2010

  

No in Annual SeriesDatePartiesCourtDetails
No 1/201011.01.10Alan Terrence Scholfield Magistrate’s
Court		Magistrate’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
      
No 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
      
No 3/201013.01.10 Bougourd & 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
      
No 4/201014.01.10 Helmot 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
      
No 5/201027.01.10 Ferbrache v C & R Homes (Guernsey) LtdRoyal 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
      
No 6/201028.01.10 L 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 de siège des dettes' – plaintiff must first exhaust the personal estate of the deceased before proceeding against the real estate – the application was struck out
      
No 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
      
No 8/201011.02.10 In 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
      
No 9/201008.03.10 International Committee Red Cross v Thommessen et al In re the Mischca TrustRoyal 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
      
No 10/201011.03.10 U 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
      
No 11/201017.03.10 H 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
      
No 12/201017.03.10 R 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
      
No 13/201017.03.10 In 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.
      
No 14/201022.03.10 McNamara 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.

      
No 15/201018.03.10 In re Mischca Trust v Butterfield & ThommessenRoyal 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).
      
No 16/201026.03.10 Harper v Environment DepartmentRoyal 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.
      
No 17/201026.03.10 Swallow Apartments Ltd v EnvironmentRoyal 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.
      
No 18/201007.04.10 Arun 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.
      
No 19/201009.04.10 A 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.
      
No 20/201013.04.10 Storm 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.
      
No 21/201013.04.10 IFS 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.

      
No 22/201015.04.10 In 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)
      
No 23/201020.05.10 Le Tissier v Tostevin & 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.
      
No 24/201016.06.10 Discain 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 - 'Calderbank offer' had been made – normal for the offeror to offer to pay the costs of the offeree up to the date of acceptance of the offer – adjudicator would have had to accept the figure for costs claimed by Discain and should have concluded that Le Quesne were unable to demonstrate that their offer was better than the award – Deputy Bailiff ordered that Le Quesne shall pay Discain’s reasonable costs in the adjudication and the adjudicator’s fees.
      
 
2010
Judgment
None
2010 – List of Judgments Motives Circulated to the Bar