Civil Litigation in Guernsey

A great deal of Guernsey’s judicial civil procedure is based upon principles that will be familiar to those with English law experience. Guernsey is not, however, part of the United Kingdom and is a distinct jurisdiction with its own specific laws and procedural rules.

Civil procedure in Guernsey’s Royal Court is governed by the Royal Court Civil Rules, 2007 (the RCCR). In addition, and although they do not directly apply in Guernsey, the Royal Court may have regard to the White Book guidance on the English Civil Procedure Rules.

The purpose of this article is to set out some of the more important rules and areas of interest.

Prescription / Limitation

Proceedings before the Guernsey courts may be time barred if not commenced within the relevant period after which a cause of action accrued. Prescription may be raised as an effective defence to any claim launched after the relevant period. Under Guernsey law, the principle of “prescription” serves to extinguish rights rather than (as may be the case with limitation in other jurisdictions) merely barring remedies.

The prescription period for contractual and tortious claims is 6 years from the date upon which the cause of action accrued (save in respect of personal injury, for which the period is 3 years). For breach of trust claims the limitation period is 3 years from the date of knowledge of the breach; save that no prescription period will apply to an action brought against a trustee in respect of any fraud to which the trustee was privy or for any action to recover trust property. Prescription periods are stopped from running at the point at which a Summons is provided to HM Sergeant for service.

It is open to a party to contend that it has been subject to an impediment to action (to use the Guernsey parlance an empêchement d’agir), which is a principle derived from Guernsey’s customary law. The application of this principle can serve to suspend time in circumstances where prescription may otherwise prove fatal to a claim.   The precise limits of the principle are inherently uncertain (particularly when translated into the context of modern commercial disputes). Specific advice is, therefore, recommended before any attempt is made to rely upon the principle.

Class Action

Rule 33 of the RCCR enables persons to commence or continue a claim as representative of those with the same interests in the claim. Similarly, a single defendant may be permitted to defend a claim in a representative capacity.   Unless the Court otherwise directs, any judgment in which a party is acting as a representative will be binding on all persons represented, but can only be enforced by or against a non-party with the permission of the Court.

Commencement of a Claim

Proceedings are instituted by a Plaintiff tabling a Cause before the Royal Court. A Cause must contain a statement of the material facts upon which the Plaintiff relies and a statement of the relief sought. The Defendant must be given at least 2 clear days’ notice, by way of a Summons served through HM Sergeant, of the intention to table a Cause.

Where the Cause needs to be served upon a party residing outside of the jurisdiction of the Royal Court, the Plaintiff must obtain the leave of the Court to do so.

At the tabling of the Cause, the Defendant will (save in circumstances where a limited appearance is necessitated due to a challenge to the jurisdiction of the Guernsey courts) indicate whether the claim is to be defended and provide an address for service within the Bailiwick of Guernsey. In the absence of an appearance by the Defendant, the Plaintiff may obtain a judgment in default.

If the proceedings are to be defended, the matter is placed on the pleadings list and under the RCCR a Defendant then has 28 days (subject to variation by the parties or the Court) to file defences. If the Defendant fails to file defences within the requisite time, then judgment in default may be awarded.

Disclosure

Save in very limited circumstances (personal injury and death claims), Guernsey does not have a procedure for pre-action disclosure. Similarly, there is no procedure to obtain orders for the disclosure of documents by third parties.

Norwich Pharmacal orders (disclosure by a third party in order to obtain critical information to enable a claim against a wrongdoer) and Anton Pillar orders (search and seizure orders to preserve evidence) are, however, available under Guernsey law at the Court’s discretion. Guernsey has a dedicated full-time judiciary, which is complemented by a number of part time judges who are most commonly senior members of the English bar or members of the English judiciary, and it is possible to obtain urgent orders both ex parte and at very short notice.

Following the institution of proceedings, parties will ordinarily be required to undertake the process of standard disclosure. This process requires a party to disclose to the other side all documents relied upon; any documents that adversely affect a party’s own case; any documents that adversely affect another party’s case; and any documents that support another party’s case. In this context, documents will include anything in which information of any description is recorded and the obligation of disclosure will extend to documents that are, or have been, in a party’s control.   The disclosure obligation consequently captures documents that a party has, or had, the right to possess and documents which the party has, or had, a right to inspect or call for copies.

Proceedings

Save for self-represented litigants, only Guernsey-qualified advocates are permitted rights of audience before the Royal Court. Guernsey also has its own Court of Appeal, in which again only Guernsey advocates may appear. Guernsey’s ultimate appellate court is then the Judicial Committee of the Privy Council.

Royal Court proceedings are conducted before a single judge, who is the sole arbiter of matters of law, procedure and costs. Civil trials may be determined by either a judge sitting alone pursuant to the provisions of the Royal Court (Reform) (Guernsey) Law, 2008, or by a judge and Jurats. Jurats are elected lay members of the Court who perform the role of jurors in civil trials and who will, when sitting, determine matters of fact.

Unless the interests of justice are such that in camera proceedings are required, Royal Court proceedings will be held in public.   In certain circumstances, it may be appropriate for judgments of the court to be anonymised, but reasoned decisions are generally reported on the Guernsey Legal Resources website.

Privilege

Documents will be privileged from disclosure if they attract legal advice privilege or litigation privilege. Legal advice privilege will attach to confidential communications passing between a lawyer and client where the dominant purpose is obtaining or providing legal advice. Litigation privilege has a wider ambit and attaches to confidential documents passing between lawyer and client, lawyer and third parties, or client and third parties where the documents are generated after litigation has been commenced or is in reasonable contemplation and the dominant purpose is for that litigation.

The existence of privileged documents will need to disclosed as part of the standard disclosure process, but such documents do not need to be provided to the other side for inspection.

Costs

The award of costs is within the Court’s absolute discretion. The normal course is, however, for the successful party to have its costs paid by the unsuccessful party.

The default position is that the maximum recoverable rate under standard costs orders is £253 per hour (which is subject to periodic increase) for Guernsey advocates. Corresponding reductions for non-advocate lawyers employed by Guernsey firms may be expected.

Following a costs order, the paying party may seek to have the receiving party’s costs taxed. Where costs are to be paid on the standard basis, the presumption is that any dispute over the reasonableness of such costs will determined in favour of the paying party. That presumption is reversed if costs are awarded on an indemnity basis.

Foreign lawyers’ costs may be recoverable (at least in part) but there is no guarantee of this and the Court will consider the basis upon which such lawyers have been involved in the context of the particular case. Where non-Guernsey lawyers’ costs are awarded, the expectation may be that the relevant rates will be reduced to the maximum recoverable rates for Guernsey advocates’ costs.

The Guernsey Bar rules do not permit advocates to conduct litigation on the basis of a contingency fee arrangement.  

Subject to the barriers imposed by the principles of champerty and unlawful maintenance, litigation funding may be available to a party who may not otherwise be able to pursue a claim.

Interim costs awards and orders requiring a party to give security for costs are both available under Guernsey law. The RCCR also contains a procedure by which a party may protect their position in costs through an offer of settlement or a payment into Court. Should an opposing party refuse such an offer but then fail to better it at trial, that party may then be required to pay his own costs and those of his opponent from the date of the relevant offer or payment in to Court.

Alternative forms of dispute resolution

The Arbitration (Guernsey) Law, 2016 provides a framework for arbitrations that, in many respects, closely reflects the English Arbitration Act 1998 and the UNCITRAL Model Law on International Commercial Arbitration.

Under the statute, parties may apply to the Royal Court for a stay of proceedings where they have entered into an arbitration agreement or clause.

Mediation is a frequently used procedure in Guernsey. Guernsey has a small number of locally-based mediators, but mediators from the UK are generally used for matters of a higher value or complexity.

Whilst the Royal Court cannot order mediation, the RCCR requires it to actively manage cases including through encouraging parties to use appropriate forms of alternative dispute resolution. Where a party unreasonably refuses to enter into a form of ADR, it may expect to face costs consequences following the resolution of the matter at trial.