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2010

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No in Annual Series
Date
Parties
Court
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Guernsey Judgment 1/201011.01.10Alan Terrence SchofieldMagistrate'sMagistrate's Court (Guernsey) Law, 2008 (s.21) - Inquest into cause of death - in practice English Coroners Rules 1984 are followed in Guernsey subject to necessary modifications (Rules 36 and 42) - death in the States Prison - narrative verdict delivered
Guernsey Judgment 2/201006.01.10 S J Brehaut v Law Officers of the CrownRoyal CourtCriminal 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
Guernsey Judgment 3/201013.01.10Bougourd & Bougourd v Environment DeptRoyal CourtIsland 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
Guernsey Judgment 4/201014.01.10Helmot v SimonRoyal CourtPersonal 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
Guernsey Judgment 5/201027.01.10Ferbrache v C R Homes (Guernsey) LimitedRoyal CourtContract - 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
Guernsey Judgment 6/201028.01.10L v ORoyal CourtAction 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
Guernsey Judgment 7/201010.02.10 P v PRoyal CourtMatrimonial 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
Guernsey Judgment 8/201011.02.10In re Q (an infant)Royal CourtAdoption (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
Guernsey Judgment 9/201008.03.10International Committee Red Cross v Thommassen & ButterfieldRoyal CourtApplication 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
Guernsey Judgment 10/201011.03.10U Bergmanis v Law Officers of the CrownRoyal CourtCriminal 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
Guernsey Judgment 11/201017.03.10H B Briggs v Law Officers of the CrownCourt of AppealImportation of Class B Drug - application for leave to appeal against sentence - whether due weight given to the defendant's health problems - principles as to when ill health may be taken into account when sentencing - leave to appeal refused
Guernsey Judgment 12/201017.03.10R v RCourt of AppealMatrimonial Causes (Guernsey) Law, 1939 - wife's appeal from finding of the Royal Court as to ancillary relief - circumstances in which an appellate court can interfere with the exercise of judicial discretion in the Court below - appeal dismissed
Guernsey Judgment 13/201017.03.10In re the S childrenJuvenile CourtChildren (Guernsey and Alderney) Law, 2008 - application by HSSD for a community parenting order - original application was for a fit person order under the Children and Young Persons (Guernsey) Law, 2009 - order now sought is similar, if not identical, to a fit person order - criteria to be satisfied under s.49 of the 2008 Law - mother's submission that the correct order for the Court to make would be a further interim order under s.53 - criteria to be satisfied by the department before an interim order can be made.
Guernsey Judgment 14/201022.03.10McNamara v GausonRoyal Court1. 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
Guernsey Judgment 15/201018.03.10In re Mischca Trust & Butterfield Trust (Guernsey) v Thommessen et alRoyal CourtThe 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).
Guernsey Judgment 16/201026.03.10Harper v Environment DeptRoyal CourtIsland 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.
Guernsey Judgment 17/201026.03.10Swallow Apartments Ltd v Environment DeptRoyal CourtIsland 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.
Guernsey Judgment 18/201007.04.10Arun Estate Agencies Ltd v Kleinwort Benson (Guernsey) Trustees LtdRoyal CourtTrusts (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.
Guernsey Judgment 19/201009.04.10A J Troalic & Sons v KinseyRoyal CourtEmployment 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.
Guernsey Judgment 20/201013.04.10Storm Residential & Commercial Management Ltd v Sarnia Developments LtdCourt of AppealStay of Evictions Laws, 1946 and 1954 - commercial premises - tenant's appeal from order for eviction stayed for seven days - respective roles of the Bailiff and Jurats - circumstances in which the Bailiff may sit without Jurats to determine factual issues - recent evolution of Ordinary Court business - appeal allowed, and with the consent of the parties, new order for eviction substituted, stayed to 31 March 2010.
Guernsey Judgment 21/201013.04.10IFS Investments Ltd et al v Manor Park (Guernsey) Ltd et alRoyal CourtCause 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.
Guernsey Judgment 22/201015.04.10In re T (a minor)Royal CourtChildren (Guernsey and Alderney) Law, 2008 - application to change surname of a child of the marriage - Child Welfare checklist (s.4)
Guernsey Judgment 23/201020.05.10Le Tissier v Tostevin and de Carteret in re David Tostevin (deceased)Royal CourtWill 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.
Guernsey Judgment 24/2010 16.06.10Discain Project Services Ltd v Charles Le Quesne (Guernsey) LtdRoyal CourtBuilding 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
Guernsey Judgment 25/201015.06.10In re V (a minor)Magistrates CourtChildren (Guernsey and Alderney) Law, 2008 - applicants sought a joint residence order in respect of their grandchild - power to make a residence order when a fit person order remained in place - European Convention on Human Rights - Article 8: "Right to respect for private and family life"
Guernsey Judgment 26/201016.07.10Re U & UMagistrates CourtChildren (Guernsey and Alderney) Law, 2008 - application by short term foster carers (i) for residence orders under s.17(1)(a) of the 2008 Law, and (ii) to be joined in applications by HSSD for community parenting orders - provisions of the 2008 Law and the English Children Act 1989 compared - applicable criteria and principles
Guernsey Judgment 27/201018.06.10Bird v Environment DeptRoyal CourtIsland 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)
Guernsey Judgment 28/201024.06.10re Thomas Le Normand deceasedRoyal CourtSuccession - 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.
Guernsey Judgment 29/201014.07.10C&R Homes (Guernsey) Ltd v FerbracheCourt of AppealContract - action for breach of contract by developer of apartments - appeal to the Court of Appeal from finding by the Royal Court and award of £100 damages - s.15(d) of the Court of Appeal (Guernsey) Law, 1961 engaged - limit on right of appeal by reference to value (£200) - s.15 contrasted with the correlative s.24 of the 1961 Law, governing criminal appeals - meaning of the proviso "unless there was in contest in the suit a question of law" - held that leave was required - leave will only be granted (i) where there are legal grounds clearly arguable; and (ii) where any appeal would have a reasonable chance of success - leave refused with costs. (See Judgment 5/2010)
Guernsey Judgment 30/201026.08.10Bougourd & Bougourd v Woodhead & WoodheadRoyal CourtRight 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.
Guernsey Judgment 31/201024.09.10Helmot v SimonCourt of AppealPersonal injuries claim - discount rate to be applied to the award - plaintiff's appeal from rate adopted by the Royal Court - the decision of the House of Lords in Wells v Wells (1999) and the position at common law in England prior to the determination by the Lord Chancellor in 2001 under s.1 of the Damages Act 1996 - important legal and factual differences between England and Guernsey in the domain of damages for personal injury - held that the Lord Chancellor's rate has no legal or evidential value in Guernsey in 2010 - the Royal Court should have taken account of the current return on index linked gilts and the difference between earnings inflation and price inflation - finding by the Jurats set aside and discount rate reduced from 1% to minus 1.5% for earnings-related losses and 0.5% for non earnings-related future losses. (see Judgment 4/2010).
Guernsey Judgment 33/201023.08.10Cotterill v OzanneCourt of AppealEviction from domestic premises - tenant's application to the Court of Appeal for leave to appeal and for stay of execution pending appeal - test to be applied - applications refused by a single judge of appeal.
Guernsey Judgment 34/201016.09.10 & 01.11.10Capita Symonds Ltd v Jubilee Scheme 3 Limited Partnership et alCourt of Appeal1. Law Reform (Miscellaneous Provisions) (Guernsey) Law, 1987 - interlocutory act of court had been registered in the Livre des Hypothèques at the Greffe, pursuant to s.7 of the 1987 Law - application to vary the registration - judicial discretion - applicant's proposals held to be insufficiently clear and precise - application refused. 2. Application for leave to appeal to the Court of Appeal - test to be applied - application refused.
Guernsey Judgment 35/201014.10.10Arkus v Balchan ManRoyal CourtRoyal 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.
Guernsey Judgment 36/201001.11.10Law Officers v BurtenshawRoyal CourtCriminal 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.
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).
Guernsey Judgment 38/201010.11.10Taylor v Law Officers of the CrownRoyal CourtApplication 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.
Guernsey Judgment 39/201016.11.10Hitchins et al v HillRoyal CourtEvidence 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.
Guernsey Judgment 40/201029.11.10In re the NAO SettlementRoyal CourtTrusts (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.
Guernsey Judgment 41/201015.12.10P v PCourt of AppealMatrimonial Causes (Guernsey) Law, 1939 - husband's appeal from Royal Court decision as to ancillary relief - late disclosure by husband of deterioration in his financial position - held that the court was not under any obligation, of its own motion, to order an adjournment to enable the husband to adduce further evidence of his assets - obligation on the husband to give full and frank disclosure - appeal dismissed. (see Judgment 7/2010)
Guernsey Judgment 42/201015.12.10Webber v MackayCourt of AppealCuratelle Rules, 1989 - application for leave to appeal from decision of Royal Court appointing a guardian - circumstances in which leave to appeal will be granted - reluctance of appeal courts to interfere with proper exercise of a judicial discretion or with findings of fact open to Jurats on the evidence before them - no reasonable chance of a successful appeal - leave to appeal refused.