JERSEY Law and Practice Contributed by: Marcus Pallot and Eleanor Davies, Carey Olsen
5.2 Discovery and Third Parties As a general rule, discovery is only obtainable from persons properly joined as parties to a substantive ongoing action. Information from third parties is generally only obtain- able by summoning those third parties to attend as witnesses to produce documents pursuant to a sub- poena duces tecum (under RCR 6/20 (7A). Exceptionally, the court has a discretionary power to make an order that a third party shall provide informa- tion by making a Norwich Pharmacal order. The court may grant a Norwich Pharmacal order against a third party to an action if satisfied that: • the applicant has a good, arguable case that they were the victim of wrongdoing; • the respondent is mixed up, even innocently, in the wrongdoing; and • it is necessary in the interests of justice to order provision of the information sought. An application to the court for a Norwich Pharma- cal order may be made during the course of ongoing proceedings, or by a prospective plaintiff prior to its initiation of substantive proceedings. The disclosure ordered pursuant to a Norwich Pharmacal order may take any form. 5.3 Discovery in This Jurisdiction Please see 5.1 Discovery and Civil Cases . 5.4 Alternatives to Discovery Mechanisms The legal system in Jersey provides for discovery mechanisms to identify potentially relevant docu- ments, as described in 5.1 Discovery and Civil Cases . In addition to discovery mechanisms, evidence for use in litigation is also developed and admitted onto the court record by way of witness testimony in the form of sworn affidavits deposed by witnesses, to which documentary evidence may be exhibited in the form of an “exhibit” to an affidavit. 5.5 Legal Privilege Jersey law recognises the concept of legal privilege and is similar to English principles in this area. Jer-
accordance with the RCR and Practice Directions RC 17/07 and RC 17/08. When discovery is ordered, each party to the litigation has a positive duty to search for and disclose all docu- ments that are relevant to any of the issues arising in the court action, irrespective of whether those docu- ments are helpful or harmful to that party’s position in the court action. These documents include those in the parties’ possession, those formerly in their pos- session and those held by third parties (which parties have a right to possess, copy or control). Discovery obligations are ongoing and if relevant documents subsequently come to light after the list of documents has been exchanged, they should be disclosed to the other parties. The expression “document” in the context of discov- ery in Jersey is given an extremely broad interpreta- tion. It extends to both hard copy and electronic docu- ments, and has been held to include emails, video and audio tapes, WhatsApp messages and other social media communications. In order to limit the scope of discovery, it is common (and the court expects) that the parties to an action will agree on particular “search parameters”. In line with other common law jurisdictions where document- heavy commercial disputes are litigated, the use of technology-assisted review is encouraged (where appropriate) so as to save time and costs. Following the filing and exchange of each party’s respective lists, each party must then allow the other parties to inspect and take copies of the documents, except insofar as those documents are privileged. Specific Discovery The above describes the typical mechanisms for “general discovery” in Jersey. In addition to general discovery, a party may apply for specific discovery in respect of particular documents or a class of docu- ment believed to be in the possession, custody or power of another party. Such an application will only generally be regarded as appropriate after general dis- covery has been undertaken.
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