Service of Process
and Taking of Evidence (Jersey) Law 1960
A LAW to regulate the service within Jersey
of process of courts outside Jersey, and vice versa, and to provide for taking
evidence in proceedings pending or in contemplation before courts outside Jersey[1]
Commencement
[see endnotes]
WHEREAS, on the twenty-seventh day of June, 1562,
Her late Majesty Queen Elizabeth I granted, by Letters Patent under the Great
Seal, a Charter to the Bailiff and Jurats and other natives and inhabitants of
the Island of Jersey, the said Charter containing a confirmation of all and
singular the laws and customs duly and lawfully used in the Island, and also
granting and confirming to the Bailiff and Jurats and all other magistrates,
officers of Justice, and any other persons appointed there in any office or
duty, full, absolute and complete authority touching all sorts of pleas,
processes, law suits, actions, disputes and cases of any kind whatsoever arising
in the Island, as well real, personal and mixed, as criminal and capital, and
there and not elsewhere to plead, proceed with, prosecute and defend all these
things and in the same matters either to proceed or supersede, to examine,
hear, end, acquit, condemn, decide and put their sentences into execution
according to the laws and customs of the Island theretofore used and approved;
Whereas the said Charter contains a clause
which, translated from the original Latin, reads as follows –
“Moreover we desire and for us our
heirs and successors by these presents we grant to the aforesaid Bailiff and
Jurats and other natives and inhabitants within the Island and other maritime
places before mentioned that none of them for the future should be cited
apprehended or drawn into any lawsuit by any writs or process issued from any
of our Courts or other Courts within our kingdom of England or any of them or
in any other way be compelled to appear or reply without the Island and
maritime places aforesaid before any Judges Courts Magistrates or officers of
Justice of ours or of others concerning or touching any
thing suit matter or cause whatsoever arising within the aforesaid
Island but that the said Islanders and any one of them notwithstanding
citations apprehensions writs and processes of the kind mentioned may and might
lawfully and with impunity in the Island and aforesaid places reside remain be
at rest and there await justice without any corporal punishment or pecuniary
fine ransom or loss on that account to be incurred or suffered and without any
offence or cause of contempt or contumacy as far as concerns our heirs and
successors on them or on any one or more of them on that account to be
inflicted imposed or otherwise adjudged. Except only such cases as by the laws
and customs of the Island and aforesaid places may be reserved to our royal
cognisance and examination or by our royal right or privilege ought to be
reserved.”;
Whereas it is desirable to make provision
for the service in the Island of process of courts outside the Island, without
prejudice to the privileges and immunities conferred by the said Charter, and
for the service outside the Island of process of Jersey Courts;
Whereas it is desirable to make provision
for the taking of evidence in relation to civil and commercial matters pending
before courts and tribunals outside the Island;
And Whereas it is desirable to make
provision for the implementation of agreements entered into between Her Majesty
and the Governments of foreign countries in connexion with the matters
aforesaid;
THE STATES, subject to the
sanction of Her Most Excellent Majesty in Council, have adopted the following
Law –
PART 1
SERVICE OF PROCESS
1 Service within Jersey of process of courts outside Jersey
(1) For the avoidance of
doubt, it is hereby declared that it is not unlawful for any person to serve on
any other person within Jersey any process or citation in any civil or
commercial matter summoning or citing that other person to appear before a
court or tribunal of any country outside Jersey, whether within or without His
Majesty’s dominions.[2]
(2) Rules of Court may be
made for regulating the service in Jersey of any process or citation in any
civil or commercial matter pending before a court or tribunal of a foreign
country –
(a) upon
a letter of request from such court or tribunal transmitted by the Secretary of
State with an intimation that it is desirable that effect be given to the same;
and
(b) for
giving effect to any agreement between His Majesty and the government of that foreign
country in the matter of the service of any such process or citation as
aforesaid.[3]
(3) Nothing in this Article
shall be deemed to import the recognition of jurisdiction in a court or
tribunal outside Jersey in any thing, suit, cause or
matter whatsoever in which that court or tribunal is not now recognized by the law
of Jersey as having jurisdiction.
2 Service outside Jersey of process of Jersey courts
Any process in any civil or commercial matter summoning or citing a person
outside Jersey to appear before a court of Jersey may be served on that person
in such cases and in such manner as may be prescribed by Rules of Court.
PART 2
TAKING OF EVIDENCE IN RELATION TO CIVIL AND COMMERCIAL MATTERS
PENDING or in contemplation BEFORE COURTS AND TRIBUNALS OUTSIDE Jersey[4]
3 Application to Royal Court for assistance in obtaining evidence for
civil proceedings in a court or tribunal outside Jersey[5]
Where an application is made to the Royal Court for an order for
evidence to be obtained in Jersey and the Court is satisfied –
(a) that the application is
made in pursuance of a request issued by or on behalf of a court or tribunal
(the “requesting court”)
exercising jurisdiction in a country or territory outside Jersey; and
(b) that the evidence to which
the application relates is to be obtained for the purposes of civil proceedings
which either have been instituted before the requesting court or whose
institution before that court is contemplated,
the Royal Court shall have the powers conferred on it by the
provisions of this Part of this Law.
4 Power of Royal Court to give effect to application for assistance[6]
(1) Subject to the
provisions of this Article, the Royal Court shall have power, on any such
application as is mentioned in Article 3, by order to make such provision
for obtaining evidence in Jersey as may appear to the court to be appropriate
for the purpose of giving effect to the request in pursuance of which the
application is made; and any such order may require a person specified therein
to take such steps as the Court may consider appropriate for that purpose.
(2) Without prejudice to
the generality of paragraph (1) but subject to the provisions of this Article,
an order under this Article may, in particular, make provision –
(a) for the
examination of witnesses, either orally or in writing;
(b) for
the production of documents;
(c) for
the inspection, photographing, preservation, custody or detention of any
property;
(d) for
the taking of samples of any property and the carrying out of any experiments
on or with any property;
(e) for
the medical examination of any person;
(f) without
prejudice to sub-paragraph (e), for the taking and testing of samples of
blood from any person.
(3) An order made under
this Article shall not require any particular steps to be taken unless they are
steps which can be required to be taken by way of obtaining evidence for the
purpose of civil proceedings in the Royal Court (whether or not proceedings of
the same description as those to which the application for the order relates);
but this paragraph shall not preclude the making of an order requiring a person
to give testimony (either orally or in writing) otherwise than on oath where
this is asked for by the requesting court.
(4) An order under this Article
shall not require a person –
(a) to
state what documents relevant to the proceedings to which the application for
the order relates are or have been in his or her possession, custody or power;
or
(b) to
produce any documents other than particular documents specified in the order as
being documents appearing to the Royal Court to be, or to be likely to be, in his
or her possession, custody or power.
5 Privilege of witnesses[7]
(1) A person shall not be
compelled by virtue of an order under Article 4 to give any evidence which
he or she could not be compelled to give –
(a) in
civil proceedings in Jersey; or
(b) subject
to paragraph (2), in civil proceedings in the country or territory in
which the requesting court exercises jurisdiction.
(2) Paragraph (1)(b)
shall not apply unless the claim of the person in question to be exempt from
giving the evidence is either –
(a) supported
by a statement contained in the request (whether it is so supported
unconditionally or subject to conditions that are fulfilled); or
(b) conceded
by the applicant for the order,
and where such a claim made by any person is not supported or
conceded he or she may (subject to the other provisions of this Article) be
required to give the evidence to which the claim relates but that evidence shall
not be transmitted to the requesting court if that court, on the matter being
referred to it, upholds the claim.
(3) Without prejudice to paragraph (1),
a person shall not be compelled by virtue of an order under Article 4 to
give any evidence if his or her doing so would be prejudicial to the security
of the British Islands or any of them; and a certificate signed by or on behalf
of the Lieutenant-Governor to the effect that it would be so prejudicial for
that person to do so shall be conclusive evidence of the fact.
(4) In this Article
references to giving evidence include references to answering any question and
to producing any document and the reference in paragraph (2) to the
transmission of evidence given by a person shall be construed accordingly.
6 Power of Royal Court to assist in obtaining evidence for
international proceedings[8]
(1) The provisions of this Part
of this Law other than this Article shall apply to the Court of Justice of the
European Union.[9]
(2) The States may by Regulations
direct that, subject to such exceptions, adaptations or modifications as may be
specified in the Regulations the provisions of this Part shall have effect in
relation to international proceedings of any description specified in the Regulations.
(3) In this Article “international proceedings” means
proceedings before the International Court of Justice or any other court,
tribunal, commission, body or authority (whether consisting of one or more
persons) which, in pursuance of any international agreement or any resolution
of the General Assembly of the United Nations, exercises any jurisdiction or
performs any functions of a judicial nature or by way of arbitration,
conciliation or inquiry or is appointed (whether permanently or temporarily)
for the purpose of exercising any jurisdiction or performing any such
functions.
7 Interpretation of Part 2[10]
In this Part –
“civil proceedings” in relation to the requesting court,
means proceedings in a civil or commercial matter;
“property” includes any land, chattel or other corporeal
property of any description;
“request” includes any commission, order or other
process issued by or on behalf of the requesting court; and
“requesting court” has the meaning given in Article 3.
8 Examination of witnesses to be taken upon oath
Every person authorized to take the examination of witnesses by any order
made in pursuance of this Part of this Law may take all such examinations upon
the oath of the witness, and, for that purpose, shall have power to administer
an oath.
9 Expenses of witnesses
Every person whose attendance is required in pursuance of any order
made under this Part shall be entitled to the like payment as upon attendance
as a witness in civil proceedings before the Royal Court.
10 False unsworn statement [11]
If any person, in giving any testimony (either orally or in writing)
otherwise than on oath, where required to do so by an order under Article 4
of this Law, makes a statement –
(a) which he or she knows
to be false in a material particular; or
(b) which is false in a
material particular and which he or she does not believe to be true,
he or she shall be guilty of an offence and shall be liable on
conviction to imprisonment for a term not exceeding 2 years or a fine or both.
PART 3
GENERAL
11 Rules of Court
The power to make Rules of Court under the Royal Court (Jersey)
Law 1948, shall include a power to make Rules of Court –
(a) for any purpose for
which Rules of Court may be made under Part 1; and
(b) for the purposes of
giving effect to Part 2 and regulating the procedure thereunder.
12 Citation
This Law may be cited as the Service of Process and Taking of
Evidence (Jersey) Law 1960.