Disclosure In Jersey: What, When And From Whom? (Part 1)


This is the first of two short articles on four aspects of disclosure in civil proceedings in Jersey. The first focuses on the differences between pre-action and post-judgment disclosure and the measure of uncertainty which has developed around these separate jurisdictions. The second will address trustee disclosure and the position of foreign insolvency office-holders following the decision of the Royal Court in Smith v Nedbank Private Wealth Limited 1. The terms disclosure and discovery are often used interchangeably. In Jersey discovery refers to the process by which parties to substantive proceedings are required to disclose all relevant documents in their possession, custody or control to their opponent(s). Accordingly discovery falls outside the scope of these articles. Pre-action disclosure

Except for a provision under the Law Reform (Disclosure and Conduct before Action) (Jersey) Law 1999 which only applies to personal injury cases, a Norwich Pharmacal Order ("NPO") is the primary way to obtain pre-action disclosure in Jersey. A NPO enables material to be obtained from a third party in accordance with the test set out in Riba Consultaria Empresarial Ltda v Pinnacle Trustees Limited 2: Are we satisfied there is a good arguable case that the plaintiff is the victim of wrongdoing? Are we satisfied that there is a reasonable suspicion that the third party has been mixed up in the wrongdoing? As a matter of discretion, do we consider it to be in the interests of justice to order the third party to make disclosure? The situation is slightly different for foreign insolvency office-holders and beneficiaries of a Jersey trust as will be addressed in the second article. It is also possible to obtain disclosure ancillary to a freezing order (formerly known as a Mareva injunction). In exceptional cases a search order can be granted to enable an applicant to collect and preserve material in advance of civil proceedings. This draconian power will only be used where the applicant can show (i) an extremely strong prima facie case, (ii) that the damage (potential or actual) would be very serious for the applicant and (iii) clear evidence that the respondent possesses incriminating material and a real possibility that such material may be destroyed before an inter partes application can be made. Jersey has developed a broad NPO jurisdiction based on English common law. There is no bright-line distinction between NPO and Bankers Trust principles 3. It does not share the same legal framework which applies to third party disclosure as a matter of English law 4 and places a greater reliance upon the inherent jurisdiction of the Court. The law is also shaped by policy considerations which militate in favour of assisting victims where the Island's financial services have been used as instruments of wrongdoing 5. In Macdoel Investments Ltd and Others v Federal Republic of Brazil and Others 6 the Court of Appeal reflected on the classic statement of principle from the speech of Lord Reid in Norwich Pharmacal Company & Ors v Customs and Excise 7. "In any event, whilst the cases in which the Norwich Pharmacal jurisdiction has been developed in England and Wales provide useful guidance on how Lord Reid's statement of principle may be applied, the courts of Jersey are in no sense bound by the scope of the jurisdiction that may have been delineated de facto by the circumstances of these cases. Nor are these courts constrained by the limits which may be placed on the application of the principle in the different social and...

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