JERSEY Law and Practice Contributed by: Amy Benest, William Redgrave, Jared Dann and Lynne Gregory, Baker & Partners
The creditor ought to collate as much information as possible on the debtor, the debtor’s assets and the debtor’s other creditors so that the creditor may make an informed decision on which route or routes to pursue. As part of the investigation process, a creditor may decide to seek disclosure orders from the Court (see 2.4 Post-Judgment Procedures for Determining Defendants’ Assets ). Depending upon whether the debtor challenges or otherwise resists the applica - tion, this process may take some time. In addition to funding the legal costs for the application, the credi - tor may also, depending upon the type of disclosure orders sought, be required to give a cross undertaking in damages (if the disclosure order is part of a wider freezing order) or pay legal costs of the disclosing party if the disclosure is sought from a third party (for example a Norwich Pharmacal order). Some preservation steps, such as registering a judg - ment against a property or lodging a caveat prevent - ing a sale of a property are straightforward and can be a cost-efficient way to proceed if the debtor holds Jersey immovable property. However, if that is not the case, preserving intangible assets will likely involve a court application which naturally involves expense in preparing and attending the application, the court fees, and dealing with any response by the defendant. If the creditor wishes to instigate insolvency proceed - ings, the officer of the court appointed to conduct the insolvency (whether that is the Viscount of the Royal Court in the case of a désastre , or a liquidator in insol - vency procedures under the Companies (Jersey) Law 1991 (as amended)) may require an indemnity from the creditor for costs likely to be incurred or require to be put in funds before the application is made. 2.4 Post-Judgment Procedures for Determining Defendants’ Assets A creditor can instigate proceedings seeking post- judgment disclosure orders of the debtor’s assets. Such proceedings are issued by an Order of Justice which sets out the relief sought and basis for it. In the case of post-judgment disclosure orders, the creditor should seek an expedited final hearing of the issues
because the creditor is merely seeking to ensure enforcement of a judgment already obtained. Where there is a risk of dissipation, the plaintiff may also seek a freezing order. Ex parte injunctions may only be granted by the Bailiff or Deputy Bailiff (judges of the Royal Court), and the Order of Justice must be supported by detailed affidavit evidence. The test for obtaining a post-judgment freezing order is lower than if the creditor were to apply pre-judgment. Once an ex parte injunction is ordered, an inter partes hearing will be listed at a return date at which the defendant may seek to vary or lift the orders made. Post-judgment disclosure orders may also be sought against third parties to confirm or identify the extent and location of the defendant’s assets. 2.5 Challenging Enforcement of Domestic Judgments The debtor may seek to challenge the judgment itself as well as or instead of the method of enforcement. The main ways a debtor may challenge the judgment itself are: • ineffective service of proceedings on the defend - ant; • the court did not have jurisdiction (for example, if proceedings were started in the Petty Debts Court rather than the Royal Court or the Royal Court did not have jurisdiction to hear the dispute at all); • the proceedings are ongoing and therefore the judgment is not final; and • the judgment is older than ten years and therefore is time barred. If the judgment has been obtained by default, the pro - cedural rules in Jersey allow a defendant to seek to set aside a default judgment. In practice however the scope to challenge a default judgment itself will be limited because most applica - tions are dealt with at a hearing rather than on the papers and so the scope for any procedural irregular - ity is usually corrected before the enforcement stage.
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