GUERNSEY Law and Practice Contributed by: Elaine Gray and Steven Balmer, Carey Olsen
complexity of those issues. Realistically, most com- mercial disputes take around 18 months to 2 years to conclude.
sey as to whether or not specific performance or man- datory injunctions are available as remedies. 9.2 Rules Regarding Damages Generally, the court will follow English rules and approaches to damages. In the absence of specif- ic statutory legislation permitting damages that are punitive in nature (for example, under the image rights regime), the general presumption is against punitive damages. Under Rule 62A of the Royal Court Civil Rules, the court has the power to order interim payment of dam- ages, usually where liability is admitted and/or where it seems to the court that the plaintiff is likely to obtain judgment for a substantial award at trial. The Guernsey courts recently provided clarity in Pila- tus (PTC) Limited v RBC Trustees (Guernsey) Limited (2021) GRC012 on the issue of reflective loss, confirm- ing that the legal principle of reflective loss does form part of the law of Guernsey, following the UK Supreme Court decision in Marex. The commencement of the Damages (Assumed Rate of Return and Related Matters) (Enabling Provisions) (Guernsey and Alderney) Law has introduced a statu- tory discount rate in personal injury claims, bringing the law into line with the UK and Jersey (such rate being the subject of regulations). 9.3 Pre-Judgment and Post-Judgment Interest A party may claim pre- and post-judgment interest. The judicial rate is presently 8% but pre-judgment interest is generally reduced from this figure. As inter- est rates begin to rise, that position may also change; in this respect, it is anticipated that the Guernsey court would probably follow the approach of the English courts in respect of pre-judgment interest. Interest may be recovered on costs awards. Where a contractual provision permits interest on interest this will generally be upheld in the absence of a good rea- son to the contrary.
8. Settlement 8.1 Court Approval
In most cases there is no requirement for the court to approve a settlement reached between the par- ties. However, the court may wish to obtain details of a settlement where there are questions of capac- ity or a minor or the settlement terms are important to ensure that there is no risk of further dispute. For example, in a trust or boundary or dispute, the court may wish to understand the nature of the settlement reached in order to ensure that all key aspects have been addressed. Beyond these possibilities, in gen- eral, the only involvement of the court is to approve a consent order withdrawing the claim. 8.2 Settlement of Lawsuits and Confidentiality As settlements are ordinarily dealt with by way of settlement agreement but disposed of via a consent order, the terms of most settlements usually remain confidential. Less commonly, the parties wish to have the terms of settlement set down in a “Tomlin order”. 8.3 Enforcement of Settlement Agreements Settlement agreements commonly provide that an aggrieved party may sue the other for performance under that agreement; if a Tomlin Order is in place, this can be enforced through application to the court. 8.4 Setting Aside Settlement Agreements Depending on the terms of a settlement agreement, it is likely that to set aside an agreement a party will be required to issue fresh proceedings seeking declara- tory and associated relief. 9. Damages and Judgment 9.1 Awards Available to the Successful Litigant A plaintiff has the full range of remedies available to them, including damages, declaratory orders and injunctive relief. There remains some debate in Guern-
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