Litigation Funding In Offshore Jurisdictions – Funding In Jersey And Guernsey

Authored By Gordon Dawes, Partner, Mourant Ozannes And Justin Harvey, Partner, Mourant Ozannes

The Channel Islands, comprising the "Bailiwicks" of Guernsey and Jersey, are ancient jurisdictions with their own laws and customs, separate from each other and separate from the United Kingdom. Historically they formed a part of the Duchy of Normandy, and a quick glance at any map will show you that, geographically, they are much more obviously a part of France than the British Isles. When, in 1066, William the Conqueror (also known in France as Guillaume le Bâtard) conquered England he became both King of England whilst also Duke of Normandy. William's great-great-grandson was King John, of Magna Carta fame, but, in a somewhat chequered career he also lost continental Normandy to the French King of the day, but held on to the Channel Islands. Their anomalous position as near-independent dependencies of the English Crown dates back to that year, 1204.

Channel Island law has its roots in the customary law of Normandy, itself overtaken by the Code civil (or Code Napoléon) of 1804. Channel Island courts still look to ancient Norman law and modern French law, when appropriate. However, much of Channel Island law has become anglicised, albeit without Channel Island courts ever being bound to follow English cases, let alone statutes. The relationship is much more subtle. The more established and less controversial a principle of English common law, the more likely it is, in those areas where we look to the common law, that the same principles will be applied in Channel Island courts, and vice versa. It is not at all uncommon either to look to authorities from other leading common law jurisdictions such as Australia and New Zealand.

We are rather behind the times, rightly or wrongly, when it comes to such things as conditional or contingency fees; they are not permitted. But it is a different story when it comes to commercial litigation funding.

The starting point in both jurisdictions is that we would very likely adopt the English common law principles governing maintenance and champerty, the former occurring where a person supports litigation in which he has no legitimate concern without just cause or excuse, and the latter where the person maintaining another contract for a share of the proceeds of the action or suit1. Historically, maintenance and champerty were criminal offences in the UK, until abolished as such in 1967; however, they remained...