|
Citation
|
Judgment date
|
| July 2017 |
|
|
The Declaration created no valid TCI trust: no legal transfer occurred and no beneficiaries were identified.
Trusts — validity and constitution — requirement of legal transfer of trust property to trustee; unincorporated entity cannot hold legal title — beneficiary principle — private trust void if no ascertainable human beneficiaries — estoppel not to preclude preliminary judicial determination of trust validity.
|
17 July 2017 |
|
Ex parte wardship granted where respondent’s secret removal of the child abroad constituted abduction, justifying return proceedings.
Wardship — Child removal from jurisdiction — Surreptitious obtaining of passport and secret departure — Conduct comparable to parental abduction — Ex parte relief justified to protect child’s welfare — Return proceedings permissible.
|
14 July 2017 |
| June 2017 |
|
|
|
30 June 2017 |
|
A winding-up petition was stayed because a reasonable buyout offer existed and the petitioner unreasonably refused the alternative remedy.
Companies law – just and equitable winding up – minority shareholder excluded from management – availability of alternative remedy by buyout – abuse of process. Company valuations – independent expert valuation as basis for reasonable buyout offer. Procedural remedy – stay of petition to permit buyout by agreed independent expert; dismissal upon completion.
|
15 June 2017 |
|
Costs
|
13 June 2017 |
| May 2017 |
|
|
The successful applicant recovered standard costs; indemnity costs denied as the respondent's honest mistaken defence did not meet the high threshold.
Costs — successful plaintiff entitled to costs — indemnity costs require culpability or utterly unreasonable conduct — honest but mistaken defence insufficient; statutory interpretation — meaning of "hotel licence" in Regulations; assessment of public-interest/test-case character for costs.
|
31 May 2017 |
|
Court awards 2% on general damages and local short-term deposit rates on special damages, rejecting the statutory post-judgment rate.
Damages — Pre-judgment interest — statutory post-judgment rate inappropriate — general damages: 2% from date of writ — special damages: interest based on local short-term deposit rates (full rate where loss arose shortly after accident) — use local bank rates rather than UK Special Investment Account rates.
|
11 May 2017 |
|
Leave granted to serve foreign defendants where serious issues exist and Turks and Caicos is the appropriate forum.
Service out of jurisdiction — application under Order 11/0.11 — requirements: serious issue to be tried; good arguable case that claim falls within jurisdictional gateways (r 1(1)(c), r 1(1)(v)); forum conveniens — Turks and Caicos clearly appropriate forum — claims of breach of fiduciary duty, knowing receipt and dishonest assistance relating to transfers of TCI company assets.
|
3 May 2017 |
|
Application to restrain mortgagee’s sale dismissed for lack of exceptional circumstances and no undertaking in damages.
Civil procedure – interlocutory injunction – application to restrain mortgagee’s power of sale – American Cyanamid principles applied. Mortgages – undertaking in damages – McLeod v Jones rule requiring payment into court of amount claimed by mortgagee before relief. Mortgages – sale at undervalue – mere assertion insufficient; mortgagee need only obtain best price reasonably obtainable at date of sale. Remedies – damages ordinarily adequate where undervalue alleged; injunction only in exceptional circumstances. Property law – restriction on sale to Belongers does not preclude exercise of power of sale under charge.
|
3 May 2017 |
| April 2017 |
|
|
A defendant successful after rejected settlement offers is not entitled to indemnity costs absent moral turpitude or highly unreasonable conduct.
Costs indemnity v standard; Order 62 r 3(4); high threshold for indemnity costs (moral turpitude or highly unreasonable conduct); relevance of CPR Pt 36 and payments into court; settlement offers and timing.
|
24 April 2017 |
|
Petition was not frivolous; challenge to Voter's List arguable, but unproven allegation of improper motive warranted a 30% costs award to other respondents.
• Election law – costs – petitioner not frivolous where challenge to Voter's List under s.80 of Elections Ordinance was arguable.
• Election law – decision by lot – ground challenging lot had no merit.
• Public officers – imputations of improper motive unsupported by evidence attract adverse costs consequences.
• Costs – proportionality and public interest in election challenges; partial costs order (30%) against petitioner for unsubstantiated imputation.
|
24 April 2017 |
|
Civil Procedure
|
20 April 2017 |
|
Court found defendant liable to repay $11,000; awarded post-judgment interest and proposed pre-judgment interest pending submissions.
Civil law – Money had and received/loan – whether payment was $11,000 for purchase or $6,000 loan; credibility of witnesses; fabricated receipt effect; discretionary award of pre-judgment interest under s.19(2) CPO; post-judgment interest under s.20(1) CPO.
|
13 April 2017 |
|
Proprietary claim against local entities is not referable to arbitration; stay application refused.
Arbitration clause – scope and applicability; proprietary claim vs. contractual remedies; stay of proceedings; waiver by steps in proceedings; jurisdiction clause permitting enforcement where assets located.
|
5 April 2017 |
| March 2017 |
|
|
Settlement barred claims arising from the 4 March incident; proven assaults did not attract vicarious or employer liability, claim dismissed.
Employment torts – alleged workplace assaults and bullying on board yacht – settlement releasing claims from specified incident – admissibility and effect of compromise; vicarious liability for intentional wrongs – close connection test (Lister/Bazley/Catholic Child Welfare); employer’s duty to provide safe system of work and protection from bullying (Wilsons & Clyde, Waters, Baker v Quantum) – causation, reasonableness of employer response; credibility and contemporaneous evidence.
|
30 March 2017 |
|
The applicant bank entitled to indemnity for sums paid under retention bonds; implied undertaking and summary judgment granted.
Banking law – Retention bonds – payment by bank as surety – implied indemnity by principal. Civil procedure – Summary judgment – establishment of prima facie case and leave to defend. Insolvency/charges – Debenture – continuing security not discharged by letter to Receiver. Set-off and account – speculative counterclaims and unrelated litigation do not defeat summary judgment.
|
28 March 2017 |
|
Applicant failed to prove lack of other assets; court refused variation of restraint order for living, strata and child expenses.
Proceeds of Crime – Variation of restraint order – Applicant’s burden to prove no other assets and provide full, cogent disclosure – Third‑party affidavits require documentary corroboration – Preservation of restrained assets for possible confiscation – Release for living expenses, strata arrears or child education refused where evidence insufficient.
|
23 March 2017 |
| November 2016 |
|
|
Court struck out a prolix claim, disallowed ECHR remedies for pre‑2011 events, and ordered re‑pleading with extended defence time.
Pleadings — prolixity and pleading evidence — strike‑out; constitutional remedies — ECHR claims pre‑2011 not maintainable in local court; discrimination claim survivability; section 19 (interpretation provision) discloses no cause; no jurisdiction for statutory apology; default declaratory relief disfavoured.
|
30 November 2016 |
|
Defaulting defendants may still seek strike‑out; claim struck out for pleading defects and statutory limitation.
Civil procedure – Order 18 r.19 strike‑out available even where defendant defaulted; Crown liability – requisite pleading of nexus/agency; False imprisonment – need to plead material facts showing lack of reasonable and probable cause; Defamation – words complained of must be pleaded verbatim or scheduled; Limitation – Public Authorities Protection Ordinance six‑month rule applies to the Crown; Employment disputes – unfair dismissal governed by Employment Ordinance.
|
26 November 2016 |
|
Masked dwelling-house burglary with aggravating features reduced on mitigation to 3.5 years, two years suspended (effective 18 months).
Criminal law – Burglary – Masked entry into dwelling – aggravating features (masking, confrontation of occupants, prior convictions) increase sentence tariff. Sentencing principles – retribution, deterrence, prevention, rehabilitation applied; mitigation (youth, remorse, assistance) can reduce a higher starting point. Suspended sentence – part of custodial term suspended as deterrent and rehabilitative measure. Credit for remand – sentence ordered to commence from date of first remand.
|
2 November 2016 |
|
The defendant received an 18‑month suspended sentence for indecent assault of a 12‑year‑old, with compensation, deportation recommendation, and anonymity order.
Criminal law – Indecent assault of a child under 13 – sentence. Sentencing – mitigation: early guilty plea, cooperation, remorse, previous good character, no prior convictions. Sentencing disposition – suspended custodial sentence as rehabilitative approach. Ancillary orders – compensation with default custody, deportation recommendation, anonymity/publication ban for child victim.
|
1 November 2016 |
|
Defendant given concurrent eight-year sentences for firearm offences and aggravated burglary; limited mitigation for late guilty plea.
Criminal law — Sentencing — Unlawful possession/use of firearm and aggravated burglary — Threats to a child and pregnant woman — Limited credit for late guilty plea — Concurrent eight-year sentences.
|
1 November 2016 |
| October 2016 |
|
|
Conviction affirmed (appeal abandoned); sentence set aside for lack of SER and replaced by an 18‑month sentence suspended for two years with compensation.
Criminal law – appeal from magistrate – safety of conviction where defence abandons appeal – appellate restraint on factual findings. Sentencing – requirement to consider Social Enquiry Report for unrepresented defendants and relevant mitigating factors. Sentencing – substitution of immediate custody with suspended sentence where SER absent and rehabilitation prospects, family responsibilities, and prison overcrowding are relevant. Procedure – timeliness of notice of appeal to the Supreme Court under Magistrates Court Ordinance.
|
31 October 2016 |
| August 2016 |
|
|
Security for costs denied where plaintiff proved realizable assets; defendants ordered to pay costs on an indemnity basis.
Companies Ordinance s82 – security for costs – applicant must show real risk of inability to meet costs; foreign shareholdings and demonstrable share redemptions may constitute realizable assets; unsupported speculative assertions of asset dissipation insufficient – indemnity costs for unfounded application.
|
15 August 2016 |
|
Judge directed acquittal where the complainant’s hostile testimony left no realistic prospect of conviction.
Criminal law – sexual offence (unlawful carnal knowledge) – complainant as hostile witness – effect on prosecution’s case; Criminal procedure – nolle prosequi/cessation of prosecution under section 70 CPA; Criminal procedure – judge‑directed acquittal where no realistic prospect of conviction; Bail procedure – requirement to file bail application where court lacks necessary files on other charges.
|
3 August 2016 |
| July 2016 |
|
|
Defendant sentenced to three years for handling stolen goods with remand credit and restitution; plea timing and prior convictions influenced sentence.
Criminal law – Handling stolen goods – sentencing – factors: guilty plea (timing), offender’s youth, prior convictions and recency, remand credit, restitution order.
|
26 July 2016 |
|
Defendant sentenced to 13 years for aggravated burglary with intent to rape a vulnerable 15‑year‑old, sentence backdated to remand.
Criminal law – Aggravated burglary with intent to rape; night‑time break‑in; weapon present; vulnerable minor victim. Sentencing – starting point of life for serious aggravating features; mitigation from guilty plea and surrender limited to reduction to 13 years. Procedure – count left to lie on file; sentence backdated to remand.
|
6 July 2016 |
| May 2016 |
|
|
DPP cannot create subordinate Crown officers by contract; external counsel must be admitted under the LPO to have right of audience.
Constitutional law – Director of Public Prosecutions – meaning of "officers subordinate" under s.100(3); Administrative law – appointment of public officers – appointments under Part VI by Governor/Public Service Commission; Legal Profession – regulation of right of audience – LPO applies to external counsel; Admission pro hac vice – required for non-local attorneys instructed by DPP.
|
17 May 2016 |
| March 2016 |
|
|
Pre-judgment interest awarded from 2010 letter at 2% per annum, halved for the period before the claim was commenced.
Pre-judgment interest — commencement date for interest — effect of letters before action and delay; applicable interest rate where no local base rate exists — consideration of TCIG borrowing rate, LIBOR and US Federal Funds Rate; judicial reduction of interest for unreasonable prosecutorial delay.
|
7 March 2016 |
|
Mandatory five-year firearms sentence upheld, but early‑plea credit achieved by three years custody plus two‑year suspended term.
Firearms law – unlawful possession of unlicensed firearms – mandatory five‑year minimum sentence; Sentencing – entitlement to credit for early guilty plea and structuring of custodial and suspended terms to reconcile statutory minimum and mitigation; Forfeiture and destruction of seized weapons and ammunition; Sentencing objectives – deterrence, retribution, prevention, rehabilitation.
|
4 March 2016 |
| February 2016 |
|
|
Submission of no case dismissed; sufficient direct and circumstantial evidence to put drug and prison-introduction charges to the jury.
Criminal law – submission of no case to answer – application of R v Galbraith test – sufficiency of direct and circumstantial evidence – possession, possession with intent and introduction of controlled drugs into prison.
|
25 February 2016 |
|
Court imposed fine or imprisonment for common law bribery, refused dismissal under Probation Ordinance, and forfeited the $50 note.
Criminal law – Bribery (common law) – sentencing principles; mitigation: guilty plea, remorse, no previous convictions; aggravation: offence undermining law enforcement. Probation of Offenders Ordinance s.2(2) – application for dismissal after sentence — court refused. Forfeiture – instrument of bribery forfeited to the Crown. Discount for guilty plea – permitted despite lateness following Goodyear indication.
|
22 February 2016 |
|
Guilty plea and mitigation yielded a $25,000 fine and three-year conditional discharge for employer theft.
Criminal law – Theft – Breach of trust by public officer – Sentencing – guilty plea before trial – credit for cooperation and repayment – fine with default imprisonment – conditional discharge.
|
22 February 2016 |
|
A habitual offender pleading guilty to low-value theft received a two-year suspended sentence, fine, and compensation.
Criminal law – Theft – Sentencing – Habitual offender with early guilty plea and remorse – Custodial sentence suspended – Fine and compensation with custodial default – Dismissal of alternative charge.
|
11 February 2016 |
| January 2016 |
|
|
Pre-judgment interest awarded from letter before action but reduced for claimant's delay; commercial rate requires evidential proof.
Pre-judgment interest — discretion to award interest — plaintiff's unreasonable delay may reduce or limit interest; commercial disputes — statutory rate not necessarily appropriate — court may apply commercial borrowing rate but requires evidence of relevant lending rates.
|
28 January 2016 |
|
Court applied mandatory five-year firearms minimum but reduced active custody to three years with two years suspended for guilty plea credit.
Firearms offences – keeping unlicensed ammunition – mandatory minimum sentence under Firearms Ordinance s.3(1) – application of R v Avis sentencing principles – guilty plea credit – structuring custodial and suspended sentences – forfeiture and destruction of seized items.
|
14 January 2016 |
| November 2015 |
|
|
Magistrate must determine mode of trial for either‑way offences after full representations; accused has no automatic right to elect jury trial.
Criminal procedure – Mode of trial for either‑way offences – No automatic right of election to jury trial under current TCI law – Magistrate’s duty to hear representations, advise accused of sentencing powers and record/certify determinations – Improper MOT requires remittal to Magistrates’ Court.
|
12 November 2015 |
|
Applicant admitted: residency requirement met and prior Crown engagements did not trigger Donegan restriction.
Legal profession – Admission – Whether applicant is ordinarily resident for admission purposes – Residency assessed by employment, work permit and established residence. Legal profession – Former Crown engagements – Application of the Donegan rule and whether ad hoc pro hac vice instructions amount to holding legal office with the Crown. Confidentiality – Whether confidential Crown information was acquired during engagements and disqualifies admission. Procedural – Unproven allegations and absence of complaints to relevant authorities cannot defeat an otherwise proper application.
|
9 November 2015 |
| October 2015 |
|
|
Court retains inherent jurisdiction to award wasted costs where counsel’s conduct amounts to serious dereliction or gross negligence.
Wasted costs — inherent/common law jurisdiction to order wasted costs survives omission of Order 62 r 11 from Civil Rules — standard from Myers v Elman: "serious dereliction of duty" or "gross negligence/gross neglect" — court’s power to regulate proceedings and indemnify injured parties.
|
15 October 2015 |
| August 2015 |
|
|
Court dismissed applicant's constitutional challenges to court establishment, ad hoc judge appointment, jury abolition, and specialty doctrine claims.
Constitutional law – validity of court and judicial appointment – ad hoc judge appointments constitutional if made per constitutional procedure and guaranteeing independence; Criminal procedure – Trials Without A Jury Ordinance 2010 – not contrary to right to fair trial or equality provisions; Extradition/specialty doctrine – permissibility of additional charges depends on whether they arise from same facts and are extraditable; forum for specialty objections is the trial court.
|
5 August 2015 |
| July 2015 |
|
|
Defendant guilty plea to handling stolen goods; court imposed two-year probation due to recovery of property, cooperation, and mitigation.
Criminal law — Handling stolen goods — Change of plea and sentencing in absence of DPP representative — Consideration of seriousness versus mitigation (recovery of property, cooperation, employment, remand time) — Probation as non-custodial sentence — Conditions and warnings.
|
31 July 2015 |
|
Convictions for vessel‑related marine pollution affirmed; fines reduced for sentencing irregularity caused by reliance on unsworn evidence.
Criminal law – appeal – no‑case submission – application of Galbraith test; credibility and factual findings for trial judge. Evidence – reception by video link – within court's discretion where legislation permits. Procedure – impropriety in sentencing where unsworn evidence from gallery considered; requirement for means enquiry. Environmental law – offences for depositing oil/offensive substances on coast and discharging oil/noxious substances into marine environment.
|
7 July 2015 |
| June 2015 |
|
|
Court enforces mortgage power of sale; the respondent’s repayment claims are rejected and the land ordered sold by private treaty.
Registered Land Ordinance s.77 – enforcement of mortgage power of sale (clause 9(d)) – private treaty sale. Credibility and evidential burden – borrower’s unsubstantiated repayment claims rejected where creditor’s accounting records are intact. Application of sale remedy where secured debt remains outstanding and proceeds from sales were not applied to loan.
|
16 June 2015 |
| May 2015 |
|
|
Labour Clearance refusal void for unlawful delegation; immigration entry restriction unlawful for failing to consider family ties and property ownership.
• Immigration/Employment law – Labour Clearance – Regulation 19 vests decision in Labour Commissioner; unlawful delegation to inspector renders decision void.
• Administrative law – procedural impropriety and irrationality – taking irrelevant considerations (unverified suspicions) and failing to consider relevant matters (absence of Belonger applicants; family ties; property ownership) renders decisions unlawful.
• Constitutional/ECHR – family life (s.9/Art.8): restriction of entry may be justified by immigration control, but decision-makers must consider family and other legitimate reasons for frequent visits.
• Judicial review – availability notwithstanding statutory appeal where challenge is to lawfulness of process (exceptional circumstances).
|
13 May 2015 |
| April 2015 |
|
|
Section 77(5) permits term appointments regardless of age; section 85 does not bar re-appointment for a fixed term.
Constitutional law — Appointment of judges — s77(5) power to appoint for specified terms regardless of age — s85 retirement provisions do not limit s77(5) — Re-appointment of judges who have reached retiring age — Distinguishing Felipa v Canada.
|
14 April 2015 |
| March 2015 |
|
|
Court lacks jurisdiction to order sale of jointly held land or grant right of first refusal absent applicable statute.
Property law – joint tenancy – court has no inherent jurisdiction to order sale of jointly held registered land or to compel one joint owner to sell to another. Partition Act (1697) received into local law limits relief to partition (no sale power). Matrimonial Causes Ordinance 2012 s.30(2) enables sale/right of offer but not applicable to these proceedings. Registered Land Ordinance ss.103–104 provide Registrar’s power to order sale following partition or where partition is impracticable.
|
13 March 2015 |
| February 2015 |
|
|
Court granted Crown an extension to appeal despite unexplained delay, finding no relevant prejudice to respondents.
Procedure – extension of time to appeal – Supreme Court jurisdiction to enlarge time – Van Stillevoldt factors (length of delay; reasons; prospects of success; prejudice) – unexplained delay but no relevant prejudice – extension granted – costs against Crown.
|
3 February 2015 |
| January 2015 |
|
|
Property Law
|
21 January 2015 |
| November 2014 |
|
|
Costs
|
24 November 2014 |
| October 2014 |
|
|
Property Law
|
24 October 2014 |