GUERNSEY Law and Practice Contributed by: Elaine Gray and Steven Balmer, Carey Olsen
1. General 1.1 General Characteristics of the Legal System The Bailiwick of Guernsey is a British Crown depend- ency. It is made up of three separate legal systems: Guernsey (together with some smaller islands), Alder- ney and Sark. Each island has its own laws, court system and rules, although a significant proportion of laws are passed on a Bailiwick-wide basis. Sources of Law The Bailiwick is a mixed law jurisdiction, combining civil law concepts from its time under Norman French rule, with elements of English common law stemming from the influence of the British Crown post-1066. Various Royal Charters through the centuries have confirmed the Bailiwick’s right to self-determination. As a result, although the British Crown asserts a resid- ual right to interfere in order to maintain good gov- ernance, in real terms the Bailiwick largely operates as an independent self-governing territory. All three jurisdictions have their own directly elected legislative assembly, legal systems and courts of law. Norman customary law remains influential in private law rights such as inheritance, succession and prop- erty law and, albeit to a lesser extent, in contract and tort law. Commercial law is heavily influenced by UK legislation although regard will still be had to French contract law. The Bailiwick’s legal regime can there- fore be said to be a fusion between the civil and com- mon law systems. Procedure Guernsey’s system of courts and tribunals is adver- sarial in nature, with cases being dealt with by written and oral submissions. In civil matters, the main pro- visions regulating procedure are found in the Royal Court Civil Rules, 2007 (as amended). Although these draw on the rules of procedure applicable in England and Wales, there are important differences specific to Guernsey. 1.2 Court System As noted, the Bailiwick of Guernsey comprises three distinct jurisdictions: Guernsey, Alderney, and Sark. In
this chapter, the focus will be on the civil courts and system of Guernsey. The Magistrate’s Court of Guernsey The Magistrate’s Court was established by statute and is presided over by a full-time judiciary. It deals with civil matters where the sum in dispute does not exceed GBP10,000, commonly known as Petty Debts cases. The Magistrate’s Court also has jurisdiction over certain domestic proceedings and is responsible for conducting inquests. The Royal Court of Guernsey The Royal Court sits in three main divisions: • Full Court; • Ordinary Court; and • Matrimonial Causes Division. Most commercial matters and the majority of the Roy- al Court’s business are listed before the Royal Court sitting as an Ordinary Court. Many appeals under stat- utory provisions lie to the Royal Court sitting in Ordi- nary Court and the Ordinary Court also hears appeals in civil matters from the courts in Alderney and Sark. The Ordinary Court is normally constituted by a single judge and a minimum of three jurats. Jurats are per- manent, elected lay members of the court whose role is to determine questions of fact. Parties can elect for the judge to sit alone, without jurats. Procedural and interlocutory matters are usually heard by a judge sitting alone. The typical life cycle of a straightforward case would be around 12-18 months, starting from the date of proceedings being commenced to the stage of trial. Defences are filed within 28 days of commencement, although this can be extended by up to three months, with the parties’ consent. Generally, there will then be a case management conference to agree further direc- tions, including, where appropriate, identifying a trial date. Directions could include orders for the parties to file répliques and dupliques (replies to the defenc- es by the plaintiff and a subsequent response by the defendant), in addition to disclosure and the filing of evidence, in the form of witness statements or affida- vits. There may also be orders for expert evidence.
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