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14 August 2018
In Summer 2017 Jersey's Royal Court Rules were amended and 11 new practice directions came into force. These aim to improve access to justice, streamline the civil justice process and, where possible, reduce the risks and costs associated with litigation by encouraging the early resolution of cases to avoid court proceedings.
There is now an overriding objective for the Royal Court to deal with cases "justly and at a proportionate cost" and a requirement that the parties assist the court to further this overriding objective.
This new practice direction is intended to encourage parties to exchange material information about a legal action being considered by a potential plaintiff and allow parties an opportunity to settle the claim before proceedings are commenced. Non-compliance may result in an adverse costs order.
Placing cases on pending list and adjournment by consent before pleadings
This relates to adjournments and allows parties to agree for a matter that has already been tabled to be adjourned for a period up to four weeks without leave of the court. If a longer period is needed, the parties must file an agreed written statement justifying the time period required.
Applications for summary judgment
This new practice direction broadens the summary judgment power in Jersey. The amendments include the introduction of a 'no real prospect of success' test and provisions enabling a defendant to seek summary judgment against a plaintiff.
Requests for information
The Royal Court's power has been extended to require any party to provide clarification of any matter in dispute in the proceedings, or give additional information in relation to any such matter – regardless of whether the matter is contained or referred to in a pleading. Such a request must be concise and relate only to matters that are reasonably necessary and proportionate. It must also be served on the other party before applying to the court.
Previously, a directions hearing would be fixed only after pleadings had closed. The amended practice direction empowers the court to automatically notify the parties of the date when such a hearing is to take place after the matter has been placed on the pending list – usually within three months. The practice direction also provides guidance as to what the parties should consider in an application for directions. It imposes a duty on the parties to:
If directions are not agreed, the parties must set out the directions that they require and give a summary of the reasons for the requirement, along with supporting material.
One of the largest areas of contention in litigation is costs – be it hourly rates, the threat of significant adverse cost orders or underestimation of how much litigation might cost. The new practice direction applies to any case where the value of the claim – including any counterclaims – is less than £500,000, or where it is disputed by one of the parties on bona fide grounds that the value of the claim is less than £500,000. A costs budget must be filed by all parties within seven days before the hearing of the first summons for directions.
Discovery – hard copy and electronic
Previously, the discovery obligation was absolute and extended to all relevant documents. The new practice direction empowers the Royal Court to limit a party's disclosure obligations to what is reasonable and proportionate.
A further practice direction deals with documents held in electronic form (previously, no distinction was made between documents in electronic and hard copy form). This new practice direction codifies the general principles and process for making discovery of electronic documents in a proportionate and cost-effective manner. It emphasises the need for the parties to discuss cooperatively the approach to electronic discovery and agree the process to be followed using appropriate technology (as far as possible in advance of the first directions hearing). The practice direction also obliges the parties to ensure that electronic documents are preserved as soon as litigation is contemplated.
This new practice direction provides guidance on the approach to applications to adduce expert evidence under Rule 6/20. In particular, it limits the number of expert witnesses that may be called and requires, where possible, that the parties endeavour to instruct the same expert where the claim involves more than one plaintiff or defendant. Parties are thus encouraged to instruct a single joint expert in light of the overriding objective to deal with cases fairly and expeditiously.
Offers to settle
New rules have been introduced to encourage parties to put forward a proposal to settle a matter. If such an offer is declined, it may be taken into account when the court addresses the question of costs.
Summary assessment of costs
This practice direction has been amended. A new process has been introduced, pursuant to which the costs of interlocutory hearings (other than in respect of a summons for directions) of less than a day can be summarily assessed.
The changes to the Royal Court Rules and the introduction of the new practice directions mark a substantial change in civil procedure in Jersey. They bring the process more in line with the principles and approach to case management set out in the Civil Procedure Rules in England and Wales.
For further information on this topic please contact Nicola Roberts or Leon Hurd at Ogier by telephone (+44 1534 514 000) or email (firstname.lastname@example.org or email@example.com). The Ogier website can be accessed at www.ogier.com.
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