Guernsey: In With The New....But Not Quite Out With The Old

Last Updated: 2 August 2011
Article by Simon Davies

Most Read Contributor in Guernsey, September 2018

Originally published in Legal Week, 23 June 2011

Simon Davies, Partner at Ogier in Guernsey, highlights developments in Guernsey's civil litigation and how this and other changes demonstrate the Island's commitment to provide a modern system for complex commercial matters.

Introduction

Until recently, the principal law governing evidence which can be admitted in civil proceedings in Guernsey was almost a century and a half old. Despite its antiquity, the Loi Relative aux Preuves, 1865 ("1865 Law") is relatively flexible to allow the Guernsey Courts ("Courts") to develop well respected and comprehensive provisions as to the admissibility of evidence in civil proceedings.

However, Guernsey (and Alderney) have over the past few years focused on the development and drafting of legislation aimed at bringing the Guernsey law on evidence closer to the law of England and Wales and to cater for the needs of modern day civil litigation. As a result of years of consultation, the Evidence in Civil Proceedings (Guernsey and Alderney) Law, 2009 ("Law") and the Evidence in Civil Proceedings (Guernsey and Alderney) Rules, 2011 ("Rules") were brought into force on 28 April 2011. The Law and Rules will not apply in Sark.

The Law applies to cases already before the Court at the time of the commencement of the Law, save for those already at the trial stage in the proceedings. Having said this, the Royal Court of Guernsey recently granted the postponement of a pending trial in which hearsay evidence might have a significant impact until such time as the Law came in to force.

What does the Law cover?

The Law develops the provisions of Guernsey law which deal with the admissibility of evidence in civil proceedings in Guernsey and Alderney and focuses primarily on the admission of hearsay evidence, and privilege, but also deals with key forms of evidence such as expert evidence and the admissibility of evidence as to foreign law.

The Law does not repeal and replace the entire 1865 Law, or even the majority of it, but does repeal and amend certain sections as regards the admission of hearsay evidence and the admission of evidence by a wife or husband as to conversations during a marriage. In addition, the Interpretation (Guernsey) Law, 1948 continues to apply to the interpretation of the Law as it does to the 1865 Law.

Is new always better?

However, despite the introduction of this new, modern Law, it would be wrong to say that the Courts are turning their backs on tradition and customary law. Far from it. The Law provides that evidence formerly admissible under customary law shall continue to be admissible and particularly refers to statements regarding admissions adverse to a party to the proceedings, published words dealing with matters of a public nature, public documents, records, i.e. Court records and reputation or family tradition (for the purpose of establishing good or bad character or proving or disproving the existence of a marriage or of any public or general right or identifying any person or thing).

So what is new?

Whilst customary law will always have a place in Guernsey legislation, and whilst the 1865 Law continues to be one of the principal laws governing this area of Guernsey litigation procedure, the Law does cover a number of important principles, primarily in respect of hearsay evidence, but also in respect of other forms of evidence and proof.

Say what? Hearsay!

The 1865 Law provided that "les oui-dires ne sont pas recevables en preuve excepté dans les cas spéciaux reconnus par la loi" which means "hearsay is not admissible in evidence except in special cases recognised by the law." This principle included the inadmissibility of written witness statements as evidence-in-chief. Witnesses actually had to come to Court in non-interlocutory matters to orally provide evidence-in-chief.

The Law now provides that hearsay evidence is admissible where provided by a competent witness. Where a witness is incompetent (defined as "suffering from such mental or physical infirmity, or lack of understanding, as would render a person incompetent as a witness in civil proceedings"), hearsay will not be admissible. The admissibility of hearsay is therefore far wider than previously, when hearsay evidence was only admissible in certain very limited circumstances (for example, where the witness was gravely ill and needed to give evidence prior to his death). Hearsay evidence is defined as "a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated" and includes hearsay of whatever degree (i.e. multiple hearsay).

The admissibility of hearsay evidence is not, of course, straightforward, given the potential for abuse of such 'grapevine' evidence. To be able to rely on hearsay evidence, a party must give notice of such fact to the other parties in the proceedings and if requested, must give such particulars as to the hearsay evidence to be relied on as is reasonable and practicable, although parties can agree to waive the requirement for notice to be given.

Hearsay evidence is admissible unless the parties agree to exclude evidence, or the Court regards it as inadmissible.

It is envisaged that in the majority of trials, a party will usually call as a witness the individual whose hearsay evidence was adduced to the Court as Evidence in Chief. If for any reason they are not called by that party, the other parties may, with leave of the Court, call that person as a witness and cross-examine them on the statement. Parties should therefore be careful to adduce hearsay evidence to ensure that it is sufficiently strong to withstand intense cross-examination from the opposition.

Can I take your word for it?

In deciding whether hearsay evidence is admissible, the Courts will need to decide, first, whether the witness is competent. The question of competency may not always be clear, for example, subject to the relevant provisions of the Administration of Justice (Bailiwick of Guernsey) Law, 1991, children can be deemed competent to be witnesses in civil proceedings in certain circumstances, which is not the case in all countries.

Once the Court has deemed a witness competent, the Court will need to weigh up the hearsay evidence against a number of factors regarding the individual giving the evidence including their motivations, how the hearsay evidence was obtained, whether the evidence involves multiple hearsay and when the hearsay statement was actually made. The Court is unlikely to attach as much importance to hearsay evidence as first hand evidence.

If you haven't got anything nice to say, don't say anything at all - or can I?

A witness can refuse to answer any question or produce any documentation which may incriminate them or their spouse as regards any criminal proceedings. However, in respect of civil proceedings, a witness can now be compelled to answer questions or produce documents which may expose them to a forfeiture or produce documents which relate solely to their own case and in no way impeach or support the other opposing party's case.

Further, the Law now provides that other potentially 'sticky' forms of evidence can be adduced, such as evidence which refers to the witness' convictions (in a number of circumstances including in actions for libel or slander), adultery (in matrimonial proceedings) and paternity (in relevant proceedings).

You know better than I do

In line with the aim to modernise the antiquated Guernsey law on evidence, the Law and Rules now specifically set out provisions regarding the admissibility of expert opinions and certain non-expert opinions and evidence as to foreign law. These rules cover the manner in which experts should give evidence and their overriding duty to the Court, with which English lawyers reading CPR Part 35 will be familiar. These provisions are more and more relevant in the fast developing area of commercial litigation and provide the Courts with useful tools to assist them in the conduct of complex civil and commercial litigation for which the Courts have gained a respected international reputation.

Show us your cards

The 1865 Law did not entirely address the issue of what can actually be adduced to prove a statement. The Law provides in greater detail the manner in which statements can be proven and includes the production of documents to support any statements made, records (of whatever form) of business or public authority and Ogden Tables. This clarification will again assist the Court in complex civil proceedings which have developed over the past few decades.

Conclusion

The Courts are primarily concerned with exercising their powers in such a way as to ensure that the interests of justice are met. It is anticipated that the Courts will pay particular attention to the reliance on hearsay evidence, and ultimately such new rules can only serve to benefit the Courts, advocates and all parties to civil proceedings in Guernsey.

The Law is a welcome development in the procedural framework of Guernsey civil litigation and, together with Guernsey's modern Royal Court Civil Rules, 2007, is a clear demonstration of Guernsey's commitment to provide a modern and pragmatic system which will allow large, complex, commercial matters to be dealt with efficiently and competently.

For more information about Guernsey's finance industry please visit www.guernseyfinance.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions