Guernsey Legal Resources

  Held: (1) The existing charge in the sum of £325,000 would be vacated on the defendant’s paying that amount into court.

  (2) The court had no power under s.7(c) of the 1987 Law to vary the existing registration by increasing the size of the charge. The registration had been in respect of the full amount of damages claimed and, since the court had to have regard to the purpose of the Law—which was to restrict the operation of the previous customary right to register an interlocutory order as security for the amount claimed and which did not envisage registration of an amount greater than that claim (Moed v. Cockram, C.A., July 23rd, 1999, unreported, dicta of Clarke, J.A. applied)—s.7(c) could not be interpreted as conferring such a power.

  (3) Similarly, the plaintiff’s application to amend his cause by increasing the sum claimed would also fail, as, since the Royal Court proceedings had been stayed to allow arbitration, the court no longer had any power to make orders in connection with those proceedings. Moreover, as s.6 of the 1987 Law was limited by its terms to the registration of orders of the court—and, as stated above, its use had to be related to restricting the previous customary right, which did not extend to registering arbitral awards—there would be no question of registering the act or order of the arbitrator when it was made.

  (4) An award of costs made by the Royal Court to the plaintiff would itself be registrable against the real property of the defendant but, except with the leave of the court, only if it were “a final judgment in the proceedings” within the meaning of s.6(a) of the 1987 Law—meaning that there had to be a final substantive judgment in the proceedings. There was, as yet, no such order and the leave of the court would therefore be required to register a costs order consequent upon an interlocutory order.

  (5) Part of the reason for the plaintiff’s seeking to increase the sum claimed in his cause was that he wished to obtain security for the enforcement of his legal and non-legal costs in the arbitration. The court had no power to grant leave to register an anticipated award of the costs of an arbitration in advance of the making of such an award; until the award was made, therefore, the plaintiff could not obtain security over the defendant’s real property in respect of the costs of the arbitration. Once the award was made, it would be open to the successful party to apply to the court under the Arbitration (Guernsey) Law 1982, s.26, for leave to enforce the award “in the same manner as a judgment or order to the same effect.”