The following key indicates the court to which the case reference refers:
Court of Jersey GRC Royal Court of Guernsey
Court of Appeal GCA Guernsey Court of Appeal
JPC Privy Council, on appeal from Jersey
GPC Privy Council,
on appeal from Guernsey
CAPACITY AND DELEGATION
Scope of delegation
In re D (Capacity)  JRC
070 (Royal Ct: Clyde-Smith, Commr, and Jurats Blampied and Ronge)
PF Byrne on behalf of the Attorney General; D, E and F appeared in person;
D Blackmore as amicus curiae
Article 24(1) of the Capacity and Self-Determination (Jersey) Law 2016
empowers the court to make declarations as to the capacity of a person to make
a single specified decision or multiple decisions on such matters as are
described. Under art 24(2), the court can then appoint a delegate to make those
decisions on the person’s behalf. Under art 24(3), the court must ensure
when appointing a delegate that the
scope and duration of the appointment are no greater than reasonably necessary
having regard to all the circumstances.
An earlier act had determined that D lacked capacity
to manage his “extraordinary financial matters” although not
smaller day-to-day finances. By the present judgment, the Court appointed E and
F as delegates of D and clarified the terms of the earlier Act
(1) Under art 3(1) of the 2016 Law, a person is assumed to have
capacity unless it is shown otherwise. There is no provision in the Law for a person who is assumed to have capacity
to be provided with the assistance of a delegate. If the
person is shown to lack capacity to make decisions, then a delegate is
appointed to make those decisions, not to assist a person who lacks capacity in
the making of those decisions.
(2) The imprecise term “extraordinary”
had not been defined by the court, and it was necessary for it to be defined,
not just for D and the proposed delegates, but also for the bank and any third
party dealing with D’s assets, so that there was clarity as to what
decisions D could or could not make. The court interpreted the act as providing
that D had capacity to make decisions about his weekly finances, through his
debit card and current account, but not beyond that. The court then elaborated
in monetary terms the scope of the delegation and fashioned an order accordingly.
foreign law in claims of conspiracy and in breach of confidence
MB & Services Ltd v United
Company Rusal Internationals Public Joint Stock Company  JRC 083
(Royal Ct: Birt, Commr, sitting alone)
WAF Redgrave for the plaintiffs; D Evans for the defendant
The defendant applied pursuant to RCR r 6/13 to strike out the
plaintiffs’ claim in the order of justice, in whole or in part;
alternatively, for an order that the plaintiffs be directed to file an amended
order of justice addressing the alleged deficiencies in the current order of
justice. The defendant argued in particular that the plaintiff’s claims
had been inadequately pleaded in that (a) her claim for breach of confidence
did not plead under which system of law the claim arose and (b) her claim in
the tort of conspiracy did not specify a
lex loci delicti and set out the
principles of that claim so as to show that the requirement for double
actionability was satisfied.
The principles to be applied by
the court when considering a strike-out application were well established and
were conveniently summarised by Beloff, JA in Trant v Att Gen,1 at paras 22 and 23. It was also well
established that if a pleading is defective in setting out or particularising a cause of action, the
claim as a whole should not be struck
out if the defect is capable of remedy by filing particulars or an amended
pleading; for example Papadimitriou v
Quorum Management Ltd.2
(2) Foreign law is treated as a matter of fact; see Dicey, Morris
and Collins, The Conflict of Laws (15th
edn), para 9–001 and, so far as
1 2007 JLR 231.
2  JRC 142,
at paras 15 and 36; 2004 JLR N .
Jersey law is concerned, In re Imacu
Ltd.3 Being a matter of fact, it must normally be pleaded so as
to comply with RCR r 6/8.
In an earlier forum judgment, the
court reached the provisional conclusion that the breach of confidence claim
was governed by Russian law because such a claim was to be categorised for conflict of law purposes as a
restitutionary claim for unjust enrichment and the governing law of such a
claim is the law of the country which has the closest and most real connection
with the claim and, on the basis of the
material then before it, Russia was likely to be the country which had the
closest and most real connection with the claim and that Russian law would
therefore be the governing law of the claim. It would, however, be open to any
party to argue in due course that a claim for
breach of confidence should be categorised as a claim in tort rather than as a claim to unjust enrichment (see the
discussion at para 36–058 of Dicey)
and/or that the claim had its closest and most real connection with some
jurisdiction other than Russia.
As to the claim in conspiracy, the
court held in the forum judgment that this was a claim in tort and therefore
subject to the double actionability principle. The court went on to reach the
provisional conclusion that Russian law was the lex loci delicti as Russia was the country where the majority of
actions relied upon were likely to have occurred.
(5) The question which then arose was whether the plaintiffs should be directed to plead at this stage
what they contended was the governing law of the claims or whether this was
something which could be left until after discovery.
In relation to the claim in the
tort of conspiracy, the Court
approved the approach in University of
Glasgow v The Economist4 as implicitly approved in Kuwait Oil Tanker Co v Al Bader.5
Where the question of double actionability applied, and the plaintiff must
assert that the
tort is actionable in the foreign country and therefore in which country the
relevant acts took place, the lex loci
delicti. The Order of Justice did not presently comply with this and needed
to be amended. A plaintiff needed either simply to assert that the tort was
actionable under that system of law or, if the plaintiff so wishes, set out
3 1989 JLR 17, at 23.
4  Lexis citation
2430;  EMLR 495.
5  EWCA Civ
what the law of that foreign country is in order to support that
In relation to the claim for
breach of confidence, this is normally regarded as akin to a claim to one in
unjust enrichment and therefore the governing law is ascertained by determining the country which has the most
substantial and real connection with the claim. It was not consistent with the
purpose of pleadings as summarised by Page, Commr in Federal Republic of Brazil v Durant International Corp6
(that is, to know the other side’s case to be met, to identify the real
issue in dispute and to ensure orderly progress to trial) that there should be
uncertainty, in a case where most if not all the relevant facts occurred
outside Jersey, as to which system of
law is said by a plaintiff to govern the claim. Nor was that consistent with Dicey, at para 9–003. This
required the plaintiffs in this case to plead which system of law they say
governed the claim in breach of confidence and to specify (concisely) the
essential elements of the applicable foreign law and the facts and matters
relied upon to show that, on their case, they fulfil the requirements of a
successful claim under that law.
Although in this case discovery
had not yet taken place, much was already known by the plaintiffs and set out
in the order of justice and for the reasons set out in the Republic of Brazil case, the plaintiffs should set out their stall
with clarity. It would of course always be open to them to seek leave to amend
if later required.
(6) This was clearly a case where any defect in the pleading fells
within RCR r 6/13(1)(c) and could be
cured by amendment. The order of justice
was not liable
to be stuck out in its entirety
under RCR r 6/13(1)(a) as
disclosing no reasonable cause of action.
Interpretation of documents
O'Hare v Burgher  JRC 065 (Royal
Ct: Bailhache, Commr, and Jurats Thomas and Hughes)
H Sharp, QC for the plaintiff; CJ Swart for the defendant
6 2011 JLR N .
of construction of a settlement agreement arose on an
application for summary judgment.
In Trico Ltd v Buckingham7 the Court of Appeal had
proceeded on the basis that, as accepted by both parties in that case, English
principles governing the interpretation of contracts as laid down by the English courts were followed in
Jersey. However, courts rely upon counsel to put forward all relevant
authorities before them. This is a particularly important obligation in
circumstances where submissions are made to the Court of Appeal or the Privy
Council, neither of which might be
expected to be aware of all Jersey authorities,
and this is particularly relevant in contract cases where the underlying law of
contract is not the same as it is in the different countries of the United Kingdom.
(2) As the Court of Appeal noted In Energy Investments Global Ltd v Albion Energy Ltd,8 the
courts of Jersey regularly refer in contract cases to the works of Pothier, who
the Royal Court on numbers of occasions has described as providing a surer
guide to the Law of Jersey than that
of cases decided in England and Wales—at one stage regarded as
authoritative in England and held in similar respect is held in Scots Law—and in that case the
court also had regard to the commentaries of Pothier, Oeuvres Complètes (Tome Premier, Traité des Obligations) Part 1, Ch 1, at art VII where
twelve rules of construction are to be found.
The view set out by English and
Scottish judges in relation to the construction of contracts were undoubtedly
helpful but one must be careful with
any extrapolation of those rules in cases where the objective/subjective question
comes to be considered in the identification of the contract which the parties
made. In this case, however, that did not arise because neither side contended
that the agreement in question had not been made, nor that there was any
fundamental problem in meeting the requirements of a valid contract as set down
in Selby v Romeril.9
The Commissioner observed in
particular that the comments of Lord Hodge in Wood v Capita Insurance Services
paras 10 and 13 (cited at para 56 of the Court of Appeal judgment in Trico Ltd v Buckingham) regarding
the relation between
7  JCA 067.
8 2020 (2) JLR 421.
9 1996 JLR 210.
10  AC 1173.
and contextualism were of assistance: these were not conflicting
paradigms; rather, lawyer and judge, when interpreting any contract, can use
them as tools to ascertain the objective meaning of the language which the
parties have chosen to express their agreement. The extent to which each tool
will assist the court in its task will vary according to the circumstances of
the particular agreement or agreements.
Sentencing—breach of anti-money laundering rules
Att Gen v LGL Trustees Ltd 
JRC 053/059 (Royal Ct: Clyde- Smith, Commr, and Jurats Ronge and Hughes)
The Solicitor General for the Attorney General; W Grace for the defendant
LGL Trustees Ltd pleaded guilty to offences of (Count 1) failure to comply
with the requirements of art 11(1)(f) of the Money Laundering (Jersey) Order 2008 (“failure to maintain
appropriate and consistent policies and procedures relating to . . . (f) Risk
assessment and management”) and (Count 2) failure to comply with the
requirements of arts 3 and 13 of the Money Laundering (Jersey) Order 2008 (failure to identify
and verify the identity of a controller of one
of its customers and to keep that information up-to-date), each being
contrary to art 37(4) of the Proceeds of Crime (Jersey) Law 1999.
In relation to Count 1, the most serious offence, LGL failed to recognise
and respond to the risks that a structure it set up and administered in Jersey
from 2010 onwards might be used to embezzle funds from the public purse of a
“high risk” country, namely Angola, for the benefit of its then
ruling family. There were numerous “red flags”. In relation to
Count 2, LGL failed to identify and verify the controllers of one of its
customers. Having failed to obtain the information at the outset of the
business relationship as they were required to, they then failed to remedy this
for another six years. There was no
suggestion that the funds provided by Angola were of suspicious origin; they
were public funds. Nor was there any suggestion that the investments into which
the funds were placed were themselves
suspicious; they were high quality property investments. The money laundering
risk related to the possibility of corrupt misuse of funds diverted from the
Jersey investment structure that LGL was administering.
At the heart of anti-money-laundering regulation is the requirement
that financial services businesses must have in place, and
must follow, effective procedures to ensure that they avoid being mixed up
in money laundering.
The court accepted that the
failings in this case were not systemic but did not accept that this could be
regarded as a one-off mistake in 2010 that has effectively been carried
forward. Due diligence is an ongoing process. The court was concerned here with
failings, albeit relating to this one structure, that were ongoing over a
period of some six years.
(3) The facts of this case were more serious than those in Att Gen v Abu Dhabi Commercial Bank PJSC
Jersey Branch11 and that case, therefore, provided a baseline
for ascertaining the appropriate level of fine. An increase in the starting point in the Abu Dhabi case of 50% to £1.2m was not disproportionate in
that it properly reflected the seriousness of the conduct in this case,
deprived LGL of its profit, allowed for the aggravating features and reflected
the importance of deterrence.
(4) It was not appropriate to take into account the differing means of LGL as compared to the Abu Dhabi Bank.
The court in the Abu Dhabi case focused on the conduct of the Abu Dhabi Bank as opposed to its means. This is consistent
with the approach of the court in health
and safety cases. But as in health and safety cases the fine must be large
enough to bring home the message,
the need to achieve a safe working environment, where the defendant is a
company not only to the managers but also to the shareholders.
From the starting point of
£1.2m, a full one-third discount was justified because the guilty plea
was of value. By way of further mitigation was LGL’s clean record and cooperation;
a change of ownership of this relatively small company that had occurred since the events in question; and the impact of
a fine having regard to LGL’s
adjusted net liquid asset ratio to its expenditure under regulatory
requirements. On Count 1, the sentence was £550,000. No further penalty
was imposed for Count 2. The court further ordered LGL to make a contribution to the costs of the prosecution of
£50,000. The total amount was £600,000, with three months to pay.
Sentencing—disparity of sentence with co-defendant
Thurban v Att Gen  JCA 097
(CA: McNeill, Bompas, and Bailhache JJA)
11  JRC 059; 2020 (1) JLR
ML Preston for the first applicant; the second applicant, Brown,
On an application for leave to appeal against sentence, the question was
raised as to when an appeal might lie on the ground of unjustified disparity
with the sentence of a co-defendant.
Held, dismissing the appeal:
In Rae v Att Gen12 the Court of Appeal referred to Bevan v Att Gen13 and
accepted the proposition that where the principal participant in the offence was being sentenced alongside someone who was merely on the periphery and is
involved to a far lesser extent, the
court should interfere if there was a disparity in sentence which led to
a justified sense of grievance.
In Fawcett,14 the court said that the approach of the
court was to ask to whether the right- thinking members of the public, with
full knowledge of the relevant facts and circumstances, would consider that
something had gone wrong in the administration of justice. An appellant had to
show a justified sense of grievance.
(2) Since the decision in Bevan,
provision had been made by the legislature in 2008 for the Attorney General to
appeal sentences which are unduly
lenient. That change was introduced in England and Wales in 1988 after the
decisions in Rugg15 and Fawcett. In other words, if the decision
in respect of a co-defendant was too lenient, there is now a remedy for that.
(3) The real question is whether the starting point adopted and
final sentence imposed by the Royal Court on the current applicant was right.
If it was, then it followed that, unless there is an excessive disparity, to
change the sentence would be to make it wrong. Accordingly, the fact that the
decision in the case of the co-defendant was wrong is, absent some very special
reasons, neither here nor there. To
allow an appeal on that basis is simply to make both sentences wrong. In
addition, in a multi-handed case such as the present, to reduce a sentence on
the grounds of disparity with one other
sentence imposed would involve engaging the attention of the court in relation
to all the others, whether there were appeals or not.
12 2017 (2) JLR 214.
13  JCA 014; 2003 JLR N .
14  5 Cr App R (S) 158.
15  2 Cr
App R 350.
Periodical payments order
Zac (Minor) v Estate of A (deceased)
(Capacity)  JRC 100 (Royal Court: MacRae, Deputy Bailiff, and Jurats
Ronge and Dulake)
SC Thomas for the plaintiff; LA Ingram for the defendant
This was the first periodical payments order which the court has made
under the provisions of art 4 of the Damages (Jersey) Law 2019 in favour of the
plaintiff who had suffered traumatic long-term brain injury and other related
conditions as a result of a car accident. A settlement of the claim had already
been blessed by the court on the application of the plaintiff’s delegate.
In this separate judgment the court considered its discretion to make a
periodical payment order as part of the consent order and the requirements that
it be satisfied, as required by art 4 of the 2019 Law, that the payments were
The Damages (Jersey) Law 2019 had
brought welcome clarity the court’s power to make periodical payment
orders with or without the consent of the parties and the method by which the
discount rate should be calculated in personal injury cases. These issues
having been identified by Scriven,
Commr in X Children v Minister for Health and Social Services.16
(2) The questions for the present court were whether it should in
its discretion under art 4 make an order for periodical payments and whether or
not the court was satisfied that the continuity of payment under such an order
was reasonably secure as required by art 4.
Most personal injury cases are
compromised by way of a lump sum. This is convenient, cost effective and
appropriate to both plaintiff and
defendant. The only principle of law is that the claimant should receive full
compensation for the loss which was suffered as a result of the
defendant’s tort, not a penny more but not a penny less: per Baroness Hale in Simon v Helmot,17 an appeal
to the Privy Council from a decision
of the Court of Appeal in Guernsey. In the case of a substantial injury with
life long and possibly uncertain consequences, such an object is more likely to
be achieved, in many cases, by the making of a periodical payments order as
opposed to a lump sum order: X Children case
at para 13.
16  JRC 226.
17 2011–12 GLR 517.
(4) Having regard to the
circumstances of this case and the terms of the proposed periodical payments
order, the court had no doubt that such an order was appropriate and that it
was reasonably secure, having regard to the financial standing, status, backing
and regulation of the Lloyds syndicate behind the defendant’s insurer.
(5) Under the terms of the consent order, both the plaintiff, the
defendant and the defence insurer would have permission to apply to the court
for the purposes of both enforcing the settlement agreement and applying to
vary the periodical payment order contained therein pursuant to art 4(8) of the
Law. The equivalent legislation in England and Wales restricts the grounds upon
which a variation may be ordered to
“only one application” in respect of “each specified disease
or type of deterioration or improvement”. The terms of art 4(8) of the
2019 Law gave the court a much wider discretion, providing for variation on the
grounds of any material change in circumstance, which could extend to both
economic as well as medical changes so far
as they are “material” which in the court’s view meant
“significant”. It had been observed that these provisions provide a
much fairer mechanism to ensure that a plaintiff’s compensation could, if necessary, be varied so that it
was no more and no less than that which was required to meet their needs.
rights indemnity and exoneration out of trust fund
B v Erinvale PTC Ltd  JRC
021 (Royal Ct: Clyde-Smith, Commr, sitting alone)
PC Sinel for the representor; BJ Lincoln for the first respondent; PD
James for the second respondent; SA Franckel for the intervenors
The question arose as to the circumstances in which a trustee will be
deprived of its right of indemnity from the trust fund either in respect of its
own costs or, in litigation, in respect of an order to pay the costs of other
parties to the action. Article 26(2) of the Trusts (Jersey) Law 1984 allows a
trustee to reimburse itself for expenses “reasonably incurred” in
connection with the trust.
Held, as regards the applicable principles:
(1) Dishonesty or fraud may be a sufficient basis but is not a
necessary basis for refusing the right of indemnity; mere negligence or honest mistake is not enough; and
refusal to allow costs out of the fund does not necessarily entail
the court fixing the trustee
liability to pay other parties’ costs but the court may penalise the
trustee in both ways: MacKinnon v
The court does not wish to
discourage persons from becoming trustees by inflicting costs upon them if they
have done their duty or even if they have committed an innocent breach of
trust: In re JP Morgan (1998) Employee
The mere fact that a trustee has
been found to be in breach of trust does not necessarily mean that he should be
deprived of the right of indemnity; it is a matter of fact and degree in every
case: In re Piedmont Trust.20
18 2010 JLR 508.
19 2013 (2) JLR 239.
20 2016 (1) JLR 14.