Responding to a Guernsey civil claim

18 August 2015

This briefing outlines the procedural steps which follow commencement of a Guernsey civil claim, including consideration of the types of pleadings which are lodged in Guernsey proceedings and the procedure for amending those pleadings.

Receipt of claim documents
Most Guernsey civil actions are commenced by the plaintiff tabling a "cause". The cause is a document which contains a statement of the material facts relied upon and the relief sought by the plaintiff.

In order to give notice of his intention to table a cause, a plaintiff must first serve a summons on the defendant. This is, therefore, the first document a defendant is likely to receive. The summons will state the day and time selected by the plaintiff for tabling the cause (invariably, this will be 9.30am on any given Friday when the court is sitting). The summons must be served at least two clear days in advance of that date.

Assuming he intends to defend the claim, the defendant must attend court on the day appointed for tabling the cause, provide an address for service and indicate an intention to defend. Under the Royal Court Civil Rules, the defendant will then have 28 days to tender written defences, although that period may be extended by agreement of the parties to up to 3 months. If a further extension is needed, there has to be an application to the court.

Written defences are tendered by the defendant as one document, but may include up to three different types of defence.

Exceptions de fond
"Exceptions de fond" include various species of legal plea in bar of a claim. Examples would include the "exception pérémptoire" (where a claim has already been paid, or where the cause of action is prescribed), the "exception déclinatoire" (where the defendant asserts that the court should refuse jurisdiction), and the "exception dilatoire" (where the cause of action has not yet arisen, e.g. where monies claimed have not yet fallen due for payment).

If an exception de fond is going to be taken, it must be pleaded at the first opportunity and before the defendant descends to any other form of defence or to plead to the facts. Similarly, challenges to jurisdiction should theoretically be pleaded before any other species of exception de fond, to avoid any danger of being held to have submitted to the jurisdiction.

Where an exception de fond is raised, the court will usually give directions for this to be tried as a preliminary issue, although there is no hard and fast rule to that effect. In most cases where there is a challenge to jurisdiction, it will be obvious that the appropriate course is to determine the challenge before the action proceeds any further. In some cases where there is a defence of prescription, it may not be possible to determine the question conclusively without hearing evidence as to all the facts, in which case the action may be allowed to proceed to trial with all matters to be determined at that final hearing.

It is perfectly possible, and indeed common practice, when raising a challenge to jurisdiction, to simply plead the exception de fond alone and reserve the defendant's position entirely in relation to the facts.  In such cases, the defendant is not required to plead to the allegations contained in the cause until after the exception has been determined against him.

Exceptions de forme
Exceptions de forme, for all practical purposes, are the same thing as requests for further and better particulars of the allegations framed in the cause.  They no longer operate as true defences, in that the existence of such requests on the face of the defences no longer operates as an automatic stay of proceedings (as it did until only a few years ago).  Nevertheless, the court will expect all proper requests for further information to be answered within a reasonable period, and failure to do so will result in an order being made against the plaintiff to provide the necessary answers.

Niances et prétentions
The "niances et prétentions", which must be pleaded after any exceptions de fond, are literally the "denials and assertions". They are the defendant's pleaded response to the facts alleged in the cause. In accordance with English practice, allegations must be admitted, not admitted or denied. Modern practice is to plead the totality of the defendant's response to the allegations in the cause in the order in which those allegations appear, rather than (as was formerly the case) to plead denials first and then assertions of fact afterwards.

A defendant must answer all allegations in the cause, setting out which allegations are denied, which allegations are not admitted but required to be proved, and which allegations are admitted. Where an allegation is denied, the defendant must state his reasons for doing so and put forward his own version of events. A defendant may be deemed to have admitted any allegations to which he does not respond, so it is common for a general traverse to be pleaded at the conclusion of the defences.

Tabling defences
Defences are now almost always tabled without the need for the parties to attend court. The defendant lodges a copy of his defences at the Greffe, or court office, together with a certificate to the effect that a copy has been provided to the plaintiff. The court then accepts the defences at the next Friday hearing without the need for the parties to attend and, provided there are no exceptions de fond, automatically moves the case from the rôle des causes à plaider to the rôle des causes en preuve, or "witness list".

If the defences do raise exceptions de fond, a hearing will be convened for the purpose of considering how they should be resolved and for giving directions accordingly.

It is open to a defendant to make counterclaims against the plaintiff, in which case these are usually pleaded after the niances et prétentions. They must contain a statement of all material facts relied upon and the relief claimed. Counterclaims take effect as a cross-action, enabling the court to pronounce a final judgment in the action both in the plaintiff's claim and on the counterclaim. Where there is a counterclaim, the plaintiff is required to table his defences to the counterclaim 28 days after the counterclaim is entered on the rôle des causes à plaider, unless the parties agree or the court orders otherwise.

Further pleadings
After defences and any defences to counterclaim have been tabled, and after any exceptions de fond which can be resolved as preliminary issues have been determined, the case is moved to the rôle des causes en preuve, as above.

Pleadings are not, however, formally "closed" at that point. It remains open to a plaintiff to file a réplique, or reply to the defences. If there has been a counterclaim, he will usually have filed a reply and defence to counterclaim in any event. If there is a réplique, the defendant may in turn file a duplique, or reply to the reply, if so advised.

Timeframes for répliques and dupliques are not fixed by any rules. In practice, the need for such pleadings and the timescales within which they should be provided are matters which are considered by the parties and/or the court as part of the initial case management directions.

Amendment of pleadings
Where a pleading has been served, it may only be amended with the consent of all other parties or with leave of the court. Generally, leave will be given provided any prejudice to the other party can be compensated in costs.

The Royal Court generally adopts the approach of the English courts in these matters, and dicta which have been relied upon in Royal Court proceedings include (for example):
"The overriding objective is that the court should deal with cases justly. That includes, so far as is practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon, provided that any prejudice to the other party caused by the amendment can be compensated for in costs, and the public interest in the administration of justice is not significantly harmed".
per Gibson LJ in Cobbold v Greenwich LBC [1999] EWCA Civ 2574

However, in the case of a late proposed amendment to a pleading, the court can and does occasionally refuse leave, even where the other party could be said to be compensatable by an appropriate award of costs. Persuasive dicta on this point include the following, per Neuberger J in Charlesworth v Relay Roads Ltd [2000] 1 WLR 230:
"it can often be unfair in terms of the strains of litigation, legitimate expectation, the efficient conduct of the case in question and the interests of other litigants whose cases are waiting to be heard, if such an application succeeds".

The various forms of pleading in Guernsey actions clearly recollect their customary French law origin.  However, the rules governing the expected content of such pleadings have evolved in line with modern practice and will be broadly familiar to overseas practitioners. Guernsey jurisprudence on the amendment of pleadings is very much on all fours with current English practice.

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