GUERNSEY Law and Practice Contributed by: Elaine Gray and Steven Balmer, Carey Olsen
12.2 ADR Within the Legal System At all times, the court must have the overriding objec- tive in mind of dealing with cases justly and saving expense. The court is expected to be an active case manager, which includes “encouraging the parties to use any appropriate form of ADR and facilitating the use of such procedures” (Rule 38 (2)(e) Royal Court Civil Rules, 2007). Where a party refuses to engage in ADR and subsequently settles or is found liable, the failure to engage is a factor the court may take into account when determining the question of costs. 12.3 ADR Institutions There are a number of local-qualified mediators in Guernsey, and, in addition, the Chartered Institute of Arbitrators has a Channel Islands committee which offers access to qualified mediators and arbitrators. In practice, parties will often use a mediator from one of the recognised bodies based in the UK, such as the Centre for Effective Dispute Resolution. The Arbitration (Guernsey) Law, 2016 provides a framework for arbitration of disputes in Guernsey and is similar in structure to the Arbitration Act 1998 in England and Wales, and the UNCITRAL Model Law on International Commercial Conciliation 2002. Parties who have entered into an arbitration agree- ment or clause can apply to the Royal Court (or any jurisdiction where proceedings have been raised) for a stay of proceedings in relation to the dispute. The court must grant the stay unless it is satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed. The arbitration will be confidential and hence conducted in private unless the agreement stipulates otherwise. 13.2 Subject Matters Not Referred to Arbitration There are no non-arbitrable subject matters in Guern- sey, albeit in practice there remain some doubts over the use of arbitration in some areas. 13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration
nity basis, on any taxation, all of that party’s costs will be allowed unless the costs are shown to be of an unreasonable amount or to have been unreason - ably incurred, with any doubt being resolved in favour of the receiving party. By contrast, only recoverable costs are awarded on the standard basis and any doubt is resolved in favour of the paying party. The court can also make flexible costs orders, for example making an award on a partial rather than full indemnity basis. Where the parties cannot agree on the amount of costs to be paid under a costs order, the paying party should seek to have the costs “taxed”. An application for taxation must be made within one month immedi- ately following the receipt of the opponent’s bill. 11.2 Factors Considered When Awarding Costs The court will have regard to all relevant circumstances when awarding costs, including the outcome, the pro- cess undertaken and the extent to which costs have been incurred due to a party’s conduct. For example, where a party has pleaded or pursued or defended an action, claim or counterclaim unreasonably, scan- dalously, frivolously or vexatiously, or otherwise has abused the process of the court, this is likely to result in costs being awarded against that party, including Interest is available on any costs ordered pursuant to a judgment, with the applicable interest rate being the current judgment rate of 8%. 12. Alternative Dispute Resolution (ADR) 12.1 Views of ADR Within the Country The overriding objective of Guernsey’s Rules encour- ages the parties to resolve disputes as early as possi- ble and it is therefore common in Guernsey for parties to be encouraged to undertake ADR, such as media- tion, arbitration and/or expert determination. potentially on an indemnity basis. 11.3 Interest Awarded on Costs
406 CHAMBERS.COM
Powered by FlippingBook