JERSEY Law and Practice Contributed by: Marcus Pallot, Eleanor Davies and Christopher Tan, Carey Olsen
10.6 Powers of the Appellate Court After an Appeal Hearing The court has discretion. If the appeal is suc- cessful then the court will typically set aside the original order and substitute it for the orders sought in the appellant’s notice of appeal and/ or any orders sought by the respondent by way of cross-appeal. The court may also re-open the appeal in excep- tional circumstances. After hearing the appeal, the Court of Appeal has the power to decide whether to grant leave to appeal to the Privy Council. 11. Costs 11.1 Responsibility for Paying the Costs of Litigation The court has discretion over who pays the costs of litigation. However, the general rule is that the unsuccessful party pays the winner’s costs. Costs awards can be made in respect of all costs incurred during the litigation (ie, legal fees and disbursements). Costs will be subject to taxation by the court (the court’s cost assessment exercise) if the parties cannot agree them. The taxation process usually results in an award of between 55% and 70% of the costs incurred by the unsuccessful party depending on the circumstances of the case. Where overseas lawyers (eg, English solicitors or barristers) have been instructed, specific restrictions apply. For example, if the work could have been done by a Jersey lawyer, the costs allowed on taxation should be no greater than the amount allowed if the work had been done by a Jersey lawyer.
11.2 Factors Considered When Awarding Costs When awarding costs, the court will typically consider the parties’ conduct and any offers made. The usual costs award is costs payable by the unsuccessful party on the standard basis (on which the receiving party must prove the rea- sonableness of costs claimed). Less commonly, costs may be awarded on the indemnity basis (on which the paying party must disprove the reasonableness of costs claimed) if the conduct of one of the parties is particularly egregious. There is no formal regime for automatic costs consequences on making an offer (equivalent to the English “Part 36” offer) but the court may take into account any offers made to settle the matter before trial. These would usually have been made on a “without prejudice save as to costs” basis, meaning that they cannot be used at a trial on the merits but they can be seen by the court when it determines the question of costs. 11.3 Interest Awarded on Costs Interest is awarded on costs at the same rate that it is awarded on damages (ie, 8% above the BOE base rate running from the date of judg- ment). 12. Alternative Dispute Resolution (ADR) 12.1 Views of ADR Within the Country Mediation is easily the most popular method of ADR in Jersey. The court may stay proceedings to allow for ADR. The court’s procedural rules provide that it may stay proceedings at the invi- tation of the parties, or of its own motion.
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