Guernsey: Litigation (2nd Edition)

The Legal 500: Litigation 2^nd Edition Country Comparative Guide has just been launched.

Ferbrache & Farrell, which is ranked in The Legal 500, is an exclusive contributor to the guide. This country-specific Q&A provides an overview of Litigation that may occur in Guernsey.

Below are the first five questions; download the full Q&A PDF here →

1. What are the main methods of resolving commercial disputes in your jurisdiction?

The main methods of resolving commercial disputes in Guernsey are the court system or Alternative Dispute Resolution (ADR).

The Royal Court of Guernsey (the Royal Court) is the established court for resolving all commercial disputes with a value higher than £10,000 (lower value disputes are dealt with in the Magistrates Court). The court process in Guernsey is adversarial in nature and the standard of proof for civil proceedings is on the balance of probabilities.

ADR can be conducted in conjunction with or separately from litigation. Mediation is a popular form of ADR. The Royal Court can recommend mediation, and often does, but it cannot compel parties to undertake it.

The law governing arbitration has been recently updated in the Arbitration (Guernsey) Law 2016, and it is anticipated that this will lead to more widespread use of arbitration in the jurisdiction.

2. What are the main procedural rules governing commercial litigation?

Litigation in the Royal Court is governed by the Royal Court Civil Rules 2007 (RCCR) which sets out the procedure for disputes. The RCCR are occasionally supplemented by practice directions issued by the Court.

3. What is the structure and organisation of local courts dealing with commercial claims? What is the final court of appeal?

There are three separate jurisdictions within the Bailiwick of Guernsey: Guernsey, Alderney and Sark. The judicial systems in Alderney and Sark are separate and outside of the scope of this note.

The Royal Court of Guernsey is formed of five divisions:

• Court of Chief Pleas;
• Full Court;
• Ordinary Court;
• Court de Plaids d’Heritage; and
• Matrimonial Cause Division.

Commercial disputes are usually heard by the Royal Court sitting as the Ordinary Court. The Ordinary Court is presided over by a single judge (either the Bailiff, Deputy Bailiff, a Lieutenant Bailiff or a Judge of the Royal Court) who may sit with Jurats. The Jurats are appointed lay members of the community who, when sitting, are the sole arbiters of fact in civil trials and have a similar role to that of jurors in proceedings in the UK.

Appeals from the Royal Court sitting as the Ordinary Court are heard in the Guernsey Court of Appeal. Final appeals lie to the Judicial Committee of the Privy Council only if leave is obtained from the Guernsey Court of Appeal or the Judicial Committee of the Privy Council and if the value of the claim exceeds £500.

4. How long does it typically take from commencing proceedings to get to trial?

There is no fixed timeframe in place for progression of a case from commencement of proceedings to a trial. Litigation in Guernsey is a flexible procedure in accordance with the complexity of the dispute, the approach the parties take and the workload of the Court.

It is possible for many commercial claims to reach trial in around 12 to 18 months from commencement of proceedings, but timings are very much dependent on the individual dispute.

5. Are hearings held in public and are documents filed at court available to the public? Are there any exceptions?

Proceedings in the Royal Court are normally held in public. Documents filed at Court can be obtained from the Court by members of the public and judgments are published on the Guernsey Legal Resources website.

In certain circumstances, the Court may order for proceedings to be heard in camera or for judgments to be anonymised if the interests of justice require it. Such orders are often made in sensitive trust proceedings to protect the identities of the parties. The Court will consider if justice can only be served if proceedings are heard in private.

Download the full Q&A PDF here →