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Civil proceedings introduced
Simple civil proceedings, i.e. claims in respect of contracts or civil wrongs, take place in both the Magistrate’s Court and the Royal Court. Claims in the Magistrate’s Court (“Petty Debts Court” for this purpose) can be brought up to a value of £10,000. Proceedings are commenced by way of summons served by the Sergeant. These summonses are first heard on a Thursday afternoon at 1430. A defendant might choose not to appear at all, in which case judgment will be given against him, together with the costs of bringing the proceedings (not lawyers’ costs though). A defendant might appear and admit the claim, in which case the result is the same. It is only if the defendant disputes the claim that it will be adjourned to a fixed date for trial. At the trial, the parties must bring along all the documents and witnesses they rely upon and the matter will be dealt with on that occasion. The intention is to provide a swift and simple procedure without the need for representation by Advocates. Indeed lawyers’ costs are not recoverable, win or lose. A helpful note on Petty Debts Procedure was produced by the Magistrate and can be downloaded from this page.
Claims where more than £10,000 is at stake must be commenced in the Royal Court. A summons containing the Cause (i.e. a statement of the facts setting out the basis of the claim) is drafted and served on the defendant or defendants. They are summoned to a Friday morning Court sitting at 0930. On that occasion the defendant must indicate whether or not the proceedings are disputed. If a defendant does not appear at all and there has been good service of the summons (i.e. the Court is satisfied that the defendant has received the summons), judgment with interest and costs will be entered against the defendant. If the defendant appears and indicates that the claim is partially contested then judgment may be entered for the undisputed amount, with a possible “stay” or bar on execution if there is a cross-claim which the defendant wishes to make. Assuming the matter is disputed, it is placed by the Judge on the pleading list (we talk of placing a matter inscrite, or on the rôle des causes à plaider).
The next stage is for the defendant to produce his defences, i.e. his written case in answer to the claim. Unless the time limit is extended by agreement or by the Court, these must be filed at the Greffe within 28 days of the matter being placed inscrite. Defences are made up of exceptions (or preliminary pleas in bar), and niances (denials and admissions or non-admissions of the allegations made in the Cause, from the French word for “to deny”) and prétentions (the positive case a defendant puts forward, from the French word for “to claim”). A defendant may also allege that the Cause is not sufficiently clearly or fully pleaded to allow him to answer the case (this objection is called an exception de forme, literally objecting to the form of the pleading). The defendant will plead various questions which he requires to be answered before producing his final defences (but he must still plead his defences as fully as he can). These questions are usually answered, unless the defendant is not entitled to the information requested or otherwise abusing the court process. Another kind of preliminary objection is where a defendant alleges that there is some fundamental reason why the case should not proceed against him (this is called an exception de fond, literally a fundamental objection) and usually arises because a defendant says that the claim has been brought out of time, or prematurely, or even against the wrong party. When any exceptions have been dealt with the case will either be struck out (i.e. if an exception de fond succeeds before the Judge) or the defences will be completed.
A defendant may raise what is called a counterclaim (the cross-claim we mentioned earlier) in addition to true defences. This is typically where the defendant alleges that the plaintiff has (also) wronged him. The defendant makes his own claim for damages which he sets up in opposition to the claim, either to extinguish it completely or in part. The counterclaim proceeds as if it were an independent claim.
After pleadings have been closed (i.e. the written cases have been set out conclusively) the next stage is “disclosure”, which means the exchange of lists of documents in the possession, custody or power (i.e. control) of each party to the litigation. Disclosure must be given of all documents which either do, or once did, exist, relating to the matters in issue between the parties this includes not only documents favourable to a party but also those unfavourable. After disclosure is complete, experts’ reports will be exchanged, if they are relied upon. For example in personal injury litigation medical experts’ reports will be exchanged.
There may be various “interlocutory” (i.e. interim) hearings prior to a final hearing to deal with issues such as whether proper disclosure has been given. Other issues might concern whether summary judgment should be granted i.e. on the basis that a plaintiff’s claim is so strong that there is no arguable defence. A defendant might seek security for his costs from a plaintiff, typically where the plaintiff is resident outside Guernsey. This requires a plaintiff to pay money into court as security for the defendant’s legal costs if the plaintiff’s claim fails.
Eventually all interlocutory matters will have been dealt with and a trial date can be applied for and fixed. A civil trial in the Royal Court takes place before a Judge (Bailiff, Deputy Bailiff or Lieutenant Bailiff) and, unless these have been dispensed with by agreement between the parties, three or more Jurats. The Judge deals with issues of law and procedure, the Jurats deal with issues of fact. The Jurats are akin to a civil jury in this context. There is a right of appeal to the Court of Appeal (sometimes leave or permission is required) and from there to the Privy Council in London, although this is rare.
The vast majority of cases settle without going to trial, or else are resolved in the Royal Court or the Court of Appeal.
The Royal Court pictured in 2004 during the Rencontre. The Court would not normally be this full!
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