GUERNSEY Law and Practice Contributed by: Elaine Gray and Steven Balmer, Carey Olsen
The duty to disclose extends to documents that are or have previously been under a party’s control. A “docu- ment” includes anything in which information of any description is recorded and therefore encompasses any electronic media, mobile devices, as well as data stored on cloud services. Disclosure Lists Disclosure is done via a list, often using an e-disclo- sure platform. Although there is no prescribed form for the list, it must identify: • documents which the party claims to be able to withhold from inspection under a right or duty (eg, because the document is subject to legal profes- sional privilege) (see 5.5 Legal Privilege ); and • any documents that are no longer in their control (and an indication of what has happened to those documents). The list must also include a disclosure statement, which explains the extent of any search that has been undertaken and a certification that the person giving the statement understands their duty to make dis - closure and has fulfilled that duty to the best of their knowledge. 5.4 Alternatives to Discovery Mechanisms Guernsey has a disclosure regime, therefore there is no need for an alternative mechanism for discovery. 5.5 Legal Privilege Guernsey recognises the concept of legal professional privilege. A claim to privilege will generally be upheld where a person seeks legal advice from a lawyer (legal advice privilege) and/or where advice is sought in rela- tion to threatened or actual proceedings (litigation advice privilege). In broad terms, Guernsey adopts English principles in relation to legal privilege. As a consequence, although there is no reported case law in relation to the position of external and in-house counsel, it is anticipated that Guernsey will follow the position adopted in England and Wales. Where, within the context of a disclosure exercise, a party claims that a document is covered by legal pro-
fessional privilege, this claim to privilege should be set out in the list of documents and inspection resisted. In that event, the Guernsey court will generally be slow to interfere with a prima facie valid claim to privilege. In the event that a party accidentally discloses a priv- ileged document, the inspecting party may (in rare cases) be permitted to make use of the document or its contents and then only with the leave of the court. 5.6 Rules Disallowing Disclosure of a Document Notwithstanding the general duty of disclosure, a party may assert a right or a duty to not disclose a document. Where a party claims a public interest immunity from disclosure, they should make an ex parte application to the court for an order permit- ting them to withhold the document from disclosure. Where the court makes such an order, that order must not be served on anyone else and must not be open to inspection by anyone, unless the court orders oth- erwise. Where a party claims to have a right or duty to with- hold the whole or part of a document from inspection, they must assert both the existence of that right or duty and the grounds on which they claim to have it, in writing. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief Under the Law Reform (Miscellaneous Provisions) (Guernsey) Law, 1987 (as amended) (the LR Law), the Royal Court has the power to grant injunctive relief where it considers it to be just and convenient to do so. Such applications can be made ex parte or on notice, depending on the circumstances. Principles for Injunctive Relief The principles whereby the court will determine whether to grant an application for injunctive relief are similar in practice to the circumstances in which the English courts shall grant such relief, albeit there are some differences. Where the application is for a pro- hibitory injunction, the court will adopt the principles
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