GUERNSEY Law and Practice Contributed by: Elaine Gray and Steven Balmer, Carey Olsen
3.2 Statutes of Limitations Limitation is known as “prescription” in Guernsey; in contrast to limitation (which bars a remedy), pre- scription extinguishes a claim completely. As a result, where prescription applies, it generally operates as a complete defence to a claim. (Note that there is some obiter judicial commentary recently which doubts that, in practical terms, there is any difference between the two concepts.) A prescription period will stop operating when a claim- ant hands a summons setting out the claim to His Maj- esty’s Sergeant for service on the defendant, or when an application for leave to serve out of the jurisdiction Prescription periods vary depending on the nature of the claim. The main periods relevant for present pur- poses are those relating to: • contractual claims – six years from the date on which the breach or actionable damage occurred; • claims in tort – six years from the date on which the breach or actionable damage occurred; • trust disputes – three years, but in claims for the recovery of trust property, or if there is fraud to which the trustee was privy, no prescription period will apply; and • rights in realty (ie, in respect of right to and in land) – 20 years from the date of the action arising. is filed with the court. Prescriptive Periods Where a party has been prevented from commencing a claim through some legal or practical impediment, the customary law principle of empêchment d’agir (essentially, an impediment to acting) may apply. The principle operates by suspending prescription from running during the period of the impediment. An impediment can last for several years, although the precise limits of the doctrine have not yet been fully determined. 3.3 Jurisdictional Requirements for a Defendant An entity or natural person resident in Guernsey will generally be subject to the jurisdiction of the court through the standard service mechanisms.
claim; a person who does so may, however, be at risk of a costs order against them if the court considers that they are in effect directing the proceedings. 2.3 Third-Party Funding for Plaintiff and Defendant In principle, third-party funding is available for both the plaintiff and defendant, subject to the rules of maintenance and champerty. 2.4 Minimum and Maximum Amounts of Third-Party Funding There is presently no provision by way of rules, prac- tice directions or guidance relating to third-party fund- ing. 2.5 Types of Costs Considered Under Third- Party Funding The third-party funding market is not well established in Guernsey given the lack of formal recognition, therefore there is no firm guidance on what costs a funder will be willing to consider funding. 2.6 Contingency Fees Contingency fees are not permitted, per 2.1 Third- Party Litigation Funding . 2.7 Time Limit for Obtaining Third-Party Funding The third-party funding market is not well established in Guernsey, therefore there is no firm guidance on the stages by which a party should obtain third-party funding.
3. Initiating a Lawsuit 3.1 Rules on Pre-Action Conduct
There are no specific rules in Guernsey that require parties to engage in certain pre-action conduct and, in particular, there are no pre-action protocols. None- theless, it is generally recommended to issue a letter before action in order to give the defendant an oppor- tunity to address the claim, and a failure to provide such an opportunity may impact on the costs that would otherwise be recoverable.
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