Discovery, as it is still known in Jersey, is generally limited
to the parties involved in the particular dispute before the court.
However, in certain circumstances, it is possible to obtain an
order against a non party outwith the jurisdiction of the Royal
Court. This is achieved through a letter of request. This article
examines the procedure for obtaining documents from a party in
The procedure is for the applicant to issue a representation.
This is an originating document, as the application is not made in
the context of the existing proceedings. It briefly sets out the
basis of the application and the terms of the order sought. It
should also state that if produced, the documents would be
admissible in the Jersey proceedings. It is supported by an
affidavit which sets out the background to the application as well
as the relevance of the documents sought.
Whilst not strictly necessary, it is generally advisable to
contact the proposed witnesses first to see if they would give the
disclosure voluntarily. If they will, clearly this will save time
and costs. If they will not, the correspondence can be exhibited to
the affidavit to show that efforts have been made. The documents
sought should be listed specifically as any attempt at a fishing
expedition will not be countenanced be the Royal Court.
Furthermore, a list too widely drawn may also be disallowed by the
receiving court or challenged by the proposed witnesses themselves,
as to which see below.
The application is made ex parte and presented to the Royal
Court on a Friday afternoon when it conducts its general business.
The Royal Court deals with matters such as these under its inherent
jurisdiction. Annexed to the representation should be a draft of
the letter of request itself, which would be signed by the Bailiff
and two jurats, and addressed to the Senior Master of the
Queen's Bench Division. Once the letter has been approved by
the Royal Court and signed, it is transmitted via official channels
as between the two court systems.
In England, the matter is dealt with under the Evidence
(Proceedings in Other Jurisdictions) Act 1975 ("the
1975 Act"). The applicant should instruct English solicitors
who will issue an application notice which is supported by a
written statement. It is very similar to the affidavit sworn in the
Jersey application. The application is made on paper, though the
Master may want to discuss matters briefly with those making the
The principles which an English Court will apply were summarised
by a commercial court judge in Smith v. Philip
Morris  EWCH 916 (QB), and clearly they are relevant
to an applicant in Jersey who must ensure that any outgoing letter
of request complies with these principles. They are set out briefly
"... if the court receives a Letter of Request that it
is defective in that it does not comply with the provisions of the
1975 Act, the court will be prepared to make an order subject to
limitations or conditions if it can properly do so and thereby
remedy the defect ..."
"If the court has jurisdiction to make an order, it
has a discretion whether or not to do so."
It will not exercise its discretion "if it is
satisfied that the letter of request is mainly of an investigatory
character ... even though the witness may be able to give some
relevant and admissible evidence."
"Subject to this limitation, the approach of the
English Court is to seek to assist the foreign court whenever it is
appropriate to do so ..."
"... the court is generally disposed to exercise its
discretion in favour of granting requests unless it would be
unfairly oppressive upon the witness to do so or there is other
powerful reason not to do so."
Any order made will contain a penal notice warning the
recipients that if they do not obey they may be found to be guilty
of contempt of court and fined. The order will specify the
the names and addresses of those to give the disclosure;
the precise documents to be disclosed;
that the recipients may apply to set aside the order within a
that the applicant will pay their reasonable costs of
compliance which will be assessed if not agreed.
Four To Six Weeks
If the witnesses are in England, then one can expect the time
between issue of the representation and order by the Master to be
approximately four to six weeks. On top of that, the witnesses
would generally be given at least 14 days in which to comply.
Once the documents have been produced to the applicant, they
will have to be subject to one more check for relevance and then
disclosed in the usual way in the Jersey proceedings by list
verified by affidavit (as they are still known).
This article first appeared in the autumn issue of the
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.
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