GUERNSEY Law and Practice Contributed by: Elaine Gray and Steven Balmer, Carey Olsen
ment terms are important to ensure that there is no risk of further dispute. For example, in a trust or boundary or dispute, the court may wish to understand the nature of the settlement reached in order to ensure that all key aspects have been addressed. Beyond these possibilities, in general, the only involvement of the court is to approve a consent order withdrawing the claim. 8.2 Settlement of Lawsuits and Confidentiality As settlements are ordinarily dealt with by way of settlement agreement but disposed of via a consent order, the terms of most settlements usually remain confidential. Less commonly, the parties wish to have the terms of settlement set down in a “Tomlin order”. 8.3 Enforcement of Settlement Agreements Settlement agreements commonly provide that an aggrieved party may sue the other for perfor- mance under that agreement; if a Tomlin Order is in place, this can be enforced through applica- tion to the court. 8.4 Setting Aside Settlement Agreements Depending on the terms of a settlement agree- ment, it is likely that to set aside an agreement a party will be required to issue fresh proceedings seeking declaratory and associated relief. 9. Damages and Judgment 9.1 Awards Available to the Successful Litigant A plaintiff has the full range of remedies available to them, including damages, declaratory orders and injunctive relief. There remains some debate in Guernsey as to whether or not specific per-
formance or mandatory injunctions are available as remedies. 9.2 Rules Regarding Damages Generally, the court will follow English rules and approaches to damages. In the absence of specific statutory legislation permitting damages that are punitive in nature (for example, under the image rights regime), the general presump- tion is against punitive damages. Under Rule 62A of the Royal Court Civil Rules, the court has the power to order interim payment of damages, usually where liability is admitted and/or where it seems to the court that the plain- tiff is likely to obtain judgment for a substantial award at trial. The Guernsey courts recently provided clarity in Pilatus (PTC) Limited v RBC Trustees (Guernsey) Limited (2021) GRC012 on the issue of reflective loss, confirming that the legal principle of reflec- tive loss does form part of the law of Guern- sey, following the UK Supreme Court decision in Marex. The commencement of the Damages (Assumed Rate of Return and Related Matters) (Enabling Provisions) (Guernsey and Alderney) Law has introduced a statutory discount rate in personal injury claims, bringing the law into line with the UK and Jersey (such rate being the subject of regulations). 9.3 Pre-judgment and Post-judgment Interest A party may claim pre- and post-judgment inter- est. The judicial rate is presently 8% but pre- judgment interest is generally reduced from this figure. As interest rates begin to rise, that position may also change; in this respect, it is anticipated that the Guernsey court would prob-
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