GUERNSEY Law and Practice Contributed by: Elaine Gray and Steven Balmer, Carey Olsen
were rejected in 2021, therefore these functions will continue to be serviced by the Guernsey Probate Registry. 1.3 Court Filings and Proceedings Court filings are generally open to inspection for the public unless the court orders that the court file should be sealed. Similarly, cases are gener- ally heard in public, with the fundamental princi- ple of open justice being applied in the majority of cases. However, the Royal Court may, in certain circum- stances, seal the court file and/or conduct hear- ings in private. Such circumstances may include: • non-contentious trust applications; • cases concerning children or persons with capacity issues; • matrimonial matters; • cases involving confidential information (eg, IP disputes and/or competition litigation); and • ex parte applications. 1.4 Legal Representation in Court Guernsey advocates have exclusive rights of audience in the Royal Court and Court of Appeal, although a litigant in person can conduct litiga- tion on their own behalf subject to certain pro- cedural steps. Foreign lawyers have no rights of audience in Guernsey’s courts. In practice, however, many advocates’ firms employ lawyers qualified in other jurisdictions to work under the supervision of Guernsey advo- cates and, additionally, parties may make use of counsel in other jurisdictions should they wish to do so, and in some limited circumstances (some of) the costs of foreign counsel may be recover- able.
In contrast, several tribunals (eg, the Employ- ment and Discrimination Tribunal) in Guernsey permit representation by non-advocates. 2. Litigation Funding 2.1 Third-Party Litigation Funding Third-party litigation funding is permitted, but it is important to note that the rules of mainte- nance and champerty have not been abolished by statute or at common law in Guernsey. In deciding whether or not a funding arrangement is champertous or amounts to maintenance the Royal Court is likely to follow English principles. Guernsey advocates are expressly prohibited by the Guernsey Bar’s Rules of Professional Con- duct from entering into any arrangement under which payment of a fee is contingent on success in the claim, commonly called “no win, no fee” agreements. However, the Guernsey Bar has set up a working committee to look at the potential introduction of conditional fee arrangements and similar forms of litigation funding. 2.2 Third-Party Funding: Lawsuits Subject to the rules of maintenance and cham- perty, in principle it is permissible for a third party to fund a claim; a person who does so may, how- ever, be at risk of a costs order against them if the court considers that they are in effect direct- ing the proceedings. 2.3 Third-Party Funding for Plaintiff and Defendant In principle, third-party funding is available for both the plaintiff and defendant, subject to the rules of maintenance and champerty.
527 CHAMBERS.COM
Powered by FlippingBook