GUERNSEY CASE REPORTS FOR OCTOBER 2005
prepared by Gordon Dawes

• Constitutional Law
• Practice and Procedure

STATES OF GUERNSEY ORDINANCE - JUDICIAL REVIEW - VIRES - ORDINANCE MAKING POWERS - CONSTITUTIONAL STATUS OF GUERNSEY AND RELATIONSHIP WITH WESTMINSTER GOVERNMENT

States of Guernsey v Jersey Fishermen’s Association Limited et autres; CA (Southwell, Smith & Vaughan JJA) GCA (2005) 34/2005.
R McMahon for the Appellant, G Dawes for the Respondent.

The States of Guernsey appealed the first instance decision that the Sea Fish Licensing (Guernsey) Ordinance 2003 was unlawful and of no effect, the Royal Court holding that (i) there was no real doubt that the States had exceeded their power in passing the Ordinance and (ii) the States' power to legislate, independently of the United Kingdom Government, in relation to the licensing of British fishing boats, was limited to Guernsey's territorial waters of 3 miles , unless such a power was granted to the States by Law approved by Her Majesty in Council:

Held, allowing the appeal and declaring that the Ordinance was and is within the powers of the States and lawful, that:

a) Such delay as there had been in challenging the Ordinance was relatively short; furthermore, the Ordinance created a criminal offence and the defence of unlawfulness could be raised at any time. It was in the interests of the States and of all British fishermen that this fundamental issue of general importance be decided now;

b) There was no basis for the contention that leave for judicial review ought first to have been sought given the lack of any such rule at the time.  It was, however, open to the Respondents to apply for a summary dismissal of a misconceived application for judicial review or one which had been too long delayed;

c) The failure of UK Ministers to exercise powers to enable the Guernsey Committee to issue licenses was a factor of “no little importance” when considering whether the Ordinance passed in 2003 (some 20 years after the creation of the powers) was or was not lawful;

d) A lacuna existed as a result of the failure of UK Ministers to exercise their powers, albeit that inaction may have resulted from the imposition of conditions which had proved unacceptable to the States of Guernsey (the Court noting also that no such pre-conditions appeared to have been imposed upon Jersey);

e) Guernsey was a dependency of the Crown through the Sovereign’s title as Duke of Normandy; it was not a colony.  Though the UK Parliament could make statutes affecting Guernsey, this was, by constitutional convention, always after consultation with Guernsey (and usually by agreement with Guernsey).  The States of Guernsey was not the equivalent of an English local authority.  As a democratically elected parliament, though not a sovereign one, it had power to make provision by statute for the good government of Guernsey.  Neither was it a parliament circumscribed by a written constitution or other fundamental law.  The customary powers of the States had developed by evolution, and in some respects by statutory development;

f) The appeal involved the question whether by virtue of either the European Communities (Implementation) (Bailiwick of Guernsey) Law 1994 or the States’ customary powers the States could by ordinance (rather than by Law with the approval of the Privy Council) provide for the licensing of boats fishing within the twelve mile fishing limits round Guernsey but outside the three mile territorial sea limit.  This involved consideration of the so-called doctrine of “colonial extraterritorial legislative incompetence”;

g) Citing, in particular, Australian case-law, the Court concluded that the central question as regards the extra-territorial reach of the Ordinance, was whether there was a sufficiently substantial relationship between the Ordinance and the peace, order and good government of Guernsey;

h) Section 1 of the 1994 Law empowered the States by Ordinance to “make such provision as they may consider necessary or expedient for the purpose of the implementation of any Community provision”.  The section was wide enough to enable the States to make the Ordinance, it was not necessary for the States to reproduce the provisions of the relevant Regulations in detail;

i) The 1994 Law was intended to and did enable the States to implement Community provisions which the United Kingdom and Guernsey were not bound to implement, when the States considered that to be “expedient”;

j) Even if the position of Guernsey were to be equated to that of a colony (as opposed to the special kind of semi-dependent territory which it had always been) the Ordinance did not offend the doctrine of extraterritorial legislative incompetence;

k) The 1994 Law was not to be read as necessarily confining the making or ordinances to the territory of Guernsey;

l) If it was necessary to do so the Court would hold that the customary powers of the States were sufficiently wide, in the difficult situation it reached in 2003, to fill the vacuum with appropriate licensing provisions by Ordinance, “at least on a temporary basis pending agreement with and action by UK Ministers”;

m) All other grounds of challenge by the Respondents, and in particular, allegations of abuse of power, bad faith, the right to fish, human rights, irrationality, article 28 of the treaty and severance were considered and dismissed;

Per curiam: That although both Counsel submitted that Community conservation measures (ie the common fisheries policy) were not binding on Guernsey by virtue of Protocol 3 to the Act of Accession to the European Treaties it seemed strongly arguable that such measures were binding.  While the Court was content to accept Counsel’s submissions for the purposes of this appeal only, the Island authorities and the British government might now consider it essential to obtain definitive advice on this question of no little importance to Guernsey.

There was an urgent need for the UK government and the governments of Guernsey and Jersey to meet in conference, and to continue to meet until a sensible agreement, satisfying the overwhelming need for conservation of fish in all the waters near the Channel Islands, had been finally and conclusively agreed.

The Court had had the benefit of citation of a body of legislation and authorities which were not cited to the Lieutenant Bailiff.

Leave to appeal to Her Majesty in Council was sought and granted, conditional upon the Record being lodged with the Registrar within 6 weeks (this date was later extended by agreement) and the Respondents lodging the (further) sum of £25,000 by way of security for costs for the due prosecution of the appeal.

Editorial note: The Record was subsequently lodged and security for costs given.  The case is of obvious importance in determining the extent of the States’ legislative powers, the status of Guernsey and the relationship with the Sovereign and her Government.

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AMENDMENT OF PLEADINGS AND COST CONSEQUENCES

IFS Investments Limited v ManorPark (Guernsey) Limited et autres; Royal Court (Lieutenant Bailiff ACK Day, CBE) GRC (2005) 24/2005.

G Dawes for the Plaintiff; RICE Harris, P Richardson and RJ Collas for the First and Third Defendants, Second Defendant and Fourth Defendant respectively.

The Plaintiff sought leave to amend its cause.  Leave to amend was granted.  Issues arose as to the proper costs orders to be made.

Held:The relevant principles of Guernsey procedural law relating to amendment of pleadings and costs were to be found at Rule 35 of the Royal Court Civil Rules 1989.  Although the equivalent provisions at Order 20 of the Rules of the Supreme Court were far more extensive, the material passages of the White Book concerning amendment and the costs consequences were of strong persuasive authority and should be adopted generally as the proper practice in Guernsey.  What was at the heart of the matter was the causal link between the amended pleadings and the costs which were directly incurred thereby, or which could be shown to be unnecessarily incurred previously.  The normal position, therefore, would be to make an order “on the usual terms as to costs”, the resolution of arguments about causation being left to taxation.  It was a matter of discretion, to be exercised judicially.

TAXATION OF COSTS - ROYAL COURT (COSTS AND FEES) RULES 2000

Department of the Environment (Paying Party) v Barrett & Barrett (Receiving Parties); Royal Court (Lieutenant Bailiff Peter Harworth) GRC (2005) 21/2005.
Richard McMahon for the Paying Party; the Receiving Parties in person.

The Lieutenant Bailiff was taxing the successful parties’ costs in judicial review proceedings.  One of the issues considered was the extent to which research of the law could be included within the bill of costs.

Held: In any ordinary proceedings the taxing judge would readily strike down any costs that related to what could be described loosely as “researching the law”.  However, the Court had some sympathy for the Receiving Parties given that these were undoubtedly specialist proceedings having regard to the fact that these were probably only the second set of judicial review proceedings heard on the Island.  The problem was that lawyers on Guernsey “do not appear in some respects to be remunerated for their speciality as they would be, for example, on the mainland (sic) where, were I taxing this as a bill for judicial review the rates for solicitors (sic) allowed would be substantially more than effectively the rates normally allowed for what I would call “run of the mill” proceedings”.  There was, however, provision within the rules for the judge to take into account the specialist knowledge and experience of an Advocate.  Taking all factors into account the Court allowed an element for “research” on a “broad brush basis”.

IFS Investments Limited v ManorPark (Guernsey) Limited et autres; Royal Court (Lieutenant Bailiff A C K Day CBE) GRC (2005) 22/2005. RICE Harris for the Applicant; JE Roland for the Respondents).

The Lieutenant Bailiff was taxing the successful Applicant’s costs.  Issues arose as to the recoverability of the costs of a lawyer attending the Advocate in Court and the recoverability of an English Barrister’s fees.

Held: The increasing practice in some quarters for an advocate to be attended on in Court by a legally qualified assistant was not to be encouraged.  Certain fees were, accordingly, disallowed altogether and the hourly rate claimed on behalf of the assistant restricted to £120 given that the maximum hourly rate recoverable for an advocate (on a standard rather than indemnity basis) was £173.

Whilst there might be extraordinary circumstances in which an English barrister’s fees might be allowable on a standard recoverable basis, and could well be allowable in Beddoes applications, the general rule must be that English counsel’s fees are not claimable from the other party.  If a party considered that it needs the comfort of advice from English counsel, then so be it.  But it could not, in the normal course, be right to be able to claim back that sum from the other party, bearing in mind that the rate of advocates’ fees generally in Guernsey must reflect a great competence on their part.

Knowledge relating to straightforward matters of Guernsey law on which there were recent authorities was a part of the advocate’s stock in trade and was not of such an exceptional or genuinely specialist nature, requiring work in any given case, as to justify the costs of it being paid by the opposing party.

APPLICATION TO STRIKE OUT - NO REASONABLE CAUSE OF ACTION - PROPER APPROACH

The Wessadah Foundation v Barings (Guernsey) Limited; Royal Court (Bailiff) GRC (2005) 31/2005. John Greenfield for the Defendant applicant; Andrew Laws for the Plaintiff respondent.

The Plaintiff had brought proceedings against the Defendant complaining that the performance of an investment portfolio did not correspond with the performance of the benchmark index.  The Defendant applied to strike out the claim, alleging that it was misconceived.

Held: The Court referred to the commentary on RSC O18 r19 (Supreme Court Practice 1999) for guidance as to how it should proceed. The Court identified paragraphs 18/19/6 and 18/19/10 as summing up the applicable principles. The Court also cited the case of Wenlock v Moloney [1965] 1 WLR 1238 as an important case relating to strike-out and in particular the admissibility or non-admissibility of affidavit evidence when the ground relied upon was, in effect, an allegation that the claim was not one which was likely to succeed. The Court also acknowledged the force of the argument that when a contract was reduced to writing the provisions of the Loi Relative aux Preuves 1865 applied and no evidence was to be admitted from outside of the documents.

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