Civil litigation in Jersey - the basics26 Nov 2018
This is a basic guide to civil litigation in Jersey. Claims exceeding £30,000 are dealt with by the Royal Court of Jersey, in accordance with the Royal Court Rules 2004 ("RCR") and Practice Directions, which were significantly overhauled in 2017. If you have any enquiries or need advice on this subject, please do not hesitate to contact us.
The overriding objective is to deal with cases justly and at proportionate cost. The parties are required to help the Court to further the overriding objective, and the Court will actively manage cases.
A proposed plaintiff is expected to send a "claim letter" to each proposed defendant setting out the basis of the claim. The proposed defendant must acknowledge receipt within 14 days, and then provide a substantive response in a further period of 14 days to 3 months (in the most complex cases). A failure to comply may have costs consequences. This exchange of material information is intended to encourage parties to settle before proceedings are commenced.
Pre-action discovery is generally not available, except in personal injury cases. But, as soon as a party is aware that litigation is contemplated, it must immediately take all reasonable steps to ensure potentially relevant documents are preserved, for example by suspending any routine document destruction.
Form of claims
Claims may be commenced by Summons or Order of Justice. A Summons is used in simple actions, for example relating to an unpaid invoice or loan, and will rarely exceed one page in length. More complex claims will be set out in an Order of Justice.
A third method of commencing proceedings is by Representation: this is used when the Court's assistance is required (for example, if a trustee is seeking directions, or a foreign office-holder is seeking recognition) but is not usually appropriate for hostile litigation.
Different provisions apply to specific types of application, such as administrative appeals or judicial review.
The Summons or Order of Justice must be served on the defendant, who will be summoned to attend a Friday afternoon hearing before the Court. The RCR set out various methods by which service can be effected.
If the defendant is located outside Jersey, the plaintiff will need to apply to the Court for leave to serve the defendant outside the jurisdiction.
If it is impracticable to serve the defendant personally (perhaps because the defendant is trying to avoid being served), the plaintiff may obtain an order for service by some other method (called "substituted service").
Tabling and first appearance
In advance of the Friday afternoon hearing, the plaintiff will need to file papers with the Court, proving that the defendant has been properly served and summoned to court, and pay the relevant court fee - this process is called "tabling" the matter. A list of such matters, called the "table", is published by the Court each week.
If the defendant does not appear, does not contest the claim, or wishes to contest the claim but has no discernible defence, judgment will be awarded in favour of the plaintiff.
Otherwise, if the defendant wishes to defend the claim, the matter will be placed on the "pending list". Often in cases commenced by Order of Justice the plaintiff and defendant agree this procedural step in advance.
A defendant can also challenge the jurisdiction of the Jersey court, which application will need to be dealt with before further steps are taken in the underlying action.
Where a claim commenced by simple Summons is placed on the pending list, the next step is for the plaintiff to provide detailed Particulars of Claim within 21 days.
The defendant has 21 days to file a defence (called an "Answer"). This is following either receipt of the Particulars of Claim or, where a claim was commenced by Order of Justice, the date the action was placed on the pending list. If the defendant fails to do so, the plaintiff can apply for judgment in default. If the defendant has a counterclaim against the plaintiff, this should be set out in the same pleading, which will become an "Answer and Counterclaim".
The plaintiff may file a Reply and (if a counterclaim has been made) must file an Answer to Counterclaim within a further 21 days.
The defendant may file a Rejoinder to the Answer to Counterclaim within a further 21 days.
The time periods to serve, file or amend any pleading or other document may be extended with the written consent of the parties, without the need for a court order.
During the proceedings, a party may issue an interlocutory summons seeking relief from the Court, such as:
- Further information to clarify any matter in dispute (if it is not provided voluntarily);
- To strike out all or part of the other side's case, on the basis that it discloses no reasonable cause of action (or defence as the case may be), is scandalous, frivolous or vexatious, may prejudice, embarrass or delay the fair trial of the action, or is otherwise an abuse of the process of the Court;
- Summary judgment on part or all of the other side's case on the basis that it has no real prospect of success. This can be used to obtain a preliminary determination of an issue of law or interpretation.
- A defendant may seek an order that the plaintiff provide security for costs.
Most interlocutory applications are heard by the Master of the Royal Court, sitting alone.
Three months after the action is placed on the pending list, unless a party has already issued a summons for directions, the Court will fix a directions hearing. At this hearing, the Master will set out the timetable for the future conduct of the action.
In advance of the directions hearing:
- The parties need to consider what directions are required, endeavour to agree them with the other side, submit any agreed directions to the Master, and where there is disagreement, explain their position with supporting material;
- Where the value of the claim, including any counterclaim, is less than £500,000, the parties must file costs budgets.
- Where discovery is likely to consist of documents held in electronic format, the parties should discuss (and ideally agree) how they intend to collect, search, review and disclose the data, and whether (and to what extent) to use technology assisted review and other similar techniques. It may be necessary to engage an e-discovery provider.
- The parties should consider what factual witness and expert evidence is required and from whom.
The Court may set a date for a further directions hearing, or order that the matter be set down on the "hearing list" and a date fixed for the trial.
Settlement and alternative dispute resolution
The Court may stay the proceedings to permit settlement discussions, mediation or some other form of alternative dispute resolution. It may be sensible to do so after the pleadings have closed, when the parties' respective cases should be clear, but before further expense is incurred. An unreasonable refusal to participate in mediation may have adverse costs consequences.
Discovery is usually given after the close of pleadings, although it is a continuing obligation. The standard disclosure obligation is for each party to furnish the other with a list of documents (as widely defined) which are or have been in its possession, custody or power relating to any matter in question in the cause or matter, and to verify such list by affidavit. Although this obligation is given a wide interpretation, it is also possible to apply to restrict the scope of the disclosure. A party's advocate has a duty to ensure that the party has met its discovery obligations, and must endorse the party's affidavit to that effect. A party must permit inspection (and a copy to be taken) of those documents which have been disclosed and are not privileged from production.
A party can apply for further or specific discovery but will need to provide clear evidence that a document, or class of documents, is missing from the other party's disclosure.
There is an implied undertaking by each party not to use documents obtained through discovery outside the Jersey proceedings without Court approval.
The starting point is that trial witnesses are examined orally and in open court. So although the parties will exchanges witness statements setting out the "evidence in chief" of each witness in advance of trial, they will usually be examined and cross-examined in person. This may require witnesses located abroad to travel to Jersey or, if the court permits, to give evidence by video-link.
If a party wishes to rely on the evidence of a witness without calling them, it must file a hearsay notice, and the other side may apply to call the witness for cross-examination. If the witness does not appear, the hearsay evidence may be given reduced weight or even excluded.
In cases involving technical matters, such as science, medicine, literature or foreign law, the Court may need the assistance of independent expert witnesses. The Court will decide what expert evidence is required to determine the case.
Typically, each party will be allowed to adduce the evidence of one expert witness per discipline, although the parties should explore whether any area of expert evidence can be provided by a single joint expert jointly instructed by the parties. The experts will usually file reports, and then meet each other before filing a joint statement listing the matters on which they agree and disagree. Unless all matters are agreed, the experts will usually be expected to give evidence at trial in person.
There may be a pre-trial review before the trial judge to ensure the case is ready for trial.
The trial itself will take place before a panel of three: the trial judge and two jurats, who are lay assessors of fact. The Court will hand down a court order and a reasoned judgment.
As a general rule, the losing party must pay the costs of the winning party, although the Court has a wide discretion to make whatever costs orders do justice in any given case (such as "issues-based" costs orders). Costs may be awarded on the "standard basis" or "indemnity basis". Neither leads to recovery in full, but the latter leads to a higher percentage recovery and is ordered where there has been unreasonable conduct in the proceedings by the losing party.
The winning party may ask for a payment on account of its costs.
If a final figure for costs cannot be agreed between the parties, the costs must be assessed by a Court officer. The costs of most interlocutory applications (other than a directions hearing) will be summarily assessed. Otherwise, the costs are determined via a formal process called "taxation".
Offers to settle
Parties may make an offer to settle all or any part of a dispute at any time.
If made "without prejudice" it cannot be disclosed to the Court.
If made "without prejudice save as to costs", it may be disclosed to the Court only after judgment has been handed down and it is considering the issue of costs. Defendants can bolster such an offer by making a payment into court. If a plaintiff has rejected a defendant's offer, pressed ahead to trial and won, but recovered less at trial (and so "failed to beat the offer"), the normal approach is that it will not recover its costs after the date of rejection and will have to pay the defendant's costs from that date.
Following a trial, the losing party has an automatic right of appeal to the Jersey Court of Appeal, and must file its notice of appeal within 28 days of the final judgment or order in the proceedings.
Judgments of the Court of Appeal may only be appealed to the Privy Council with the permission of the Court of Appeal or the Privy Council itself.