Guernsey Litigation Guide 2021 (Chambers) - Judgments, Appeals and Compensation

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This Guernsey Dispute Resolution and Litigation Guide provides commentary on litigation funding, filing a claim, statutes of limitations, representative or class actions, pre-trial litigation, disclosure, injunctive relief, settlements, damages, appeals, costs of litigation, alternative resolution (ADR) and arbitration.

Generally

General characteristics of the legal system

Describe the general features of your country's legal system. For example: Is it based on civil law? Does it follow an accusatory or a curious model? Will the judicial process be conducted through written submissions and oral submissions or primarily through written submissions?

The Guernsey Bailiwick is a British Crown dependency. It consists of three separate jurisdictions: Guernsey (along with some smaller islands), Alderney and Sark. Each island has its own laws, legal system and rules, although a significant proportion of laws are enacted throughout Bailiwick.

Bailiff is a mixed-law jurisdiction, combining the civil law traditions of the period under Norman French rule with elements of English common law, derived from the influence of the British Crown after 1066. Various royal charters gave the right of bailiff over centuries confirmed in self-determination. Although the British Crown asserts a residual right of intervention to maintain good government, in reality the Bailiwick functions largely as an independent and self-governing territory. All three jurisdictions have their own legislatures, legal systems, and directly elected courts.

Norman common law still influences private law rights such as inheritance, inheritance and property rights and, albeit to a lesser extent, contract and tort law. Commercial law is heavily influenced by British law, although French contract law is still taken into account. Therefore, it can be said that the Bailiwick legal regime is a mixture of civil law and common law.

Guernsey's court and tribunal system is adversarial in nature, with cases being resolved through written and oral submissions. In civil matters, the main procedural rules are to be found in the Civil Rules of the Royal Court, 2007. Although these are based on procedural rules in force in England and Wales, there are important differences specific to Guernsey.

judicial system

Describe the structure of the judicial system in your country. There are national/federal and/or state/provincial courts; Courts of Appeal, Courts of First Instance? Are the courts organized by subject area (e.g. civil and/or commercial courts, administrative courts, family and probate courts and small claims courts?)

As mentioned earlier, the Guernsey bailiff comprises three distinct jurisdictions: Guernsey, Alderney and Sark. In this Q&A session, we focus on Guernsey civil courts.

Guernsey District Court

The Magistrates' Court was established by an Act of 1954 and is governed by a full-time judiciary. Almost all criminal cases are brought before the Magistrates Court, with the most serious cases being reserved or referred to the Royal Court. The Magistrates' Court also handles civil cases where the amount in dispute does not exceed £10,000, commonly known as 'small debt' cases. The Court of First Instance also has jurisdiction over certain domestic proceedings and is responsible for carrying out investigations.

To Royal Court of Guernsey

The royal court is divided into three main departments:

Full Court (Civil and Criminal).
Common dish.
Marriage Department.

Most commercial matters and most of the Royal Court's business are listed before the Royal Court, which acts as the General Court. Many statutory appeals are taken to the Royal Court, which is housed in the Ordinary Court, and the Ordinary Court also handles civil appeals from the Courts of Alderney and Sark.

The ordinary court usually consists of a single judge and at least two or three jurors. A jury is a lay member of the court whose job it is to determine questions of fact. In certain circumstances, a judge sits alone without juries. Procedural and interlocutory cases are generally heard by a single judge.

Guernsey Court of Appeal

An appeal against a decision by the Royal Court of Guernsey is generally available to the Guernsey Court of Appeal. There is an automatic right of appeal unless the amounts involved are less than £200 or the appeal is linked to a consent or hearing order, in which case permission to appeal is required.

Legal Committee of the Privy Council

The right of appeal may lie with the Guernsey Court of Appeal to the Judicial Committee of the Privy Council, depending on the monetary value of the contested order.

Ecclesiastical Court of Guernsey

The ecclesiastical court deals with matters of inheritance and inheritance; is in the process of merging with the RoyalCourt feature.

Filing and Legal Processes

Are court records and proceedings publicly available? Are there procedures in place to protect records and court proceedings from disclosure? If public, are certain procedures or information kept private under certain circumstances?

Court records are generally available to the public unless the court orders the court records to be sealed. Likewise, cases are usually tried in public, and in most cases the basic principle of open justice applies.

However, the Royal Court may, in certain circumstances, seal court files and/or hold hearings behind closed doors. Such circumstances may include non-contradictory fiduciary records, cases involving children or people with disabilities, marital issues andex parteforms

Legal representation in court

Are there special requirements for legal representatives to appear in courts in your country? What hearing rights are needed? Can foreign lawyers bring cases to these courts?

Guernsey solicitors have exclusive rights to be heard before the Royal Court and the Court of Appeal, although a litigant may personally bring a case on his own behalf, subject to certain procedural steps. Foreign lawyers do not have the right to be heard in Guernsey courts.

In practice, however, many law firms employ lawyers qualified in other jurisdictions to work under the supervision of Guernsey Advocates and, in addition, parties may hire lawyers in other jurisdictions if they so wish and, in certain circumstances, at the expense of a foreign lawyerit couldbe refundable.

In contrast, several Guernsey courts allow representation by non-attorneys, such as the Guernsey Employment and Discrimination Tribunal.

litigation financing

Third-Party Litigation Financing

Is funding of litigation by an external donor allowed? Does your jurisdiction have any limitations on litigation funding?

Third-party litigation funding is permitted, but it is important to note that Guernsey's alimony and champerty rules have not been repealed by statute or common law. In deciding whether or not a finance or child support arrangement is generous, the Royal Court is likely to follow English principles.

The Guernsey Bar Association Code of Conduct specifically prohibits the Guernsey Ombudsman from entering into agreements where the payment of a fee is conditional on the success of the action, commonly referred to as "no-win-no-win" agreements. They charge fees.”

Third Party Financing: Lawsuits

What types of claims are there for third-party funds?

Subject to support and indemnity rules, it is generally permissible for a third party to fund a claim.

Third-party financing for plaintiffs and defendants

Are third-party funds available to both the plaintiff and the defendant?

In principle, third-party financing is available to both plaintiff and defendant, subject to maintenance and warranty regulations.

Minimum and Maximum Amount of Third Party Financing

Is there a minimum and maximum amount that a third party finances?

There are no provisions in the form of rules, practical instructions or guidelines regarding third-party financing.

Types of costs considered in third-party financing

What costs will an external funder consider for funding?

The third party finance market is not well established in Guernsey due to a lack of formal recognition and as such there are no firm guidelines as to what costs a lender would be willing to consider financing.

contingency fees

Are contingency fees allowed? If so, please describe the legislation in this area in your country.

Contingency Fees are not permitted pursuant to paragraph 2.1 above.

Deadline for obtaining third-party financing

Are there time limits within which a litigant must raise funds from third parties?

The third party finance market is not well established in Guernsey and as such there are no firm guidelines as to the stages at which a party must obtain third party finance.

start a process

Rules of conduct before the action

Does the court impose any pre-claim rules of conduct on the parties (ie, the steps parties must take before proceeding)? If so, describe those requirements and any sanctions for non-compliance. Are there requirements for potential defendants to respond to a previous complaint letter?

There are no specific rules in Guernsey requiring parties to pre-commit to certain conduct and there is no such protocol of conduct. However, it is generally recommended that a letter be issued prior to filing a complaint to give the defendant an opportunity to plead guilty; failure to provide a response option may affect expenses that would otherwise be recoverable.

limitation periods

They usually describe the statutes of limitations that apply to civil actions. What is the statute of limitations for making claims and what triggers a statute of limitations?

The restriction is known in Guernsey as a "Restriction"; Unlike the statute of limitations (which prevents an appeal), the statute of limitations extinguishes a claim entirely. As such, when the statute of limitations does apply, it acts as a complete defense against a claim.

A statute of limitations expires when a plaintiff serves a subpoena establishing a claim against HM Sergeant for summons on the defendant or when an application is made to the court for permission to serve outside the jurisdiction.

statute of limitations

The limitation period varies according to the type of action. The main relevant deadlines for the present purposes are:

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contractual claims: six years from the date the criminal injury or damage occurred.
Civil liability actions: six years from the date the criminal injury or damage occurred.
trust disputes: three years, but no statute of limitations applies to claims for the return of trust assets or where the trustee is aware of fraud.
Rights to real property (i.e. ownership of land): 20 years from the date of origin of the action.

When a party has been prevented by a legal or practical impediment from bringing a claim, the common law principle of empêchment d'agir may apply. The principle works in such a way that the statute of limitations is suspended while the incapacity lasts. Invalidity can last for several years, and the precise limits of the doctrine are not yet fully determined.

Jurisdiction requirements for an accused

What are the judicial requirements for a defendant to be prosecuted in your country? Do they differ between dishes?

An entity or individual residing in Guernsey is generally subject to the jurisdiction of the court through standard service mechanisms.

Where a company or person is not a resident of Guernsey, Guernsey courts may still have jurisdiction in certain cases. Generally, Guernsey courts will do so and grant permission to take proceedings outside of jurisdiction if they are satisfied that the case is fit to exercise jurisdiction. discretion of the court in this way (Civil Rules of the Royal Court, Rule 6). In deciding an application for a license Guernsey courts apply broadly the same principles as in England and Wales under the Codes of Civil Procedure and are guided by English jurisprudence and Guide to Practice 6B issued under those rules.

first complaint

Describe the original complaint or other document filed to initiate legal action. Can the party amend the document after it has been submitted?

The original complaint is fixed in a cause. The cause must contain three elements:

1. the essential facts on which it is based (but not the evidence used to establish those facts);

2. the remedy sought by the claimant, including damages;

3. the author's mailing address (known aschoice of residence).

Once the terms of the case have been settled by the plaintiff, a subpoena is attached to it, which is then served on the defendant, with a date for his appearance in court to indicate whether or not the case should be defended. The plaintiff then takes the case to court to be heard that day.

The plaintiff can change the case at any time, provided the other parties agree and the court agrees. Generally, as the case nears closure, it becomes more difficult to persuade the court that it is appropriate or fair to allow the amendment, particularly when statute of limitations are involved.

service rules

Describe the service rules in your jurisdiction. What is the process for notifying an opponent that they have been sued? Is notification the responsibility of the plaintiffs or the court? Can a party be sued out of jurisdiction, and if so, what is the mechanism for doing so?

lack of feedback

What is the procedure if the defendant does not respond to a claim?

In all cases, a defendant is summoned on a specific date to respond to the charge against him. If a defendant fails to appear on the return date and/or indicates that the matter must be defended, the plaintiff may apply to the court for a default judgment; likewise, a judgment by default may be passed if the defendant fails to present his defense within the due period.

When a sentence is handed down in absentia or without defense, the defendant may apply to the court to set aside the sentence by producing an affidavit setting out the reasons for the request.

Representative or Collective Actions

Does your country allow representative or class actions (eg class actions)? If so, describe when such actions are allowed. Are they opt-in or opt-out? If I choose not to participate, are there any specific criteria for certification or approval of a class or class action?

Representative actions are admissible if more than one person has the same claiming interest (Civil Rules of the Royal Court, Rule 33).

Unless the court determines otherwise, any judgment or order rendered in any legal proceeding to which a representative party is a party will be binding on the persons represented in the judicial proceeding. However, a judgment can only be enforced by or against a person who is not a party to the dispute with the consent of the court.

Representation of interested parties that cannot be determined is also envisaged, for example, in lawsuits over the estate of a deceased person or trust property (Civil Rules of the Royal Court, Rule 34). The Rules also provide that beneficiaries are represented by trustees in inappropriate cases and that any judgment or resolution rendered is binding on beneficiaries (Civil Rules of the Royal Court, Rule 35).

Cost estimating requirements

Are there requirements to provide customers with an initial cost estimate for potential litigation? If yes, please describe those requirements.

There is no provision in the Rules of Court of Guernsey that requires solicitors to make an estimate or offer at the commencement of litigation. However, the code of ethics applicable to Guernsey Advocates requires clients to be provided with information about likely costs at the initiation of an issue.

pretrial

Preliminary requirements/requirements

Is it possible to file a preliminary application/application before the main hearing or main hearing on a claim? If so, are such requests limited to case management matters or can parties pursue legal remedies in court?

Preliminary motions can be made before judgments or judgments in a court case, and such motions are made frequently. Applications range from case management issues such as more and better detail or disclosure to substantive issues in their own right such as strikes, pre-publication hearings or injunctive relief.

Early judgment requests

Can a party request (i) early judgment on some or all of the issues at issue, or (ii) that the other party's case be dismissed prior to judgment or adjudication of the claim? What is the deadline, applicable procedure and legal standard for such requests/movement?

The Rules of Court of Guernsey contain a provision allowing for requests for an early judgment. In particular, a request for summary judgment (Civil Rules of the Royal Court, Rule 20) or cancel the letter of either party in whole or in part (Civil Rules of the Royal Court, Rule 52).

summary judgment

The rules allow the court, at any time after the conclusion of the claims, to satisfy itself that the other party has no real prospect of success in the claim or defense and that there is no other compelling reason why the claim should be resolved in court. .

A request must be given to the respondent at least four business days before the request is heard. It must be supported by a statement defining the effect of the request, if successful. The statement must also accurately identify any legal issue or provision of a document invoked by the applicant. You must state that the claim is being made because the claimant believes, on the basis of the evidence, that the accused has no real chance of success, and furthermore, the claimant is not aware of any other reason why the case should go to court. court.

Cancel

In connection with strikethrough, the court, in its sole discretion, may strike a claim if the court believes that the claim fails to disclose reasonable grounds for bringing or defending the claim or constitutes an abuse of the court's process or a violation of the judicial process.

Although there is no specific rule that establishes how the request for annulment should be formulated, in practice the request under this rule must be accompanied by a sworn statement that describes the abuse of procedure or the violation that justifies it.

device movements

Describe dispositive motions that are commonly made before the hearing.

The most common requests are for summary judgment or annulment of the action (or part of the action) (see previous answer). The court may also be willing to administer a preliminary hearing (basically some sort of summary judgment) if it settles all or a substantial part of a case.

Requirements for interested parties to file a lawsuit

Can interested parties who are not named as plaintiffs/plaintiffs or defendants join a court case? If cumulation is allowed, describe the circumstances under which and the procedure by which this is possible.

Intervention

If a third party feels that this is a necessary or appropriate part of the process, they can ask you to intervene. The court will only allow a person to intervene if it is satisfied that it is a necessary or appropriate party. For example, if a beneficiary's interests are represented by a trustee, the court may deny a beneficiary's application for consolidation unless the beneficiary can point to another circumstance that justifies its separate participation.

meet

If a defendant believes that a non-party has an obligation to indemnify or indemnify him, he may request that that person be included in the suit (Civil Rules of the Royal Court, Rule 36).

Consolidation may also be permitted if the defendant believes that he or she is entitled to seek compensation or relief from that person with respect to the original object of the suit or substantially similar to that sought by the plaintiff.

Finally, the defendant may request the accumulation if there is a question or matter related to the original object of the process that, in his opinion, must be resolved not only between the plaintiff and the defendant, but also between one or both of them and another person. a celebration.

Demarcation requests are initiated by subpoena. Upon approval, the court will "such order as you think" AboutBetween othersthe filing of petitions, dissemination, etc. Once a person is added as a third party, he is a party to the action as if he were the original defendant.

Security requirements for defendant's expense

Can the defendant request that the plaintiff be ordered to pay a sum of money as security for the defendant's costs?

The court has broad discretion to issue an order securing costs against a party.at that level, on those terms and in that way' (Civil Rules of the Royal Court, Rule 82).

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Consequently, the court may order bail on the basis of full or partial compensation if it is satisfied that this is appropriate. clean.

If bail is paid, the court may stay the proceedings until bail is paid; If the party required to file a deposit fails to do so, the court may dismiss the case.

Registration Fees/Preliminary Registration

How do courts deal with the costs of petitions/injunctions? What rules apply to such queries/requests?

There are no special cost regulations for preliminary applications. It is at the general discretion of the arbitral tribunal to allocate costs in its sole discretion with respect to the costs of the proceeding or any part of the proceeding or even a specific request (Civil Rules of the Royal Court, Rule 82(1)(a)).

Request/order period

Wherever possible, please provide details of the timeframe for the court to process an application. Can the party request that the request/inquiry be processed urgently?

The overall aim of the Guernsey Rules calls for cases to be handled quickly and Guernsey courts are extremely responsive and willing to sit down to handle civil cases when necessary.

Routine lawsuits, or interlocutory pleadings, are filed in court on Wednesday afternoon to be heard in routine "interim" court on Friday.

Unless a request is subject to a specific provision, a person requesting an order must notify the respondent by notice (a'Meaning') to the defendant with a period of notice of at least four working days (Civil Rules of the Royal Court, Rule 81).

However, parties can, and usually do, request that hearings be held urgently on a specific date, and the court will generally attempt to accommodate such requests, subject to availability.

discovery

Discovery and Civil Affairs

Is Discovery available in civil matters? If yes, please describe the detection mechanisms available in your country and acceptable standards. Does permitted discovery include both release of documents and collection of testimonies? Is disclosure managed by the litigants or the court? Is there a mechanism to reduce the scope and/or cost of the discovery process?

Disclosure forms a significant part of civil procedure in Guernsey and is largely modeled on civil procedure rules in England and Wales, although the rules are less detailed and restrictive. The rules are in Part X of theCivil Rules of the Royal Court, 2007.

Unless otherwise ordered by the court, a disclosure order is an order to provide standard disclosure (see below). If the court deems it appropriate, it may waive or limit standard disclosure. The parties are required to conduct reasonable searches as part of their document search duty.

In practice, the parties generally agree on the timing and format of disclosure, but in the absence of agreement, the court may issue instructions on any contentious matter at a case management conference. Except in the simplest cases, disclosure will generally be made electronically using an electronic disclosure platform.

Documents subject to disclosure are generally subject to the codified “implied warranty” against joint use for purposes other than the proceeding.

discovery and third parties

Is it possible to obtain evidence from a third party other than the plaintiff/plaintiff or defendant? If so, describe the process for doing so.

Guernsey has no provisions within theRoyal Court Civil Rules, 2007for disclosure to a third party not identified as a party, although there are other generally accepted circumstances in which disclosure may be obtained from a third party, eg. Orders from Norwich Pharmacal, Anton Piller and Bankers Trust.

discovery in that jurisdiction

What is the general approach to detection in your jurisdiction? Are there specific documents that parties are required to disclose and detailed disclosure rules?

Unless the court orders otherwise, the parties must make a "standard disclosure". This requires the parties to disclose all documents:

the one you trust;
that adversely affect your own case;
that adversely affects the case of another party;
support another party's case; AND,
which must be disclosed by a corresponding practical instruction.

The disclosure obligation extends to documents that are or were previously under the control of one of the parties. A "Document" includes anything where information of any kind is recorded and therefore includes any electronic media, mobile device, as well as data stored in "Cloud" services.

Disclosure is done by list, often using an electronic disclosure platform. Although there is no prescribed form for the list, it should contain: (a) the documents that the party claims it has a right or an obligation to withhold for inspection; and (b) any documents that are no longer under your control (and an indication of what happened to those documents). The list must also include a disclosure statement explaining the scope of any research undertaken and a certificate that the person making the statement understands their disclosure obligation and has fulfilled their obligation to the best of their knowledge.

Alternatives to discovery mechanisms

If your country's legal system does not provide for investigation mechanisms, please describe how evidence is typically developed and included in the record.

Guernsey has a disclosure system as explained in the previous paragraphs.

legal privilege

Does your country recognize the concept of legal privilege (attorney client or work product protection)? If so, describe the law in this area. Is there a difference between external and internal consulting?

Guernsey recognizes the concept of attorney-client privilege. A claim of privileges is generally accepted when a person seeks legal advice from a Guernsey solicitor (legal privilege) and/or providing advice in relation to ongoing or threatened lawsuits (Litigation Privilege Advice).

In general, Guernsey adopts English principles regarding legal privileges. Therefore, whilst there is no case law reported on the position of in-house and external counsel, Guernsey is expected to follow the position taken in England and Wales, including the evidence set out in the RBS RightsIssues and the Three Rivers Litigation on the County Board. .

If a party claims in a disclosure proceeding that a document is covered by attorney-client privilege, that confidentiality claim must be noted on the list of documents and inspection resisted. In this case, the Guernsey Court will generally be slow to intervene in a prima facie legitimate claim to privileges.

In the event that a party accidentally discloses a privileged document, the overseeing party may use the document or its contents only with the permission of the court.

Rules prohibiting disclosure of a document

Are there other rules that allow a party not to disclose a document?

Without prejudice to the general disclosure requirement, a party may invoke a right or obligation not to disclose a document. If a party claims public interest disclosure, it must: aex parteApplication to the court for an order allowing you to withhold the disclosure document. If the court makes such an order, that order shall not be served on or made available for inspection by anyone unless the court orders otherwise.

If a party claims that it has a right or obligation not to see any document, in whole or in part, it must confirm in writing the existence of that right or obligation and the reasons for claiming it.

Precautions

circumstances of precautionary measures

Describe the circumstances under which an injunction may be granted. Include descriptions of the types of injunctive relief available, including (if applicable) injunctive relief to freeze assets and/or injunctive relief to avoid parallel proceedings in another jurisdiction.

Pursuant to the Legislative Amendment (Miscellaneous Provisions) (Guernsey) Act 1987 (as amended) (theShe LR), the Royal Court is empowered to take interim measures if it considers it fair and expedient to do so. Such requests may be madeI spreador with prior notice, depending on the circumstances.

Principles for precautionary measures

The principles on which the court will decide whether or not to grant an interim measure are in practice similar to the circumstances in which English courts grant such a measure, although there are some differences. For example, if the injunction is an injunction, the court will adopt that of the House of Lords inAmerican Cyanamid contra EthiconB. whether or not a serious problem exists, whether damages constitute an adequate remedy for the plaintiff or even the defendant when the injunctive relief should not have been granted, where the balance of expediency lies, and any other special factors that may arise.

Typically, the court will require the plaintiff to make certain commitments, such as commencing litigation within a specified time frame and/or paying damages for losses suffered, if the plaintiff is unsuccessful in the case.

Types of Provisions

In addition to the mandatory injunction, a freezing order (or a Mareva injunction) may be issued if the plaintiff fears that the defendant may trade or otherwise dispose of his assets located in the jurisdiction. the whereabouts of the goods so that the freezing order can be properly enforced.

Search warrants (Anton Piller search warrants) may be issued to allow forcible entry into the premises to protect evidence that a party may conceal or destroy. In practice, its use is relatively rare in Guernsey.

Guernsey courts can grant an injunction to prevent a defendant from commencing or continuing legal proceedings in another jurisdiction. In this regard, the Guernsey courts followed the approach of the English courts regarding the circumstances in which an injunction will be granted, e.g. B. When an agreement contains an exclusive jurisdiction clause that would be unreasonable, oppressive or vexatious in permitting the commencement or continuation of foreign proceedings.

Finally, there is an ancient Guernsey remedy called Clameurde Haro, a 13th century common law remedy that protects the landowner from harassment, encroachment or interference with the use of that land.

Provisions to take urgent precautionary measures

How quickly can an interim measure be obtained when circumstances are urgent? Describe arrangements (if any) for night judges or similar.

Guernsey courts will generally accept any urgent request for injunctions and will convene at short notice if necessary.

Availability of ex parte precautionary measure

Can an injunctive relief be obtained ex parte (ie, without notice to the defendant and without the defendant being present)?

An applicant may submit an application in aex parteor by notice. where to applyex parteIt is the claimant's responsibility to disclose to the court all relevant facts and matters before making a decision on the claim, including those that may adversely affect the claimant's prospects.

Plaintiff's Liability for Damages

If the defendant subsequently succeeds in complying with the injunctive relief, can the claimant be held liable for damages suffered by the defendant and, if so, is the claimant required to provide security for such potential damages? Same result when applying ex parte (as long as it is permissible)?

The plaintiff may be liable for damages suffered by the defendant if the injunction is subsequently enforced. To deal with this risk, the claimant generally must pay damages as a condition of receiving an injunctive relief to cover any damages payable if it is not finally determined that the claimant was entitled to damages that were awarded on a preliminary basis.

The Guernsey Court may also order the claimant to provide security for such damages by paying the court an amount to protect the interests of the defendant (or a third party).

Defendant's World Assets and Precautionary Measure

Can an injunction be granted against the defendant's worldwide assets?

While the Royal Court usually has jurisdiction to issue a worldwide freeze order, such orders are extremely rare. Such a request, in addition to the usual tests, requires convincing evidence that there are no (or insufficient) assets within the jurisdiction. More commonly, the Guernsey court will be asked to grant an injunction to a global freeze order issued by a foreign court.

Third Parties and Precautions

Can security measures be taken against third parties?

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The court may issue an order requiring a third party to be notified and requiring a third party to take disclosure/freeze action. Furthermore, the court is unlikely to grant injunctive relief against a third party in the absence of convincing evidence of that third party's involvement in the circumstances, so it is a necessary and appropriate part of the injunctive relief.

Consequences of the Defendant's Default

Describe the consequences if a defendant fails to comply with the terms of a court order (for example, contempt of court).

Failure to comply with a court order generally constitutes contempt of court. If found to be in contempt, it can result in a variety of penalties, most commonly a fine or possibly dismissal of a defense or claim, with the ultimate penalty being imprisonment for contempt of court, although there are no modern examples of this.

processes and hearings

trial procedure

Please describe how studies are conducted in your country. Does the procedure include an oral hearing and questioning of witnesses/experts at the hearing/trial? Or is the procedure carried out primarily in writing upon the issuance of a final judgment?

Trials are usually held in person, with oral presentations and testimony from lay and expert witnesses. Guernsey has a system of professional juries calledJurysit together to resolve questions of fact, unless the court determines that the case should be heard by a single judge.

Case Management Hearings

If the court process involves hearings/trials and/or other hearings, please describe how shorter hearings are conducted in your country (for example, in relation to motions or preliminary motions). Describe case management hearings, which may take place prior to more complex trials or hearings, and under what circumstances the court will hold them to manage the pre-hearing or schedule for the hearing.

Interim motions are usually decided in the regular court, which meets on Friday morning, unless a motion is filed with a designated judge or the motion takes longer than an hour.

Claims are usually decided after a hearing, often in conjunction with written submissions, but occasionally the parties may agree with the court that the matter can be decided in documents.

A case management hearing is normally held after summaries are completed to determine what further proceedings should be ordered in a case, and additional case management hearings are often requested, both as a case approaches trial and in more complex cases. to monitor progress.

jury trials in civil cases

Are civil jury trials possible? If so, under what circumstances?

As mentioned above, the Guernsey Court uses a professional jury system known asJurywho may sit down to decide questions of fact, unless the parties agree and the court orders that the question be decided by a single judge. Where the jury sits, there are usually three in number.

Rules for taking evidence

Describe the important rules governing the admission of evidence at trial.

Guernsey rules of evidence largely follow those in force in England, and guidelines are often derived from English precedents. There are some rules of evidence carried over from common law that are still relevant, albeit in a more limited way. Hearsay evidence is admissible and the rules provide a mechanism to facilitate obtaining hearsay evidence along with any objections to it.

opinion of an 'expert

Is expert evidence admissible in court? Can the parties submit expert reports? Can the court itself seek expert opinion or advice?

In appropriate cases, the parties may request the ordering of expertise. This can be done alone or together. Although the Court could request expertise, in practice this never happened.

Scope of Public Hearings

Describe the extent to which hearings and records of hearings are publicly available.

Hearings in Guernsey courts are generally held in public, except where one of the recognized exceptions to public hearings applies, such as Copies will be provided to the parties by operation of law (unless otherwise determined by the court) and at the request of third parties when the court deems it appropriate.

level of intervention of a judge

Describe the extent of a judge's intervention during a court hearing or proceeding. Generally, describe the circumstances under which judgments or decisions will be made at the hearing and the circumstances under which judgments are reserved for a future date.

Guernsey courts are generally conducted on the basis of counsel for the parties making such submissions as they deem appropriate, with the court generally stepping in to provide clarification or assistance where deemed necessary in the interests of justice. In simple matters a decision may be rendered immediately, but in other matters the court is more likely to withdraw to consider its judgment, which will be made in writing in due course.

General deadlines for procedures

Provide, as far as possible, general timelines for the process from initiation of the complaint to the hearing and the typical duration of the process in commercial disputes.

A simple matter like B. a billing procedure can take six to twelve months from inception to negotiation. In other cases, procedures take longer, depending on the number of issues raised and the complexity of those issues. Realistically, it takes between 18 months and two years for most commercial disputes to be resolved.

village

Court Approval

Is court approval required to resolve a dispute? If so, describe under what circumstances court approval is required.

In most cases, the court is not required to approve an agreement reached between the parties. However, the court may want to obtain details of an agreement if there are issues of legal capacity, a minor, or the terms of the agreement are important to ensure there is no risk of further litigation. For example, in a boundary or construction dispute, the court may want to understand the nature of the settlement reached to ensure that all important issues are addressed. Outside of these options, the court's only involvement is usually to issue a consent order dismissing the action.

Litigation and Confidentiality Agreement

Can a dispute resolution remain confidential?

Because agreements are typically handled by a settlement agreement but overruled by a consent order, the terms of most agreements generally remain confidential.

It is less common when the parties want the terms of the agreement to be resolved in a "Order of Tomlin".

Compliance with Arbitration Agreements

How are settlement agreements enforced?

The settlement agreement generally provides that an injured party can sue the other for compliance with that agreement; If there is a Tomlin order, it can be enforced by filing an application with the court.

Replaces settlement agreements

How do settlement agreements become void?

Depending on the terms of a settlement agreement, it is likely that one of the parties to terminate an agreement will need to initiate a new process to obtain declaratory and related relief.

damages and judgment

Prizes available for successful litigator

Describe the arbitral award forms available to a successful lawyer. What features are available in the full audit phase?

The plaintiff has the full range of remedies available, including damages, declaratory judgment and injunctive relief. Debate remains in Guernsey over whether or not a specific benefit is available as a remedy.

damage rules

Regarding damage, describe any special rules related to damage. For example: Is there punitive damages? Is there a rule that limits the maximum damage?

In general, the court will follow English rules and procedures for compensation. In the absence of specific statutory provisions allowing for punitive damages (eg under the image rights regime), the general presumption is against punitive damages.

interest before and after judgment

Can the prevailing party claim interest based on the period prior to the delivery of the award? Describe the parameters under which prejudgment interest is accrued. Can a party charge accrued interest after a judgment is rendered? Describe the parameters under which interest accrues after judgment. Are there legal limits to the attribution of pre- and/or post-judgment interest?

A party can claim pre-trial and post-trial interest. The court rate is currently 8%, but pre-trial interest is generally reduced from that amount and the Guernsey Court is expected to follow the approach of the English courts, including potentially awarding little or no pre-trial interest to the judge of current interest rate position.

Interest may be recovered on cost premiums. To the extent that a contractual provision allows for interest on interest, this will generally continue unless there is good reason to do otherwise.

Mechanisms for executing an internal judgment

What mechanisms are available for carrying out an internal punishment?

When a judgment is passed against a defendant, the plaintiff can enforce it against wages or other assets such as bank accounts, ships or planes. A plaintiff may also claim ownership of the defendant's real estate through a process known asconvulsion.

Execution of judgment abroad

Describe the procedure for executing a judgment from abroad.

There are two possible ways of enforcing a foreign judgment: through customary law and through statutory regulation.

Under common law methods, a creditor must enforce the judgment in the same way that a creditor would enforce a simple debt in Guernsey. It is unusual for a foreign judgment to be appealed. This is only possible where the foreign court lacks jurisdiction, the judgment was obtained by fraud, the procedure before the foreign court is contrary to the requirements of natural law, or the execution would be contrary to public order in Guernsey. .

The statutory method is only available to a small number of jurisdictions and provides a simplified method for the recognition and enforcement of such judgments. The judgment must be of a superior court, be final and binding, and the foreign court must have jurisdiction to make it.

Appeal

Levels of Complaint or Review of a Dispute

Please describe the different levels of appeal and/or similar review mechanisms available to a party to a dispute in your country's legal system.

Depending on the source of the case, there are several levels of appeal. The Royal Court hears civil appeals from the Magistrates' Court, appeals from legislative review under the Planning and Housing Act, appeals from Alderney Court and appeals from the Seneschal's Court of Sark.

Appeals against cases originating in the Royal Court go to the Guernsey Court of Appeal and from there to the Privy Council Judicial Committee.

In addition to these appeals procedures, Guernsey also recognizes judicial review as a remedy in relation to executive actions and a mechanism known as common law.civil application. This is a special procedure, equivalent to a request for annulment of a judgment by default, and can be used when the challenge is not made for the purposes of the decision but for another reason, e.g. B. Fraud or Misconduct.

Rules for Appealing Judgments

Please describe the rules for appeals against sentences. Under what circumstances can a higher court be granted and by whom?

There is a right of appeal from the Court of First Instance to the Royal Court and from there to the Court of Appeal if the claim exceeds £200 or if there is a point of law. Otherwise, resource approval is required (for example, approval notifications and money orders).

A decision of the Guernsey Court of Appeal cannot be appealed unless the amount in dispute is five hundred pounds or more, without special permission from Her Majesty in Council or the Court of Appeal.

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Special rules apply to appeals to Alderney Court and Senechal Court on Sark.

Procedure for filing a complaint

What is the procedure for filing a complaint? How long does the party have to appeal? What are the triggering events?

Magistrates' Court zum Royal Court

The complainant must submit a claim form to the court within seven days of the appeal decision. The complaint must be substantiated and it must be indicated whether the complaint is directed against the whole or only part of the decision. Copies must be sent to all affected parties within forty-eight hours after notification is sent to Greffe. The defendant may request the guarantee of costs within seven days of receipt of notice of appeal. The Court of Justice may extend the relevant time limits under the conditions required by the judiciary. .

Royal Court of Appeal:

The complainant has one month to forward and send their complaint notice to all parties in the procedure below that are directly affected by the complaint. Within seven days of notice, the complainant must request that the claim be established by notice. The registrar then notes the complaint. Within two days of its discovery, the Complainant must communicate this fact to all parties to whom the Complaint was notified.

Within four months of filing the complaint, the complainant submits a Complaint Package containing a basic argument. Thereafter, the defendant has one month to present his main allegations, after which a date is set for the judgment of the appeal, normally at least twenty-eight days in advance. .

These instructions can be changed upon application to the court.

Issues to be considered by the Court of Appeal in an appeals proceeding

What issues can the Court of Appeal consider in an appeal procedure? Will there be a new hearing or review of the decision of the lower court? Can new issues not examined in the first instance be appealed?

The Royal Court has extensive powers to appeal to the Court of First Instance. You may confirm, revoke or amend the provision or make any other agreement you deem appropriate. is clearly based on a misunderstanding of the law/evidence, or an incorrect conclusion was drawn from the facts, or circumstances have materially changed since the original hearing. As far as findings of fact are concerned, the Royal Court must not overturn them unless there is no evidence on which such a conclusion could reasonably be based or there are other manifestly perverse reasons.

An appeal to the Circuit Court of Appeals is made by rehearing, unless the appellant seeks a new trial order or the setting aside of a judgment, judgment or judgment. Generally, an appeal includes an option to "vacate".

Conditions imposed by the court for admission of appeal

Can the court impose conditions on the admission of the appeal? If yes, describe these terms.

The court may impose conditions to allow an appeal, such as requiring a cost guarantee and/or subsequent enforcement orders. An unsuccessful party may request a stay of performance pending the completion of an appeal if the appeal is otherwise void.

Powers of the Court of Appeal after an appeal hearing

What powers does the Court of Appeal have after hearing an appeal?

The Court of Appeals has the power to order a new hearing, a new trial or overturn the sentence.

It always also orders the costs of the appeal and, in the appeals of the investigating court at its discretion, also the costs of the trial of first instance.

Cost

assumption of process costs

Describe who will be responsible for paying legal costs, such as court costs, expenses and attorney fees. Does the losing party have to reimburse the winning party for court costs? If so, what expenses are eligible and are there mechanisms to dispute the amount of expenses payable?

Attorney fees incurred before the lower court are non-refundable; Instead, there are only (limited) reimbursable expenses.

In proceedings before the Royal Court, the Court has a wide discretion to decide on costs that it considers fair. It is common for the court to order the prevailing party to recover its costs from the losing party: 'costs follow the event', but courts may also have adopted a pertinent cost approach.

The maximum "recoverable" attorney fees are "the costs of the procedures incurred and their accessories'; these costs must be of a reasonable amount and reasonably incurred. It is unlikely that all expenses will be recoverable, and those that are will be limited by the need to assess their reasonableness.

The amount of reimbursable hourly solicitors' fees is capped overall and is currently £273. Solicitors outside of Guernsey generally cannot pay unless there is a specific, legal reason for involving foreign solicitors, such as: B. a new or complex legal matter.

Guernsey courts can award costs on a variety of bases, mainly on standard or damages basis. If costs are awarded on an indemnity basis, all costs incurred by that party will be refunded in any taxation unless the costs prove unreasonably high. amount or have arisen unreasonably, all disputes being resolved in favor of the receiving party. Instead, only “eligible” costs are awarded by default and any disputes are resolved in favor of the paying party.

The arbitral tribunal may also issue flexible cost orders, such as awarding a partial award instead of a full award.

If the parties cannot agree on the amount of costs to be paid in a Notice of Costs, the paying party should attempt to have the costs "estimated". The application for taxation must be submitted within one month immediately after receipt of the opponent's invoice.

Factors considered in cost allocation

What factors does the court take into account when setting costs?

In awarding costs, the arbitral tribunal will take into account all relevant circumstances, including the outcome, the proceedings conducted and the extent to which the costs were incurred as a result of the conduct of either party. For example, if a party improperly, scandalously, frivolously, or irritatingly advances, pursues, or defends a suit, claim, or counterclaim, or otherwise abuses the legal process, this is likely to result in the payment of costs by that party, possibly even the indemnity title.

Interest granted on expenses

Is there interest on costs? If yes, how is it calculated?

Interest is available on all costs ordered pursuant to the Award, the applicable interest rate being the current Award rate of 8%.

Alternative dispute resolution

Visions of alternative conflict resolution in the country

Describe what alternative dispute resolution (ADR), including mediation, is like in your country. What are the most popular ADR methods in your country?

The main purpose of the Guernsey Rules is to encourage parties to resolve disputes as quickly as possible and as such it is common in Guernsey for parties to be encouraged to engage in alternative dispute resolution processes such as mediation, arbitration and/or expert opinion.

ADR within jurisdiction

Describe how the legal system encourages ADR. Is it mandatory and part of a legal process? Are there penalties for improper ADR denial?

The arbitral tribunal must always bear in mind the primary objective of treating cases fairly and saving costs. The court is expected to be an active case manager, including:encourage the parties to use any appropriate form of alternative dispute resolution and facilitate the use of such procedures'. If a party refuses to participate in ADR schemes and subsequently settles or is found liable, non-participation is a factor the court may consider when deciding the question of costs.

The ADR Institution

How well organized are the institutions offering and promoting ADR?

There are a number of qualified local mediators in Guernsey and, in addition, the Chartered Institute of Arbitrators has a ChannelIslands Committee which provides access to qualified mediators and arbitrators. In practice, the parties usually turn to a mediator from one of the recognized bodies based in the UK, such as the Center for Effective Dispute Resolution.

arbitration

Laws relating to the conduct of arbitration

Please describe any relevant laws relating to the conduct of arbitration and the recognition or enforcement of arbitral awards in the courts of your country.

The Arbitration (Guernsey) Act 2016 provides a framework for resolving disputes in Guernsey and is similar in structure to the Arbitration Act 1998 in England and Wales and the UNCITRAL Model Act on International Commercial Conciliation 2002.

Parties who have entered into an arbitration agreement or clause may apply to the Royal Court to stay proceedings in relation to the dispute. The court shall grant stay unless it is satisfied that the arbitration agreement is null, void or unenforceable. The arbitration will be confidential and therefore conducted in camera, unless otherwise provided in the Agreement.

Matters Not Submitted to Arbitration

Are there matters that cannot be arbitrated in your country?

No, although in practice there are some doubts about the application of arbitration in some subject areas, such as B. fiduciary disputes.

Subject to the consent of the parties, the arbitrator may decide on all questions of procedure and evidence and may appoint experts or counsel or appoint counsel to assist with technical matters.

Circumstances for Disputing an Arbitration Award

Describe the circumstances under which parties may challenge an arbitral award in the courts of your country.

A dissatisfied party may apply to the court to challenge an arbitration award within 28 days and notify the other party and the court. Reasons for this include, but are not limited to, when the arbitral tribunal has substantive jurisdiction (to confirm/amend or annul all or part of the award) or when there is a serious irregularity affecting the arbitral court/proceeding/award.

Procedures for conducting domestic and foreign arbitration proceedings

Describe the procedure for enforcing national and foreign arbitral awards in your country.

The enforcement of foreign arbitral awards under the Geneva Convention is governed by the Arbitration (Guernsey) Act 1982, Part II. The enforcement of arbitral awards under the New York Convention is governed by Part VII of the Arbitration Act 2016.

recent developments

Proposals for dispute settlement reform

Are there proposals to reform dispute resolution? If so, when are they likely to come into effect?

The Code of Civil Procedure was last revised in 2008 and a commission was recently formed to revise it. The Reform Committee began its work in 2020 and is expected to propose significant changes by the end of 2020. Of particular interest are possible reforms in service delivery and technology use.

Effects of COVID-19

What is the impact of COVID-19 on the functioning of courts and hearings? Has the government passed laws or issued orders suspending the application of statutes of limitations?

Guernsey has been very fortunate in its experience with COVID-19 as the lockdown period here has been very short and there have been no practical restrictions on everyday life in Guernsey since May 2020 other than strict border controls. During the lockout, the Guernsey Court operated a classification system to ensure that major hearings could proceed. Most hearings were held in person, although there is an option to use video hearings where necessary, such as when witnesses cannot travel to Guernsey or lawyers are in isolation. Most submissions were temporarily moved to an electronic system, but are now back on track. In the event of another lockdown, it is hoped Guernsey courts will be able to resume providing services as before through virtual hearings.

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The content of this article is intended to provide a general guide on the subject. Depending on your specific circumstances, professional advice should be sought.

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Guernsey Litigation Guide 2021 (Chambers) - Judgments, Appeals and Compensation - Guernsey (2023)