JERSEY Law and Practice Contributed by: Marcus Pallot and Eleanor Davies, Carey Olsen
• where, in all the circumstances, it is considered by the court to be in the interests of justice. In deciding whether to order a plaintiff to provide security, and the amount of security the plaintiff must provide, the court must balance the risks of: (i) stifling the plaintiff’s access to justice by ordering them to provide security beyond their means; against (ii) the injustice to the defendant should they defeat the plain- tiff’s claim but have no recourse against them for the costs they have incurred. This balancing exercise is normally carried out by reference to: • the prospects of success of the plaintiff’s claim; • the amount of security required by the defendant (noting that the court has discretion to order secu- rity of any amount, and need not order substantial security; further, it is to be noted that an appro- priate “after the event” insurance policy may be treated as equivalent to security for costs); • the stage of the action at which the security is sought, and whether the defendant has been guilty of any unacceptable delay in making their applica- tion; and • the balance of risks to the plaintiff and defendant respectively. The burden lies with the plaintiff with regard to satisfy- ing the court that an order for security would unfairly stifle its claim, and that its claim is genuine. The court must then be satisfied that, in all the circumstances, the claim would probably (and not just possibly) be stifled. 4.6 Costs of Interim Applications/Motions Please see 4.1 Interim Applications/Motions in respect of the rules concerning interlocutory applica- tions. The court has complete discretion as to the award of costs in litigation generally, including in relation to the costs of interlocutory applications and the time of their payment. 4.7 Application/Motion Timeframe A party making an application to the court during the course of proceedings must do so by way of an inter- locutory summons. The applicant must prepare its
summons and arrange a listing appointment in respect of the summons before the judicial secretary of the Greffier or the Master (one of the full-time judges of the Royal Court who tends to sit as judge on interlocu- tory and case management hearings) or Bailiff (if the application is being made to the Royal Court). The applicant must give at least two clear days’ notice of that listing appointment to the other parties in the case of an application to the Master, and four clear days’ notice in the case of an application to the Royal Court. All parties must attend that listing appointment at which the judicial secretary will fix a date for the hear- ing of the summons. The applicant must thereafter serve the summons upon all of the other parties at the address given for service, or at their last known address if they have not given an address for service. The summons must be served at least four clear days before the date fixed for the hearing. In advance of the hearing, it is open to a party to apply to the court in writing to allow the notice period for fix- ing a listing appointment and/or serving a summons to be shortened. Reasons must be given in respect of that request, and a copy of the request must be copied to the other parties, who may raise objections to the request. The court has discretion as to whether or not it will allow any time periods to be shortened. Discovery in Jersey is provided by each party to the litigation, exchanging lists of all relevant documents in its possession, custody or control, and verifying by sworn affidavit that the list is complete. The parties have the right to inspect a document listed in another party’s discovery list, unless the document in question is privileged. The court may order discovery either with the agree- ment of both parties, upon the request of one party or of its own volition. 5. Discovery 5.1 Discovery and Civil Cases Discovery is conducted by the parties themselves and their legal advisers. Discovery must be undertaken in
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