Reforming Guernsey’s personal injury discount rate

Guernsey has historically maintained a relatively light-touch employment law regime compared with some larger jurisdictions, but the legal environment is changing. Recent legislative reforms, shifting working practices, and increasing scrutiny of discrimination, flexibility and settlement terms mean that employment-related disputes are now more likely and more complex. This indicates that employers must adapt, and quickly.

The Legal Framework

At the core of Guernsey’s employment law regime is the Employment Protection (Guernsey) Law, 1998, which provides protections such as unfair dismissal rights. 

Complementing that are:

• Minimum Wage (Guernsey) Law, 2009

• The Sex Discrimination (Employment) (Guernsey) Ordinance, 2005

• Prevention of Discrimination (Guernsey) Ordinance, 2022 
• Other key laws such as the Conditions of Employment (Guernsey) Law, 1985 and various statutory rights for leave, etc.

The Employment & Discrimination Tribunal handles statutory complaints (e.g. complaints of unfair dismissal and/or discrimination) and the Employment & Equal Opportunities Service (EEOS) offers conciliation services. Jurisdictional issues (such as whether someone “ordinarily works in Guernsey”) require careful consideration. 

It is essential that employers ensure they have up-to-date employment contracts, grievance and disciplinary procedures, and that they recognise the difference between internal contractual (court) claims and statutory tribunal claims.

Key Risk Areas in 2025 

1. Non-Disclosure / Settlement Agreements – A Changing Landscape

Recent developments in England & Wales have introduced significant reform of NDAs (and settlement agreements). While the reforms currently apply in England & Wales, they signal a broader international trend which may influence settlement practice in Guernsey (especially where entities or individuals operate across jurisdictions).

• From 1 October 2025 the Victims and Prisoners Act 2024 brings into force changes to NDAs such that confidentiality clauses are void to the extent they prevent “permitted disclosures” by victims of crime to law enforcement, regulators or legal advisers. 
• Separately the UK government has announced its intention to table amendments to the Employment Rights Bill to ban NDAs being used to silence victims of harassment or discrimination. This means that confidentiality clauses in settlement agreements of that nature would be null and void. 

Implications for Guernsey employers and advisers:

• Settlement agreements / compromise agreements involving Guernsey employment law should be reviewed to ensure confidentiality clauses do not over-reach, particularly if cross-border or UK elements are present.
• Employers should draft exit/settlement agreements with clear carve-outs for disclosures to regulators, legal advisors, law enforcement, even if Guernsey law does not yet mirror the UK reforms exactly.
• Employers should consider whether entirely silencing clauses are prudent given the global momentum (and reputational risk) toward transparency in misconduct/harassment situations.
• Employers (or their legal advisors) should monitor whether Guernsey itself adopts similar reforms or guidance in respect of NDAs/settlement agreements, and adapt accordingly.

2. Age Discrimination and the Next Phase of Guernsey’s Anti-Discrimination Law

While Guernsey prohibits discrimination on five grounds (race, disability, career status, sexual orientation and religion or belief), age is not yet a protected characteristic in Guernsey. However, it is expected to be introduced in 2027.

• The Committee for Employment & Social Security (ESS) has proposed introducing age as a protected ground (in addition to phase two of the Ordinance) and published a policy letter in March 2025 setting out the proposals. 
• Once age protection is introduced, differential treatment based on age will (subject to any permitted objective justification) be actionable in employment, provision of goods/services, accommodation, education and club membership. 

Implications for employers and advisers:

• Employers should proactively review hiring, promotion, redundancy and pension policies, identify any age-based differential treatment (e.g. older/younger employees) and assess whether such differences could be justifiable.
• Contract clauses or policies requiring mandatory retirement ages may become legally risky once age discrimination protection is introduced. 
• Training for management on age-related bias, ageism in the workplace, and ensuring neutrality across age groups will be important.

3. Other Key Risk Areas

• Unfair/Constructive Dismissal: Employers must ensure fair process, meaningful written reasons, and valid grounds for dismissal (where applicable).
• Remote/Hybrid Work & Jurisdiction: With more cross-border and hybrid working arrangements, questions about where an employee “ordinarily works” can affect jurisdiction and eligibility to bring a claim. Employers should define the place of work clearly in employment contracts and review the risk profile of remote workers, especially where regulatory or data protection issues may also arise.
• ADR & Early Resolution: Internal grievance mechanisms, early mediation/conciliation, and proactive dispute-resolution policies can reduce costs and reputational damage.

Practical Checklist for Employers and Advisers

• Review contracts & settlement templates – ensure confidentiality/settlement clauses are crafted with an eye to evolving international standards (e.g. UK NDA reform), and carve-outs for disclosures to regulators/law enforcement are explicit.
• Update policies for impending age discrimination protection – review age-based benefits, retirement age provisions, career progression and redundancy criteria; ensure objective justification exists for any age-linked treatment.
• Training & awareness – train HR/management on recognising discrimination (including age), harassment, grievance handling, remote/hybrid work issues.
• Robust grievance/discipline procedures – internal mechanisms should be clear, fair, documented; escalate early to avoid tribunal claims.
• Exit/settlement strategy – early consideration of settlement vs tribunal; ensure exit agreements are carefully drafted with global context in mind.
• Remote/hybrid working clarity – define place of work, jurisdiction, working hours, applicable law; review whether “ordinarily works in Guernsey” remains satisfied; guard against mis-classification and subtraction of statutory eligibility.
• Monitor legislative & case-law developments – track progress of Guernsey’s age discrimination introduction, UK reforms to NDAs, and emerging tribunal decisions in Guernsey/Channel Islands.

Looking Ahead

Employment and workplace disputes in Guernsey are poised to become more frequent and more nuanced. The confluence of expanded discrimination protections (age), shifting settlement/exit agreement practices (including NDA reform in the UK) and evolving working models (remote/hybrid) means that employers must act now, not just when a claim arises.

By adopting a strategic, proactive approach, Guernsey businesses can reduce the cost, disruption and reputational risk of employment disputes and position themselves as fair, modern employers in a changing landscape.

Mr Laport may have been Mr Knowles. He may have been Mr Magill. He may have been Canadian. He may have been Australian. He may have been an American lawyer. He may have been fantastically successful as a lawyer. He may have been quite the property magnate.

Mr Laport/Magill/Knowles may have been a director and secretary of Fidelity Management Limited, which definitely did open an account with a bank.

Mr Laport died in 2005 and a request was made to transfer the funds in the account. Given the above, it is not surprising that consent had to be sought from the Guernsey Financial Intelligence Unit for that transaction, and it is even less surprising that such consent was refused.

Her Majesty’s (now His Majesty’s) Comptroller applied to forfeit the monies in the account through civil forfeiture proceedings.

I appeared at first instance on behalf of HMC, in HMC v Fidelity Management Limited and ors [2025] GRC 004; HMC’s application was unsuccessful, and so the matter was appealed to the Court of Appeal, which overturned the first instance decision.

It’s a cracking read, and I’m not going to spoil your fun. One gets the feeling that the Court of Appeal rather enjoyed this one. Some highlights from the appeal decision –

“…the only reason the suspicion surrounding the Account only surfaced after Mr Laport’s death was because he maintained his fraudulent claim to be Thomas Magill right up to that point. Once that fraud was exposed the Account was frozen in 2007. At that point FML must have known that it would at some point have to produce evidence as to the lawful origin of the funds in the Account. However, rather than assembling and preserving the necessary documentation, Mr Collin’s [sic], who was by that stage FML’s sole director, set about destroying documents, to such an extent that, as appears below, it is now impossible to know where the funds in the Account came from.

“There is tension, to say the least, between the requirement stated in paragraph 99 of the judgment that “it is necessary for the State (HMC) to identify… the criminal offence(s) which it argues did, or must have, occurred and which had generated those funds” and the alternative requirement in paragraph 103 that “HMC should be able to succeed in forfeiting money if, in the particular circumstances of any case, it can be said that whilst no conduct constituting an identifiable criminal offence can be identified, nonetheless, the circumstances are such that there is no plausible explanation but that the funds are the proceeds of some criminal conduct…”

“Although the Lieutenant Bailiff makes reference to Mr Laport’s secretive nature and his narcissistic personality, she makes no finding about the reason why Mr Laport employed a fraudulently obtained passport to open the account. The Judgment leaves open the possibility that Mr Laport was impelled to this course of action by quirks in his personality, and Advocate Davies strongly pressed the Court in submissions that these provided a convincing explanation for his conduct. But we agree with Advocate Rabey that this is not a convincing hypothesis, having regard to the serious risks Mr Laport was running in obtaining the passport by fraud, (not to mention using a forged driving licence when he incorporated FML). Also, if his objective was, as the Lieutenant Bailiff thought, to use the account to make provision for his daughters he must have realised that by using a false identity to open the account, he was storing up trouble for them in the event of his death.”

Have a read.  Go on.

When is a debt not a debt?  When does a claim of prescription fail?  Lawyers frequently throw the concepts of prescription and limitation around (and the difference between the two is, in itself, a whole topic of conversation for geeky types) and in Guernsey we rely on French principles such as empêchement to seek to overcome any issues.

Sometimes, however, a simple acknowledgment can be enough to reset the prescription clock.

This article looks, briefly, at how prescription operates and discusses how interruption serves to reset the clock on prescription, which then runs for 6 years from that date.  Principles of renunciation or waiver are briefly discussed to show how an acknowledgement of a debt might serve as one or any of interruption, renunciation, or waiver.

Prescription Principles

1. Prescription is the period after which a creditor is unable to pursue a debtor or a right may no longer be pursued under the law. Gallienne, writing in 1845, described extinctive prescription, in Guernsey (quoting Pothier – did I mention this is a geeky article?) as “a plea of ​​inadmissibility that a debtor can use against the action of the creditor who has neglected to exercise it, or to have his right recognised during the time regulated by law“. ^[1]
2. Gallienne notes that “It operates to extinguish the right to pursue in court what is due.” ^[2] Prescription operates as the extinction of the right to bring an action, rather than extinction of the underlying cause of action.
3. Prescription can be waived or renounced, and renunciation may be express or implied. However:

“Tacit renunciation is not easily presumed: it is up to the judges to assess whether the fact from which one wishes to derive the renunciation necessarily presupposes the abandonment of an acquired right. And since it is possible to renounce prescription, the judges cannot, ex officio, supplement the means resulting from it; the party must formally oppose it.” ^[3]

4. Gallienne details a distinction in prescription period between debts that have been recognised in writing and those that have not:

“The debtor of a sum of movable property is released by the prescription of ten or thirty years. “Any movable debt for which there is neither written acknowledgment nor unexpired court act shall be prescribed after ten years from its creation.” (Order of April 11, 1836.) But, if it is otherwise, that is to say, when there is written acknowledgment or unexpired court act, then the old prescription of thirty years remains in force..” ^[4]

5. The first Order in Council relating to prescription mobilière appears to be that registered on 6 July 1844. This ratified the Ordonnance referred to by Gallienne of 11 April 1836.  As set out by Gallienne, the original period of 30 years for a debt recognised in writing remained:

“…when there is recognition in writing, or a court act not expired, then the old prescription of thirty years remains in force.”

6. The 1844 Order in Council reduced the 30-year prescription period for “personal actions and suits relating to personal property” not recognised in writing to 10 years. An Order in Council relating to any remaining prescription trentenaire registered on 31 July 1847, provided that:

“All movable property and personal actions which are now prescribed by the lapse of thirty years will in the future be prescribed by the lapse of ten years.”

7. The Loi Relative aux Prescriptions 1889 states that:

“Toutes demandes nbvf et actions personelles qui se prescrivent maintenant par le laps de dix ans seront à l’avenir prescrites par le laps de six ans.”

8. Accordingly, the modern position is that the prescription period for an action relating to personalty is 6 years. The purpose of the above exercise is to show that the route to the 6 year prescription period is different for a demande mobilière recognised in writing to one which is not.  A distinction between the two remains.

9. Prescription can be interrupted:

“Interruption… wipes out all the time that had previously elapsed, and the limitation period can only run from the day of the interruption; therefore, the entire period required to prescribe must elapse again.

Civil interruption results from the recognition by the possessor or debtor of the right of the person against whom he prescribed…” ^[5]

10. Upon interruption of prescription, prescription (or rather the period before prescription applies) runs afresh from the day of the interruption. The entire time required to prescribe must pass again.  Interruption results from the recognition that the debtor makes of the right of the one against whom he is prescribed. Terrien makes clear that the times are not joined together. 

11. Importantly, because the time periods of prescription are now unified but via different routes, debts subject to an interruption are to be treated differently to those that are not. The effect of recognising a debt in writing remains – prescription runs from the day of the interruption. The entire time required to prescribe must pass again.

12. Notably, in this regard, judicial interruption appears to have developed in Guernsey on this basis. Acts of Court may be renewed by the Court – providing for the clock to “reset” on judgments that would otherwise be prescribed. 

Acknowledgement of Debt

13. The question of an acknowledgement of debt, whether in the context of reconnaissance par écrit, interruption or waiver (renunciation) is still at large in Guernsey and Jersey. It is helpful to look to other jurisdictions for just what constitutes the acknowledgment of a debt.

14. In relation to the Limitation Act 1980 in England & Wales, where an “acknowledgment” of the claim or part payment re-starts the limitation period in much the same way as interruption, acknowledgement has been considered by the Courts.

15. In order to be effective, an acknowledgment must be in writing signed by the debtor (section 30, Limitation Act 1980):
    • A typed signature at the foot of an e-mail will probably suffice.
    • Any letter from the debtor referencing the debt must be dated (a) prior to expiry of the primary limitation period and (b) within the six/twelve years prior to issue of the claim.
    • An acknowledgment must contain a “sufficiently clear admission of the title” of the creditor to the debt but there is no longer any requirement that it includes an implied promise to pay.

16. In Dungate v Dungate ^[6], the English Court of Appeal held that a letter stating “keep a check on totals and amounts I owe you, and we will have account now and then” amounted to an “acknowledgment”.

17. Therefore, any reference by the debtor to their debt in signed correspondence addressed to the creditor should suffice, unless the letter is expressly stated to be without admission of liability.

Tying the strands together

18. So where does this get us? It is clear from Gallienne that debts subject to reconnaissance par écrit are treated differently to debts where there is no such acknowledgement.  While the prescription period is now the same, where a debtor recognises that a debt is due and owing, the debt is treated differently. 

19. Such reconnaissance par écrit amounts to an interruption of prescription. There is no reported authority or other learning to suggest that the position has moved from that enunciated by Gallienne. Where interruption occurs, prescription runs from the day of the interruption. The entire time required to prescribe must pass again.

20. While there is no further reported learning from Guernsey or Jersey, acknowledgement of a debt – in other words reconnaissance par écrit – provides such interruption. An acknowledgement of debt need be little more than a reference by the debtor to their debt in signed correspondence to the creditor.  A typed signature at the foot of an email suffices in this regard.

21. Once prescription has arisen as a defence it may be waived (renunciation). Given that this can be tacit or express, it is enough that the debtor acknowledges that a debt continues to be owed to a creditor to waive prescription.

References

^[1] Gallienne, Traité de la renunciation par loi outré et de la garantie (1845, Guernsey) at 315

^[2] Ibid. at 315

^[3] Ibid. at 316

^[4] Ibid. at 318

^[5] ibid. at 320

^[6] [1965] 1 W.L.R. 1447

I was fortunate to be in a room with the great and the good of the sanctions world last week (suffering from the ultimate in imposter syndrome) on the day that the Office of Financial Sanctions Implementation’s (OFSI) first really substantive imposition of a monetary penalty for a breach of the Russia Sanctions (EU Exit) Regulations 2019 (the Russia Regulations) was published.

Hearing the view from industry experts, legal cognoscenti and strategic think tanks at the City & Financial Global Economic Sanctions 2025 on OFSI’s decision to fine Herbert Smith Freehills Moscow (HSF Moscow) nearly £500,00 was, ultimately, as much as it was awe-inspiring (these people have Big Brains), also a salutary reminder of just how vital it is that strict adherence is ensured to a broadly drafted, set of “no”s that are, on any basis, open at least to very broad interpretation.  What great fun for everyone.

Would the position be any different if HSF Moscow were based in Guernsey?  While Guernsey has passed legislation adopting the UK’s Brexit sanctions regulations (including the Russia Regulations) that is not to say that the surrounding legislation is adopted.  Nor is it to say, necessarily, that an identical approach would be taken by Guernsey’s equivalent to OFSI.  General licences, for example, do not take effect here automatically.  And inevitably, an element of Guernsey’s sanctions adherence is based on the fact that everyone knows everyone.  It works, and both industry and government in Guernsey are doing their jobs well.

The HSF Moscow penalty is based on self-reporting of a breach by HSF’s London “parent firm”, and the strict liability imposed under the UK’s regime.  The UK’s Economic Crime (Transparency and Enforcement) Act 2022 (ECA) implements a “strict liability” basis in relation to the imposition of civil monetary penalties. S.146 of the Policing and Crime Act 2017 (PCA) provides OFSI with the power to impose monetary penalties on that strict liability basis.

Neither the ECA nor the PCA extend to Guernsey.  The States of Guernsey has not sought to implement legislation that adopts this strict liability position.  No strict liability?

But.

A United Kingdom person may contravene the Russia Regulations by conduct wholly outside of the United Kingdom.  A United Kingdom person is defined (elsewhere) as including a British citizen – which many Guernsey residents are.  There is facility for His Majesty to order that a United Kingdom person includes a body incorporated in the Channel Islands, but this has not been done.

Might there be appropriate circumstances where OFSI decides to extend its arm of welcome to a Guernsey person (as a British citizen), or might the definition even be extended?

Who knows.

It is generally accepted that our Policy & Resources Committee, and in particular the civil servants within (essentially our equivalent of OFSI) are doing a cracking job, and it would perhaps seem unlikely that there would be any will to usurp and undermine that authority.

But then, a week ago, it seemed pretty unlikely (to me at least) that OFSI would find to be “serious” a case where solicitors self-reported a breach that occurred (in part at least) because of the “hasty closure of HSF Moscow’s Russian Offices” – something that the sanctions regime, at least, appears to encourage.