GUERNSEY Law and Practice Contributed by: Elaine Gray and Steven Balmer, Carey Olsen
Unless an application is subject to any particular pro- vision, a person intending to apply for an order shall give notice of that fact to the respondent by serv- ing a notice (a “signification”) on the respondent with no less than four clear days’ notice (Royal Court Civil Rules, Rule 81). Routine case management or interim applications are heard on the Friday of each week at the routine Interlocutory Court, and the applicant’s advocate is obliged to file an agenda of all such business with the court each Wednesday. However, parties can and often do request that hear- ings be listed on an urgent basis on a specific date and/or before a particular judge where that judge has dealt with prior issues in the case. In that event, the court will generally seek to accommodate such requests, subject to availability. Disclosure forms a key part of civil proceedings in Guernsey and is broadly modelled on the regime established by the Civil Procedure Rules in England and Wales, albeit the Rules are less detailed and pro- scriptive. The Rules are found in Part X of the Royal Court Civil Rules, 2007. Unless the court otherwise directs, an order for dis- closure is an order to give standard disclosure (see 5.3 Discovery in This Jurisdiction ). Where the court considers it appropriate, it may dispense with or limit standard disclosure. Parties are obliged to undertake reasonable searches as part of their duty to search for documents. The process should take place out of court, with the court only intervening where resolution between the parties is not possible. In practice, parties will typically agree the timing and format of disclosure, often recorded in a disclosure memorandum. In the absence of agreement, the court may issue directions at a case management confer- ence on any matters in dispute. In all but the sim- plest cases disclosure is generally given electronically, using an e-disclosure platform. 5. Discovery 5.1 Discovery and Civil Cases
The recent case of Popat v Popat & Oths (2021) GCR033 examines the legal principles behind the dis- closure regime in Guernsey, and in particular applica- tions for specific disclosure. The confirmation of the applicable principles in Popat follows the English guidance in Berkeley Administration Inc. v McCelland [1990] F.S.R. 381 in affirming that there is no jurisdic- tion to make an order for the production of documents unless: • there is sufficient evidence that the documents exist; • the document relates to matters in issue in the action; and • there is sufficient evidence that the document is in the possession, custody or power of the other party. Where these three prerequisites are met, the court has discretion as to whether or not to order specific dis- closure. Any such order must identify with precision the document or documents required to be disclosed. Documents given on disclosure are generally subject to the codified “implied undertaking” against collateral use for any purpose other than the proceedings. 5.2 Discovery and Third Parties Guernsey does not have any provision within the Roy- al Court Civil Rules, 2007 for disclosure from a third party who is not named as a party, although there are other well-recognised circumstances whereby disclo- sure from non-parties can be obtained (eg, Norwich Pharmacal, Anton Piller and Bankers Trust orders). 5.3 Discovery in This Jurisdiction Unless the Court orders otherwise, parties should give “standard disclosure”. This requires parties to disclose any documents: • on which they rely; • which adversely affect their own case; • which adversely affect another party’s case; • which support another party’s case; and/or • which are required to be disclosed by a relevant practice direction.
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