GUERNSEY Law and Practice Contributed by: Elaine Gray and Steven Balmer, Carey Olsen
6.2 Arrangements for Obtaining Urgent Injunctive Relief The Guernsey courts will generally accommodate any urgent application for injunctive relief and sit at short notice where necessary. 6.3 Availability of Injunctive Relief on an Ex Parte Basis An applicant may apply on an ex parte or on notice basis. Where an application is brought ex parte, it is incumbent on the applicant to provide full and frank disclosure of all material facts and matters to the court prior to the application being determined, including those which may adversely affect the applicant’s pros- pects. 6.4 Liability for Damages for the Applicant An applicant may be held liable in damages to the respondent if an injunction is later discharged. To address that risk, the applicant will generally be required to provide an undertaking in damages as a condition of an injunction being granted, to cover any damages that may be payable in the event the appli- cant is not ultimately found to have been entitled to the relief that was granted on an interim basis. The Guernsey court may also order the applicant to provide security for such damages in the form of pay- ing a specified sum into court to protect the respond- ent (or a third party’s) interests. 6.5 Respondent’s Worldwide Assets and Injunctive Relief While the Royal Court has jurisdiction, in principle, to grant a worldwide freezing order, such orders are rare in the extreme. Such an application, in addition to satisfying the usual tests, will necessitate cogent evi- dence that there are no assets (or insufficient assets) located within the jurisdiction. More often, the Guern- sey court will be asked to grant an injunction ancil- lary to a worldwide freezing order granted in a foreign court. 6.6 Third Parties and Injunctive Relief The court may make an order requiring service on a third party and requiring disclosure/freezing steps to be taken by a third party. Beyond this, it is unlikely that the court would grant an injunction against a third
set out by the House of Lords in American Cyanamid v Ethicon [1977] 10 WLUK 126, such as: • whether or not there is a serious issue to be tried; • if damages will be an adequate remedy for the plaintiff or, indeed, for the defendant if the injunc- tion should not have been granted; • where the balance of convenience lies; and • any other special factors that may arise. The court will generally require the plaintiff to provide certain undertakings, for example to commence pro- ceedings within a specified timeframe and/or to pay damages for any loss suffered if the plaintiff does not succeed at trial. Types of Injunctions As well as the mandatory prohibitory injunction, a freezing order (or Mareva injunction) may be granted where the plaintiff is concerned at the prospect of the defendant dealing with or otherwise disposing of their assets located within the jurisdiction. Mareva injunc- tions are often coupled with disclosure orders requir- ing disclosure of the whereabouts of assets in order that the freezing order can be properly exercised. Search orders (Anton Piller orders) may be granted permitting forcible access to premises for the purpos- es of the preservation of evidence which a party may conceal or destroy. In practice, their use in Guernsey is relatively rare. Anti-suit injunctions may be granted by the Guernsey courts to prevent a respondent from commencing or continuing legal proceedings in another jurisdiction. In this regard, the Guernsey courts have followed the approach of the English courts regarding the circum- stances in which an anti-suit injunction will be grant- ed, such as where there is an exclusive jurisdiction clause in an agreement and it would be unconscion- able, oppressive, or vexatious to allow foreign pro- ceedings to commence or continue. Finally, an ancient Guernsey remedy, called the Clameur de Haro, is still available today. It is a cus- tomary law remedy from the 13th century which pro- tects the occupier of land from a nuisance, trespass or interference with the enjoyment of that land.
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