This briefing is intended to provide a high-level overview of how one brings proceedings and for the sake of simplicity this note will cover proceedings in Guernsey alone. It is important to note that the Bailiwick consists of the three separate and distinct territories of Guernsey, Alderney and Sark which have their own courts and procedures, albeit that those of Alderney and Sark are derived from that of Guernsey.
Since separation from the old Duchy of Normandy and France in 1204, Guernsey has maintained and developed a legal and political independence from both the continent and the United Kingdom which continues strongly today. Whilst the influence of modern English based commercial and corporate law is clear in recent legislation, the roots of Guernsey's legal system reflect the ancient "customary" laws of the Duchy of Normandy, such that even today Guernsey Advocates have to have regard to medieval Norman legal texts. This is particularly so in areas such as land law and inheritance with concepts that many English or Commonwealth lawyers would find quite alien. In contrast, in keeping with a modern and dynamic financial services industry, Guernsey's corporate and commercial laws draw modern influences from England and other similar jurisdictions. Indeed, in both the corporate and trusts arenas the decisions of the English courts are highly influential and persuasive and English legal authorities are regularly relied on before the courts of Guernsey.
Guernsey's civil procedure will be familiar to an English practitioner. It is mainly embodied in the Royal Court Civil Rules, 2007 (the "Rules") and these borrow core ideas from the Civil Procedure Rules 1999 adopted by the English and Welsh courts where the "overriding principle" looms large.
The civil courts
The Royal Court and the Petty Debts Court of the Magistrates Court are the courts of first instance for civil cases in Guernsey.
The Petty Debts Court has jurisdiction to deal with both liquidated and unliquidated claims. The maximum that may be claimed before the Petty Debts Court is £10,000.
Claims exceeding £10,000 are pursued before the Royal Court. The Royal Court is presided over by the Bailiff who is the Island's chief justice, president of the Royal Court and the civil head of the Island. If the Bailiff does not preside at a sitting of the Royal Court, the Deputy Bailiff, an appointed Lieutenant Bailiff or Judge of the Royal Court will do so. When the Royal Court sits, it usually comprises a judge sitting with two or three jurats – their full title being "jure justicier". The role of the jurats is one of the distinct features of Guernsey's legal system. They are elected by specially constituted sittings of the States of Guernsey (the legislative body for Guernsey). Whilst they are lay members of the court, they are frequently elected to fulfil the role by virtue of having some particular relevant professional experience, such as in banking or accountancy. Their function is to determine questions of fact and they also decide on sentencing in criminal cases. A judge of the Royal Court may sit without jurats when deciding a question of law or ruling on costs.
Procedural or other interlocutory matters are heard routinely by either the Deputy Bailiff or a Lieutenant Bailiff (often a senior practitioner or QC from the English Bar).
The Royal Court can sit in different forms, the most common being as a Full Court (a judge plus two or three jurats), Ordinary Court (on a Tuesday morning to deal with company applications with a judge and two jurats, or a Friday morning for the hearing of causes) and an Interlocutory Court (a judge alone to deal with procedural and various interlocutory applications).
Rights of appeal proceed from the Royal Court to the Guernsey Court of Appeal and then on to the Judicial Committee of the Privy Council.
Commencing proceedings in the Royal Court
In Guernsey all proceedings in the Royal Court must be commenced by the tabling of a Cause. This document contains a statement of the material facts relied upon and the relief sought by the plaintiff. To that extent a Cause resembles a combination of the claim form and particulars of claim that one finds under English procedure. There is provision under the Rules for certain types of distinct applications to be brought as opposed to the need for a Cause, per se. An example of this is an application for an order in aid in support of insolvency matters following an order granted in the English High Court.
In order to commence proceedings a Summons has to be served upon the defendant by HM Sergeant which contains full details of the Cause and notice of when the Cause is to be tabled (i.e. initially heard) before the Royal Court. Proceedings are deemed to have commenced once the Sergeant has been provided with a copy of the Summons for service.
The Summons will, ordinarily, summons the defendant to appear before the Royal Court sitting at 9.30 a.m. on a Friday morning.
Service within Guernsey is generally required to be made by the Sergeant "à personne" – on the defendant personally.
Where personal service is not practicable, an application can be made to the court for an order for substituted service whereby service can be effected by taking such necessary steps as the court directs for ensuring that the document to be served is brought to the attention of the person required to be served.
An application for the leave of the Royal Court is required before any Guernsey proceedings can be served outside the Bailiwick.
An affidavit is usually required to be sworn in support of the application stating that, in the belief of the deponent, the plaintiff has a good cause of action, showing in what place or country the defendant is or is likely to be found and that the matter is properly justiciable before the Royal Court and is a proper one for service out of the jurisdiction.
Recent cases relating to service and notice have shown the Royal Court to be very flexible on this topic including making orders for service to take place by e-mail and through publication in a newspaper in the believed locality of the intended recipient.
Claims may be time barred through the expiry of any relevant prescription or limitation period. Generally speaking, there is a time limit of six years for claims brought under contract or tort and three years for personal injury claims. There is some quite complex case law, on which specific advice would need to be taken, concerning whether a prescription period can be suspended through ignorance of the existence of the claim (a principle called "empêchement d'agir"). It should also be noted that these are general guidelines and there are, for example, exceptions that apply to instances of fraud and claims for breach of trust.
As noted above, the limitation period stops running against a plaintiff from the time a Summons is handed to the Sergeant for service – this is in contrast to many jurisdictions where time stops when a claim is issued by the court itself or served upon the defendant.
Appearance before the Royal Court
Where proceedings are served on a defendant, he will be served with the Summons which stipulates a date and time for his attendance before the Royal Court. This will usually be on a Friday morning at 9.30 a.m. before the Ordinary Court. At that hearing, if the defendant wishes to defend the claim, he may ask the court to place the matter "inscrite" – that is to say on the defended list. He will also have to provide an "election de domicile" – an address for service.
Thereafter, the defendant has 28 days in which to file his defences to the claim unless the period is extended by agreement between the parties or on an application being made to the court. If a defendant fails to appear at the first hearing and there has been good service of the Summons then judgment with interest and costs will be awarded against him.
A party may choose to apply for summary judgment. In order to succeed, the plaintiff must demonstrate that the defendant has no real prospect of success in defending the claim and that there is no good reason why the claim should be disposed of at trial. The reverse is also possible whereby a defendant can seek judgment against the plaintiff where it can be shown that there is no real prospect of succeeding on the claim.
The Royal Court is equipped with extensive case management powers and once defences have been filed, a case management conference will be held in order for the Royal Court to consider what directions will be appropriate for the conduct of the case towards trial. The steps towards the final hearing will include discovery, consideration of expert witness requirements, the service of hearsay notices and witness statements.
The discovery procedure requires the listing of all documents by the parties to an action. The usual order for disclosure is limited to "standard disclosure" which requires the parties to list only those documents upon which they intend to rely together with documents which adversely affect their own or another party's case or which support another party's case. It is also possible for a party to apply for specific disclosure of further documents or classes of documents. The duty of disclosure is a continuing one that binds the parties until the end of proceedings.
The award of costs is in the discretion of the court and it is a matter determined by a judge sitting alone. As a rule of thumb, the principle that costs follow the event applies so that the successful party ought to obtain an order for his costs to be paid by the unsuccessful party. The award of costs may be either on the standard basis or the more generous indemnity basis. Orders for indemnity costs tend to be made against a party who is considered by the judge to have been responsible for some form of litigation misconduct (for example, where an action or application has been pursued unreasonably or vexatiously); otherwise, it is normal to receive an order for standard costs only. If the amount of costs to be paid cannot be agreed between the parties, there is provision in the Rules for costs to be taxed (assessed) by the court. In the case of an indemnity award, any doubt as to whether an item of costs should be allowed or not is to be resolved in favour of the receiving party. This basis of assessment usually means that the shortfall between costs incurred with one's own lawyer, and costs recovered from the unsuccessful party, are less than would be the case with an award of costs on the standard basis.
In some instances it may be possible to obtain an order for an interim payment of costs pending taxation. However, any interim payment will be very conservatively assessed to ensure it will not exceed the amount the receiving party is likely to obtain on taxation.
Security for costs
The Royal Court has wide powers to order any party to give security for costs in such amount and on such terms as it thinks just. The court has a wide discretion whether to order security and must carry out a balancing exercise when determining whether or not to order security weighing up the potential injustice to the plaintiff if security is ordered and the injustice to the defendant if security is not ordered.
Payment into court
A party may protect his position in costs by making a payment into court. The amount of the payment into court reflects that party's view as to how much the claimant would be likely to recover at trial. If the claimant accepts the payment into court, he will usually be entitled, in addition, to payment of his costs up to the time of acceptance of the payment into court. If the payment into court is not accepted in satisfaction of the claim, the action proceeds in the normal way. If, at trial, the claimant recovers less than the amount of the payment into court, he will be likely to have to pay not only his own, but also the other party's, costs incurred from the date of payment in. In some cases, it is not possible to meet a claim by way of payment of a specified sum in which event protection in costs may be afforded by making a settlement offer in correspondence which is marked "without prejudice save as to costs". Such a letter cannot be referred to in court until the case is determined but it is admissible in any argument on costs.
Lawyers familiar with practice in England and Wales will find much of the procedure in Guernsey similar, albeit with subtle and important local variations. The French tone inherited from our system of customary law provides distinct nuances and it is important that overseas practitioners appreciate that the Guernsey legal system is not only separate and distinct from that in England, but also from that in Jersey.
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.