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BEING A LITIGATOR JERSEY SHORE
It was the usual adversarial scene. The advocates sat on either side of the court, made submissions on points of trusts law, listened and grimaced as the judge interjected. Clients sat behind, observing and looking slightly bemused.
Landmark Privy Council decision - £14m in damages award confirmed
Simon v Helmot [2012] UKPC 5 page 1 of 5 March
On 7 March 2012 the Judicial Committee of the Privy Council handed down their judgment unanimously dismissing the appeal by Mr Simon from the Guernsey Court of Appeal on the issue of the discount rate to be applied and upholding that court’s award in damages to the claimant, Mr Helmot, of approximately £14 million.
Planning Law: The Court can remit matters back to the Minister on appeal - March 2012
The Royal Court has just handed down a judgment in a case involving an appeal against a decision of the Minister (then Senator Cohen) to refuse planning permission which is significant in two respects.
In the matter of The Valetta Trust: Jersey responds positively to Third Party Litigation Funding
While not entirely new to some common law jurisdictions Third Party Litigation Funding ("TPLF") has recently been placed in the spotlight in Jersey by the decision of the Royal Court In the Matter of the Valetta Trust.
Jersey Litigation Funding
Lisa Springate and Robert Gardner discuss the landmark decision reached on the validity of litigation funding in Jersey
Brokers Beware
The duty of care insurance brokers owe to their clients to explain onerous policy terms
An important judgment was handed down by the Royal Court in March in a case where a leading insurance broker was found to have been negligent in not making its client aware of the terms of a warranty in the policy.
Where is the Defence? Representation of VV 26 October 2011
Ordinarily a trustee would be expected to take a neutral position in relation to hostile litigation affecting the trust assets.
Lisa Springate and Robert Gardner examine a new way to fund litigation
It is a well-known feature of the Jersey legal system that not only are you expected to fund your own legal costs but that should you be unsuccessful in your claim, you are also likely to have to pay a substantial proportion of the other side’s costs on either an indemnity basis (approximately 80% of the overall costs) or on a standard basis (approximately 65% of the overall costs).
Planning Law: The Court can remit matters back to the Minister on appeal
Summary
The Royal Court has just handed down a judgment in a case involving an appeal against a decision of the Minister (then Senator Cohen) to refuse
planning permission which is significant in two respects.
Revoking the Irrevocable
In the matter of the DDD Settlements [2011] JRC243
Excluding someone irrevocably from benefitting from trust assets normally means just that. The magic bullets of mistake and Hastings Bass have had their wings clipped somewhat, though the Jersey Court has pursued its own course in respect of the former, and its all to play for in the Supreme Court regarding the latter. But what if there were no error involved in the exclusion in any event? What if the exclusion had been effected just as intended? That was the position the Jersey Court faced with the DDD Settlements.
What price disclosure? Employee anonymity after Shah v HSBC
What price disclosure?
Employee anonymity after Shah v. HSBC
The UK Court of Appeal has provided some welcome comfort to nervous employees of financial institutions faced with the prospect of having to give evidence against their customers in cases involving disclosures made to the authorities under the “proceeds of crime” legislation.
PERMAFREEZE: THE JUDGMENT IN CUSTOMS & EXCISE v GARNET INVESTMENTS LTD
Those who thought the days of the extended informal freeze may be over, think again.
Many in the financial services industry were heartened by a decision of the Royal Court of Guernsey earlier this year which granted an application for judicial review and quashed a refusal of consent by the Financial Investigation Service (“FIS”) to the release of funds held by BNP.
Till death do us part: but, just in case ...
Lawyer Maria Liffey and Advocate Debra Corbel of Bedell looks at the insurance policies you can take against a marriage breakdown
These days, one would scarcely contemplate taking on a new family pet without first obtaining comprehensive insurance against costly vet bills. But what about getting married?
Shock waves around the trust industry?
In the Matter of the Y Trust (Jersey Unreported Judgments) 4 August 2011
Counsel for one of the parties and Commissioner Clyde-Smith were at odds over whether the court's decision to deprive one of the parties of 50% of its costs would send shock waves around the trust industry or not.
Trustees may still be penalised in costs even where the Court blesses their decisions
In the Matter of the Y Trust [2011] JRC 135
The case involved an application by the trustee for a blessing in relation to its decision to distribute the assets of the Trust, which was inconsistent with its previous indication (described as a final decision) that the trust assets would be split 50 % for the benefit of the settlor's eldest son (A) and 50 % for the benefit of the settlor's younger son (B) as well as B's three children and his grandchild.
Litigation: Commercial litigation funding explained
Alasdair Davidson, partner, litigation group at Bedell Cristin in Guernsey, considers commercial litigation funding - published in the Guernsey Press, Law and Accountancy Review 12 September 2011.
X marks the spot
A recent trust judgment in Jersey could see more settlors opting for the jurisdiction of the island over that of England, says Robert MacRae
Is that your final answer? When a trustee can change its mind
The Royal Court was recently asked to sanction a trustee’s decision to distribute the assets of a discretionary trust in a manner that was inconsistent with previous indications that the trustee had given to the beneficiaries1. In particular, the Court analysed the ability of trustees to make distributions that are fundamentally different from decisions previously described as being “final” and whether beneficiaries need to be consulted if a trustee anticipates changing its mind in this way.
Draft Laws and Orders
The draft Banking Business (Amendment No. 7) (Jersey) Law 201- has been adopted by the States of Jersey and is awaiting the
approval of the Privy Council. The draft Law will amend the Banking Business (Jersey) Law 1991 in order to update the definition of
the term "auditor" and permit the Minister for Economic Development to make Orders in relation to accounting and audit of registered
persons.
Farstad Supply A/S v Enviroco Limited Supreme Court Judgement on 6 April 2011
On February 4th 1994, a charterparty was entered into by Farstad Shipping A/S (“Farstad”) and Aberdeen Service Company (North Sea) Limited (“Asco UK”).
Landmark Privy Council Decision Peace of Mind for Guernsey Trustees?
Having sat for two full days on 13 and 14 December 2010, the long awaited landmark decision of the Judicial Committee of the Privy Council in the case of Spread Trustee Company Limited (Appellant) v Sarah Ann Hutcheson & Others (Respondents) was delivered on 15 June 2011.
In the matter of the V Settlement: Hastings-Bass affirmed?
The Royal Court revisited the Hastings-Bass principle in the case of In the matter of the V Settlement [2011] JRC 046, in which it confirmed its previous decisions permitting relief under the principle regardless of whether or not the trustee in question had acted in breach of his duty.
International Private Client Update - Mistake in Jersey post Pitt V Holt and Futter v Futter
Mistake in Jersey post Pitt v Holt and Futter v Futter
In a judgment published yesterday, the Royal Court in Jersey has confirmed that the test for mistake in the Island is different from that recently established by the English Court of Appeal in Pitt v Holt and Futter v Futter [2011] EWCA Civ 197.
Mistaken Gifts -Jersey says “No” to Pitt v Holt
Representation of R in the matter of the S Trust [2011] JRC 117
The rule in Hastings Bass-Jersey Court sets aside decision made by Protector
In the matter of the Representation of Mrs P and in the matter of the R Trust [2011] JRC085, 20 April 2011 Commissioner Bailhache and Jurats Clapham and Morgan.
IN RE R – THE WAKING OF LEVIATHAN
The former Bailiff of Jersey, Sir Philip Bailhache has recently delivered a judgment in In re R [2011] JRC 117 which declines to follow the English Court of Appeal’s test for mistake established in Pitt v Holt1.
Dispute Resolution: Cayman Islands
A version of this briefing appeared in the Practical Law Company Dispute Handbook, February 2011.
In the Matter of the Representation of R and in the Matter of the S Trust
In a landmark decision, the Royal Court of Jersey has held that, in considering whether a gift should be set aside on the grounds of the donor's mistake, it would not follow the recent English Court of Appeal decision in Pitt v Holt [2011] EWCA Civ.197 but would continue to follow the course charted in the previous Jersey case of In Re the A Trust [2009] JLR 447.
Jersey Royal Court judgment demonstrates independence from English law
A significant judgment delivered by the Jersey Royal Court on Tuesday, 21 June 2011, showed that Jersey has not followed a recent English court decision in an important part of trust law. The landmark ruling could, in circumstances where a case could be brought either in Jersey or England, attract a number of similar cases to the Jersey court.
Jersey Court makes ex parte mandatory order to enforce trust in respect of nominee shareholding
The Decision
The injunction claim: The Court held that this was an unusually strong case justifying an ex parte application and in which it was appropriate to take a strict view of Mr Assad's obligations as nominee shareholder under the Declaration of Trust.
Jersey Legislation Overview
A brief summary of key legislation which has come into force in the first quarter of 2011 or is imminent…
Rectification of Trust Documents
In circumstances where an error is identified in trust documents, one of the possible solutions to consider is the remedy of rectification.
Evidence of Civil Proceedings
Until recently, the principle law governing evidence which can be admitted in civil proceedings in Guernsey was almost a century and a half old. Surprisingly, the Loi Relative aux Preuves, 1865 (the “1865 Law”), despite its antiquity, is relatively flexible to allow the Guernsey courts to develop well respected and comprehensive provisions as to the admissibility of evidence in civil proceedings.
Security for Costs and the Corporate Plaintiff – Paying for the Privilege of Limited Liability?
The usual costs rule in litigation is that the losing party pays the winning party's reasonable legal costs. If a Defendant fears that a Plaintiff will not or will be unable to pay those costs, it can attempt to safeguard against that risk by bringing an application for security for costs.
Legislation Update January 2011
New legislation amending Guernsey regulatory laws and company law.
LARGEST EVER AWARD OF DAMAGES IN GUERNSEY AND SETTING OF 1% DISCOUNT RATE
On 14 January 2010, the Royal Court of Guernsey handed down Judgment in the case of Manuel Paul Helmot -v- Dylan Simon.
In the matter of the representation of Y [2010] JRC 54
The case concerned an application to the Court by Y, the liquidator of Centurion Trust Company Limited (“Centurion”), to approve the proposed appointment of Herald Trust Company Limited (“Herald”) as the trustee of the Q Trust
Discain Project Services Ltd v Charles Le Quesne (Guernsey) Ltd
The Plaintiff sought to challenge the outcome of an adjudication proceeding between the two parties on the grounds that the decision was unfair and contrary to natural justice.
Arun Estate Agencies Ltd v Kleinwort Benson (Guernsey) Trustees Ltd
The Applicant applied to the Court to have an Employee Benefit Trust (“EBT”) set aside and all the monies held by the trustees to be returned to the Applicant.
Discain Project Services Ltd v Charles Le Quesne (Guernsey) Ltd
The Plaintiff sought to challenge the outcome of anadjudication proceeding between the two parties on thegrounds that the decision was unfair and contrary tonatural justice.
The New Security Interests (Jersey) Law - Transitional Provisions
The draft Security Interests (Jersey) Law 201- (the “newLaw”) is in close-to-final form and is shortly due tocommence its journey through the legislative process. Itis currently anticipated that the new Law will come intoforce in the first half of 2011.
Representation of the Jeep Trust [2010] JRC075
This representation was made by the principal beneficiary of the Jeep Trust (“Mr K”). The Jeep Trust was established in May 1998 with Regal Trustees Limited (“Regal”) as trustee.
Chvetsov v BNP Paribas and Another [2009] JCA220
The case concerned an application for leave to appeal against a decision in the Royal Court striking out a claim against Maison Anley Property Nominee Limited (“MA”). The conclusion arrived at by the Royal Court was upheld, that being the claim contained no cause of action.
Cunningham v Cunningham
A trust known as the A Cunningham No. 2 Settlement (the “Trust”) was established in 1991, with two brothers (the plaintiff and his brother referred to herein as “A”) in the class of beneficiaries who subsequently got into dispute with one another as to certain transactions relating to the Trust. The original trustees at the time of establishment of the Trust had power to designate the settlor and protector, and they chose A as such. A had power as protector of appointing new or additional trustees and removing trustees by instrument in writing.
Disclosure of information by beneficiaries and the Court's jurisdiction to give directions
In this case the Court gave directions under Article 51 of the Trusts (Jersey) Law 1984 (the equivalent provision in Guernsey is section 69 of the Trusts (Guernsey) Law 2007) that a beneficiary disclose information to a trustee. This note looks at the circumstances in which the Court came to give such directions, and identifies an alternative basis on which the Court could have made the same orders.
British Virgin Islands: New Regulatory Legislation
New legislative provisions will come into force shortly in the British Virgin Islands relating to financial services, insurance business and financing and money services. These provisions will provide for an enhanced platform in these areas of the financial services industry of the BVI, once again demonstrating the continual commitment of the BVI to ensuring its legislation provides for first class transparent regulation which is appropriate for the BVI as an OECD white listed jurisdiction.
The law of mistake: In B -v- C, D and E in the matter of the A Trust [2009] JRC 245
In B -v- C, D and E in the matter of the A Trust the Royal Court took the opportunity to fully review the law of mistake in Jersey concerning the disposal of personal property by an individual into a trust following recent decisions by the English courts.
In re the Exeter Settlement 2010 JRC012
This is the latest in a line of rectification of trust applications granted by the Royal Court. In this case the Court allowed the remedy in circumstances where there were no beneficiaries recorded in the trust instrument when it was executed.
Who Moved My Class Rights? - A Short Study of Cayman Islands Law on Variation of Class Rights
The basic question is whether under Cayman Islands Law, a variation of a right attaching to a particular class of shares has to be consented to by special majority of the members? In other words, can the Article authorising the variation of class rights specify a simple majority or some other majority?
In the matter of the H Trust - Royal Court 12 August 2009 unreported judgment
The Trust in question was known as the H Trust. The trustees were a Mr Arthur (the “Individual Trustee”) and the settlor. The settlor experienced difficulties in his relationship with the Individual Trustee and decided he wanted to replace him. The settlor selected Church Street Trustees Limited (“the New Trustee”).
Tasarruf Meduati Sigorta Fonu V Merrill Lynch (Cayman) Limited and Others
As a matter of English and Cayman law, does the court have jurisdiction to appoint a receiver, at the behest of a judgement creditor, by way of equitable execution over a settlor’s power of revocation of a trust?
Litigation case study - Miller & Baird
In the matter of The Minister of The Public Services Department of The States of Guernsey v Miller & Baird (CI) Limited, (2009) Royal Court of Guernsey (hearing 6 May 2009; judgment delivered 15 May 2009).
Draft Laws and Orders
The draft Companies (Amendment No. 10) (Jersey) Law 200- has been adopted by the States of Jersey and is awaiting the approval of the Privy Council. The draft Law will amend the Companies (Jersey) Law 1991 to provide an additional right of appeal against certain directions of the Jersey Financial Services Commission, clarify the law with regard to distributions and reduction of share capital, introduce a new offence where companies do not comply with obligations regarding the keeping of a registered office in Jersey, and introduce provisions permitting companies to specify in their Articles a higher than two-thirds majority for the passing of special resolutions.
Laws and Orders brought into force in 2009
The Collective Investment Funds (Unregulated Funds) (Amendment No. 2) (Jersey) Order 2009 came into force on 23 February 2009. The Order amends the Collective Investment Funds (Unregulated Funds) (Jersey) Order 2008 to specify which London Stock Exchange markets are acceptable markets for an Unregulated Exchange Traded Fund.
SECURITY FOR COSTS: THE END OF DISCRIMINATION AGAINST NON RESIDENT PLAINTIFFS
In this appeal by Leeds United Football Club Limited ("Leeds”) the Court of Appeal considered the issue of security for costs in the context of Article 14 of the European Convention of Human Rights
Leeds United vs AdMatch ruling dismantles protectionism surrounding Jersey based legal cases
The recent decision of the Jersey Court of Appeal in the Leeds United Association Football Club Limited and another v AdMatch case has enhanced both the quantity and quality of justice in Jersey
Divorcing Beneficiaries - A Practical Guide for Trustees
A Jersey law trust. A Jersey corporate trustee. Divorcing beneficiaries, both of whom are resident in a foreign jurisdiction.
What should you do? What shouldn’t you do?
Joanna Woods considers three key matters; the provision of information, submission to the jurisdiction of the foreign Court and the enforcement of a judgment in Jersey, in this practical guide for trustees.
Dispute Resolution in Jersey
In many cases, Alternative Dispute Resolution ("ADR") might offer a more cost effective, time efficient solution to dealing with a dispute than traditional litigation. This Briefing gives an overview of the approach to ADR in Jersey.
On 8 June 2004, a small but fundamental change to the Royal Court Rules 2004, as amended (the "Court Rules") occurred with the introduction of a new rule enabling the Royal Court to stay litigation in order to encourage the parties to mediate with a view to achieving a settlement.
Mediation in Jersey
Most disputes, however big or small, and however complex the issues, can be resolved in a number of ways other than by traditional litigation. There are a number of different types of alternative dispute resolution ("ADR") procedures which offer advantages over the uncertainty, delay and cost of traditional litigation. These ADR procedures include: arbitration, mediation and negotiation. A separate Briefing exists titled "Dispute Resolution in Jersey" which provides, in summary form, a guide to the various different types of ADR that are available
Protecting your position as trustee: obtaining the Court’s approval of a trustee’s proposed deci
1. Introduction 1.1 Generally and historically speaking, trusteeship is an office of personal confidence and a trustee is not able either to it or allow another to exercise it unless the settlement so provides. Lord Langdale put this duty as follows in the case of Turner v. Corney[1] as far back as 1841:
Draft Laws and Orders
The draft Companies (Takeovers and Mergers Panel) (Jersey) Law 200 - The draft Limited Partnerships (Amendment) (Jersey) Law 200 - The draft Proceeds of Crime (Supervisory Bodies) (Jersey) Law 200
Instituting Civil Proceedings in Jersey
Jersey has a legal system which is separate from that of any other jurisdiction. Whilst it is judicially independent, unsurprisingly, it reflects many of the practices and procedures to be found in the courts of England and Wales, but with distinct differences. This Briefing offers a broad overview of the topic of instituting civil proceedings in Jersey.
Family Law in Jersey
This Briefing is intended to provide answers to some of the key questions that you may have regarding family law proceedings in Jersey. A glossary of terms is to be found at the back of this Briefing.
Mareva Relief in Jersey in Aid of Foreign Litigation
The purpose of this Briefing is to set out how and when the Jersey courts will grant Mareva relief to assist litigants in foreign jurisdictions.
The Discovery Process in Jersey Litigation
In any litigation, documents are likely to feature as evidence. Those documents may be significant in their own right or may be crucial in refreshing the memories of witnesses. Discovery is the legal process pursuant to which the parties to litigation reveal their documentary evidence to each other.
The Informal Freeze Under the Proceeds of Crime (Jersey) Law 1999
This Briefing looks at the importance of "knowing your client", an important obligation that sits on many financial and non-financial services businesses, including law firms, in the context of recent Jersey litigation where the client of a bank had his assets frozen informally following a disclosure under the Proceeds of Crime (Jersey) Law 1999.
Loss of a Privilege
Until now the rudest question that a Jersey lawyer has had to ask a client is ‘can you pay my fees”, not for much longer - lawyers in Jersey are about to get a taste of the medicine that their financial services clients have been swallowing since the introduction of the anti money laundering regime in Jersey since 1999: From mid February, with the anticipated States approval of the newly revised Money Laundering Order, lawyers will in respect of defined activities at least, have to fall into line by implementing systems to forestall money laundering including verification of identity requirements.
Proceeds of Crime - Call for Reform
Mrs Minwalla continues her extraordinary journey through the Royal Court with yet another judgment being handed down, this time calling for legislative change rather than prompting it.
