Appeals in Guernsey civil proceedings18 Aug 2015
This briefing provides an outline of the routes of appeal from Guernsey's principal court of first instance, the Royal Court. Note that in minor civil cases which are heard in the Magistrate's Court in Guernsey, or any civil cases which are heard in the Court of Alderney or the Court of the Seneschal in Sark, there is a right of appeal which proceeds to the Royal Court. These types of appeal are governed by their own sets of rules and are beyond the scope of this note.
Appeals to the Guernsey Court of Appeal
The Guernsey Court of Appeal is composed of the Bailiffs of Guernsey and Jersey and a panel of distinguished practitioners from England and Scotland. Typically, an appeal from the Royal Court will be heard and determined by three judges of appeal.
An appeal from the Royal Court to the Court of Appeal lies as of right where the decision concerned is in the nature of a final decision. Where the decision is in the nature of an interlocutory order, leave is required either from the first instance judge or from the Court of Appeal. Where leave is required it should be sought from the first instance judge initially and, if refused, the application may be renewed to a single Judge of the Court of Appeal. If it is again refused then it can be renewed further to the full Court of Appeal. The test to be applied on any application for leave is similar to that in England and Wales: leave will generally be granted unless the court considers an appeal would have no realistic prospect of success.
A pending appeal does not operate as a stay of execution or of proceedings under the decision of the court below and no intermediate act or proceedings is invalidated by an appeal. Therefore, if the appellant wishes to obtain a stay of any order under appeal, he must make a specific application.
Whilst an appeal to the Court of Appeal takes effect by way of rehearing, that does not mean that the Court of Appeal will re-hear the witnesses (in the case of a trial), but it will reconsider the evidence heard by the court below. The Court of Appeal is not confined to making an order which should have been made by the court below but may make such further or other order as the case may require. The notice of appeal must specify both the grounds of the appeal and the precise form of the order which the appellant proposes.
A notice of appeal must be served within one month from the date on which the judgment or order of the court below was pronounced. The appellant then sets down the appeal by lodging a copy of the notice of appeal and proof of service of it on the affected parties with the Registrar of the Court of Appeal within seven days of service. Notice of the setting down must be given to the other parties within two days thereof.
Should one of the affected respondents wish to have the order of the Royal Court varied (whether in whole or in part and whether the appeal is successful or not) or affirmed, it should file a Respondent's Notice within fourteen days of service of notice of appeal on it.
There are further detailed rules regarding the administrative steps required before the hearing of an appeal and the timeframes within which they must be taken, but there is power to the Court of Appeal to extend or abridge time in appropriate cases.
Common grounds of appeal largely mirror those found in common law jurisdictions and include errors of law, wrongful exercise of discretion, erroneous finding of fact and/or erroneous reasoning.
Further appeals to the Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is the ultimate court of appeal for cases originating in the Bailiwick of Guernsey. The membership of the Privy Council is identical to the Supreme Court of the United Kingdom, albeit Guernsey law is always applied in appeals originating from Guernsey.
Leave is always required for an appeal to the Privy Council. Applications for leave should be made to the Court of Appeal. If that court refuses leave, an application for special leave can be made to the Privy Council itself.
Leave will not generally be granted unless the case raises either a far-reaching question of law or a matter of dominant public importance. There are time limits within which an application for leave to appeal must be made. An application for permission to appeal must be filed within 56 days from the date of the order of decision of the court below or the date of the court below refusing permission to appeal (if later).
The calibre of its appellate tribunals is a real asset to Guernsey as a jurisdiction. Appeals can take a little time to come on for hearing, having regard to the fact that the Court of Appeal usually sits on a quarterly basis, but once an appeal has been heard the written decision will usually be delivered within days. The Privy Council accepts appeals from Guernsey relatively frequently, provided that the point in issue is genuinely one of general importance, and this enables the direction of Guernsey's jurisprudence to be argued and developed at the very highest level.