David Benest

The finest and most authoritative litigator in personal injury in Jersey – his interpersonal skills are also excellent, making him a delight to work with.

– Legal 500 2017
David Benest

People

David Benest is the Managing Partner of BCR Law and an Advocate of the Royal Court.

David’s main areas of expertise are personal injury and clinical negligence, contentious trusts and planning and construction matters. He has wide experience in all aspects of Court work in these areas. He also advises high net worth divorce matters when trust law expertise is required.

What the Directories Say

“He is a very astute litigator who will fight every corner and come up with innovative ideas.” – Chambers & Partners 2018

David is listed as a Leading Individual in the Legal 500 2017 Rankings. (Offshore – Dispute Resolution).

‘He has a natural intellectual elegance… is immensely knowledgeable… razor-sharp in court’ – Chambers & Partners 2016

David is listed as a Leading Individual in the Chambers and Partners UK 2017 Legal Rankings. (Offshore – Dispute Resolution).

He is described as having “an excellent reputation for his representation of clients in insured risk, personal injury and clinical negligence matters.” David Benest is also noted as a Leading Individual in the Legal 500 2016.

Managing Partner David Benest is “obliging and prompt.“” – Legal 500, 2016 David Benest

has a natural intellectual elegance, is immensely knowledgeable, razor-sharp in court, and has the knack of handling difficult judges and lawyers with a charm and skill that others can only hope to approximate.” Chambers & Partners 2016 (Offshore – Dispute Resolution)

David was ranked by The Legal 500, 2015 as a leading individual and described as “Razor sharp and utterly charming“.

The 2014 edition described him as “a smart lawyer and intuitive negotiator”.

David Benest has a proven track record in acting on high-value trust and negligence-related disputes.” – Chambers UK 2014

Professional Background

After graduating from the University of Sussex with a first class degree in Law and History, David was called to the English Bar in 1995. He is a Member of the Inner Temple.

David undertook pupillage at 2 Field Court (then the Chambers of Norman Palmer), and at Arden Chambers, the Chambers of Andrew Arden QC. His work at the English Bar comprised a wide range of personal injury, clinical negligence and contentious property matters.

David has over 18 years experience as an Advocate of the Royal Court. After joining Bailhache Labesse (now Appleby Global) in 1997, David was called as an Advocate of the Royal Court of Jersey in 1999. He was appointed as a Partner of the firm in 2001, becoming Managing Partner of the Appleby Global Jersey Office in 2010, before establishing his own firm in April 2013.

Professional Memberships

David sits on the Board of Examiners for the local professional examinations. He is also a member of the British Insurance Law Association.

In October 2015, David was appointed to the Senior Lawyers Panel of La Chambre de Discipline of the Guernsey Bar.

David currently sits as the Deputy Chairman for the Jersey Social Security Tribunal.

Notable cases

TRUSTS / WILLS

Appleby Corporate Services (BVI) Ltd v Citco Trustees (BVI) Ltd [2014]
David led a team of international lawyers in bringing a successful multi-million dollar claim for breach of trust against former trustees arising out of their failure to review the performance of investment managers to whom they had delegated the management of the trust fund.

In Re Le Cras [2013] JRC240
David acted for the Representor, a beneficiary under a will. The Court was asked to decide whether the word “issue” applied to the children of the testator only, or extended to further generations. In concluding the latter, the Court was then asked to decide whether the division of the estate continued per capita or per stirpes. Both were novel points in Jersey and the case therefore is of some importance.

Reed v. Papyrus Investments Ltd (Royal Court) 2005 JLR N [12]
David acted for the beneficiary of a discretionary trust to whom the trustee had appointed funds which had not been paid. The Court considered the meaning of the term “absolutely and without reservation” in the appointment and found that the appointment was valid and that the beneficiary was owed the monies appointed to him.

L and M Trusts, In re (Royal Ct.)[2003] JLR N [6]
An important decision in which David acted for the beneficiary of a trust who was resisting the disclosure of information to a beneficiary which would have made it easier for an attack to be made on the validity of the trust in the context of foreign matrimonial proceedings. The Court dealt with the principles to be applied in such circumstances and refused disclosure of the information.

X (Curatorship of), In re (Royal Ct.)[2002] JLR 259
This case involved seeking a declaratory judgment from the Court and concerned the validity of a will and the capacity of a testator under curatorship, as well as the Court’s jurisdiction to grant such a declaration.

Rabaiotti 1989 Settlement, In re (Royal Ct.)[2000] JLR 173
This landmark Jersey case concerned a beneficiary’s right to information and the trustee’s requirement to submit to a foreign jurisdiction in the context of foreign family proceedings.

PROPERTY AND PLANNING

Fogarty v St Martin’s Cottage[2017] JCA 096; [2016] JCA 180;[2016] JCA 222; [2015] (1) JLR 356]
David led the team in what is an important decision for land law in Jersey. The case was essentially a boundary dispute but the Courts – both the Royal Court and the Court of Appeal – had to grapple with a number of novel points of Jersey customary law in the context of encroachments; in particular whether the Court could award damages in lieu of removal of an encroachment. In the Royal Court it was determined that the Court might award modest damages where a minor encroachment was found to exist after neighbours had agreed a new boundary (i.e. part of defendant’s wall now on plaintiff’s property and windows too close to the boundary). It was not fair or proportionate in circumstances to order demolition of wall and change of windows. Further the Court of Appeal found that in agreeing the boundary there had been a transfer of land which meant, applying the doctrine of destination de pere de famille, that no encroachments had in fact been created since there was by implication permission for them to remain.

Hobson v Minister for Planning (Royal Court)[2014] JRC028 and Minister for Planning v Hobson (Court of Appeal)[2014] JCA 148
David appeared for the Minister in this third party appeal. The Court had to decide what amounted to a ‘sufficient justification’ to allow the Minister to depart from the Island Plan in granting planning permission. The case provides useful guidance on this issue. The Court of Appeal found that the decision to grant planning permission for construction of a garage in the Coastal National Park was unreasonable, being as it was inconsistent with the strongest presumption embodied in Island Plan Policy NE 6 against new development and there being no sufficient justification (as required under Planning and Building (Jersey) Law 2002, art. 19(3)). Cosmetic matters such as design and siting of proposed garage and enhancement of landscape could not be sufficient justification.

Minister for Planning -v- Herold[2014] JRC020
David acted for the Minister in this appeal from the decision of the Master. The decision is important for two reasons: firstly, it considered the power of the Court to extend statutory deadlines where legislation does not provide a discretion to do so. Secondly, the case incorporated jurisprudence on the protection of European Convention rights in the context of planning decisions.

Herold -v- Minister for Planning [2014] JRC012
David acted for the Minister in this third party planning appeal, which considered the applicability of conflicting policies of the Island Plan and in particular the applicability of listed building policy to a potentially listed building, both on the development site and neighbouring it.

Barclays Private Bank Intl. Ltd. v. Jersey Sports Stadium Ltd. (Royal Ct.)[2012] (1) JLR 119
David acted for the Plaintiff in this case, where the Court considered the measure of damages owed following the breach of obligations to repair. The case also focused on issues such as the discretion of the Court to decide preliminary points of law following arbitration.

Colesberg Hotel Ltd. v. Alton Hotel Ltd. (Royal Ct.) [2003] JLR 47
David acted for the Defendant in this case which remains the leading authority concerning the doctrine of “aggravation de servitude”. Here, the Court considered issues relating to an apparently unrestricted right of way, and servitudes created for a particular purpose, as well as the extinction of servitudes in the context of a housing development.

Haas (née Daniel) v. Duquemin – (C.A.)[2002] JLR 27
David acted for the Appellant in the Court of Appeal. This case concerned a range of land law issues, including the rights of co-owners, the nature of servitudes and the judicial regulation of co-owners rights over servitudes.

Le Maistre v. Planning & Environment Cttee. (Royal Ct.)[2001] JLR 452 and [2002] JLR 389
David acted for the appellant Plaintiff in this Planning Appeal, which considered the need to balance the personal circumstances of the applicant and the application of policy when considering the test for an appeal in planning matters.

PERSONAL INJURY /TORT

Glen Rhys Le Claire v William Brown [2015] JRC 093
David acted for the Plaintiff in this important case in which the Court set out for the first time the principles which a Court should apply in approving the settlement of a personal injury claim on behalf of a plaintiff who is the subject of a curatorship.

X-v-Estate of Y (Deceased) and Axa Insurance UK plc [2015] JRC043
This is the first case in which the Court has made a periodical payment order in a personal injury action in Jersey (albeit by consent) and sets out the principles the Courts will apply in so doing absent the UK’s statutory framework covering such things. The case is of considerable practical importance in substantial personal injury cases. David acted for the Plaintiff. The Court determined that it might, in exercise of its inherent jurisdiction, make consent orders for periodical payments comparable to orders made under English Damages Act 1996 if (a) satisfied as to conditions precedent to the making of an order in England (i.e. order appropriate and continuity of payment reasonably secure); and (b) parties submit to directions (so court can police order during plaintiff’s lifetime).

V v The Minister for Health & Social Services (Royal Court) 2014 JRC 137
This is the leading authority establishing the Court’s inherent jurisdiction to approve a settlement in a personal injury claim on behalf of a minor and the factors which the Court will take into account in doing so. David acted for the Minister.

Chartier v Jersey Post (Court of Appeal) 2007 JLR 187
This case considered the appropriate approach to a Court’s finding contributory negligence and the adequacy of the Court’s reasons for its judgment at first instance.

Cole v Jersey Police (further proceedings) (Royal Ct.) [2003] JLR 460 and further proceedings (C.A.), [2004] JLR N [23] [2007] JLR 606 (Royal Court)
David acted in this claim for breach of confidence concerning the unauthorized disclosure of police records. The case considered this area of law for the first time in Jersey and the principles which the Court would use in awarding damages. David also acted for the States of Jersey Police in connected litigation.

Noel v. Ann St. Group Ltd. (Royal Ct.)[2004] JLR 378
David acted successfully for the Defendant in this case, which considered the extent of an occupier’s liability particularly in relation to neighbouring land.

Gildea v. Health & Social Services Committee. (Royal Ct.)[2004] JLR N [50]
David acted on behalf of the Defendant Committee where the Royal Court dealt with the duties owed by an expert in proceedings and conflicts of interest in an expert giving evidence where they had been involved in the Plaintiff’s care.

Deeny v. Health & Social Services Committee (Royal Ct.) [2003] JLR 138
Acting for the Defendant in this case regarding pre-action discovery which set out the principles applicable to such an application and the incidence of costs.

Dobson v. Public Services Committee. (Royal Ct.)[2003] JLR 446
This important case established the extent to which there exists in Jersey law a private law duty of care case for a failure to maintain the public highway.

CIVIL PROCEDURE

Le Claire v Brown 2014 JRC 187A
The case is the most recent authority dealing with the principles to be applied in the Court ordering a split trial on issues of liability and quantum. David appeared for the Plaintiff.

Cole v. States Police (Chief Officer) (Royal Ct.)[2008] JLR N [47]
Acting for the Jersey Police. The cases established the principles under which the Court will award costs where there has been a Calderbank offer having the same effect as a payment into court in certain circumstances.

Trustcorp Ltd. v. Barclays Private Bank & Trust Ltd. (Royal Ct.) [2007] JLR N [24]
David acted on behalf of the defendant Bank in this application dealing with specific discovery.

Lincoln Nominees Ltd., Bespoke Investments. Ltd. v. (Royal Ct.)[2005] JLR N [29]
The Court was invited to consider how costs should follow the event in the context of civil procedure, given the refusal by the parties to mediate prior to litigation.

Whitesmith v. Papyrus Investments. Ltd. (Royal Ct.) [2003] JLR N [37]
David acted for the Plaintiff in this matter, in which the Court considered the legitimate expenses of the Defendant and matters of procedure, arising from a Mareva injunction sought by the Plaintiff.

Makarenko v. CIS Emerging Growth Ltd. (Royal Ct.) [2001] JLR 348
David acted on behalf of the Plaintiff in this case which considered arbitration and scope of such arbitration, as well as arguments concerning a stay of proceedings and the discretion of the Court to grant a stay of proceedings.

PUBLIC LAW

Warren v HE the Lieutenant Governor (Royal Cr.) [2017] JRC 097
David acted in successful defence of application seeking leave to apply for judicial review of a decision of the Lieutenant Governor by which His Excellency had refused to refer the Applicant’s (Mr. Curtis Warren, a very high profile convicted drug dealer) conviction for conspiracy to import cannabis resin back to the Court of Appeal the matter having already been considered by the Court of Appeal.

Salt Ltd v Minister for EDD[2017] JRC015
David appeared successfully in an appeal of condition imposing restricted opening hours on a pizza restaurant.

Cole v. Jersey Post (Royal Ct.) [2003] JLR 460
David acted on behalf of Jersey Post in this case, where the Court considered data protection and the private law remedies available for breach of the Law.

Yacht Hotel Ltd. v. Licensing Assembly (C.A.)[2002] JLR 351
This was a decision arising from a successful judicial review of the Licensing Assembly’s decision to refuse to the Hotel a licence for its nightclub.

Back to top