Litigation in Jersey

Jersey is not part of the United Kingdom or the European Union, although it is subject to certain limited provisions of the Treaty of Rome. It is a separate jurisdiction, with its own directly elected parliament and court system.

In the 1998 Home Office Review of Regulations in the Crown Dependencies (commonly referred to as the Edwards Review) it was concluded that "Jersey has impressive arsenals of financial, company and criminal legislation, mostly similar to but not identical with UK statute law… Jersey's judicial and prosecution systems have shown themselves well able to deal with international finance centre business."

Jersey is a common law jurisdiction, whose legal system draws on both the common law of England and the ancient customary law of Normandy. In areas such as the law of torts, trusts and criminal law, the court leans heavily in favour of English law. In land and contract law it draws on Norman customary law principles adapted and developed for modern commercial needs.

The principal court is the Royal Court of Jersey, presided over by a Judge known as the Bailiff, or his deputy, together with two or more lay judges known as Jurats. In any hearing the judge decides issues of law and the Jurats decide issues of fact. There are 12 jurats in Jersey at any one time, who are elected to the ancient (honorary) role and hold office until retirement. In the case of a split decision, the judge has a casting vote.

The Royal Court exercises both civil and criminal jurisdiction. Rather like the English High Court, it hears (amongst other matters) trials of commercial disputes, as well as dealing with important interlocutory hearings and interlocutory appeals from decisions of a court officer known as a Master.
Appeals from the Royal Court lie to the Jersey Court of Appeal and from there to the Privy Council in London. The Jersey Court of Appeal has a significant reputation for the high calibre of its judges, who are in the main drawn from leading counsel in the UK, many of whom have also gone on to high judicial office there.

In procedural matters the rules of the Royal Court are to a great extent based upon the rules of the Supreme Court in England, as they were prior to the changes affected by Lord Woolf's review. However the Woolf reforms have begun to have an impact on the way in which the Royal Court manages the proceedings before it. Although there are a number of differences the procedures would, for the most part, not be unfamiliar to practitioners in the English courts.

The costs of litigating in commercial matters are likely to be slightly less than the equivalent costs in the English High Court. Jersey Advocates, who have exclusive right of audience before the Royal Court and Court of Appeal, charge on average between £310 and £510 per hour. However, unlike barristers in England, a Jersey Advocate may deal with all preparatory aspects of a case from inception to actually presenting it at trial.
Given Jersey's position as an established, leading offshore finance centre and the widespread use of Jersey companies and trusts, the Royal Court has significant experience of the various types of commercial litigation which may arise. For example, the Court is able to deal relatively speedily with highly technical applications for directions concerning trust property or the terms of a particular trust. The same also applies in relation to disputes or applications concerning the management of Jersey companies and investment funds.

The Jersey Courts, in addition, have a well-developed armoury of pre-emptive remedies available for litigants, such as interim injunctions to freeze assets, search and seizure orders and orders for discovery. These are all of considerable significance in asset tracing applications which often have an international element.

Ex parte applications for injunctions or interim relief over assets in Jersey may, depending on the complexity of the case, be brought before the Court within 24 to 48 hours of the Jersey lawyer being instructed to settle the requisite court documents. Trustee applications for directions will commonly be dealt with within one to two months of the original application (known as a Representation) being issued but, if urgent, can be dealt with within days of the lawyer being instructed. From the date of proceedings being issued in commercial disputes, trial is possible within six months to one year. If there is a particular urgency these time-scales may be reduced if the Court agrees that the action be treated as what is known as a "cause de brievété".
Jersey has arrangements for the reciprocal enforcement of judgments with the Superior Courts of England and Wales, Scotland, Northern Ireland, the Isle of Man and Guernsey. These arrangements do not, however, apply to matrimonial cases, the administration of the estates of deceased persons, bankruptcy, winding up of companies, mental health or guardianship. Judgments of courts of other jurisdictions may nevertheless be recognised and treated as res judicata under the general principles of conflicts of laws and comity. The direct enforcement of foreign taxes is, similarly to the position in England, not possible. Jersey does have reciprocal arrangements for providing assistance in bankruptcy matters with certain foreign courts, including those of Australia, Finland, Guernsey, the Isle of Man and the United Kingdom, but will assist other foreign jurisdictions in certain circumstances, and will furthermore act on requests issued by competent foreign courts or authorities for assistance in criminal and civil matters.

Although arbitration is sometimes used to settle commercial disputes it is not yet used frequently. Following the passing by the local legislature of the Arbitration (Jersey) Law 1998 which provides a legal framework for arbitration and gives effect to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, this process is likely to be used more frequently in the future. The Island's government has, in addition, made a contribution towards the running costs of the City Disputes Panel, which operates in London, with a view to encouraging dispute resolution using that body. Commercial contracts subject to Jersey law will frequently be subject to arbitration in the event of dispute. Even before the 1998 Law was introduced, these clauses enforced absolute discretion in relation to awards of costs in legal proceedings, although the general rule is that costs follow the event and the losing party pays the costs of the successful party.

The level of costs recovered is determined by taxation before the Judicial Greffier of the Royal Court. In civil interlocutory matters, which last less than a day, summary assessment of costs is possible.