JERSEY Law and Practice Contributed by: Marcus Pallot and Eleanor Davies, Carey Olsen
11. Costs 11.1 Responsibility for Paying the Costs of Litigation The court has discretion over who pays the costs of litigation. However, the general rule is that the unsuc- cessful party pays the winner’s costs. Costs awards can be made in respect of all costs incurred during the litigation (ie, legal fees and disbursements). Costs will be subject to taxation by the court (the court’s cost assessment exercise) if the parties can- not agree them. The taxation process usually results in an award of between 55% and 70% of the costs incurred by the unsuccessful party depending on the circumstances of the case. Where overseas law- yers (eg, English solicitors or barristers) have been instructed, specific restrictions apply. For example, if the work could have been done by a Jersey lawyer, the costs allowed on taxation should be no greater than the amount allowed if the work had been done by a Jersey lawyer. 11.2 Factors Considered When Awarding Costs When awarding costs, the court will typically consider the parties’ conduct and any offers made. The usual costs award is costs payable by the unsuc- cessful party on the standard basis (on which the receiving party must prove the reasonableness of costs claimed). Less commonly, costs may be award- ed on the indemnity basis (on which the paying party must disprove the reasonableness of costs claimed) if the conduct of one of the parties is particularly egre- gious. There is no formal regime for automatic costs conse- quences on making an offer (equivalent to the English “Part 36” offer) but the court may take into account any offers made to settle the matter before trial. These would usually have been made on a “without prejudice save as to costs” basis, meaning that they cannot be used at a trial on the merits but they can be seen by the court when it determines the question of costs.
11.3 Interest Awarded on Costs Interest is awarded on costs at the same rate that it is awarded on damages (ie, 8% above the BOE base rate running from the date of judgment). 12. Alternative Dispute Resolution (ADR) 12.1 Views of ADR Within the Country Mediation is easily the most popular method of ADR in Jersey. The court may stay proceedings to allow for ADR. The court’s procedural rules provide that it may stay proceedings at the invitation of the parties, or of its own motion. 12.2 ADR Within the Legal System ADR is encouraged. In the Petty Debts Court, the court habitually orders mediation, and the Royal Court and the Master have recently expressed the view that parties may be ordered to participate in ( Patel & Ors v JTC Trust Company Limited & Ors [2025] JRC 088 and Caroo Construction Limited v Peroh [2025] JRC 125). Any party unreasonably refusing to do so can expect that refusal to be taken into account by the court when determining costs. 12.3 ADR Institutions Given the size of Jersey’s legal market, the parties will usually look to England and Wales to find a mediator (as that jurisdiction has a large resource of experi- enced and unconflicted mediators). Mediations will take place in a location convenient for the parties, which may be on island or wherever else in the world is most convenient for the parties. 13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration Arbitration is governed by the Arbitration (Jersey) Law 1998. The 1998 Law provides that a foreign arbitral award handed down in any country which is a signatory to the New York Convention is enforceable as if it were a
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