Guernsey Legal Resources

  This was the first civil case to be heard by the Royal Court following the enactment of the Royal Court (Reform) (Guernsey) Law 2008, which came into force on October 29th, 2008.

  Further to s.14(2) of the 2008 Law, the Deputy Bailiff did not sum up to the Jurats in open court, but instead retired with them, and subsequently delivered the reasoned judgment of the court as required by s.16(1) of the Law.

  When they retired, the Deputy Bailiff reminded the Jurats of their respective roles. The Deputy Bailiff is the sole judge of questions of law and procedure and the Jurats are the sole judges of questions of fact.

  The Jurats were directed to take account of all the evidence presented to the court; the oral evidence of the plaintiff and the defendant, who were the only two witnesses to give evidence, and the documents produced to the court. It was for the Jurats and not the Deputy Bailiff to decide what evidence they accepted and what evidence they rejected or of which they were unsure. Although the Deputy Bailiff reminded the Jurats of aspects of the evidence, he directed them that if he appeared to have a view of the evidence, or of the facts, with which they did not agree, they were to reject his view. The Jurats were directed to take account of the arguments and speeches they had heard, although they were not bound to accept them. The Jurats were further directed that they were entitled to draw inferences—i.e. to come to common-sense conclusions based on the evidence that they accepted—but that they might not speculate about what other evidence there might have been or allow themselves to be drawn into speculation.

  The Deputy Bailiff directed that the standard of proof was the civil standard of the balance of probabilities and that to establish something on the balance of probabilities meant to prove that something was more likely so than not so.

  In the judgment, findings of fact were the unanimous findings of the Jurats, unless indicated otherwise. The court recorded that it had taken account of the requirements of s.16(5) of the Law, namely:

  The plaintiff sought to recover the amount of a loan (with interest) from the defendant. The original loan had been made by GSF to BD but GSF assigned the benefit of the loan to the plaintiff and BD made a novation agreement with the defendant, under which the defendant was to undertake all BD’s obligations under the loan agreement. An agreement to waive any financial obligations was to be in writing. The defendant claimed that repayment of the loan had been waived in the course of further business dealings between the parties.

  The Deputy Bailiff directed the Jurats that each party had the burden of proving the affirmative of what he asserted. The plaintiff had the burden of proving on the balance of probabilities that there was a loan contract and that there had been a breach of it, and the defendant bore the burden of proving that the repayment of the loan had been waived (Phipson on Evidence, 16th ed., paras. 6–06 and 6–08, at 127–129 (2005); Cherkas v. Baretta, English C.A., Case No. B1/2000/0030, unreported, observations of Buxton, L.J. applied). The Jurats found that the plaintiff had satisfied the burden of proof upon him and the defendant had failed to establish waiver, as he had adduced no written evidence of it, as required by the novation, but had only offered his own oral testimony in support of his allegation.