GUERNSEY CASE REPORTS FOR JUNE 2005
prepared by Gordon Dawes

• Practice and Procedure
• Public Law
• Tort
• Trust Law

Disclosure of information - Norwich Pharmacal jurisdiction - ex parte applications

Systems Design Limited & Logo Limited v The President of the State of Equatorial Guinea et autres. CA (Southwell, Carey, Vaughan JJA) [2005] GCA 354
N Barnes for the First and Second Appellants; A Merrien for the First and Second Respondents; M Ferbrache for the Third Respondent.

The Respondent head of state sought orders pursuant to the principles set out in the case of Norwich Pharmacal Co et al v Customs and Excise Commissioners [1974] AC 133 ostensibly to support civil proceedings in another jurisdiction against those persons connected with an alleged attempted coup in Equatorial Guinea. Orders were granted ex parte but later challenged inter partes. The appeal was against various orders made by the Royal Court in relation to the original ex parte order.

Held Allowing the appeal and ordering the return of such documents as had been disclosed (subject only to the right to keep copies for a four week period whilst any onward appeal was considered):

1 Citing with approval the Guernsey Court of Appeal case of Tracey et al v Seed International Limited (18 th December 2003, Civil Appeal 341, Judgment 55/2003, unreported); that the jurisdiction to make orders based on Norwich Pharmacal principles in aid of proceedings in other countries was one available to the Courts of Guernsey, just as much as the jurisdiction to make Mareva and Anton Piller Orders;

2 The jurisdiction of the Royal Court to make ex parte orders was undoubted; however it was a jurisdiction only to be exercised where (a) the grounds for granting the order sought were sufficiently clear; and (b) where there was a clear and imperative need for the order to be made immediately and urgently so as to preserve the position as between the disputing parties until such time as they could conveniently all be brought before the Court for the issue to be argued on the basis of whatever evidence each party wished to place before the Court;

3 The Court of Appeal set out and largely adopted the principles identified by the Lieutenant Bailiff concerning the grant of Norwich Pharmacal relief but had considerable reservations as to whether Norwich Pharmacal relief could be used in support of criminal (as opposed to civil) proceedings; furthermore the Court of Appeal considered that the threshold adopted by the Royal Court for the grant of an order was set too low. The test was that the Plaintiff had to show that the making of the order was “essential and necessary to assist the Plaintiff in achieving justice”;

4 The proposed “civil” claim which the First and Second Respondents relied upon as the foundation for the relief sought was a “novelty” and not, in the case of the First Respondent to be taken seriously. As to the claim of the Republic, “… the claim for damages represented by the expenses of investigation, increased security, and the detention and trial of alleged conspirators …” similarly could not be regarded as a serious claim. “Given the regularity of attempted coups against the President, and the alleged use of torture to exact confession, no (or minimal) additional expense under any of these heads would be likely”.

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Interpretation of arbitration award - admissibility of affidavit evidence - parol evidence rule and exceptions thereto - RCCR 43, conflicts of law

In re Brownstone Insurance (Guernsey) Limited (in compulsory liquidation); Royal Court; (Lieutenant Bailiff Catherine Newman QC) GRC (2004) 43/2004
A Ozanne for the Applicant; R Shepherd for the Respondent

An issue arose in the liquidation of a Guernsey company as to the true meaning of a New York arbitration award. The Applicant sought a ruling that affidavits made by two of the three arbitrators (the third had withdrawn his consent for his affidavit to be used) should be ruled inadmissible.

Held, The Court considered first the parol evidence rule under Guernsey law, namely s.35 of the Loi relative aux preuves 1865 noting that there were two exceptions of potential relevance; (a) where a claim was made to rectify a document and (b) where the Court had to construe the meaning of the words used in an agreement or any other utterance the Court would look at the evidence of the surrounding matrix of fact. However, the Court was not, in the present case construing a contract but an order of the New York Court and the arbitration award to which the Court Order gave the force of a judgment. The Court identified the following principles:

1 Extrinsic evidence was in general inadmissible to contradict or vary judicial documents. An award in an arbitration generally spoke for itself. This was not, however, an absolute rule and evidence contemporaneous with the judgment or award was frequently resorted to in cases where it was necessary to identify the issues resolved;

2 Judges could, of course, eliminate ambiguities from, or correct errors in, their judgments after they have been given;

3 When orders were drawn up the parties should spot any ambiguities likely to cause problems in the future and make prompt application to the judge in order to clarify matters;

4 In principle the Court could see no fundamental objection to a judge clarifying his judgment in response to a request from the parties and the same must in principle be true of arbitrators; however an approach should be joint or, if an approach by just one party is warranted, with the other being kept fully informed; selective approaches to only one of a multi-member panel were to be discouraged;

5 The Court considered also its powers under Royal Court Civil Rules r43 to give directions as to the hearing of any action, including powers to order that facts be proved by affidavit. In exercising that discretion the Court refused to make the order sought, particularly in circumstances where affidavits from only two of the three arbitrators were available and the matter was to be determined by Jurats;

6 Although the meaning of the passage in question was an issue governed by New York law, the Guernsey Court process and admissibility of evidence was a matter for Guernsey Law.

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Ecclesiastical Court - allegedly fraudulently obtained grant of probate - Ecclesiastical Court (Jurisdiction) (Bailiwick of Guernsey ) Law 1994 - powers to order disclosure of Ecclesiastical Court records

In re X v The Registrar of the Ecclesiastical Court of the Bailiwick of Guernsey; Royal Court; (Lieutenant Bailiff Rosalyn Brelsford) GRC (2004) 46/2004

M Dunster for the Applicant; the Registrar in person (Advocate N Ozanne); HM Comptroller as amicus curiae.

The Applicant alleged that a grant of probate had been obtained fraudulently and sought disclosure of all documents in the possession, power or control of the Respondent relating to the relevant estate of personal property. The Applicant also sought a declaration that the documents concerned were a matter of public record and open for inspection and for the taking of copies.

Held Permitting the application to be made ex parte and granting the application:

1 There were no existing rules governing an application of the current kind;

2 By s.3 of the Ecclesiastical Court (Jurisdiction) (Bailiwick of Guernsey) Law 1994 the Ecclesiastical Court had no jurisdiction in disputed cases, in any such proceedings before it the Royal Court could give such directions to the Ecclesiastical Court in relation to the grant of probate or letters of administration as the Court thought fit;

3 After considering the position in England and the concern of the Registrar if there were to be general public access to his archives and the view of HM Comptroller that the 1994 Law already gave the Court power to make the order sought, the order was duly made in respect of the specific documents. However, the Court would not make a declaration that all Ecclesiastical Court documents were on the public record and open to inspection and recommended that the position and general procedure should be clarified by statute.

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Judicial Review of decision of Parole Review Committee – lack of legislative framework – inconsistency with English early release provisions

Webster v Chairman of the Parole Review Committee; Singleton v Chairman of the Parole Review Committee; (Sir de Vic Carey, Bailiff) GRC 60/2004
J White and M Baudains for the Applicants; R McMahon for the Respondent

The Applicants were prisoners who had been denied parole. They alleged Wednesbury unreasonableness in the Parole Review Committee’s decision making.

Held Dismissing the appeal:

1 A system of parole permitting release of prisoners after serving 1/3 of a sentence more than fifteen months in length was introduced into Guernsey because of the unfairness if prisoners in Guernsey were not able to get parole when prisoners transferred to England were;

2 Nowhere in the Guernsey parole legislation was any provision made for guidance to be set out for the Parole Review Committee, the material Ordinance was completely silent as to the criteria to be adopted;

3 Nobody in Guernsey appeared to have taken onboard the fact that in England parole for persons serving sentences of less than four years had since been abolished. Such persons were now released automatically after serving one-half of their sentence. Guernsey therefore had the opposite to what had happened in the 1980s, namely that if people were transferred to England they were eligible for (release) after half their sentence had been served and automatically whereas in Guernsey they become eligible for consideration for parole after only one-third of their sentence had been served.

4 Notwithstanding the Court’s criticisms, the decisions on the present facts would not be set aside, the Parole Review Committee was to be allowed a discretion;

5 However, the Court’s judgment was to be taken away by the Home Department because it was principally to blame for the state of affairs exposed by the Court’s judgment. In a criminal justice system which had to be kept “… as lean and efficient in the use of resources as possible …” it seemed to the Court that “… England has for once got it right by removing from the parole system cases involving sentences of less than four years”;

6 There was an unfairness if a body with no particular expertise in the area of criminal sentencing was empowered to introduce a further review of the time to be served by a particular offender. It also seemed illogical to limit the automatic release provisions to sentences of less than four years.

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Liability of States of Guernsey for accidents on the highway – liability at common law – distinction between misfeasance and nonfeasance

De Carteret v The States of Guernsey; Royal Court; (Lieutenant Bailiff Russell Finch) GRC (2004) 56/2004
N Barnes for the Plaintiff; G Dawes for the Defendant

Oil had been spilt on a highway during the night. The Police had been alerted. They, together with the Fire Brigade and later the States Works Department attended; sand was laid and signs and lights positioned. At 1230 the next day the Plaintiff, riding a scooter, lost control of her vehicle at the spot and fell to the ground, suffering injury. Proceedings were issued and exceptions de fond pleaded to the effect that the claim was without basis in law because neither any statutory nor any common law duty was owed.

Held Dismissing the exceptions save as against the Island Police:

1 The immunity resulting from the distinction between nonfeasance and misfeasance remained a part of Guernsey law;

2 However, the issue in the case was not whether the Defendant was under a duty to do the work of making the road safe but rather of whether the Defendant escaped liability if it did not perform the duty properly having gone about the work;

3 English and Jersey case law (Dobson v Public Services Committee [2003] JRC 150) did not give the answer;

4 In any event the immunity was confined to highway authorities; the liability of the Police and Fire Services had to be decided on more basic common law principles;

5 Given the reasoning of English case law (Ancell v McDermott [1993] 4 All ER 355) which the Court would follow, there was no sustainable claim against the Police;

6 The legal position as against the Fire Service was not so clear cut and would not be struck out;

7 As against the States the Plaintiff had an arguable case, even if on the facts the Plaintiff’s might not be the strongest.

Editorial note: The Defendant lodged a notice of appeal; but before the appeal was heard the Plaintiff’s claim was discontinued by agreement with no order as to costs.

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Trusts ( Guernsey ) Law 1989 - disclosure of information, supervisory power of the Royal Court – conflicts of law

Countess Bathurst v Kleinwort Benson (Channel Islands) Trustees Limited et autres; Royal Court; (Lieutenant Bailiff Patrick Talbot QC) GRC (2004) 38/2004
P Richardson for the Applicant, R Shepherd for the First Respondent, N Barnes for the Second and Third Respondents.

The Applicant was the only sibling of the deceased “settlor”. She had enjoyed a generally close relationship with the settlor until, perhaps, the last months of his life. The settlor had married shortly before he died, and shortly after the Applicant had been excluded as a beneficiary of the relevant trust by the actions of the trustee and protector. All of the trust assets had been appointed out. The Applicant sought disclosure of information relating to the trusts, including various deeds, accounts and the letter of wishes.

Held, The Trusts ( Guernsey) Law 1989 covered much, but not all, of the jurisdiction of the Royal Court. Although one of the trusts was a foreign law trust, no evidence had been adduced of that foreign law and, accordingly, the foreign law would be treated, where necessary, as being the same as Guernsey law. The Court was bound by the decision of the Guernsey Court of Appeal in Stuart-Hutcheson v Spread Trustees Company Limited [2002] WTLR 1213 and cited it extensively. The Court also cited and approved the Privy Council case of Schmidt v Rosewood Trust Limited [2003] 2 AC 709, although not bound by the decision, the case not being decided on appeal from the Royal Court of Guernsey.

The Royal Court had an inherent jurisdiction, to supervise, and, where appropriate, intervene in the administration of a trust. As to disclosure of information itself, it was neither sufficient nor necessary for an applicant to have a proprietary right to disclosure. Nor did a vested or transmissible beneficial interest entitle a beneficiary to information as of right. The real test was whether or not it was appropriate, in all the circumstances of the case in question, for the Royal Court, under its inherent jurisdiction, to exercise its discretion by ordering the disclosure by a trustee of trust documents or information. Nor was there any distinction to be made between the position of trustees and that of the protector.

Furthermore, the powers of the Court extended both to current and existing and excluded beneficiaries, likewise to trusts which had come to an end. As a matter of first principle, an excluded beneficiary was entitled to apply to the Court for relief relating to the period both when she was a named beneficiary of the trust in question and when she was a potential object of the discretionary powers. Nevertheless the Court’s jurisdiction was discretionary; each case would be governed by its own facts.

The power to order disclosure extended to letters or memoranda of wishes. The Royal Court declined to follow the Royal Court of Jersey decision in Re Rabaiotti’s 1989 Settlement [2000] WTLR 953 as being “unduly restrictive”. There was “… no limit on the jurisdiction of the Royal Court to make orders for disclosure of a letter of wishes in a proper case”. The purported exclusion of s.22(1) of the 1989 Law (right of beneficiary to information, subject to the terms of the trust) by the trust instrument was not effective to oust the Court’s inherent jurisdiction. On the facts of the case disclosure of information and documentation was ordered, with safeguards in some categories in order to protect the settlor’s confidentiality.

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