Procedure on Importation of Resin Disclosure

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					2007– JUGEMENTS MOTIVÉES CIRCULATED TO DATE
No in          Date   Parties                               Court    Details
Annual         Handed
Series         Down

No 1/2007      8.1.07      Wayne Phillip Le                 Royal Murder – plea of not guilty on ground of diminished responsibility – conviction on
                           Sauvage                                second count of manslaughter – sentencing principles to be applied – sentence
                                                                  of 7 years imprisonment, to be followed by 3 years on Extended Sentence
                                                                  Licence – Criminal Justice (Supervision of Offenders) (Bailiwick of Guernsey)
                                                                  Law, 2004
No 2/2007      5.2.07      Chambers and Chambers Royal            Claim and Counter-claim relating to repairs to boundary wall – judgment in
                           v. Gooch and Gooch                     favour of the defendants – Royal Court Civil Rules, 1989 (Rule 48) –
                                                                  defendants’ application for full or partial indemnity costs – review of the
                                                                  authorities – Advocates’ fees to be paid at recoverable rate plus 15% with effect
                                                                          rd
                                                                  from 3 July 2001
No 3/2007      8.2.07      A v. A                    Magistrate’s Domestic proceedings – wife’s application for maintenance – full day set aside
                                                                  for contested hearing four months ahead - failure of Advocates to advise the
                                                                  Court that negotiations were in hand between the parties –– application for
                                                                  further adjournment received on the eve of the date set – Greffe should be
                                                                  notified as soon as possible when there is a possibility of a settlement, to avoid
                                                                  waste of Court time
No 4/2007      8.2.07      Law Officers v. Stephen Magistrate’s Bail – Magistrate’s Court (Guernsey) Law, 1954 – Bail (Bailiwick of Guernsey)
                           Brian De Jersey                        Law, 2003 – defendant failed to answer his bail – proceedings against the
                                                                  surety, Mr de Jersey, for forfeiture of all or part of his recognisance in the sum of
                                                                  £10,000 – meaning in Guernsey of the terms 'bail', 'recognisance' and 'surety' –
                                                                  no legislative provision for forfeiture of a recognisance in the Magistrate’s Court
                                                                  – if regarded as a civil debt the present claim must fail as it exceeds the Court’s
                                                                  present limit of £2,500
No 5/2007      9.3.07      Masood et al v. Zahoor et Royal        Companies (Guernsey) Law, 1994 (Section 75) – allegation of prejudice to the
                           al                                     interests of minority shareholders – application for interim relief – legal principles
                                                                  to be followed
No 6/2007      27.3.07     Law Officers v. (i)      CofA             Misuse of Drugs (Bailiwick of Guernsey) Law, 1974 – cultivation of cannabis –
                                                                                                                                   th
                           Jonathan Graham Marsh                     application of the guidelines in Richards (Court of Appeal 18 April 2002) to
                           and Dean John Hardy (ii)                  cultivation offences – appropriate to compare cultivation with importation
                           Shaun David Fallaize

No 7/2007      28.3.07     Law Officers v. Robert           CofA     Importation of Class A drugs - conspiracy to import Class A drug - appeals
                           Edward O’Dette and                        against sentence and against recommendation for deportation -– on analysis
                           Franklin Delano O’Dette                   the substance subject of the conspiracy charge proved not to be a controlled
                                                                                                                                    th
                                                                     drug – relevance of the Richards guidelines (Court of Appeal 18 April 2002) –
                                                                     sentence should to some extent reflect the fact that the substance imported


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                                                                    proved not to be a controlled drug – Immigration Act 1971 and the Immigration
                                                                    (Guernsey) Order 1993 – effect of a deportation order made in Guernsey
                                                                    against a non–British national – position contrasted with that in the United
                                                                    Kingdom – R v Carmona (2006) Criminal Law Review p.657 not followed –
                                                                    enquiries to be made by the Royal Court before recommending deportation –
                                                                    sentences reduced and orders recommending deportation quashed.
No 8/2007      30.3.07     Yaddehige v. (i) Credit          Royal   Actions in contract and in tort – exceptions pleaded by the defendants – nature
                           Suisse Trust limited (ii)                of exceptions de fonds - locus standi – Royal Court Civil Rules, 1989 (Rule 36)
                           Partners of Collas Day                   – relevance of prescription and limitation in relation to the contractual and
                           (iii) MPR Private Clients                tortious claims respectively – empêchement d’agir – whether reasonable cause
                           Limited                                  of action – whether proceedings frivolous and/or vexatious – date when the
                                                                    cause of action arose – suit dismissed as respects the Second Defendants and
                                                                    to continue as against the First and Third Defendants on the respective tortious
                                                                    claims against them
No 9/2007      24.4.07     Singleton v. Duncan and          Royal   Claim arising from a building dispute –Guernsey doctrine of péremption –
                           Duncan                                   application to restore an action which has become périmée – Royal Court Civil
                                                                    Rules, 1989 (Rule 50) – matters to be taken into account in exercise of
                                                                    discretion – application to the present case – application granted – parties
                                                                    encouraged to seek mediation
No 10/2007 30.4.07         Ogier v. Grande Havre            Royal        (i)     Action declared périmée and struck out on 30 May 2006 (See
                           Holdings Limited                                      Judgment 24/2006) – ruling delivered on application for costs –
                                                                                 costs awarded on the recoverable basis
                                                                        (ii)Application for leave to appeal to the Court of Appeal – decision
                                                                            under appeal held to be interlocutory and leave therefore required –
                                                                            application refused
No 11/2007 2.5.07          Jersey Fisherman’s       Buckingham Sea Fish Licensing (Guernsey) Ordinance, 2003 – whether ultra vires – appeal
                           Association Ltd et al v. Palace     from Court of Appeal (See Judgments 30/2004, 32/2004 and 34/2005) –
                           States of Guernsey                  Ordinance making power of the States – European Communities
                                                               (Implementation) (Book of Guernsey) Law, 1994 – legislative regime relating to
                                                               waters around the Channel Islands and the United Kingdom – European
                                                               Community and the Common Fisheries Policy – powers of the States to
                                                               legislate by Ordinance, and by Projet de Loi sanctioned by Order in Council,
                                                               contrasted – 2003 Ordinance fell outside the powers conferred by the 1994 Law
                                                               – 2003 Ordinance declared invalid as respects the 3 to 12 mile belt – held to be
                                                               severable and to be valid as respects the 3 mile belt. (Order in Council
                                                                                                    th
                                                               registered by the Royal Court on 16 July 2007)
No 12/2007 15.5.07         Galaxy International     Royal      Companies (Guernsey) Laws 1994 to 1996 (Section 96(1) – application by
                           Limited v. Ladbrokes PLC            Ladbrokes for winding up of Galaxy – application by Galaxy for stay pending
                                                               determination of proceedings in England – not appropriate for Galaxy to seek to
                                                                                                                                           th
                                                               re-argue contractual issues already determined by the Royal Court on 7
                                                               February 2007 – application for stay refused – hearing of the winding-up
                                                               application to proceed solely on the basis of the affidavits filed by the parties –

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                                                                    winding-up application will involve issues to be decided by the Jurats




No 13/2007 23.5.07         Garnet Investments               Royal   Third Party’s application to continue a freezing injunction - Norwich Pharmacal
                           Limited (Plaintiffs) and                 application – issue of risk of dissipation of assets – Third Party’s application for
                           BNP PARIBUS (Suisse)                     disclosure – proper approach to disclosure applications – freezing injunction
                           S.A. (Defendant) and the                 varied – provision for limited disclosure – freezing injunction to be reviewed on
                                                                     th
                           Government of the                        7 December 2007
                           Republic of Indonesia
                           (Third Party)
No 14/2007 23.5.07         Albany Hotel Limited v.          Royal   Law Reform (Miscellaneous Provisions) (Guernsey) Law, 1987 (ss. 6 and 7) –
                           Wrench                                   leave granted to register Act of Court against Albany – Albany wish to consent
                                                                    to a new bond and for that new bond to have priority over the Act of Court –
                                                                    powers of the Court reviewed – held that priority arose from the act of
                                                                    registration, not from the Order giving permission to register - the 1987 Law did
                                                                    not give power to the Court to dictate or alter the priority attaching to a registry -
                                                                    application dismissed
No 15/2007 24.5.07         Cable and Wireless           Royal       Regulation of Utilities (Bailiwick of Guernsey) Law, 2001 – reference from
                           Guernsey Limited v. (i)                  Utilities Appeal Tribunal (UAT) – UAT purported to allow extension of appeal
                           Director General of the                  period from 14 to 28 days – need to distinguish between the UAT and the Utility
                           Office of Utility Regulation             Appeals Panel – 2001 Law, Ordinance and Rules considered - in this case
                           (ii) Guernsey Airtel                     wrong procedure followed from the outset – held that the UAT did not have
                           Limited (iii) Wave                       power to extend the appeal period - the appeal brought outside the 14 day
                           Telecom Limited                          period was a nullity

No 16/2007 25.5.07         Colussi v (i) Investec      Royal        Trusts (Guernsey) Law, 1989 – proceedings in Guernsey and in Italy –
                           Trust (Guernsey) Limited,                exceptions déclinatoires – whether the proceedings should be pursued in
                           and (ii) Serravallo – Royal              Guernsey or Perugia – held that the trust claims could be tried most suitably in
                           Court (Civil Action File                 Guernsey but that the Guernsey court had no jurisdiction over the agreement
                                     th
                           992) – 25 May 2007                       which gave rise to the share claims

No 17/2007 27.2.07         Ferbrache and                    Royal   Arbitration (Guernsey) Law, 1982 - partnership dispute – Respondents had
                           Richardson (Applicants)                  applied for legal proceedings to be stayed pending arbitration (s.4) – Applicants
                           v. Kirk, Bound, Cheong,                  alleged 'equitable fraud' and applied for an order that the arbitration agreement
                           Ogier and Green                          shall cease to have effect (s. 24(2)) – held that 'fraud' in this context meant fraud
                           (Respondents)                            strictly so called – Applicants did not intend to allege deceit or impropriety –
                                                                    Applicants’ s.24(2) application therefore failed – Respondents’ s.4 application
                                                                    granted
No 18/2007 26.6.07         (1) President of the State Royal         Norwich Pharmacal disclosure order – application by the Interveners for the
                           of Equatorial Guinea (2)                 Order of the Royal Court to be set aside and discharged – review of
                           Procureur of the State of                proceedings to date in the Courts of Guernsey and of England and before the

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                           Equatorial Guinea v. (1)                 Privy Council – English Court of Appeal, in parallel proceedings, had held that
                           The Royal Bank of                        none of the pleaded claims (which arose from the Claimants’ exercise of
                           Scotland International                   sovereign power) were enforceable in the Courts of England – appeal pending
                           Limited (2) Logo Limited                 to the House of Lords – Interveners’ application refused – Order of the Royal
                           (3) Systems Design                       Court to remain in force but stayed until further order
                           Limited
No 19/2007 4.7.07          Law Officers v. Adrian           CofA    Customs and Excise (General Provisions) (Bailiwick of Guernsey) Law, 1972 –
                           Charles George                           importation of cannabis resin – appeal against conviction – whether the decision
                                                                    was obviously and palpably wrong – circumstantial evidence – appeal dismissed
                                                                    – appeal against sentence dismissed
No 20/2007 4.7.07          Law Officers v. Steven           CofA    Rape – appeal against conviction - interruptions by the Lieutenant Bailiff
                           Malcolm Edward                           unobjectionable given the diffidence of the witness – summing up fairly set out
                           Presland                                 the strengths and weaknesses of the prosecution case – verdict not obviously
                                                                    and palpably wrong – leave to adduce further evidence as to alibi refused –
                                                                    tests as adopted in the appeal of Collins applied – leave to appeal against
                                                                    sentence refused – guidelines in Millberry applied
No 21/2007 24.7.07         B. v. B.                         Royal   Matrimonial Causes Law (Guernsey), 1939 (Article 45) – judicial separation by
                                                                    consent – husband’s application to reduce maintenance payable in respect of
                                                                    he two minor children of the marriage, and for remission of arrears – not for the
                                                                    Court to re-open the terms agreed by the parties – material change in the
                                                                    husband’s circumstances – maintenance reduced from £305 to £176 per month
                                                                    for each child – held that the husband had not given full disclosure of his
                                                                    available assets – arrears of £6,533.03 ordered to be paid within one month
No 22/2007 26.7.07         Wilson and Wilson            Royal       Royal Court Civil Rules, 1989 (Rule 48) – judicial review of grant of planning
                           (Applicants) v. (i) Minister             permission – application withdrawn – respondent and the intervenor sought
                           of the Environment                       costs against the applicants – costs always in the discretion of the Court –
                           Department                               procedural requirements as respects judicial review in England and Guernsey
                           (Respondent) (ii)                        contrasted principles governing costs in judicial review must take account of the
                           Doumejour Property                       procedure parties must follow – principles laid down by the English Court of
                           Company Limited                          Appeal not applicable – applicants ordered to pay the recoverable costs of the
                           (Intervenor)                             respondent and the intervenor
No 23/2007 27.7.07         Jones v. Le Vallée           Royal       Licitation – dwelling owned by the parties in undivided half shares – each had
                                                                    granted life enjoyment of their half to the other – parties had agreed to proceed
                                                                    by way of licitation – issue whether the Court had power to postpone the making
                                                                    of a licitation order – defendant ordered to participate in a licitation or judicial
                                                                    action within 5 months
No 24/2007 30.7.07         Neil John Craig                  Royal   Criminal appeal from the Court of Alderney – against conviction – assault and
                                                                    breach of the peace – review of the evidence – the Jurats were entitled to prefer
                                                                    the evidence of the complainant to that of the appellant – verdict not obviously
                                                                    and palpably wrong – appeal dismissed
No 25/2007 15.6.07         Williams v (i) Dixcart           Royal   Royal Court Civil Rules, 1989 (Rule 36) – allegation of breach of fiduciary duty –
                           Trust Corporation                        strike out application – pleadings sufficiently precise and clear to enable a


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                           Limited; (ii) Corlett –                  substantive defence to be filed – application dismissed
                           Royal Court (Civil Action
                                            th
                           File 1077) – 15 June
                           2007
No 26/2007 17.6.07         Governor and Company Royal               Saisie Procedure (Simplification) (Bailiwick) Order, 1952 – bond consented to by
                           of the Bank of Scotland v                joint purchasers – debtors unable to service the loan – no equity in the property
                           (i) Henderson and (ii)                   – one debtor consented to judgment in favour of the lender – the other debtor
                           Shales – Royal Court –                   could not be traced – held that the lender could not rely upon the standard
                           17 August 2007                           clause in the bond as to service – related to service of notices and demands on
                                                                    customers of the lender and not to legal process – held also that the standard
                                                                    clause in the bond appointing an officer of the lender as Attorney for the debtors
                                                                    could not be relied upon as the debtors had appeared by an Attorney to consent
                                                                    to the bond – delegatus non potest delegare – order for substituted service
                                                                    under Rule 6 of the Royal Court Civil Rules, 1989

No 27/2007 23.8.07         C v C – Royal Court              Royal   Matrimonial Causes Law (Guernsey), 1939 – judicial separation by consent –
                           (Divorce file 5863) – 23                 former husband’s application for reduction of maintenance payable in respect of
                           August 2007                              the two minor children of the marriage – principles to be adopted in considering
                                                                    application to vary consent order – application dismissed.
No 28/2007 29.8.07         In re the H Trust – Royal        Royal   Trusts (Guernsey) Law, 1989 (s.52) – application for variation – presiding Judge
                           Court (Civil Action File                 and Jurats retired together to consider the principal application – adult
                           960) – 29 August 2007.                   beneficiary suffering from Asperger’s syndrome – held to be under a legal
                                                                    disability under s.52(a) of the Law – Advocate appointed special guardian so
                                                                    that instructions could be given on behalf of this beneficiary – principles to be
                                                                    applied in variation of trust cases – Jersey and English authorities considered
No 29/2007 29.8.07         Fidelity Management              Royal   Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law, 1999 –
                           Limited v Royal Bank of                  fiduciary deposit account held by the defendant bank – disclosure made to the
                           Canada (Channel                          Financial Intelligence Service under the 1999 Law – plaintiff’s application for a
                           Islands) Limited – Royal                 declaration that a request to transfer those funds was validly made on behalf of
                           Court (Civil Action File                 the plaintiff – Law Officers invited to be heard as Partie Publique – jurisdiction –
                                      th
                           1102) – 20 September                     circumstances in which the Court can make a factual finding in the absence of
                           2007                                     the Jurats – declaratory relief is granted as a discretionary remedy – application
                                                                    granted

No 30/2007 20.9.07         Cable   and       Wireless Royal         Regulation of Utilities (Bailiwick of Guernsey) Law, 2001 – reference from
                           (Guernsey) Limited v                     Utilities Appeal Tribunal – proposed appeal had been held to be a nullity (See
                              (i)     Director                      Judgment 15/2007) – costs applications – power of the Royal Court to award
                                      General      of               costs in respect of (i) the reference and (ii) the appeal, considered
                                      the Office of
                                      Utility
                                      Regulation
                              (ii)    Guernsey
                                      Airtel Limited

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                                (iii) Wave
                                      Telecom
                                      Limited
                             - Royal Court (Civil
                            Action File 1092) -
                              th
                            20 September 2007

No 31/2007 20 9.07         C v C – Royal Court Royal                   Matrimonial Causes (Guernsey) Law, 1939 – application for an order to give
                           (Divorce File 6467)                         effect to an agreement as respects ancillary relief - Respondent unable to
                                th
                            – 20 September 2007                        proceed with the proposed settlement – held that any agreement between the
                                                                       parties must be approved by the Court before it will have legal effect – held that
                                                                       it would be wrong to give effect to the agreement without first hearing evidence
                                                                       – application dismissed

No 32/2007 25.09.07 Michael David Naylor and                Court of   Importation of Class A drugs – possession of Class B drug – appeal against
                    Adam John Pagett –                      Appeal     sentence – Richards guidelines – proper approach to sentencing where two
                    Court of Appeal (Criminal                          different drugs are involved – sentence on first appellant reduced
                    Appeals 344 and 345) –
                    25 September 2007
No 33/2007 25.09.07 Andrew John Dunn –                      Court of   Assault - possession with intent to supply, and supply, of Class A drug –
                    Court of Appeal (Criminal               Appeal     Criminal damage – appeal against sentence – starting point adopted had been
                    Appeal 363) – 25                                   the minimum sentence in the lowest band for Class A drugs in the Richards
                    September 2007                                     guidelines – application for leave to appeal dismissed

No 34/2007 01.10.07 Hannah Lord – Royal                     Royal      Criminal appeal from the Magistrate’s Court – cycling through traffic lights -
                    Court (Criminal Appeal                             offence which could have been dealt with by way of a Fixed Penalty Notice –
                    No 13 of 2007) – 1                                 appeal allowed and offence dismissed under the Probation of Offenders Law
                    October 2007
No 35/2007 01.10.07 Hanna de Garis – Royal                  Royal      Criminal Appeal from the Magistrate’s Court – breach of the peace and resisting
                    Court (Criminal Appeal                             police – assault with a glass causing facial injury – appeal from sentence of
                    No 14 of 2007) – 1                                 eight months’ youth detention for the assault – personal circumstances properly
                    October 2007                                       taken into account – appeal dismissed

No 36/2007 01.10.07 Andrew Stephen Carre –                  Royal      Criminal appeal from the Magistrates Court – driving in excess of the speed limit
                    Royal Court (Criminal                              – appeal against disqualification from driving for four months – appellant had
                    Appeal No 16 of 2007) –                            forgotten to show the Assistant Magistrate a letter from his employer – held that
                    1 October 2007                                     this letter would not have altered the Court’s decision – decision not manifestly
                                                                       excessive or wrong in principle – appeal dismissed.

No 37/2007 18.10.07 Les Banques Holdings    Royal                      Action relating to use of a residential car park – exceptions de fonds pleaded by
                    Limited v Good and Good                            the Defendants – application by Plaintiff to correct any alleged defects in the
                    – Royal Court (Civil                               cause – the test applicable to exceptions de fonds – the function of particulars of

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                           Action File 1130) – 18                 pleadings – amendment allowed and exceptions dismissed
                           October 2007




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