Litigation & Dispute Resolution - Appleby

Appleby
Guernsey
The Judgments (Reciprocal Enforcement) (Guernsey) Law, 1957 sets out a procedure for the
registration and enforcement of a foreign judgment in order for it to be enforceable as if it was a
judgment of the Guernsey Royal Court. There are a certain number of reasons which can mean that a
foreign judgment which is being sought to be enforced under the Judgment (Reciprocal Enforcement)
(Guernsey) Law, 1957 may not be enforced in Guernsey and these may include instances where the
original Court did not have jurisdiction to determine the dispute, where the judgment was obtained by
fraud and where enforcement would be contrary to public policy in Guernsey.
Where a foreign judgment is sought to be enforced at common law, the party seeking to enforce the
judgment will issue proceedings in Guernsey relying on the foreign judgment in order to obtain an
equivalent judgment from the Royal Court which may then be enforced. If a defendant was to seek
to defend the Guernsey proceedings, the Plaintiff would usually seek summary judgment based on the
fact that the foreign judgment had already been obtained and the doctrine of res judicata.
Arbitrations awards, both domestic and foreign, may be enforced by the Guernsey Royal Court under
the provisions of the Arbitration (Guernsey) Law, 1982.
The most common method of enforcement of a judgment of the Royal Court in Guernsey is to provide
the Act of Court recording the judgment to Her Majesty’s Sheriff who is then able to seize assets in
satisfaction of the judgment.
Privilege and disclosure
It is usual for parties to litigation to agree or be ordered to provide disclosure of relevant documents
as part of the litigation procedure. There are two general forms of disclosure, standard disclosure and
specific disclosure. When giving standard disclosure, a party will have to disclose all documents on
which it relies as well as any other documents which adversely affect its own case, any documents
which adversely affect another party’s case and any documents which support another party’s case
(as well as any other documents the parties may be obliged to disclose under any practice direction).
A document is defined as ‘anything in which information of any description is recorded’. This will
include anything which is held electronically (such as emails, electronic documents, calendars,
scanned images etc.) and other information which may be retained in a form which is other than in
hard copy form (such as voicemail messages or anything recorded on microfiche).
In addition, the obligation to disclose documents refers to documents which are in a party’s control,
or which have been in its control. This includes documents which are or have been in the party’s
physical possession, documents which the party has, or has had, the right to possess and documents
which the party has, or has had, a right to inspect or take copies of.
Documents will be privileged from disclosure where they either attract legal advice privilege or
litigation privilege.
With extremely limited exceptions (e.g. cases of personal injury or death), it is not possible to obtain
pre-action disclosure of documents, nor is it possible to obtain orders for disclosure of documents
from third parties as part of the disclosure process. However, there may be other forms of relief
available from the Court in the appropriate circumstances which will entail the Court ordering such
disclosure of documentation (for instance as part of the ancillary relief comprised within a freezing
order, or a Bankers Trust order).
Whilst there are not yet any practice directions or rules of Court relating to electronic disclosure, the
use of electronic disclosure is becoming more common and this is likely to continue.
Costs and funding
Whilst there are no absolute rules relating to costs as they are within the Court’s discretion, the normal
manner in which the Court will exercise its discretion when awarding costs is for the successful party
to have its costs paid by the unsuccessful party.
There are two general bases for the award of costs, being either the standard basis or the indemnity
basis. Costs ordered on the standard basis are, unless the Court orders otherwise, capped at a rate
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