JERSEY Law and Practice Contributed by: Marcus Pallot, Eleanor Davies and Christopher Tan, Carey Olsen
5.3 Discovery in This Jurisdiction Please see 5.1 Discovery and Civil Cases . 5.4 Alternatives to Discovery Mechanisms The legal system in Jersey provides for discov- ery mechanisms to identify potentially relevant documents, as described in 5.1 Discovery and Civil Cases . In addition to discovery mecha- nisms, evidence for use in litigation is also developed and admitted onto the court record by way of witness testimony in the form of sworn affidavits deposed by witnesses, to which docu- mentary evidence may be exhibited in the form of an “exhibit” to an affidavit. 5.5 Legal Privilege Jersey law recognises the concept of legal privi- lege and is similar to English principles in this area. Jersey law recognises two types of legal privilege: legal advice privilege and litigation privilege. Legal Advice Privilege Legal advice privilege covers communications made between client and lawyer which are: • confidential; • passed directly between them; and • created for the dominant purpose of obtain- ing or giving advice on the client’s legal rights and obligations. Litigation Privilege Litigation privilege covers documents which: • are confidential; • pass between lawyer and client, the lawyer and third parties or the client and third par- ties;
Specific Discovery The above describes the typical mechanisms for “general discovery” in Jersey. In addition to general discovery, a party may apply for specific discovery in respect of particular documents or a class of document believed to be in the posses- sion, custody or power of another party. Such an application will only generally be regarded as appropriate after general discovery has been undertaken. 5.2 Discovery and Third Parties As a general rule, discovery is only obtainable from persons properly joined as parties to a sub- stantive ongoing action. Information from third parties is generally only obtainable by summoning those third parties to attend as witnesses to produce documents pur- suant to a subpoena duces tecum. Exceptionally, the court has a discretionary power to make an order that a third party shall provide information by making a Norwich Phar- macal order. The court may grant a Norwich Pharmacal order against a third party to an action if satisfied that: • the applicant has a good, arguable case that they were the victim of wrongdoing; • the respondent is mixed up, even innocently, in the wrongdoing; and • it is necessary in the interests of justice to order provision of the information sought. An application to the court for a Norwich Phar- macal order may be made during the course of ongoing proceedings, or by a prospective plaintiff prior to its initiation of substantive pro- ceedings. The disclosure ordered pursuant to a Norwich Pharmacal order may take any form.
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