Jersey Litigation Guide 2021 (Chambers)

• Published date: 25 January 2021
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: Carey Olsen
• Author: Mr Marcus Pallot, Richard Holden, Dean Robson and Caitlin Connor

This guide to Jersey dispute resolution and litigation includes commentary on litigation funding, initiating a lawsuit, statutes of limitations, representative or collective actions, pre-trial litigation proceedings, discovery, injunctive relief, settlement, damages, appeals, litigation costs, alternative dispute resolution (ADR) and arbitration.

General

General Characteristics of the Legal System

Please describe the general characteristics of your country's legal system. For example: is it based on civil law or common law? Does it follow an adversarial or inquisitorial model? Is the legal process conducted through both written submissions and oral argument or primarily through written submissions?

Jersey is one of the relatively few jurisdictions which have a "mixed" legal system. Its legal system is broadly based on elements of common, civil and customary law.

The legal process is conducted through a combination of both written submissions and oral argument, however principally through oral argument.

Court System

Please describe the structure of your country's court system. Are there national/federal courts and/or state or provincial courts; appellate courts, trial courts? Are courts organised by subject matter jurisdiction (for example, civil and/or commercial courts, administrative courts, family and probate courts, and small claims courts?)

The Royal Court

The Royal Court is Jersey's principal and superior court. It has original and unlimited jurisdiction (equivalent to the High Court in England and Wales).

The Royal Court has four Divisions:

• Heritage (dealing with land disputes)
• Probate (dealing with succession disputes)
• Family (dealing with family and matrimonial disputes); and
• Samedi (dealing with all other matters)

(although in practice these divisions have common Judicial personnel except for certain family division registrars).

The constitution and procedure of the Royal Court in civil matters is principally regulated by the Royal Court (Jersey) Law 1948 and the Royal Court Rules 2004 (as amended) ("RCR"). The RCR are supplemented by "Practice Directions" issued by the Royal Court, which all parties conducting litigation in Jersey must have regard to.

As the customary law court with original and unlimited jurisdiction, the Royal Court has "inherent jurisdiction" which is not limited to that conferred expressly by the RCR. This inherent jurisdiction of the Royal Court is generally called upon as a residual source of powers to be used when it is just, equitable and necessary to do so.

The Petty Debts Court

The Petty Debts Court has non-exclusive jurisdiction in respect of small civil claims up to a value of '10,000. It also has jurisdiction and specialisation as the Court dealing with landlord and tenant matters, including exclusive jurisdiction in respect of the eviction of tenants, subject to certain value limits.

The Magistrates Court

As a general rule, all criminal cases in Jersey will initially be brought before the Magistrates Court in the first instance. The matter may subsequently be referred to the Royal Court if the Magistrate considers his or her sentencing powers to be insufficient in respect of the matter in question. In some instances, the Attorney General may commence criminal proceedings directly in the Royal Court where the case is particularly complex or if there are otherwise compelling reasons to do so.

The Court of Appeal

A first instance decision of the Royal Court may be appealed to the Jersey Court of Appeal.

Court Filings and Proceedings

Are court filings and proceedings open to the public? Are there procedures for protecting court filings and proceedings from public disclosure? If public, are certain proceedings or information kept confidential in certain circumstances?

Court proceedings and court judgments are open to the public as a general rule, save as follows. In exceptional circumstances on the request of a party, proceedings may be held in private if it is necessary in the interests of justice. Many applications in respect of the administration of trusts are heard in private on this basis.

Proceedings will only be held in private, and/or judgments may be withheld from circulation or redacted or anonymised, if the Court is satisfied that that is necessary in the interests of justice in the circumstances of the case in question. The onus to satisfy the Court in this regard rests with the party or parties who is or are requesting the confidentiality.

Any person may apply to the Judicial Greffier (the clerk to the Court) for access to a court file, including to obtain copies of pleadings filed and/or for evidence or documents referred to in a public court hearing. The applicant must set out all reasons why those copies are requested. The Judicial Greffier may thereafter agree to release the document(s), but may stipulate that the requesting party pays a reasonable fee for provision of the document(s).

Legal Representation in Court

Are there particular requirements for legal representatives appearing in your country's courts? What rights of audience are required, and can foreign lawyers conduct cases in these courts?

Only Jersey Advocates may appear and have rights of audience in the courts of Jersey. Foreign lawyers cannot conduct or appear in cases in the Jersey courts.

Litigation Funding

Third-Party Litigation Funding

Is litigation funding by a third-party funder permitted? Are there any restrictions on litigation funding in your jurisdiction?

Litigation funding by a third-party funder is permitted in Jersey, on the condition that such arrangements are properly structured. Further, the agreement must not prejudice any potential defendants. Case law in this area indicates that in order for an arrangement to be valid, it is important that the plaintiff and its Advocates retain control of the proceedings and obtain the benefit of a substantial proportion of any sums awarded in the proceedings, and the funder agrees to satisfy any adverse cost orders against the plaintiff.

For example, a litigation funding agreement was upheld by the Royal Court in In The Matter of the Valetta Trust [2012] (1) JLR 1] where:

(i) the litigation funder agreed to pay the legal costs of the plaintiffs and would meet any adverse costs orders against the plaintiffs;

(ii) control of the litigation remained with the plaintiffs, although they had to keep the funder informed and agreed to conduct the litigation in accordance with the reasonable advice of the plaintiffs' lawyers;

(iii) the funder had the right to terminate the agreement if satisfied that there had been a material adverse decline in the prospects of success but would remain liable for all costs incurred during the existence of the agreement and for adverse costs to the date of termination; and

(iv) the funder was entitled to share in any damages recovered.

Third-Party Funding: Lawsuits

What types of lawsuits are available for third-party funding?

There are currently no express restrictions as to which civil lawsuits are available for third-party funding, save that any litigation funding agreement must meet the requirements set out at 2.1.

Third-Party Funding for Plaintiff and Defendant

Is third-party funding available for both the plaintiff and defendant?

Third-party funding is available for a plaintiff in Jersey. The availability of third-party funding for defendants has not yet been considered in Jersey.

Minimum and Maximum Amounts of Third-Party Funding

Is there a minimum and maximum amount a third-party funder will fund?

Please see 2.5 below. Jersey law does not presently stipulate any minimum or maximum amounts of third-party funding in the context of Jersey litigation.

Types of Costs Considered under Third-Party Funding

What costs will a third-party funder consider funding?

It is open for a third-party funder to finance all or part of the costs associated with the legal action in question.

Contingency Fees

Are contingency fees permitted? If yes, please describe the law in this area in your country.

Contingency fee arrangements are not presently permitted in litigation in Jersey.

Time Limit for Obtaining Third-Party Funding

Are there any time limits by when a party to the litigation should obtain third-party funding?

Currently there are no particular time limits in Jersey by which a party to a litigation must obtain third-party funding.

Initiating a Lawsuit

Rules on Pre-action Conduct

Does the court impose any rules on the parties in relation to pre-action conduct (ie, steps that parties are required to take before initiating proceedings)? If yes, please describe such requirements and any penalties for failing to comply. Are there any requirements on the potential defendant(s) to respond to a pre-action letter?

Prior to commencing any legal action in Jersey, potential litigants need to comply with the pre-action requirements stipulated in Practice Direction 17/01 ("PD 17/01"). PD 17/01 requires the following by way of pre-action steps:

1. A prospective plaintiff must issue a Claim Letter to a proposed defendant which must include, amongst other things, a summary of the facts and legal basis of each claim being made.

2. A defendant must acknowledge receipt of the Claim Letter within 14 days of receipt, failing which the plaintiff may commence proceedings with no further need to comply with PD 17/04.

3. If the defendant wishes to provide a substantive response to the Claim Letter, it will have a further 14 days (or up to 3 months in complex cases) to do so.

4. If the defendant's response contains a counterclaim or allegation of contributory negligence, the plaintiff must respond within 14 days (or within six weeks in complex cases).

5. The parties must thereafter consider the possibility of the dispute being resolved by ADR rather than court proceeding.

6. If no settlement is reached and proceedings are commenced, the Court may take into account the extent to which each party took reasonable steps to comply with the requirements...