The Bailiwick of Guernsey consists of a group of Islands, the principal inhabited islands being Guernsey, Alderney and Sark.
Guernsey, Alderney and Sark each have their own civil jurisdiction, laws and separate courts. Guernsey advocates are qualified to appear in all courts of the Bailiwick.
Civil Claims in Guernsey
Guernsey civil claims proceed in either the Magistrate’s Court or the Royal Court, depending on how much money is in dispute.
Claims in the Magistrate’s Court can be commenced up to a value of £10,000. The Royal Court is the court of first instance for all civil cases valued at £10,000 or more.
Civil Claims in Sark and Alderney
The Court of Alderney and the Court of the Seneschal of Sark each have unlimited first instance jurisdiction in civil matters arising within their respective jurisdictions. In Alderney, civil actions are determined by any two or more Jurats in addition to one further Jurat sitting as Chairman of the Court. In Sark, civil matters are determined by the Seneschal (or his Deputy or Lieutenant) sitting alone.
The Royal Court of Guernsey has appellate civil jurisdiction in respect of decisions of the Magistrate’s Court, the Court of Alderney and the Court of the Seneschal of Sark.
There is a right of appeal from the Royal Court of Guernsey to the Guernsey Court of Appeal (which normally sits four times per year). From the Court of Appeal, there is a final right of appeal to the Judicial Committee of the Privy Council, which while based in London is bound to apply Guernsey law on appeals emanating from this jurisdiction.
Royal Court Officials: Judges, Jurats, Greffier, Sheriff and Sergeant
There are three full time judges of the Royal Court, being the Bailiff, the Deputy Bailiff and a full time Judge of the Royal Court. In addition, there are a number of part-time Lieutenant Bailiffs who are usually appointed from former Bailiffs and eminent English and Scottish Queen’s Counsel.
In civil cases, the trial judge may (unless the parties agree that he should sit alone) hear a case with two (or more usually three) Jurats. The Jurats are the judges of fact and discretion, whilst the Judge determines all questions of law and costs. These days it is common practice for the Judge to retire with the Jurats, rather than to direct them in open court as used to be the case and a single written judgment is delivered with reasons.
The administrative functions of the Royal Court are performed by the Greffier.
The enforcement functions of the Royal Court are carried out by the Sheriff and the Sergeant.
Civil procedure in the Royal Court is governed by the Royal Court Civil Rules, 2007, and associated practice directions. Where the Rules are silent, the Royal Court may be guided by English procedure. Traditionally, Guernsey judges have had regard to pre-CPR English procedure, but the post-1999 Civil Procedure Rules and associated case law is becoming increasingly relevant.
The Court of Alderney has its own, different set of Civil Rules. The procedures which apply in the Court of the Seneschal of Sark and the Guernsey Magistrate’s Court have never been codified.
In Royal Court cases, an action commences when the plaintiff lodges a copy of the summons and the cause (i.e. statement of claim setting out the facts relied upon) with the Sergeant with instructions to effect service on the defendant. The defendant is then summoned to a Friday morning sitting of the court, when he will be expected to inform the court whether or not the proceedings are to be defended. If the defendant does not appear, judgment with interest and costs may be entered against them by default. If the claim is disputed, then the claim is placed on the pleading list, the defendant is required to file defences, and in due course a case management conference will be fixed. At the case management conference, the court will consider what directions may be appropriate to take the action towards a trial.
After an action has been placed on the pleading list, consideration should be given to whether an application for summary judgment may be appropriate. In order to succeed in a summary judgment application, the plaintiff must show that the defendant has no real prospect of successfully defending the claim and that there is no other compelling reason why the claim should be disposed of at trial. Reverse summary judgment (i.e. judgment in favour of a defendant who can show that the claim has no real prospect of success) is also possible.
Disclosure is the process by which parties to proceedings must disclose all relevant documents, no matter how unfavourable they may be to their case. Under the Royal Court Civil Rules an order to give disclosure is limited to standard disclosure, unless the court directs otherwise. This requires a party to disclose only those documents on which they rely, together with documents which adversely affect their own case, adversely affect another party’s case or which support another party’s case, and any documents they may be required to disclose by a relevant practice direction. In appropriate cases, or where there are grounds to believe that relevant documents are being withheld, it is possible to make an application for specific disclosure of further, specified documents or classes of document. The duty of disclosure is a continuing duty until the proceedings are concluded.
Péremption and Prescription
In Guernsey, péremption is a procedural bar on the continuation of a legal process which arises if no action is taken for a period of a year and a day after the last step in the proceedings. However, the court has power to restore the action in limited circumstances. The burden is on the plaintiff to persuade the court to exercise its discretion to do so.
Prescription is the extinction of a claim by the passage of time. It differs from the English concept of limitation in that limitation merely bars the remedy available, whereas prescription bars the legal right itself. The prescription period varies depending on the nature of the claim. In Guernsey, for most claims based on breach of contract or tort, the period is 6 years.
Payment into Court or Offer to Settle
The Royal Court Civil Rules make provision for any party to an action, at any time, to pay into court a sum of money in satisfaction of any claim made against them. Alternatively, any party may make a formal offer to settle the whole or any part of the claim in some other way. In any proceedings in which a payment into court or offer to settle has been made, the court will take into account the fact, date and acceptance or non-acceptance of such payment or offer to settle when considering the question of costs.
The court always has a discretion in relation to costs, which is exercised by the judge alone. The usual rule is that costs follow the event and so the “loser” pays the “winner’s” costs. In deciding whether or not to award costs, and on what basis costs should be payable, the court will take into account the parties’ conduct and the relative success of the various arguments which were raised in the proceedings. In the Royal Court, costs are awarded on either a standard or an indemnity basis. Indemnity costs may be appropriate where, for example, a party has pleaded or defended an action unreasonably, scandalously, frivolously or vexatiously, or has otherwise abused the process of the court. Where the court awards costs against any party, that party may within one month submit a written request for the costs to be taxed. However, there is at present no system for taxation of a party’s own advocate/client costs.
Reporting of Guernsey Decisions
Until very recently, obtaining electronic access to Guernsey’s legislation and case law has been difficult. Now legislation and case law is publicly accessible and can be found at the Guernsey Legal Resources web site www.guernseylegalresources.gg. Unreported decisions are currently only available to registered users, but visitors can access indices of judgments and search summary information.
This Red Guide does not constitute legal advice and should not be relied upon as doing so. Specific advice should be sought in any particular case. If you have any questions arising out of this Red Guide or generally in relation to dispute resolution, please contact our dispute resolution team on +44 (0)1481 723723, or by email at email@example.com. Members of our dispute resolution team, together with their contact details, are listed on our website www.aohall.com.
© AO Hall 2010