Jersey: Cards On The Table: A Brief Guide To The Discovery Process In Jersey

Last Updated: 16 December 2008
Article by Davida Blackmore

Discovery (as it is still known in Jersey) is arguably the most important stage in the court process whereby each party to a dispute is required to disclose to all other parties all those documents which are relevant to the proceedings and which they have in their "possession, custody or power". In Jersey, the principle which underpins this process is that a party's litigation is conducted in a "cards on the table" manner so that neither party is able to take their opponent by surprise when the matter comes to trial.

After pleadings have closed, the court will set a timetable for disclosure and will direct that each party will list the documents which are or have been in their "possession, custody or power". Under Rule 6/17(1) of the Royal Court Rules 2004, the court may order "any party to any proceedings to furnish any other party with a list of the documents which are or have been in his or her possession, custody or power relating to any matter in question in the cause or matter and to verify such list by affidavit". The obligation in Jersey is somewhat wider than the position under Part. 31 of the Civil Procedure Rules whereby under standard disclosure a party is required to disclose only:

1. the documents on which he relies; and

2. the documents which

  1. adversely affect his own case;
  2. adversely affect another party's case; or
  3. support another party's case; and

3. the documents which he is required to disclose by a relevant practice direction.

It is worth nothing that in Jersey, the definition of documents is extremely wide-ranging and includes not only hard copy documentation such as letters, faxes, etc., but also anything on which information is recorded e.g. compact discs, USB drives, video or a computer's hard drive.

There will always be concerns by the parties as to which documents are deemed to be relevant for the discovery process and whether a party has a good reason not to produce a document. The test for relevance is that as laid down in Victor Hanby Associates Ltd. v. Oliver [1990] JLR 337 which states that:

"the material sought had to relate to matters pleaded in the forthcoming action, and the test was satisfied if the documents contained information which may - not which must - have enabled the party requiring disclosure to advance his case or to damage that of his adversary".

It should be noted that a client is required to produce documentation which is adverse to his own arguments, but it is important to remember that the Advocate has a further duty to the court, namely to ensure that no relevant document has been withheld from disclosure. In the recent case of Alhamrani v. Alhamrani [2008] JRC 090, the court made it clear that:

"...the principal role and obligation of any solicitors and advocates ... is to do their best to ensure that those engaged in the primary document-gathering exercise have an understanding of what it is that they are supposed to be looking for and of the nature and extent of the obligation on a party to make discovery of documents; to satisfy themselves as best they can that the ensuing exercise is carried out effectively (which, to some extent, will depend on the nature and extent of the client's organisation); to bring a critical eye to the assessment of the materials with which they are supplied for the purpose of discovery; and to be astute to detect whether there appear to be other potentially discoverable documents or classes of document that may exist but have not yet been located or produced to them by their client".

If a party believes the disclosure provided is incomplete it can apply to the court for an order for specific discovery. It must make out a prima facie case that a party has not complied with the original discovery order and that they have failed to produce relevant documentation which is in their possession (as per the rule laid down in Trustcorp v. Barclays Bank [2007] JLR n24). If the court is satisfied that there has been a breach of the original order then the court will go on to decide whether an order for specific discovery is necessary for the fair disposal of the case.

Discovery is possible against a non-party to the litigation, but it is available in only the rarest of circumstances, the exception being that discovery is the only means of obtaining the necessary information to proceed against a wrongdoer whose acts were facilitated by a non-party. The leading on the authority in this area is IBL Limited v. Planet Financial and Legal Services Limited [1990] JLR 294 which stated that:

" a general rule no independent action for discovery would lie against a person against whom no reasonable cause of action could be alleged or who could be called as a mere witness in the substantive trial; the rule did not apply where (a) without discovery of the information in the possession of the person against whom discovery was sought no action could be begun against a wrongdoer; and (b) such person had himself, albeit innocently, been involved in the acts of the wrongdoer so as to facilitate them. In such circumstances, although he might have incurred no personal liability, he was under a duty to assist the person who had been wronged by giving him full information and disclosing the identity of the wrongdoer".

This was tested in the recent case of Macdoel Investments Ltd v. The Federal Republic of Brazil [2007] JLR 201 where the Appellants argued that since the identity of the wrongdoer was known, that the kind of relief envisaged in IBL v. Planet was not available to the Plaintiff. The Court of Appeal held however that their power to make a Norwich Pharmacal order was not restricted to certain "types of case" and that the "determinative question in an individual case would be whether justice required the requested disclosure to be ordered".

The obligation for discovery does not stop with the exchange of lists and continues throughout the proceedings and if further documentation comes to light at any stage during the proceedings they must be disclosed to the other party. Ultimately however, it is the court who retains a discretion whether or not to order a party to make disclosure and whether it is required in the interests of justice.

This article first appeared in the autumn 2008 issue of Appleby Jersey's Resolution newsletter.

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

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

Davida Blackmore
In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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 (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

To Use 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.


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.


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