Guernsey: Litigation & Dispute Resolution – Guernsey

Last Updated: 28 May 2012
Article by Appleby  

Previously published by the Global Legal Group

Efficiency/integrity

Whilst much of Guernsey's Royal Court procedure is generally based on principles which are similar to those adopted in England, it is important to note that Guernsey is a separate jurisdiction with its own specific laws and rules. Guernsey Royal Court procedure is an adversarial process which takes place before a single judge1. The judge determines all issues of procedure and law, whilst issues of fact are usually determined by Jurats2 who will sit with the judge. However, in certain circumstances issues of fact may also be determined by the judge alone. Only Guernsey Advocates are permitted rights of audience before the Royal Court.

The Royal Court in Guernsey has unlimited jurisdiction in both civil and criminal disputes. The Magistrate's Court has jurisdiction to determine more minor criminal matters and civil disputes of under £10,000.

In respect of civil disputes, the Guernsey Courts have seen an increase in work over the past years but Court accommodation has also been increased, particularly with a major extension to the Royal Court buildings in 2005, in order to provide increased capacity for the increased levels of work. In addition to the judges based in Guernsey, there are also a number of part-time judges who are either senior English lawyers or members (or former members) of the English judiciary who sit to determine matters in the Royal Court. A Guernsey judge (whether full time or part time) will not customarily undertake any Guernsey legal or quasi-legal work save in their offi cial capacity. Where a member of the Guernsey judiciary perceives that they have a confl ict or potential confl ict of interest in a matter to be determined he/she may voluntarily recuse themselves or any of the parties to the litigation may apply to recuse the judge.

The Guernsey Royal Court is aware of and actively encourages alternate forms of dispute resolution. Arbitration in Guernsey is governed by the Arbitration (Guernsey) Law, 1982 which provides for, among other things, the stay of Royal Court proceedings in favour of arbitration. Mediation is another frequently used method of alternative dispute resolution with both locally based mediators and mediators from other jurisdictions being used regularly. Other forms of alternate dispute resolution used include determinations by independent expert and adjudication. Guernsey also has statutory tribunals for the determination of certain types of dispute, such as the Employment and Discrimination Tribunal.

Enforcement of judgments/awards

Foreign judgments may be enforced in Guernsey in one of two different manners, either under The Judgments (Reciprocal Enforcement) (Guernsey) Law, 1957 or at common law.

In order for a foreign judgment to be enforced under the Judgments (Reciprocal Enforcement) (Guernsey) Law, 1957 the judgment must have been obtained from a superior Court of the following countries: England and Wales; Scotland; Northern Ireland; the Isle of Man; Israel; the Netherlands; the Netherlands Antilles; the Republic of Italy; Surinam; or Jersey. Where a judgment is from a Court other than those set out above, the judgment must be enforced at common law.

The Judgments (Reciprocal Enforcement) (Guernsey) Law, 1957 sets out a procedure for the registration and enforcement of a foreign judgment in order for it to be enforceable as if it was a judgment of the Guernsey Royal Court. There are a certain number of reasons which can mean that a foreign judgment which is being sought to be enforced under the Judgment (Reciprocal Enforcement) (Guernsey) Law, 1957 may not be enforced in Guernsey and these may include instances where the original Court did not have jurisdiction to determine the dispute, where the judgment was obtained by fraud and where enforcement would be contrary to public policy in Guernsey.

Where a foreign judgment is sought to be enforced at common law, the party seeking to enforce the judgment will issue proceedings in Guernsey relying on the foreign judgment in order to obtain an equivalent judgment from the Royal Court which may then be enforced. If a defendant was to seek to defend the Guernsey proceedings, the Plaintiff would usually seek summary judgment based on the fact that the foreign judgment had already been obtained and the doctrine of res judicata.

Arbitrations awards, both domestic and foreign, may be enforced by the Guernsey Royal Court under the provisions of the Arbitration (Guernsey) Law, 1982.

The most common method of enforcement of a judgment of the Royal Court in Guernsey is to provide the Act of Court recording the judgment to Her Majesty's Sheriff who is then able to seize assets in satisfaction of the judgment.

Privilege and disclosure

It is usual for parties to litigation to agree or be ordered to provide disclosure of relevant documents as part of the litigation procedure. There are two general forms of disclosure, standard disclosure and specific disclosure. When giving standard disclosure, a party will have to disclose all documents on which it relies as well as any other documents which adversely affect its own case, any documents which adversely affect another party's case and any documents which support another party's case (as well as any other documents the parties may be obliged to disclose under any practice direction). A document is defined as 'anything in which information of any description is recorded'. This will include anything which is held electronically (such as emails, electronic documents, calendars, scanned images etc.) and other information which may be retained in a form which is other than in hard copy form (such as voicemail messages or anything recorded on microfiche).

In addition, the obligation to disclose documents refers to documents which are in a party's control, or which have been in its control. This includes documents which are or have been in the party's physical possession, documents which the party has, or has had, the right to possess and documents which the party has, or has had, a right to inspect or take copies of.

Documents will be privileged from disclosure where they either attract legal advice privilege or litigation privilege.

With extremely limited exceptions (e.g. cases of personal injury or death), it is not possible to obtain pre-action disclosure of documents, nor is it possible to obtain orders for disclosure of documents from third parties as part of the disclosure process. However, there may be other forms of relief available from the Court in the appropriate circumstances which will entail the Court ordering such disclosure of documentation (for instance as part of the ancillary relief comprised within a freezing order, or a Bankers Trust order).

Whilst there are not yet any practice directions or rules of Court relating to electronic disclosure, the use of electronic disclosure is becoming more common and this is likely to continue.

Costs and funding

Whilst there are no absolute rules relating to costs as they are within the Court's discretion, the normal manner in which the Court will exercise its discretion when awarding costs is for the successful party to have its costs paid by the unsuccessful party.

There are two general bases for the award of costs, being either the standard basis or the indemnity basis. Costs ordered on the standard basis are, unless the Court orders otherwise, capped at a rate of £227 per hour for Advocates (with corresponding reductions for non-advocate lawyers) which is likely to be lower than the cost actually charged by the Advocates. The paying party is able to seek a taxation of costs. Where there is a dispute over the reasonableness of costs incurred on the standard basis, the presumption is that costs will be resolved in favour of the paying party.

Where parties have engaged English solicitors and barristers to assist in proceedings, those costs are generally irrecoverable, save in appropriate and exceptional cases.

Where costs are ordered on the indemnity basis, the presumption is reversed so that presumptions are resolved in favour of the receiving party.

It is possible for the Court to change the recoverable hourly rate so that an increased rate of recovery can be obtained.

It is not possible for Advocates to enter into contingency fee arrangements. In certain circumstances, funding for litigation may be available where such funding is not champertous or constitutes unlawful maintenance.

Interim relief

The Guernsey Royal Court is able to, and does, grant interim relief where justified, with jurisdiction being available to grant commonly recognised forms of interim relief such as freezing orders and search orders.

When granting interim relief, the Royal Court will view developments in England and Wales as well as in other comparable common law jurisdictions, particularly Jersey, as persuasive in the absence of directly applicable local decisions. Accordingly, where appropriate, ex-parte relief is available. The Royal Court is also able to, and will, grant injunctions in support of foreign proceedings without requiring substantive proceedings to be issued locally, such as where the only connection to the proceedings is the presence of assets within the jurisdiction of the Royal Court.

Other forms of interim relief are available, many of which will be recognisable to lawyers in common law jurisdictions, such as Bankers Trust Orders and Anti-Suit Injunctions, as well as other forms of interim relief which are rarely seen outside of Guernsey. The fi rst of such is the Clameur de Haro which effectively operates as an injunction which a landowner may obtain prohibiting the interference with his real property without the immediate need to obtain such an order from the Royal Court. However, once the 'Clameur' has been raised3, the landowner is required to promptly register it with the Royal Court. Whilst it does appear to be a particularly informal method of obtaining such relief, it is rarely used and there is little doubt that abuse of the procedure would be seriously criticised by the Royal Court. Another form of interim relief available which is practically unknown outside of Guernsey is the ability of a plaintiff to make an ex-parte application to register the amount claimed against a defendant as a charge against any real property he may own on the island. The plaintiff has to demonstrate a prima facie case and the Court will grant the application, permitting the plaintiff to register the charge against the property, effectively obtaining security for the amount being claimed.

As a general rule, the Guernsey Royal Court will be willing to provide assistance in respect of foreign proceedings by granting interim relief so long as the assistance and relief is sought in the appropriate circumstances and with the appropriate safeguards, such as undertakings, being provided.

International arbitration

Guernsey is a party to the New York Convention. The United Kingdom extended the territorial application of the Convention to Guernsey on 19 April 1985. Enforcement of Convention awards was incorporated in domestic Guernsey law by the Arbitration (Guernsey) Law, 1982 which came into force on 11 April 1983. The Arbitration (Guernsey) Law, 1982 also provides for the enforcement of awards by parties to the Convention on the Execution of Foreign Arbitral Awards signed at Geneva on 16 September 1927 (the Geneva Convention) and the Protocol on Arbitration Clauses of 24 September 1923. The convention on the settlement of investment disputes between States and Nationals of other States signed in Washington on 18 March 1965 (the Washington Convention) has also been implemented in Guernsey under an extension of the Arbitration (International Investment Disputes) Act 1966.

The primary source of domestic arbitration law in Guernsey is statutory, being the Arbitration (Guernsey) Law, 1982. This law deals with both domestic arbitration proceedings as well as the enforcement of certain foreign arbitration awards. In addition, the (English) Arbitration (International Investment Disputes) Act 1966 has been incorporated into domestic Guernsey law by the Arbitration (International Investment Disputes) (Guernsey) Order 1968.

There are provisions within the Arbitration (Guernsey) Law, 1982 which permit a party to apply to the Royal Court for a stay of Court proceedings where there is an agreement to arbitrate a dispute between the parties. Such an application must be made before the party delivers pleadings or takes any other steps in the Court proceedings.

A domestic arbitration award will be enforced in the same manner as a Royal Court judgment. However, leave of the Court must fi rst be sought in order to enforce it in such a manner. Foreign arbitration awards may also be enforced under procedures set out within the Arbitration (Guernsey) Law, 1982. The Royal Court is likely to look favourably on enforcing arbitration awards as it generally seeks to encourage alternative dispute resolution.

Guernsey continues to see a relatively steady fl ow of disputes being referred to arbitration across a number of different types of dispute. Over recent years, a number of disputes have entailed some form of reference to the Royal Court for determination of particular issues, but this has not been particularly common. Further, recently the legislature of the Island has tacitly endorsed arbitration as an important form of dispute resolution following the enactment of the Trusts (Guernsey) Law, 2007, which contains provisions which specifically provide for the arbitration of trust disputes. Such provisions are not often found in the trust legislation of different jurisdictions. Being a financial centre, and in particular an important jurisdiction for investment funds, insurance, the fiduciary sector, banking and asset management, there are a considerable number of legal agreements concluded each year under Guernsey law and/or involving Guernsey entities. An appreciable proportion of these agreements will include provisions to refer disputes to arbitration (although the proportion does tend to vary on an industry-specific basis). Accordingly, arbitration appears set to continue as an important form of dispute resolution within Guernsey, for which there is a good level of recognition and support, both through the legislature, judicially and through industry.

The most prominent arbitral institution is the Channel Islands branch of the Chartered Institute of Arbitrators. However, there are a wide range of institutions which are commonly identified in arbitration agreements as the party which will choose and appoint the arbitrator for a reference under that agreement. Often arbitration agreements will not contain extensive provisions for the rules, language, fee structure and similar of a reference and therefore parties often conduct references adopting rules of their own agreement or rules produced by an external arbitral institution.

Mediation and ADR

The Royal Court has a duty under the Royal Court Civil Rules to actively manage cases which includes encouraging the parties to use any appropriate form of alternative dispute resolution. Mediation is a frequently used method of alternative dispute resolution with both locally based mediators and mediators from alternative jurisdictions, particularly England, being used regularly. The Royal Court's duty extends to facilitating the use of ADR. Accordingly, civil proceedings will often be stayed to allow the parties to mediate, where such a course may lead to settlement. It should be noted, however, that under the Guernsey doctrine of peremption, further proceedings may be barred a year and a day after the last step taken in the proceedings, unless the Court exercises its discretion to restore the matter to the list. A recent pilot scheme encouraging mediation for publicly funded non-family disputes was deemed a success and has been maintained.

Footnotes

1 The head of the judiciary is the Bailiff. Other judicial appointments in the Royal Court include Deputy Bailiff, Lieutenant Bailiff and Judge.

2 The Jurats are members of the public elected to the offi ce of Jurat, part of the role of which is to perform determinations of fact in judicial proceedings, in a similar manner to that undertaken by juries.

3 Which involves a plea for assistance, the recitation of the Lord's Prayer in French and then the grace in French.

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.

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