GUERNSEY Law and Practice Contributed by: Elaine Gray and Steven Balmer, Carey Olsen
Types of Injunctions As well as the mandatory prohibitory injunction, a freezing order (or Mareva injunction) may be granted where the plaintiff is concerned at the prospect of the defendant dealing with or other- wise disposing of their assets located within the jurisdiction. Mareva injunctions are often cou- pled with disclosure orders requiring disclosure of the whereabouts of assets in order that the freezing order can be properly exercised. Search orders (Anton Piller orders) may be grant- ed permitting forcible access to premises for the purposes of the preservation of evidence which a party may conceal or destroy. In practice, their use in Guernsey is relatively rare. Anti-suit injunctions may be granted by the Guernsey courts to prevent a respondent from commencing or continuing legal proceedings in another jurisdiction. In this regard, the Guernsey courts have followed the approach of the Eng- lish courts regarding the circumstances in which an anti-suit injunction will be granted, such as where there is an exclusive jurisdiction clause in an agreement and it would be unconscion- able, oppressive, or vexatious to allow foreign proceedings to commence or continue. Finally, an ancient Guernsey remedy, called the Clameur de Haro, is still available today. It is a customary law remedy from the 13th century which protects the occupier of land from a nui- sance, trespass or interference with the enjoy- ment of that land. 6.2 Arrangements for Obtaining Urgent Injunctive Relief The Guernsey courts will generally accommo- date any urgent application for injunctive relief and sit at short notice where necessary.
Where a party claims to have a right or duty to withhold the whole or part of a document from inspection, they must assert both the existence of that right or duty and the grounds on which they claim to have it, in writing. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief Under the Law Reform (Miscellaneous Provi- sions) (Guernsey) Law, 1987 (as amended) (the LR Law), the Royal Court has the power to grant injunctive relief where it considers it to be just and convenient to do so. Such applications can be made ex parte or on notice, depending on the circumstances. Principles for Injunctive Relief The principles whereby the court will determine whether to grant an application for injunctive relief are similar in practice to the circumstanc- es in which the English courts shall grant such relief, albeit there are some differences. Where the application is for a prohibitory injunction, the court will adopt the principles set out by the House of Lords in American Cyanamid v Ethicon [1977] 10 WLUK 126, such as: • whether or not there is a serious issue to be tried; • if damages will be an adequate remedy for the plaintiff or, indeed, for the defendant if the injunction should not have been granted; • where the balance of convenience lies; and • any other special factors that may arise. The court will generally require the plaintiff to provide certain undertakings, for example to commence proceedings within a specified time- frame and/or to pay damages for any loss suf- fered if the plaintiff does not succeed at trial.
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