GUERNSEY CASE REPORTS FOR JUNE 2006
prepared by Gordon Dawes

• Practice and Procedure
• Insolvency
• Family Law
• Planning Law
• Criminal Law

EXERCISE OF APPELLATE AUTHORITY – NORWICH PHARMACAL RELIEF – ENFORCEMENT OF FOREIGN STATE PUBLIC LAW

President of Equatorial Guinea et autres v Royal Bank of Scotland International Limited et autres; Privy Council (Guernsey) (Lords Bingham, Hoffmann, Rodger, Walker & Brown) [2006] UKPC 7
Sir Sydney Kentridge, H Matovu & J McLinden for the Appellants; Philip Shepherd QC & B Shah for the Respondents

The Appellant head of state sought orders pursuant to the principles set out in 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 coup attempt in Equatorial Guinea.  Orders were granted ex parte but later challenged inter partes.  The appeal in the Court of Appeal was against various orders made by the Royal Court in relation to the original ex parte order.  The Guernsey Court of Appeal allowed the appeal, 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).  The case is reported more fully in the Jersey Law Review for June 2005.  On appeal to the Privy Council:

Recommending that the appeal be allowed and the orders of the Lieutenant Bailiff prima facie reinstated:

a) At the prompting of the Court of Appeal, the interveners had amended their notice of appeal to incorporate additional grounds raised by the Court of Appeal itself, “which duly featured in the Court  of Appeal’s judgment in favour of the interveners”;

b) This was not a legitimate exercise of appellate authority.  The interveners had been professionally advised and represented throughout.  It was not for the Court of Appeal to advance, and then uphold, submissions which the interveners had not, for whatever reason, thought fit to advance for themselves.  The Court of Appeal was hearing an appeal against the decision of the Lieutenant Bailiff, not exercising an original jurisdiction;

c) Norwich Pharmacal relief existed to assist those who had been wronged but did not know by whom.  If they had straightforward and available means of finding out, it would not be reasonable to achieve that end by overriding a duty of confidentiality such as that owed by banker to customer.  If, on the other hand, they had no straightforward or available, or any, means of finding out, Norwich Pharmacal relief was in principle available if the other conditions of obtaining relief were met.  Whether it was said that it must be just and convenient in the interests of justice to grant relief, or that relief should only be granted if it was necessary in the interests of justice to grant it, made little or no difference of substance;

d) The Court of Appeal should not have reversed the Lieutenant Bailiff’s decision, largely on grounds of its own; nor should the present Board;

e) Notwithstanding the above, the Board expressed concern that the question of whether the Lieutenant Bailiff lacked jurisdiction to make the order which he did on the ground that it could be regarded as the enforcement, direct or indirect, of the public law of a foreign state, had not been addressed.  Citing Lord Denning MR in AG of New Zealand v Ortiz [1984] AC 1 at p21, the relevant principle was that, by international law, no sovereign state had sovereignty beyond its own frontiers.  The courts of other countries would not allow it to go beyond the bounds.  They would not enforce any of its laws purporting to exercise sovereignty beyond the limits of its authority.  Here, it was well arguable that the claims which the appellants said they wished to make in the substantive English proceedings represented an exercise of  sovereign authority, namely the preservation of the security of the state and its ruler;

f) Accordingly, although the Lieutenant Bailiff’s order would be reinstated, the order would be suspended until the English Court of Appeal had decided whether the appellants had a cause of action enforceable in English law.  If they did not, it would be open to the respondents to apply to the Royal Court for the Lieutenant Bailiff’s order to be discharged.

Editorial note: The Privy Council expressed itself unusually forcefully.  The case should be read with AG for Jersey v O’Brien [2006] UKPC 14 where again the Privy Council called into question the way in which a Channel Island Court of Appeal had conducted itself, this time in Jersey.  The cases were decided within 23 days of each other.  The common denominators at Privy Council and Court of Appeal levels were Lord Hoffmann and Richard Southwell QC (and David Vaughan QC) respectively.  In O’Brien the Court of Appeal was said to have usurped the function of the Jurats.

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APPLICATION FOR DECLARATION – DEEMED DELIVERY OF SPECIAL RESOLUTION TO GREFFE

In re The Westbury Property Fund Limited; Guernsey Royal Court: (Hancox LB) (2005) 37/2005 JP Greenfield and KM Le Cras for the Applicant, HM Procureur as Amicus Curiae.

Section 73(2)(b) of the Companies Law 1994 requires a copy of any special resolution to be delivered to HM Greffier (qua Guernsey Companies’ Registrar) within 21 days; failure to comply with this requirement renders the resolution void ab initio (and is also a criminal offence). There was affidavit evidence to the effect that the resolution in question had been sent to the Greffe in the ordinary pre-paid post. Section 11 of the Interpretation (Guernsey) Law 1948 provided that service should be deemed to be effected at the time at which a letter would be delivered in the ordinary course of post. However, s.116(7) of the 1994 Law provided that, notwithstanding any other rule of law, no document to be given or delivered to the Greffier should be deemed to have been given, delivered or served until it was “received”. Although there was some suggestion that the resolution may have been received, the Greffe had no record of it. Prima facie the resolution was void ab initio, with catastrophic consequences for the Applicant, including de-listing from the London Stock Exchange. The Applicant sought a declaration that the special resolution was to be deemed to have been received by HM Greffier in accordance with the requirements of s.73(2)(b).

Held, allowing the application:

a) The Court was satisfied that it had jurisdiction to grant a declaration simpliciter, such power stemming from the Court’s paramount duty to do the fullest justice to a party;

b) The Court’s power to make declarations was unfettered if (the relevant) facts had been established to the Court’s satisfaction;

c) There was credible evidence that the resolution had been received by HM Greffier and nothing to gainsay the evidence that it had been sent to the Greffe;

d) The factual basis for the declaration had been made out.  The considerations which moved the Court to accede to the application overwhelmingly transcended the mischief that would occur if rejected.

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ARBITRATION – SUMMARY JUDGMENT – APPLICATION TO STAY PROCEEDINGS

Miller & Baird (CI) Limited v States of Guernsey; GRC (Hancox, Lieutenant Bailiff) Guernsey Royal Court (2005) 51/2005 JP Greenfield for the Plaintiff; F Raffray for the Defendant

The Plaintiff contracted with the Defendant to build a marina at St Sampson’s Harbour, Guernsey. An issue arose as to whether a certified amount was in fact payable given delays in the works and the obligation of the Plaintiff to repay sums relating to works no longer forming a part of the contract. The Plaintiff sought summary judgment on the certificate; the Defendant sought a stay of the proceedings and referral to arbitration pursuant to the contract’s arbitration clause.

Held, refusing to grant a stay and permitting the Plaintiff to proceed with its application for summary judgment:

a) There were no material differences for present purposes between the Arbitration (Guernsey) Law 1982 and the English (but since superseded) Arbitration Act 1950;

b) The Court had no hesitation in looking to the English authorities which had arisen “as the Courts here habitually do, for guidance in arriving at a just decision”;

c) There were conflicting lines of authority in English case-law as to the circumstances in which summary judgment might be given as opposed to staying the proceedings and referring the matter in its entirety to arbitration;

d) However, in the case of Croudace Ltd v Lambeth Borough Council (1986) The Times 31st March it had been held that among the factors which would weigh against granting a stay was the absence of any defence on liability and (inter alia) unmeritorious conduct by the party seeking the stay;

e) The Defendant’s Engineer’s failure to notify the Plaintiff that no further extension would be given within a reasonable time of the due date for completion created anything but certainty. 

In the circumstances no stay would be granted.

Editorial note:  The judgment contains a painstaking analysis of a large number of conflicting (at least in emphasis) English cases concerning a narrow point of English procedural law.  Channel Island courts are not, of course, bound by such authorities.  Where, as here, English case law is not particularly helpful, it is suggested that the Court should instead set such case-law to one side and form its own judgment as to how best to proceed, in the interests of clarity and of saving both time and cost.

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APPLICATION FOR STAY OF RELATED PROCEEDINGS

G v G; Royal Court; (Finch LB) Guernsey Royal Court (2005) 49/2005
JB Green for the Plaintiff; CM Fooks for the Defendant

Held, dismissing the application:

The Court referred to English procedural law as to the principles to be applied.  The clearest example of a situation in which the Court might order a stay would be where the several sets of proceedings involved the same parties and raised the same issues.  The Court also approved dicta to the effect that if two courts are faced with substantially the same question, it was desirable to ensure that that question was debated in only one of those courts if by that means justice could be done.  On the present facts the two cases did not raise the same issues or substantially the same question.  In any event no substantial grounds had been established to merit a stay of the Royal Court civil action.

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PROTECTED CELL COMPANIES – ADMINISTRATION – FREEZING ORDERS

Messenger Insurance PCC Limited v Cable & Wireless Plc et autres; Guernsey Royal Court; (Geoffrey Rowland, Esq. Bailiff) GRC (2005) 50/2005 MG Ferbrache for the Applicant, Advocates AD Laws, JP Greenfield, K Le Cras & S H Davies for the Respondents. JM Wessels for the Guernsey Financial Services Commission.

Employees of Cable & Wireless acting in breach of the fiduciary and other duties had dishonestly caused approximately £85 million by way of insurance premiums to be paid to the Applicant, a protected cell company owned by them.  Freezing orders had been obtained in England and Guernsey; the substantive proceedings were in England.  Administrators were appointed on the application of the Respondents.  An issue arose as to whether the freezing order in Guernsey should be discharged.  The present case was the first litigation to consider the Guernsey PCC legislation.

Held, discharging the Guernsey freezing order:

a) It was imperative that careful attention should be paid to the costs likely to be incurred given that there was no public funding of administration in Guernsey;

b) The Applicant had carried on insurance business and there were many matters which had to be resolved; an administration order had been made and the Guernsey Financial Services Commission was actively engaged. The Court had a duty to ensure that the Administrators were not unduly fettered in the discharge of their duties, that there should be no duplication of effort and that costs should not be incurred unnecessarily;

c) There were in place a number of controls. The Court had exercised and would continue to exercise close supervision of its own orders and of the administration;

d) In all the circumstances it was appropriate to discharge the Guernsey freezing order;

e) Notwithstanding the proprietary claims of the Respondents to certain cellular assets the Administrators would be permitted to continue funding the administration from those assets; dicta from (inter alia) Armco Inc. and four others v. Donohue and six others (C.A.: Calcutt, Gloster and Beloff, JJ.A.), September 24th, [1998] applied;

f) The Court was mindful that the case was fraught with difficulties and in the exercise of its discretion had arrived at what it considered to be a sensible and pragmatic decision.  Should the English High Court come to a different view the parties would be at liberty to return to the Court.

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CHANGE OF CHILD’S SURNAME – APPLICABILITY OF ENGLISH AUTHORITY

In re F (an infant); Guernsey Magistrate’s Court; (McMillen, Lieutenant Bailiff) GMC (2005) 39/2005

The Applicant father applied under s.12(1) of the Domestic Proceedings and Magistrates (Guernsey) Law 1988 to prevent the mother from changing their child’s surname.

Held:English cases had been cited to the Court.  The law of England did not apply automatically in Guernsey.  Guernsey legislation and case law took precedence.  However, the Court had not been referred to any Guernsey case law concerning the material issue.  In the absence of any Guernsey case law the Court would have reference to English case law and the principles set out in section 1 of the Children Act 1989 as guidance in assisting the Court in coming to a decision in the present application.

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APPLICATION FOR LEAVE TO REMOVE CHILDREN FROM THE JURISDICTION – DELAY TO ENABLE YOUNGER CHILD TO BECOME A QUALIFIED RESIDENT

I v I; Guernsey Royal Court; (Finch, Lieutenant Bailiff) GRC (2005) 53/2005
PA Allen for the Petitioner, SE Wallis for the Respondent.

The Petitioner mother applied for leave to remove the children from the jurisdiction. The Respondent father opposed the application on the basis, inter alia, that a 6 month delay was required in order to ensure that the younger child should achieve qualified residential status by residing in Guernsey for the required period of 10 years.

Held, granting the mother’s application:

a) The principles to be applied in cases concerning removal of children from the jurisdiction had been summarised by Brelsford LB in L v M (2003) and were to be found in English case-law.  The welfare of the child was the paramount consideration.  Refusal of the primary carer’s reasonable proposals for relocation was likely to impact detrimentally on the welfare of the dependant children.  Applications to relocate would be granted, unless the Court concluded that it was incompatible with the welfare of the children;

b) On the present facts the Court disagreed with the conclusion of the Court Welfare Officer.  The welfare of the children comprised emotional, physical and psychological elements.  Education needs were of signal importance.  There were 10 years in which the shortfall could be made up to achieve residential qualification, as opposed to the more pressing need to meet educational needs;

c) The application would be granted with a delay of 14 days to permit the father to consider the judgment and seek advice.

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ISLAND DEVELOPMENT (GUERNSEY) LAW 1966 – APPEAL FROM REFUSAL OF APPLICATION – STATUS AND EFFECT OF POLICIES

Hamon & Hamon v Minister of the Environment Department; Guernsey Royal Court (Collas, Deputy Bailiff) GRC (2005) 54/2005
CH Edwards for the Appellants; R McMahon for the Department.

The Plaintiffs sought permission retrospectively to store ice cream vans and trailers in a yard located in an area of landscape value (Green Zone 2) in the Rural Area Plan (Phase 1).  The Department refused the application, holding that it was precluded from granting the permission sought because of the applicable policies.  The Appellants contended that there were a number of use classes for which no specific provision was made in the Plan.  Accordingly the Plan could not be considered an exhaustive statement of planning policy and the Plan was not a relevant consideration.

Held; dismissing the appeal:

a) Citing and adopting Island Development Committee v Portholme Developments Limited (GCA 20th September 2002), if a Plan allowed for development only in certain identified circumstances then, by necessary inference, development outwith those circumstances was not to be allowed;

b) The Department was obliged to consider the Plan and to have regard to the Plan as a whole, to construe it on a commonsense and straightforward basis, to see whether the application fitted within the planning framework approved by the States.  The Plan made it clear that the States intended it to be a comprehensive statement of the polices to be applied throughout the Plan area.

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SENTENCING - DISPARITY OF SENTENCE BETWEEN UNRELATED CASES NOT A GOOD GROUND OF APPEAL – DRUG SENTENCING

Law Officers of the Crown v Ingram; (Beloff, Steel, Mantell JJA) Guernsey Court of Appeal (2005) 43/2005
JAS White for the Appellant; P Robey for the Respondent.

The Appellant appealed against sentence on the ground, inter alia, that the day before his own sentencing an identical starting point of 9 years had been taken for importation of three times the amount of heroin as in his own case:

Held: Citing and following the English case of R v Large (1981) 3 C. App. R (S) 80 CA, that unless the Court was fully appraised of all relevant matters, as in the exceptional circumstance of consolidated appeals, disparity would not run as an argument as between unrelated cases.

Per Curiam: The drug sentencing guideline case of Richards & Ors. (18th April 2002) was not attempting to lay down some sort of inflexible code; sentencing remained ultimately a matter for the Court’s discretion.  Nevertheless the case offered valuable assistance to sentencers who would seldom need to look beyond Richards in arriving at the correct tariff for drugs offences.

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