform (Miscellaneous Provisions) (Guernsey) Law 1987 (ss.6 and 7) - leave had been granted to register Act of Court against Albany - dispute had been referred to arbitration - amount claimed had been increased with leave of the arbitrator - held that there was no power to treat an order of an arbitrator as if it were an Act or Order of the Court - no power to amend the cause because the proceedings before the Court were stayed - held that the amount secured could only be increased if another, later Act or Order of the Court were registrable (See Judgment 14/2007
Guernsey Judgment 11/200820.03.08Shaham v Lloyds TSB and Fooks - In re Dan Ron (deceased)Royal CourtLaw of Property (Miscellaneous Provisions) (Guernsey) Law, 1979 - form of Joint Account Authority did not operate as a statutory assignment of ownership of the funds in the account under s.2 of the law of 1979 - in enacting the Law of 1979 the States had made no provision for equitable assignment - power of Customary Law to evolve and be developed by the Courts of Guernsey - held however that this was not an omission which the Royal Court might now remedy (See Judgment 67/2005)
Guernsey Judgment 12/200802.04.08G C Pirito v Law Officers of the CrownCourt of Appeal Assault - Criminal Justice (Miscellaneous Provisions) (Bailiwick of Guernsey) Law, 2006 - possession of offensive weapon - matter transferred from the Court of Alderney to the Royal Court - appeal against sentence - appropriateness of immediate imprisonment where a knife or other similar bladed instrument is involved - consecutive sentences and the totality principle - no real alternative but to plead guilty to the knife offence - therefore appropriate to allow no discount for that plea - due discount had been allowed on the charge of assault, allowing for plea of guilty and mitigation - appeal dismissed
Guernsey Judgment 13/200818.04.08Canivet Webber Financial Services Ltd v GFSCCourt of AppealInsurance Managers and Insurance Intermediaries (Bailiwick of Guernsey) Law, 2002 - appeal pending before the Royal Court from decision of the Commission - unsuccessful application to the Royal Court for an order restraining an Advocate from acting for the Commission - application to the Court of Appeal for extension of time, and for leave, to appeal from that decision - matter heard in the absence of appearance by the appellant - no possible basis for a successful appeal on either of the grounds relied upon by the appellant - application for extension of time refused - the substantive appeal to the Royal Court should be brought on with all speed (See Judgment 47/2007)
Guernsey Judgment 14/200823.04.08C M Rouget v Law Officers of the CrownCourt of AppealMurder - appeal against conviction - grounds relied upon were significant and material misdirection by the Lieutenant Bailiff on the issues of self defence and provocation - held that the directions set out in the summing up could not be faulted - appeal dismissed
Guernsey Judgment 15-200823.04.08Stone v HickmanCourt of AppealHealth and Safety at Work (General) (Guernsey) Ordinance, 1987 - personal injury claim by fisherman - action for breach of contract, negligence and breach of statutory duty - plaintiff's appeal from Jurats' finding of 40% contributory negligence - Deputy Bailiff had expressly directed the Jurats that they would only have to consider contributory negligence if they were satisfied that a pot had fallen and had been picked up by the plaintiff - the Jurats had found that a pot did not fall - held that the Jurats had made findings which were mutually contradictory if they had followed the directions of the Deputy Bailiff - no other evidence of contributory negligence upon which the Jurats could have relied - appeal allowed and finding of contributory negligence discharged - no criticism of the Jurats who had been faced with an exceedingly difficult task
Guernsey Judgment 16/200817.04.08Register General of Electors ex parteRoyal CourtReform (Guernsey) Law, 1948, as amended - Elections Ordinance, 2004 - application for declaratory relief - inherent power of the Royal Court - persons wrongly excluded by administrative error - held that the term 'Electoral Roll' includes all persons who should be validly on the Rollno criticism of the Jurats who had been faced with an exceedingly difficult task
Guernsey Judgment 17/200804.04.08A v BRoyal CourtLoi relative à l'Entretien des Enfants Illègitimes, 1927, as amended - Domestic Proceedings and Magistrate's Court (Guernsey) Law, 1988 - appeal from maintenance order made by the Magistrates Court - proper approach on appeal to review of findings of fact by the Magistrate
Guernsey Judgment 18/200809.04.08C v CRoyal CourtJudicial Separation by consent - Wife's application to reduce the maintenance payable by her in respect of children - proper approach on appeal seeking variation of a consent order - welfare of the children remains the first consideration
Guernsey Judgment 19/200826.06.08Les Banques Holdings Ltd v Good and GoodRoyal CourtAction in trespass - use of residential car park - whether plaintiff must have exclusive possession in order to bring an action in trespass - Jersey and English authorities reviewed - exclusive possession held not to be a prerequisite to bringing an action for trespass - grant of a right to use an area of land does not necessarily involve a grant of possession (See Judgment 39/2007)
Guernsey Judgment 20/200825.06.08Shaham v Lloyds TSB and Fooks - In re Dan Ron (deceased)Royal CourtRoyal Court Civil Rules, 2007 (Rule 82) - discretion of the Court when awarding costs - exceptions to the rule that costs follow the event - issue based approach adopted in this case - award of recoverable costs to the Intervenor, reduced by 20% (See Judgment 11/2008)
Guernsey Judgment 21/200803.07.08AB International Fund PCC Ltd with AB Asia Pacific Growth Fund LtdRoyal CourtProtected Cell Companies Ordinance, 1997 - Amalgamation of Companies Ordinance, 1997 - proposed amalgamation of a Protected Cell Company (to be the amalgamated company) and a non-cellular company - held that such an amalgamation is permissible - the assets and liabilities of each of the pre-amalgamation cells and of the non -cellular company will remain separate and apart
Guernsey Judgment 22/200807.07.08Da Mata v George (trading as Private Home Care)Royal CourtEmployment Protection (Guernsey) Law, 1998 - appeal to Royal Court from rejection of claim of unfair dismissal - Employment Tribunal unable to establish that a dismissal had taken place - right of appeal to Royal Court limited to points of law - held that the findings of the Tribunal were not perverse or irrational - appeal dismissed
Guernsey Judgment 23/200815.07.08Canivet Webber Financial Services Ltd v GFSCCourt of AppealRoyal Court Civil Rules, 1989 (Rule 48) - Insurance Managers and Insurance Intermediaries (Bailiwick of Guernsey) Law, 2002 - appeal pending before the Royal Court from decision of the Commission ("the substantive appeal″) - application for leave to appeal from order of Royal Court as to security for costs - held that the substantive appeal appeared to be without merit and that the appellant was unlikely to be able to satisfy an order for costs - application for leave refused - oral application for leave to appeal to the Judicial Committee of the Privy Council refused (See Judgments 47/2007 and 13/2008)
Guernsey Judgment 24/200818.07.08B D W Moran v Law Officers of the CrownCourt of AppealImportation of Class A Drugs - application for leave to appeal against conviction - held that the judge had only intervened when he considered it necessary and appropriate - no fault in the trial process - application refused - application for leave to appeal against sentence refused.
Guernsey Judgment 25/200815.07.08D v DCourt of AppealMatrimonial Causes Law (Guernsey), 1939 (Part VIII) - husband's appeal from terms of vesting order and order for maintenance - circumstances in which it is appropriate to interfere with exercise of judicial discretion - facts in Martin v Martin distinguished from the present case - charge in favour of the husband to be redeemed not later than three years after the original order - payment to the husband increased from £90,000 to £130,000 - no order as to costs before the Court of Appeal
Guernsey Judgment 26/200810.07.08N R Bassford, J C Larose, J I Stuart and D J Marshall v Law Officers of the CrownRoyal CourtAppeal from the Magistrates Court - possession of Class A drugs - appeals against sentence - Aramah and Richards guidelines considered - starting point for possession of Class A drugs should be a custodial sentence - appeals dismissed
Guernsey Judgment 27/200809.06.08Dronne Investments Ltd v HSBC Private Bank (Guernsey) LimitedRoyal CourtCivil procedure - Exception de fonds - defence of prescription - replique alleging empêchement d'agir - proper approach to considering exception de fonds - exception rejected
Guernsey Judgment 28/200808.05.08In re X (under guardianship)Royal CourtGuardianship or curatelle - application by curateur aux biens for approval to place assets of the incapable in a settlement - preliminary hearing on a question of law - powers of the curateur and of the Royal Court - review of customary law on curatelle - duty of the curateur to act en bon père de famille - role of curateur distinguished from that of trustee - approach of the Scottish Courts, in relation to curator bonis, adopted - held that the customary law on curatelle can be held to have developed so as to permit the disposition of the assets of an incapable in the way proposed
Guernsey Judgment 29/200808.08.08F v FRoyal CourtMatrimonial Causes (Guernsey) Law, 1939 - application for ancillary relief - powers of the Court to order vesting or division of real and personal property - assets insufficient to provide for the needs of the two homes - entitlement of each party to a fair share of the available property - relevant factors
Guernsey Judgment 30/200828.08.08Brooks et al & Allen & Billen & TaylorRoyal CourtWill of personal estate - action to set aside, alleging want of testamentary capacity - preliminary hearing to decide where the burden of proof lay - the burden of proof may shift from one party to another in the course of a case - held that in the present case the burden of proof lay initially on the parties propounding the will to demonstrate that the Testatrix had the requisite mental capacity
Guernsey Judgment 31/200817.09.08E v ECourt of AppealMatrimonial Causes (Guernsey) Law, 1939 - husband's appeal from order of the Royal Court revesting the former matrimonial home - husband had refused to execute documentation to give effect to an earlier decision of the Court of Appeal (See Judgment 43/2007, reported at 2007-08 GLR 133) - Royal Court had failed to have regard to the European Convention on Human Rights, Article 1 of the First Protocol - Article 57 of the 1939 Law provided a straightforward remedy for refusal by a party to execute a document - submission that Article 46 gave no power to a Court to order concurrence to a change in the terms of an existing liability over-ruled - only in exceptional circumstances can a Court reopen its earlier decision - held that the previous order of the Court was enforceable and must be enforced - appeal allowed
Guernsey Judgment 32/200818.09.08R C Bach & K Bach v Law Officers of the CrownCourt of AppealIsland Development (Guernsey) Law 1966 - Magistrate's Court (Civil Appeals) (Guernsey) Law, 1988 - offence of unauthorised development - appeal from conviction before the Magistrates Court - whether prescription in criminal offences was still effective and applicable - whether abuse of process by reason of delay - European Convention on Human Rights, Article 6(i) - held that prescription was not available, there had been no undue delay or abuse of process and Article 6 of the European Convention on Human Rights was not breached - appeal dismissed
Guernsey Judgment 33/200803.10.08Garnet Investments v BNP Paribas (Suisse) SA & The Government of The Republic of IndonesiaRoyal Court(i) Freezing and disclosure order - review - Plaintiff's application to discharge the injunction - Third Party's application to lift the stay on disclosure - whether a freezing order may only be made in support of specific litigation in course or under contemplation - injunction extended to 23 May 2009 - leave to appeal granted. (See Judgment 13/2007; reported at 2007-2008 GLR 73) (ii) Third Party's application to lift the stay on the disclosure order dismissed - costs reserved and leave to appeal granted
Guernsey Judgment 34/200829.04.08In re F (a minor)Royal CourtFatal accident claim by widow on her own behalf and that of her minor child - settlement - application to the Royal Court to approve the settlement in so far as it related to a minor child, and to fix the proportion of the net amount to be received by that child - factors to be taken into account - settlement approved and net amount to be divided as to 94% to the widow and 6% to the child.
Guernsey Judgment 35/200817.09.08S J McCarthy v The Law Officers of the CrownCourt of AppealTheft by bank employee - appeal against sentence - approach to sentencing where the offender was in a position of trust - suggested sentencing bands based on the amount stolen - disparity argument from unrelated cases appropriate only in the most exceptional circumstances - held that in the present case the sentence was manifestly excessive - sentence reduced from 15 months to 9 months imprisonment, concurrent, on each of the three counts.
Guernsey Judgment 36/200811.10.08Daniel v GoverRoyal CourtAction for recovery of debt - before Deputy Bailiff and Jurats - Royal Court (Reform) (Guernsey) Law, 2008 - Deputy Bailiff retired with the Jurats and reasoned judgment delivered - judgment incorporated the directions given by the Deputy Bailiff the findings of fact found by the Jurats - burden of proof - defendant had asserted that the plaintiff had agreed to waive the loan - held that as respects that specific assertion the burden of proof lay on the defendant - on any other issue in the case the burden of proof lay on the plaintiff - held that there had been no agreement to waive the loan and judgment awarded to the plaintiff
Guernsey Judgment 37/200818.11.08Bank Julius Baer v Winnetka Trading CorporationRoyal Court'Anti-suit injunction' - Bank's application for order that Winnetka cease proceedings it had instituted before the High Court in England - jurisdiction clauses in investment and credit agreements with the Bank - alleged oral representation that the jurisdiction clause was to be disregarded - held that the effect of the jurisdiction clause in the investment agreement was to give exclusive jurisdiction in favour of Guernsey - injunction granted as sought
Guernsey Judgment 38/200824.11.08G M Allen v Law Officers of the CrownRoyal CourtCriminal appeal from the Magistrate's Court - assault - appeal against conviction, the Magistrate having accepted the Prosecution version of the facts after a 'Newton' hearing - Article 6(1) of the European Convention on Human Rights - court must give reasons for its decision - held that the decision in this case more than fulfilled the duty of the Court under Article 6 - appeal dismissed
Guernsey Judgment 39/200801.12.08Jolly v Minister of the Housing DepartmentRoyal CourtHousing (Control of Occupation) ( Guernsey) Law, 1994 - Human Rights (Bailiwick of Guernsey) Law, 2000 - Deputy Bailiff retired with the Jurats - reasoned judgment delivered pursuant to s.16 of the Royal Court (Reform) (Guernsey) Law, 2008 - appeal from grant of licence subject to application to renew after one year - distinction between the status of qualified resident and holder of a housing licence - proper approach to be adopted by the Department - Article 8 of the Convention and the right to respect of private and family life - Deputy Bailiff allowed the appeal, having ruled as a matter of law that the Department had failed to consider all the circumstances required by s.10 (2)(j)(iii) of the Law - Jurats held as a matter of fact that Article 8 of the Convention had been infringed - application remitted to the Department for reconsideration
Guernsey Judgment 40/200802.12.08S Allan v Law Officers of the CrownRoyal CourtCriminal appeal from the Magistrate's Court - assault - appeal from conviction - circumstances in which application of handcuffs by a police officer may constitute an assault - appeal dismissed - The Nine Principles of Policing
Guernsey Judgment 41/200817.12.08Y Climie & S GreechanCourt of AppealImportation of Class A drug - applications for leave to appeal against sentence - abandonment of application by the second applicant - similar sentences imposed by the Royal Court on all the defendants, as willing participants in a joint enterprise - submission of objectionable parity not upheld - starting point of 11 years approved as in accordance with the Richards guidelines - legal aid granted, but limited to the actual attendance by counsel before the Court of Appeal - no guarantee that legal aid will be granted where an application for leave is dismissed by the plenary Court, after a refusal by a single judge