GUERNSEY Law and Practice Contributed by: Elaine Gray and Steven Balmer, Carey Olsen
2.4 Minimum and Maximum Amounts of Third-Party Funding There is presently no provision by way of rules, practice directions or guidance relating to third- party funding. 2.5 Types of Costs Considered Under Third-Party Funding The third-party funding market is not well estab- lished in Guernsey given the lack of formal rec- ognition, therefore there is no firm guidance on what costs a funder will be willing to consider funding. 2.6 Contingency Fees Contingency fees are not permitted, per 2.1 Third-Party Litigation Funding . 2.7 Time Limit for Obtaining Third-Party Funding The third-party funding market is not well estab- lished in Guernsey, therefore there is no firm guidance on the stages by which a party should obtain third-party funding. There are no specific rules in Guernsey that require parties to engage in certain pre-action conduct and, in particular, no pre-action proto- cols. Nonetheless, it is generally recommended to issue a letter before action in order to give the defendant an opportunity to address their failing; a failure to provide an opportunity to respond may impact on the costs that would otherwise be recoverable. 3.2 Statutes of Limitations Limitation is known as “prescription” in Guern- sey; in contrast to limitation (which bars a rem- 3. Initiating a Lawsuit 3.1 Rules on Pre-action Conduct
edy), prescription extinguishes a claim com- pletely. As a result, where prescription applies, it generally operates as a complete defence to a claim. (Note that there is some obiter judicial commentary recently which doubts that, in prac- tical terms, there is any difference between the two concepts.) A prescription period will stop operating when a claimant hands a summons setting out the claim to His Majesty’s Sergeant for service on the defendant, or when an application for leave to serve out of the jurisdiction is filed with the court. Prescriptive Periods Prescription periods vary depending on the nature of the claim. The main periods relevant for present purposes are those relating to: • contractual claims – six years from the date on which the breach or actionable damage occurred; • claims in tort – six years from the date on which the breach or actionable damage occurred; • trust disputes – three years, but in claims for the recovery of trust property, or if there is fraud to which the trustee was privy, no pre- scription period will apply; and • rights in realty (ie, in respect of right to and in land) – 20 years from the date of the action arising. Where a party was prevented from commencing a claim through some legal or practical impedi- ment, the customary law principle of empêch- ment d’agir may apply. The principle operates by suspending prescription from running during the period of the impediment. An impediment can last for several years, although the precise
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