GUERNSEY Law and Practice Contributed by: Elaine Gray and Steven Balmer, Carey Olsen
10.6 Powers of the Appellate Court After an Appeal Hearing The Court of Appeal has power to order a rehearing, a new trial, or the setting aside of the judgment. It will invariably also make an order for costs of the appeal, and in appeals from the Magistrate’s Court it will also make an order on costs of the proceedings at first instance, at its discretion. 11. Costs 11.1 Responsibility for Paying the Costs of Litigation Advocates’ fees incurred in the Magistrate’s Court are not recoverable; instead, there are only (limited) disbursement-type costs recoverable. In proceedings before the Royal Court, the Court has a wide discretion to make such order for costs as it thinks just. It is usual for the Court to make an order that the successful party recov- ers its costs from the losing party (costs follow the event), but the courts have also adopted an issue-based approach to costs where appropri- ate. The maximum advocates’ fees that are “recover- able” are “the costs of and incidental to the pro- ceedings which have been incurred” (the Royal Court (Costs and Fees) Rules, 2012); such costs must be both reasonable in their amount and incurred reasonably. Not all costs are likely to be recoverable and those that are will be capped by the need to be assessed as to their reasonable - ness. The amount of advocates’ fees incurred per hour that are recoverable are capped overall, currently at an hourly rate of GBP325 (subject
to an RPI increase effective from 1 January of each year). Non-Guernsey lawyers’ costs are generally disallowed, unless there is some spe- cific and legitimate reason for foreign lawyers to have been involved, such as a novel or complex issue of law. Guernsey courts can make orders as to costs on a number of bases – principally the standard or indemnity basis. Where costs are awarded on an indemnity basis, on any taxation, all of that party’s costs will be allowed unless the costs are shown to be of an unreasonable amount or to have been unreasonably incurred, with any doubt being resolved in favour of the receiving party. By contrast, only recoverable costs are awarded on the standard basis and any doubt is resolved in favour of the paying party. The court can also make flexible costs orders, for example making an award on a partial rather than full indemnity basis. Where the parties cannot agree on the amount of costs to be paid under a costs order, the paying party should seek to have the costs “taxed”. An application for taxation must be made within one month immediately following the receipt of the opponent’s bill. 11.2 Factors Considered When Awarding Costs The court will have regard to all relevant circum- stances when awarding costs, including the out- come, the process undertaken and the extent to which costs have been incurred due to a party’s conduct. For example, where a party has plead- ed or pursued or defended an action, claim or counterclaim unreasonably, scandalously, frivo- lously or vexatiously, or otherwise has abused the process of the court, this is likely to result in
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