A v R

An appeal from Guernsey is an appeal as of right where the value in dispute is at least £500 under the Court of Appeal (Guernsey) Law 1961. Courts cannot impose a general public-importance test contrary to that statutory right. The local appellate court may nevertheless police the appeal for a genuinely disputable issue and abuse of process, while the Board has limited power to refuse special leave. The Court of the Seneschal of Sark has unlimited civil jurisdiction. Sark customary law may develop judicially, although courts cannot directly abrogate legislation and must respect legislative policy. The common law recognises a parental obligation to maintain children, including children born outside marriage, and permits interim maintenance orders where the obligation predates the claim.

The appellant father challenged interim and subsequent maintenance orders made by the Court of the Seneschal of Sark for the benefit of his son. He had appealed through the Royal Court of Guernsey and the Court of Appeal of Guernsey, which refused leave on 13 July 2017. He then sought special leave to appeal to the Board.

The appeal concerned whether leave was required under section 16 of the 1961 Law, the civil jurisdiction of the Seneschal, the capacity of Sark customary law to develop judicially, the existence of a common-law maintenance remedy and the availability of interim orders. The appellant also sought to raise the applicable conflicts rule for the first time before the Board.

1. Section 16 of the Court of Appeal (Guernsey) Law 1961 gives an appeal as of right where the value of the matter in dispute is £500 or more. The courts cannot impose a general public-importance test contrary to the statutory exception. The decisions in Emerald Bay Worldwide Ltd v Barclays Wealth Directors (Guernsey) Ltd (judgment 2/2014) and Investec Trust (Guernsey) Ltd v Glenalla Properties Ltd (judgment 55/2015) were wrongly decided.

2. An appeal as of right does not remove all local appellate control. The Court of Appeal may ensure that the proposed appeal raises a genuinely disputable issue within the prescribed category, impose permitted procedural conditions and refuse leave in cases of serious abuse of process. The principles in Alleyne-Forte v Attorney General of Trinidad and Tobago ([1998] 1 WLR 68), Ross v Bank of Commerce (Saint Kitts and Nevis) Trust and Savings Association Ltd (in liquidation) ([2011] 1 WLR 125) and Pirito v Curth ([2005-06] GLR 34) supported that conclusion.

3. Where leave for an appeal as of right has wrongly been refused, the Board’s discretion is limited. It may refuse special leave where the appeal is devoid of merit and has no prospect of success, or where it is an abuse of process. Raising an issue that was not pleaded, adjudicated or properly argued below may constitute such an abuse.

4. The Court of the Seneschal of Sark has jurisdiction to hear and adjudicate every action in moveables or immoveables, subject to legislation conferring exclusive jurisdiction on the Royal Court of Guernsey. The term moveables includes monetary claims whose amount remains to be determined. The Board followed the description of the jurisdiction in R (Barclay) v Lord Chancellor (No 2) ([2015] AC 276).

5. L’Approbation has legislative status and cannot be directly abrogated by judicial decision, but it is not a complete or definitive code which prevents later judicial development. The customary law of Sark includes an evolving body of case law and practice. Courts may develop it interstitially, consistently with legislative policy. The reasoning in Snell v Beadle ([2001] 2 AC 304) was distinguished in that context.

   The common law of the Bailiwick recognises an obligation on a parent to maintain a child, whether born within or outside marriage, and an action which may be brought by the person caring for the child while the child cannot assert the right personally. Where the obligation predates the claim, the court needs no specially conferred power to make an interim order and may fix maintenance pending a full hearing.

6. Assuming, without deciding, that Article 1 of Protocol No 1 to the European Convention on Human Rights applied, the customary obligation was sufficiently accessible and foreseeable. The applicable-law issue was not properly raised below and was therefore not a proper subject of appeal. Special leave was refused on that issue; otherwise special leave was granted and the appeal was dismissed.

1. Privy Council — In [2018] UKPC 4, special leave was refused on the applicable-law issue; otherwise it was granted and the appeal was dismissed.
2. Court of Appeal of Guernsey — Leave to appeal was refused on 13 July 2017.
3. Royal Court of Guernsey — The appellant had appealed the Seneschal’s orders through the Royal Court.
4. Court of the Seneschal of Sark — Interim and subsequent maintenance orders were made between 2013 and 2015.