GUERNSEY Law and Practice Contributed by: Elaine Gray and Steven Balmer, Carey Olsen
• which are required to be disclosed by a rel- evant practice direction. The duty to disclose extends to documents that are or have previously been under a party’s con- trol. A “document” includes anything in which information of any description is recorded and therefore encompasses any electronic media, mobile devices, as well as data stored on cloud services. Disclosure Lists Disclosure is done via a list, often using an e-dis- closure platform. Although there is no prescribed form for the list, it must identify: • documents which the party claims to be able to withhold from inspection under a right or duty (eg, because the document is subject to legal professional privilege) (see 5.5 Legal Privilege ); and • any documents that are no longer in their control (and an indication of what has hap- pened to those documents). The list must also include a disclosure state- ment, which explains the extent of any search that has been undertaken and a certification that the person giving the statement understands their duty to make disclosure and has fulfilled that duty to the best of their knowledge. 5.4 Alternatives to Discovery Mechanisms Guernsey has a disclosure regime, therefore there is no need for an alternative mechanism for discovery. 5.5 Legal Privilege Guernsey recognises the concept of legal pro- fessional privilege. A claim to privilege will gener- ally be upheld where a person seeks legal advice
from a lawyer (legal advice privilege) and/or where advice is sought in relation to threatened or actual proceedings (litigation advice privilege). In broad terms, Guernsey adopts English prin- ciples in relation to legal privilege. As a con- sequence, although there is no reported case law in relation to the position of external and in-house counsel, it is anticipated that Guern- sey will follow the position adopted in England and Wales including the tests set out in the RBS Rights Issues and Three Rivers District Council litigations. Where, within the context of a disclosure exer- cise, a party claims that a document is covered by legal professional privilege, this claim to privi- lege should be set out in the list of documents and inspection resisted. In that event, the Guern- sey court will generally be slow to interfere with a prima facie, valid claim to privilege. In the event that a party accidentally discloses a privileged document, the inspecting party may (in rare cases) be permitted to make use of the document or its contents and then only with the leave of the court. 5.6 Rules Disallowing Disclosure of a Document Notwithstanding the general duty of disclosure, a party may assert a right or a duty to not dis- close a document. Where a party claims a public interest immunity from disclosure, they should make an ex parte application to the court for an order permitting them to withhold the document from disclosure. Where the court makes such an order, that order must not be served on anyone else and must not be open to inspection by any- one, unless the court orders otherwise.
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