Guernsey Court of Appeal clarifies the law in relation to external restraint orders

In its judgment in HM Procureur v King & HSBC Trustee (Guernsey) Ltd, the Court of Appeal ruled that the discretionary power given to the Royal Court to discharge or vary a restraint order in support of ‘external proceedings’ did not permit it to consider allegations of undue delay in those proceedings. The Court of Appeal reversed the decision at first instance and ordered that the restraint order, originally made in June 2006, should continue, despite there being no prospect of a trial in the South African proceedings in the foreseeable future.

The prosecuting authority of any country may request the assistance of Her Majesty’s Procureur to restrain assets in support of criminal proceedings, including investigations. The decision in HMP v King represents the first time the Court of Appeal has considered the discretionary power to discharge a restraint order granted in support of such external proceedings. Neither the Guernsey provision nor its equivalent in the UK have previously been the subject of detailed judicial consideration.

The Court of Appeal held that the starting point was that a valid restraint order had been made. A material change in the circumstances would provide an opportunity for review…

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