GUERNSEY Law and Practice Contributed by: Elaine Gray and Steven Balmer, Carey Olsen
10.6 Powers of the Appellate Court After an Appeal Hearing The Court of Appeal has power to order a rehearing, a new trial, or the setting aside of the judgment. It will invariably also make an order for costs of the appeal, and in appeals from the Magistrate’s Court it will also make an order on costs of the proceedings at first instance, at its discretion. 11. Costs 11.1 Responsibility for Paying the Costs of Litigation Advocates’ fees incurred in the Magistrate’s Court are not recoverable; instead, there are only (limited) disbursement-type costs recoverable. In proceedings before the Royal Court, the Court has a wide discretion to make such order for costs as it thinks just. It is usual for the Court to make an order that the successful party recovers its costs from the losing party (costs follow the event), but the courts have also adopted an issue-based approach to costs where appropriate. The maximum advocates’ fees that are “recoverable” are “the costs of and incidental to the proceedings which have been incurred” (the Royal Court (Costs and Fees) Rules, 2012); such costs must be both rea- sonable in their amount and incurred reasonably. Not all costs are likely to be recoverable and those that are will be capped by the need to be assessed as to their reasonableness. The amount of advocates’ fees incurred per hour that are recoverable are capped overall, currently at an hourly rate of GBP340 (subject to an RPI increase effective from 1 January of each year). Non-Guernsey lawyers’ costs are generally disallowed, unless there is some specific and legitimate reason for foreign law- yers to have been involved, such as a novel or com- plex issue of law. Guernsey courts can make orders as to costs on a number of bases – principally the standard or indem- nity basis. Where costs are awarded on an indem-
then sets down the appeal. Within two days of being set down, the appellant must notify that fact to each party on whom the notice of appeal was served. The respondent may serve a respondent’s notice on the appellant within 14 days after service of the notice of the appeal. Within four months after the appeal was set down, the appellant shall lodge an appeal bundle including a skeleton argument. Thereafter, the respondent has one month to lodge its skeleton argument, following which a date to hear the appeal will be fixed, usually at least 28 days later. These directions may be varied on application to the court. 10.4 Issues Considered by the Appeal Court at an Appeal On appeal from the Magistrate’s Court, the Royal Court has wide powers. It can confirm, reverse, or vary the determination, or make such other order as it thinks fit. In matters involving the lower court’s exercise of discretion, the Royal Court should not interfere unless the decision is clearly based on a misunderstanding of the law/evidence, or there has been a wrong inference drawn from the facts, or circumstances have changed materially since the original hearing. The Royal Court should not overturn findings of fact unless there was no evidence on which to reasonably base such find- ings or that they were, for other reasons, obviously perverse. An appeal to the Court of Appeal is by way of a rehear- ing, unless the appellant seeks an order for a new trial or to set aside a verdict, finding, or judgment. Typi- cally, an appeal will engage the “setting aside” option. 10.5 Court-Imposed Conditions on Granting an Appeal The court may impose conditions on the granting of an appeal, such as provision for security for costs and/ or for consequential orders regarding enforcement. An unsuccessful party may seek a stay of execution pending an appeal’s outcome, if otherwise the appeal would be rendered nugatory.
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