Royal Court
Rules 2004
Made 16th December 2004
Coming into force 1st
February 2005
THE SUPERIOR NUMBER OF THE ROYAL COURT, in pursuance of Article 11
of the Royal Court
(Jersey) Law 1948,[1] Article 2 of the Law Reform (Miscellaneous
Provisions) (Jersey) Law 1967,[2] and of all other powers enabling
it in this behalf, has made the following Rules –
PART 1
INTERPRETATION
1/1 General
definitions
(1) In
these Rules, unless the context otherwise requires –
“action”
includes proceedings on a representation;
“Court”
means any division of the Royal Court, the Bailiff or, except in the provisions
of these Rules mentioned in Schedule 1, the Greffier;
“FAX”
means the making of a facsimile copy of a document by the transmission of
electronic signals;
“filed”
means filed in the Judicial Greffe;
“Greffier”
means the Judicial Greffier;
“hearing list” means the list so called by virtue of Rule 6/27(1);
“hearsay evidence” means evidence consisting of hearsay within the meaning of
Article 1(1) of the Civil Evidence (Jersey)
Law 2003;[3]
“Inferior Number” means the Inferior Number of the Royal Court;
“office copy”, in relation to a document means a copy of the document
filed in, or issued out of, the Judicial Greffe and signed by the Greffier;
“pending list” means the list so called by virtue of Rule 6/6;
“proceedings” means any proceedings in the Court howsoever commenced and
includes any judgment given by default;
“Superior Number” means the Superior Number of the Royal Court;
“Table” means the list referred
to in Rule 6/5(1).
(2) A
reference in these Rules to a plaintiff or a defendant, if the context admits,
includes a reference to –
(a) a
representor or party making a counterclaim or any party (however described) for
the moment in the position of plaintiff;
(b) a
respondent or defendant to a counterclaim or any party (however described) for
the moment in the position of defendant; or
(c) a
third party making or opposing any claim,
as the case may be, in any proceedings.
1/2 Meaning of
“month”
Without prejudice to Part 1 of the Schedule to the Interpretation (Jersey) Law 1954,[4] “month”, where
it occurs in any judgment, order, direction or other document forming part of
any proceedings in the Court, means a calendar month unless the context
otherwise requires.
1/3 Reckoning
periods of time
(1) Any
period of time fixed by rules of court or by any judgment, order or direction
for doing any act shall be reckoned in accordance with this Rule.
(2) When
the act is required to be done within a specified period after or from a
specified date, the period begins immediately after that date.
(3) When
the act is required to be done within or not less than a specified period
before a specified date, the period ends immediately before that date.
(4) When
the act is required to be done a specified number of clear days before or after
a specified date, at least that number of days must intervene between the day
on which the act is done and that date.
(5) If,
apart from this paragraph, the period in question, being a period of 7 days
or less includes a Saturday, Sunday, public holiday or bank holiday, Christmas
Day or Good Friday, that day is excluded.
(6) In
paragraph (5) “public holiday” and “bank holiday”
mean, respectively, a day appointed to be observed as a public holiday or as a
bank holiday under the Public Holidays and
Bank Holidays (Jersey) Law 1951.[5]
1/4 Extension
of time in respect of days when the offices of the Viscount or the Greffier are
closed
If the time prescribed by rules of court, or by any judgment, order
or direction, for doing any act before the Greffier or at the offices of the
Viscount or the Greffier expires on a Sunday or other day on which those
offices are or are required to be closed and, by reason thereof, that act
cannot be done on that day, the act is in time if done on the next day on which
those offices are open.
1/5 Power
to extend and abridge time
(1) The
Court or the Viscount may, on such terms as either thinks just, by order extend
or abridge the period within which a person is required or authorized by rules
of court or by any judgment, order or direction to do any act in any
proceedings.
(2) The
Court or the Viscount may extend any period referred to in paragraph (1) although
the application for extension is not made until after the expiration of that
period.
(3) The
period within which a person is required by rules of court or by any order or
direction to serve, file or amend any pleading or other document may be
extended by consent in writing without an order being made for that purpose.
PART 2
SITTINGS OF THE COURT
2/1 Terms
The terms for sittings of the Court are –
(a) the
Michaelmas term, beginning on the second Thursday in September and ending on
the Friday preceding Christmas Day. But if Christmas Day falls on a Friday or a
Saturday, the term shall end on the Friday of the preceding week, or if it
falls on a Sunday, the term shall end on the preceding Wednesday;
(b) the
Hilary term, beginning on the first Monday after the 6th day of January and ending
on the Friday preceding Holy Week. But if the 6th day of January falls on a
Monday or a Tuesday, the term shall begin on the following Thursday; and
(c) the
Trinity term, beginning on the first Wednesday after Easter Day and ending on
the last Friday in July.
2/2 General
provisions regarding sittings
The Court may not sit, unless the Bailiff otherwise directs –
(a) on
Christmas Day, Good Friday or a Sunday;
(b) on
any day appointed under the Public Holidays
and Bank Holidays (Jersey) Law 1951,[6] to be observed as a public
holiday; or
(c) on
the Thursday or Saturday of Holy Week,
but, subject as aforesaid and to Rule 3/3, the Court may sit on any day
of the year and at any hour for the transaction of any business.
2/3 Ordinary
sittings of the Héritage and Samedi divisions
(1) Ordinary
sittings of the Héritage and Samedi divisions shall be held on each Friday
unless the Court otherwise directs. But if the Friday is one on which, by
reason of these Rules or of any other enactment, the Court may not sit, the
sitting shall be held on the first available day of the following week or as
the Court shall direct.
(2) Ordinary
business shall normally be disposed of as follows –
(a) up
until 1.00 p.m., public business; and
(b) in
the remainder of the afternoon, civil causes and matters.
2/4 Chefs
Plaids d’Héritage
The Chefs Plaids d’Héritage
shall sit on the first day of the Michaelmas term or on such other day, within
one week either side of the first day of the Michaelmas term, as the Bailiff shall
direct.
PART 3
JURISDICTION
3/1 Jurisdiction
of the Héritage, Family, Probate and Samedi divisions
(1) The
jurisdiction of the Héritage division is the determination of –
(a) actions
relating to the ownership of immovables;
(b) subject
to Article 28 of the Loi (1851) sur
les testaments d’immeubles,[7] actions relating to the
division of immovables;
(c) actions
relating to the annulment of hereditary contracts;
(d) actions
relating to the fixing of boundaries; and
(e) actions
relating to the assignment of rentes.
(2) The
jurisdiction of the Family division is the determination of –
(a) matters
referred to in Article 3 of the Matrimonial
Causes (Jersey) Law 1949;[8]
(b) proceedings
seeking a declaration as to the validity of a marriage;
(c) applications
referred to the Court under Article 5, and appeals to the Court under
Article 10, of the Separation and
Maintenance Orders (Jersey) Law 1953;[9]
(d) applications
under –
(i) the Adoption (Jersey) Law 1961,[10]
(ii) the Marriage of Infants (Jersey) Law 1961,[11]
(iii) Article 6 or 7 of the Legitimacy (Jersey) Law 1973;[12]
(e) applications
or proceedings pursuant to the Maintenance
Orders (Facilities for Enforcement) (Jersey) Law 2000;[13]
(f) proceedings
for an injunction for the protection of a child or proceedings in respect of a
child pursuant to the Children (Jersey) Law
2002[14] or an application in
proceedings (other than criminal or quasi-criminal proceedings) under any
enactment for the time being in force relating to the care and protection of
children or otherwise proceedings for custody and protection or repatriation of
minors pursuant to the inter jurisdictional powers of the Court in cases of
child abduction.
(3) The
jurisdiction of the Probate division is that set out in Article 2 of the Probate (Jersey) Law 1998.[15]
(4) The
jurisdiction of the Samedi division is the determination of all matters not
within the jurisdiction of the Héritage division, the Family division or
the Probate division.
3/2 Transfer
between divisions
A cause or matter may, at any stage of the proceedings therein, be
transferred from one division of the Court to another by order of the Court
made in the division in which the cause or matter is proceeding.
3/3 Institution
and hearing of actions
An action before any division of the Court, including an action to
witness the confirmation of an order of justice, may be instituted either in
vacation or in term but, unless the Court is satisfied that there is urgent
need for the hearing of the action in vacation or the Court and the parties
agree to a hearing in vacation, the hearing shall not take place in vacation.
3/4 Héritage
and Family divisions
(1) The
Héritage and Family divisions may award damages and such other relief as
may be awarded by the Samedi division.
(2) Proceedings
before the Héritage division in which relief by virtue of this Rule is
sought shall be instituted by order of justice.
(3) An application
for an injunction in the Family division shall be made by order of justice.
3/5 Jurisdiction
of the Inferior Number in criminal matters
(1) The
Inferior Number may impose imprisonment for a period not exceeding
4 years. If two or more terms of imprisonment are imposed to run
consecutively the aggregate of such terms shall not exceed 4 years.
(2) If
a person pleads guilty before or is found guilty by the Inferior Number and the
Inferior Number is of the opinion that there should be imposed on that person a
term of imprisonment in excess of that which it is empowered by paragraph (1)
to impose, it shall commit that person to the Superior Number for sentence.
(3) In
this Rule “imprisonment” does not include a term of imprisonment
for failure to pay a fine or other penalty.
3/6 Jurisdiction
of the Bailiff
In any cause or matter wherein, pursuant to Article 13(1) of
the Royal Court (Jersey) Law 1948,[16] the Bailiff is sole judge,
the Inferior Number is properly constituted if it consists of the Bailiff
alone, and the Bailiff alone shall award costs.
3/7 Breaches
of injunctions
(1) An
application for a party to be convened to answer for an alleged breach of an
injunction may be heard by the Bailiff alone and may be made in chambers.
(2) If
any such application is heard in the absence of the Greffier –
(a) the
Bailiff shall make the order in writing and notify the Greffier thereof;
(b) the
applicant shall file a copy of the order with the Judicial Greffier within one
hour of the making of the order by the Bailiff unless the order be made out of
normal working hours in which case the copy of the order shall be filed before
9.30 a.m. on the next working day.
3/8 Bailiff’s
jurisdiction in relation to certain representations
(1) A
representation containing an interim injunction may be presented to the Bailiff
in chambers and, in respect thereof, the Bailiff shall have the same powers as
the Inferior Number would have in relation to the service of the proceedings,
the convening of parties and the making of the interim injunction and any order
incidental thereto.
(2) If
the Bailiff makes an order pursuant to paragraph (1) in the absence of the
Greffier, the Bailiff shall make the order in writing and notify the Greffier
thereof.
PART 4
PARTIES TO PROCEEDINGS
4/1 Plaintiffs
(1) A person
not ordinarily resident in Jersey may institute proceedings before the Court without
having to be represented in the Island by an attorney.
(2) Every
plaintiff must give an address for service in Jersey. If a plaintiff does not
do so, but has, at any time, been legally represented in relation to the
proceedings, the address for service shall be deemed to be the address of the
last advocate or solicitor who represented that plaintiff.
(3) If
at any time the Court is satisfied that a plaintiff will not receive notice of
documents sent to or left at the address given or deemed to be given pursuant
to paragraph (2) or that a plaintiff has no address for service in Jersey,
the Court may, on application by any party to the proceedings, strike out the
plaintiff’s claim.
(4) Any
plaintiff may be ordered to give security for costs.
4/2 Actions
by and against minors
(1) A
minor may commence, prosecute, defend, intervene in, or make any application
in, any action before the Court by a guardian ad litem
appointed for that purpose.
(2) An
application for the appointment of a guardian ad litem
may be made ex parte to the Court, and if made
by a minor it shall be made through the minor’s next friend.
(3) This
Rule shall not apply to matters referred to in Article 3 of the Matrimonial Causes (Jersey) Law 1949.[17]
4/3 Representative
proceedings
(1) When
numerous persons have the same interest in any proceedings, not being such
proceedings as are mentioned in Rule 4/4, the proceedings may be commenced
and, unless the Court otherwise orders, continued by or against any one or more
of them as representing all or as representing all except one or more of them.
(2) At
any stage of proceedings under this Rule the Court may, on the application of
the plaintiff and on such terms, if any, as it thinks fit, appoint any one or
more of the defendants, or one or more of the persons who have the same
interest in the proceedings as the defendants, to represent all, or all except
one or more, of those persons in the proceedings; and where, in the exercise of
the power conferred by this paragraph, the Court appoints a person not named as
a defendant, it shall make an order adding that person as a defendant.
(3) A
judgment or order given in proceedings under this Rule shall be binding on all
the persons as representing whom the plaintiffs sue or, as the case may be, the
defendants are sued, but shall not be enforced against any person not a party
to the proceedings except with the leave of the Court.
(4) An
application for the grant of leave under paragraph (3) must be made by
summons which must be served personally on the person against whom it is sought
to enforce the judgment or order.
(5) Notwithstanding
that a judgment or order to which any such application relates is binding on the
person against whom the application is made, that person may dispute liability
to have the judgment or order enforced against him or her on the ground that by
reason of facts and matters particular to the case, that person is entitled to
be exempted from such liability.
(6) The
Court hearing an application for leave under paragraph (3) of this Rule
may order the question whether the judgment or order is enforceable against the
person against whom the application is made to be tried and determined in any
manner in which any issue or question in any proceedings may be tried and
determined.
4/4 Representation
of interested persons who cannot be ascertained, etc.
(1) In
any proceedings concerning –
(a) the
estate of a deceased person;
(b) property
subject to a trust; or
(c) the
construction of a written instrument including an enactment,
the Court, if satisfied that it is expedient to do so, and that any
of the conditions in paragraph (2) is met, may appoint one or more persons
to represent any person (including an unborn person) or class who is or may be
interested (whether presently or for any future, contingent or unascertained
interest) in or affected by the proceedings.
(2) The
conditions referred to in paragraph (1) are –
(a) that
the person, the class or some member of the class, cannot be ascertained or
cannot readily be ascertained;
(b) that
the person, class or some member of the class, though ascertained, cannot be
found;
(c) that,
though the person or the class and the members thereof can be ascertained and
found, it appears to the Court expedient (regard being had to all the
circumstances, including the amount at stake and the degree of difficulty of
the point to be determined) to exercise the power under paragraph (1) for
the purpose of saving expense.
(3) If,
in any proceedings to which paragraph (1) applies, the Court exercises the
power conferred by that paragraph, a judgment or order of the Court given or
made when the person or persons appointed in exercise of that power are before
the Court shall be binding on the person or class represented by the person or
persons so appointed.
(4) If,
in any such proceedings, a compromise is proposed and some of the persons who
are interested in, or who may be affected by, the compromise are not parties to
the proceedings (including unborn or unascertained persons) but –
(a) there
is some other person with the same interest before the Court who agrees to the
compromise or on whose behalf the Court sanctions the compromise; or
(b) the
absent persons are represented by a person appointed under paragraph (1)
who so agrees,
the Court, if satisfied that the compromise will be for the benefit
of the absent persons and that it is expedient to exercise this power, may
approve the compromise and order that it shall be binding on the absent
persons, and they shall be bound accordingly except where the order has been
obtained by fraud or non-disclosure of material facts.
4/5 Representation
of beneficiaries by trustees, etc.
(1) Proceedings
may be brought by or against trustees, executors or administrators in their
capacity as such without joining any of the persons having a beneficial
interest in the trust or estate as the case may be; and any judgment or order
given or made in those proceedings shall be binding on those persons unless the
Court in the same or other proceedings otherwise orders on the ground that the
trustees, executors or administrators, as the case may be, could not or did not
in fact represent the interests of those persons in the first mentioned proceedings.
(2) Paragraph (1)
is without prejudice to the power of the Court to order any person having such
an interest as aforesaid to be made a party to the proceedings or to make an
order under Rule 4/4.
4/6 Representation
of deceased person interested in proceedings
(1) If,
in any proceedings it appears to the Court that a deceased person was
interested in the matter in question in the proceedings and that the deceased has
no executor or administrator, the Court may, on the application of any party to
the proceedings, proceed in the absence of a person representing the estate of
the deceased or may appoint a person to represent that estate for the purposes
of the proceedings; and any such appointment and any judgment or order
subsequently given or made in the proceedings shall bind the estate of the
deceased to the same extent as it would have been bound had an executor or
administrator of the deceased been a party to the proceedings.
(2) Before
making an order under paragraph (1), the Court may require notice of the
application for the order to be given to such (if any) of the persons having an
interest in the estate as it thinks fit.
4/7 Appointment
of administrators
The Court, if satisfied that it is expedient to do so, may at any
time of its own motion or upon an application ex parte –
(a) appoint
an administrator of the property of a person absent from Jersey; or
(b) in
any proceedings appoint an administrator of the property of any party or of any
person convened as a party to the proceedings.
PART 5
SERVICE OF DOCUMENTS
5/1 Limitation
on application
This Part other than Rules 5/10, 5/15, 5/16 and 5/17 does not apply
to the service of summonses outside Jersey.
5/2 Service
of documents generally
(1) Except
when rules of court or any other enactment otherwise expressly provide or the
Court otherwise orders, service of any document in any cause or matter may be
effected by ordinary service.
(2) When
provision is made for the service of any document in any cause or matter to be
effected by ordinary service, such service may be effected by personal service.
5/3 Date
of appearance
Every summons must specify the date on which appearance before the
Court is required.
5/4 Personal
service: when required
Personal service is required in the case of the following summonses
for appearance before the Court, that is to say, a summons –
(a) to
witness the confirmation of an order of justice;
(b) for
the payment of the amount of a judgment on pain of imprisonment (à peine de prison);
(c) to
appear before the Héritage division;
(d) to
reply to an action in criminal or quasi-criminal proceedings brought by the
Attorney General.
5/5 Service
through the intermediary of the Viscount’s Department: when required
Service through the intermediary of the Viscount’s Department
is required –
(a) where
personal service is required;
(b) in
an action resulting from the raising of the Clameur de
Haro;
(c) in
the case of a summons –
(i) to
witness the confirmation of an arrest,
(ii) to
appear in court in pursuance of an order of justice regarding the appointment
of an administrator or a guardian,
(iii) to
reply to an appeal the determination of which, or to a reference the
determination of which, is within the competence of the Court.
5/6 Ordinary
service: how effected
(1) Ordinary
service of a document is effected –
(a) by
leaving it at the proper address of the person to be served;
(b) by
post;
(c) by
FAX in accordance with paragraph (4); or
(d) in
such other manner as the Court may direct.
(2) For
the purposes of this Rule and of Article 12 of the Interpretation (Jersey)
Law 1954,[18] in its application to this
Rule, the proper address of any person shall be the address for service of that
person, but if at the time when service is effected that person has no address
for service, the proper address for those purposes shall be –
(a) in
any case, the business address of the advocate or solicitor (if any) who has
undertaken in writing to accept service on behalf of that person in the
proceedings in connection with which service of the document in question is to
be effected;
(b) in
the case of an individual, that person’s usual or last known address;
(c) in
the case of individuals suing or being sued in the name of a firm, the
principal or last known place of business of the firm in Jersey; or
(d) in
the case of a body corporate, the registered or principal office of the body.
(3) Without
prejudice to Article 12 of the Interpretation
(Jersey) Law 1954,[19] a document sent by post to
an address in Jersey shall, unless the contrary is proved, be deemed to have
been served on the second day after the day on which it was posted, days on
which there is no collection or delivery of letters excepted.
(4) Service
by FAX may be effected where –
(a) the
party serving the document acts by an advocate or solicitor;
(b) the
party on whom the document is served acts by an advocate or solicitor and
service is effected by transmission to the business address of such advocate or
solicitor;
(c) the
advocate or solicitor acting for the party on whom the document is served has
indicated in writing to the advocate or solicitor serving the document willingness
to accept service by FAX at a specified FAX number and the document is
transmitted to that number; and for this purpose the inscription of a FAX
number on the writing paper of an advocate or solicitor shall be deemed to
indicate that such advocate or solicitor is willing to accept service by FAX at
that number in accordance with this paragraph unless that advocate or solicitor
states otherwise in writing; and
(d) as
soon as practicable after service by FAX the advocate or solicitor acting for
the party serving the document sends a copy of it to the advocate or solicitor
acting for the other party by any of the other methods prescribed for service
by paragraph (1), failing which the document shall be deemed not to have
been served.
(5) If
the FAX is transmitted on a business day before 5 p.m., it shall, unless
the contrary is shown, be deemed to be served on that day and, in any other
case, on the business day next following.
5/7 Personal
service: how effected
Personal service of a document is effected by leaving it with the
person to be served or, in the case of an order of justice, by leaving a copy
thereof with the person to be served and, if so requested by the person to be
served at the time when it is left, showing him or her the original.
5/8 Personal
service on body corporate
Personal service of a document on a body corporate may, in cases
where provision is not otherwise made by any enactment, be effected by serving
it in accordance with Rule 5/7 on any Director, Manager, Secretary or
other similar officer thereof, or by leaving it at or delivering it to the
registered office of the body.
5/9 Personal
service on the States or a Committee or other administration of the States
Personal service of a document on the States or a Committee or other
administration of the States may, in cases where provision is not otherwise
made by any enactment, be effected by serving it in accordance with Rule 5/7
on the Greffier of the States.
5/10 Substituted
service
(1) If,
in the case of any document which by virtue of any provision of rules of court is
required to be served personally on any person, it appears to the Court on an ex parte application that it is impracticable for any
reason to serve that document personally on that person, the Court may make an
order for leave to effect substituted service of that document.
(2) An
application for an order for substituted service must be supported by affidavit
stating the facts on which the application is founded.
(3) An
order pursuant to paragraph (1) that requires the person to be served to
appear before the Court shall specify the date on which appearance is required.
(4) Substituted
service of a document is effected by taking such steps as the Court directs to
bring the document to the notice of the person to be served.
5/11 Service of process
on agent of overseas principal
(1) If
the Court is satisfied on an ex parte
application that –
(a) a
contract has been entered into within the jurisdiction with or through an agent
who is either an individual residing or carrying on business within the
jurisdiction or a body corporate having a registered office or place of
business within the jurisdiction;
(b) the
principal for whom the agent was acting was at the time when the contract was
entered into and is at the time of the application neither such an individual
nor such a body corporate; and
(c) at
the time of the application either the agent’s authority has not been
determined or the agent is still in business relations with the principal,
the Court may authorize service of process commencing proceedings
relating thereto to be effected on the agent instead of on the principal.
(2) An
order under paragraph (1) authorizing service of process shall specify the
time within which the proceedings are to be brought before the Court.
(3) When
an order is made under paragraph (1) authorizing service of process on a
defendant’s agent, a copy of the order and of the process shall be sent
by post to the defendant at the address of the defendant out of the
jurisdiction.
5/12 Service of process
for recovery of land where no-one appears to be in possession
(1) When
proceedings are instituted to recover land, the Court may, if satisfied on an ex parte application that no person appears to be in
possession of the land and that service cannot or could not otherwise be
effected on any defendant –
(a) authorize
service on that defendant to be effected by affixing a copy of the process to a
conspicuous part of the land; or
(b) order
that service already effected by affixing the process to some conspicuous part
of the land be treated as good service on that defendant.
(2) In
paragraph (1) “land” includes any building or structure on the
land.
5/13 Record of service
(1) The
record of service of a document must state the person by whom, the means by
which, the place at which and the day on which service was effected.
(2) However,
in the case of a document sent by post, the day on which the document was
posted must be stated instead of the day on which the document was served.
(3) It
is not sufficient to state only that service of a document was effected by
ordinary service.
5/14 Form of summons
and record of service
A summons and a record of service must be in the appropriate form
set out in Schedule 2.
5/15 Summons for
appearance before other divisions
Except where provision is otherwise made, a summons for appearance
before any division of the Court must be served at least 4 clear days before
the day on which the defendant is required to appear.
5/16 Grounds for
declaring summons invalid
The Court may declare a summons invalid –
(a) if
it has not been served in an authorized manner; or
(b) if the
terms of the billet and the summons differ to
the material prejudice of the party served.
5/17 Judgment by
default
The Court shall not give judgment by default in any action unless
satisfied that –
(a) the
summons was validly served in due time; and
(b) the
billet was tabled in due time.
PART 6
PROCEDURE AND PLEADINGS
6/1 Limitation
on application
Save as otherwise provided, this Part does not apply to matters
referred to in Article 3 of the Matrimonial
Causes (Jersey) Law 1949[20] or to criminal or
quasi-criminal proceedings.
6/2 Forms
of action
(1) Unless
otherwise directed by the Court and save as provided by any enactment or by
these Rules, proceedings in the Court must be instituted –
(a) by
an action –
(i) by summons, or
(ii) by an order of
justice; or
(b) by
a representation.
(2) Subject
to Rules 3/4, 10/6 and 10/7 proceedings –
(a) with
regard to the division of immoveable or moveable estate on an intestacy;
(b) seeking
the annulment of hereditary contracts or wills;
(c) relating
to the assignment of rentes;
(d) relating
to the fixing of boundaries;
(e) for
a debt or liquidated demand;
(f) for
dower;
(g) for
the acknowledgement of debts;
(h) for
the confirmation of arrests,
must be instituted by a summons.
(3) Proceedings
before the Viscount or the Greffier Arbitre must
be instituted by a summons.
6/3 Damages
(1) Special
damages must be specifically claimed.
(2) General
damages must be pleaded, but the quantity of damages shall not be specifically
claimed.
(3) If
general damages have been pleaded against a defendant in an action and the
defendant makes default or having appeared fails to file an answer within the
time limited, the plaintiff may seek interlocutory judgment against the
defendant for damages to be assessed and interest and costs, and proceed with
the action against any remaining defendants.
(4) The
Court may at any stage of proceedings direct that the assessment of damages be
referred to the Greffier.
6/4 Prescription
(1) The
prescription of a right of action is suspended by the service of proceedings
for appearance before the Court or, where an order for substituted service is
made under Rule 5/10, on the making of the order.
(2) Suspension
of prescription ceases when the proceedings are discontinued or the defendant
is discharged from the action.
(3) Nothing
in this Rule affects the rule of law expressed in the maxim à qui ne peut agir la prescription ne court point.
6/5 Placing
of actions on Table for first hearing
(1) When
an action is to be brought before the Court for the first time a billet must be deposited with the Greffier not later
than midday on the day next preceding that of the sitting of the Court, and the
Greffier shall place such actions on the list known as the Table and display it in a public place in the
vicinity of the Court not later than 9 a.m. on the day of the sitting.
(2) This
Rule shall not apply in relation to causes de
brièveté or if the Court considers that, in the interests
of justice, compliance therewith should not be required.
6/6 Actions
on pending list
(1) A
defendant who wishes to defend an action that has come before the Court shall
ask the Court to order that the action be placed on the pending list and,
provided that the defendant then gives an address for service in Jersey, the
Court shall so order.
(2) However,
if the defendant fails to give an address for service in Jersey, but has at any
time been legally represented in relation to the proceedings, the address for
service shall be deemed to be the address of the defendant’s last
advocate or solicitor.
(3) If
an action for a debt or a liquidated claim is placed on the pending list after it
has been instituted by summons, the plaintiff must within 21 days of it being
placed on the pending list file particulars of the claim, and the action shall
be stayed, as against the plaintiff, until such particulars are filed.
(4) A
defendant who wishes to defend an action placed on the pending list must,
within 21 days of the date on which the action was placed on the pending
list, or of the delivery of the particulars of claim, as the case may be, file
an answer to the action.
(5) If
at any time the Court is satisfied either that the defendant will not
personally receive notice of any documents which are sent to or left at the
defendant’s address for service, or that the defendant has no address for
service in Jersey, it may, on application by any party to the proceedings,
strike out the defendant’s answer.
(6) The
plaintiff may, after giving notice to the Greffier and to the defendant by
5 p.m. on the penultimate working day before the day of the sitting of the
Court, ask the Court to pronounce judgment against the defendant –
(a) if
the time limit for filing an answer has expired and no answer has been filed;
(b) if
an answer has been struck out for any reason without the defendant having been
given leave to file another answer; or
(c) if
such leave has been given and the time limit for filing another answer has
expired, and no such answer has been filed.
(7) Any
judgment given under paragraph (6) shall be deemed to be a judgment by
default and the provisions of Rule 11/2 shall apply.
(8) When
an answer has been filed, the plaintiff may, within 21 days of the
delivery of the answer, file a reply.
(9) Except
when the answer contains a counterclaim, no subsequent pleading may be filed
except by leave of the Court.
(10) If the
answer contains a counterclaim, the defendant may, within 21 days of the
delivery of the reply, file a rejoinder.
(11) A copy
of every particulars of claim, answer, reply, rejoinder and subsequent pleading
must, within 24 hours of being filed, be delivered to the other parties to
the action or their advocates or solicitors.
6/7 Dispute
as to jurisdiction
(1) The
appearance of a party to any proceedings before the Court shall not be treated
as a waiver of any irregularity in the proceedings or service thereof or in any
order giving leave to serve the proceedings out of the jurisdiction.
(2) The
reference in paragraph (1) to the appearance of a party to any proceedings
is a reference to any appearance made –
(a) whether
or not the proceedings have been served; and
(b) irrespective
of the purpose for which it is made.
(3) Any
party (in this Rule referred to as ‘the applying party’) who wishes
to dispute the jurisdiction of the Court in the proceedings by reason of any
such irregularity as is mentioned in paragraph (1) or on any other ground must –
(a) if
a return date for appearance before the Court has been fixed –
(i) ask the Court to
order that the proceedings be placed on the pending list, and
(ii) not later than
28 days thereafter apply to the Bailiff in chambers for a day to be fixed
for the hearing of one or more of the applications mentioned in paragraph (4);
or
(b) if
no return date for appearance before the Court has been fixed, apply to the
Bailiff in chambers, not later than 7 days after the expiry of the time
limited for the filing by that party of a pleading in the proceedings, for a
day to be fixed for the hearing of one or more of the applications mentioned in
paragraph (4).
(4) The
applications referred to in paragraph (3) are applications by the applying
party for an order –
(a) setting
aside the proceedings or service of the proceedings on that party;
(b) declaring
that the proceedings have not been duly served on that party;
(c) discharging
any earlier order giving leave to serve the proceedings on that party out of
the jurisdiction;
(d) for
the protection or release of any of his property arrested or threatened with
arrest in the proceedings;
(e) discharging
any earlier order made to prevent any dealing with any of that party’s
property;
(f) declaring
that in the circumstances of the case the Court has no jurisdiction over that
party in respect of the subject matter of the claim or the relief or remedy
sought in the proceedings;
(g) for
such other relief as may be appropriate.
(5) An
application by the applying party must be made by summons which –
(a) states
grounds of the application; and
(b) is
supported by an accompanying affidavit verifying the facts on which the
application is based.
(6) Upon
hearing the application the Court (if it does not thereupon dispose of the
matter in dispute) may give such directions for its disposal as may be
appropriate including directions for the trial thereof as a preliminary issue.
(7) Upon
notice being given of an application under paragraph (3), time limits for
the filing of pleadings (whether applicable by virtue of these Rules or by
order of the Court) shall not apply, and shall not begin to run, until the
application has been dismissed by the Court or abandoned, as the case may be.
(8) A
party who fails to make an application in accordance with paragraph (3) within
the time specified in sub-paragraph (a) or sub-paragraph (b) thereof
(whichever is applicable) shall be deemed to have submitted to the jurisdiction
of the Court in the proceedings.
(9) A
party who makes an application in accordance with paragraph (3) shall not
be deemed to have submitted to the jurisdiction of the Court in the proceedings
unless the Court shall otherwise order.
6/8 Mode
of pleading
(1) Subject
to the provisions of this Rule, every pleading must contain, and contain only,
a statement in a summary form of the material facts on which the party pleading
relies for that party’s claim or defence, as the case may be, but not the
evidence by which those facts are to be proved, and the statement must be as
brief as the nature of the case admits.
(2) Without
prejudice to paragraph (1), the effect of any document or the purport of
any conversation referred to in the pleading must, if material, be briefly
stated, and the precise words of the document or conversation shall not be
stated, except insofar as those words are themselves material.
(3) A
party need not plead any fact if it is presumed by law to be true or the burden
of disproving it lies on the other party, unless the other party has
specifically denied it in his or her pleading.
(4) A
statement that a thing has been done or that an event has occurred, being a
thing or event the doing or occurrence of which, as the case may be,
constitutes a condition precedent necessary for the case of a party is to be
implied in that party’s pleading.
(5) A
party must in any pleading subsequent to a statement of claim plead
specifically any matter, for example, performance, release, any relevant
statute of limitation, fraud or any fact showing illegality –
(a) which
that party alleges makes any claim or defence of the opposite party not
maintainable; or
(b) which,
if not specifically pleaded, might take the opposite party by surprise; or
(c) which
raises issues of fact not arising out of the preceding pleading.
(6) A
party may in pleadings raise any point of law.
6/9 Counterclaim
(1) Subject
to paragraph (2), a defendant in an action may set up by way of
counterclaim against the claims of the plaintiff any right or claim whether
such counterclaim sounds in damages or not, and such counterclaim shall have
the same effect as a cross-action so as to enable the Court to pronounce a
final judgment in the same action both on the original claim and on the
counterclaim.
(2) When
a defendant sets up a counterclaim, if the plaintiff contends that the claim
thereby raised ought not to be disposed of by way of counterclaim but in an
independent action, the Court may at any time order that such counterclaim be
excluded.
(3) If
in any case in which the defendant sets up a counterclaim the action of the
plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless
be proceeded with.
6/10 Third parties
(1) If
a defendant in an answer to an action which has been placed on the pending list –
(a) claims
against a person not already a party to the action any contribution or
indemnity; or
(b) claims
against such a person any relief or remedy relating to or connected with the
original subject-matter of the action and substantially the same as some relief
or remedy claimed by the plaintiff; or
(c) requires
that any question or issue relating to or connected with the original
subject-matter of the action should be determined not only as between the
plaintiff and the defendant, but also as between either or both of them and a
person not already a party to the action,
the Court may, after hearing the parties, make an order that such
person be convened as a third party.
(2) In
such order (a copy of which shall be delivered to all the parties to the
action) the Court shall give such directions as it considers appropriate for
service on such third party and for the filing of pleadings.
(3) A
third party so convened shall from the time of service be a party to the action
as if that party had been made a defendant in an original action either by the
defendant on whose application that party was convened or by the plaintiff.
(4) If the
time limited for filing an answer by the third party has expired and no answer
has been filed –
(a) the
third party shall be deemed to admit any claim stated in the defendant’s
answer and shall be bound by any judgment (including judgment by consent) or
decision in the action insofar as it is relevant to any claim, question or
issue stated in the defendant’s answer and the defendant may, on giving
notice to the Greffier and to the third party by 5 p.m. on the penultimate
working day before the day of the sitting of the Court, ask the Court to
pronounce judgment against the third party as to liability, but not as to the
amount; and
(b) the
defendant by whom the third party was convened may, if judgment by default is
given against the defendant in the action, at any time after satisfaction of
that judgment and, with the leave of the Court, before satisfaction thereof,
obtain judgment against the third party in respect of any contribution or
indemnity claimed in the defendant’s answer and, with the leave of the
Court, in respect of any other relief or remedy claimed therein.
(5) The
Court may at any time set aside or vary a judgment given under paragraph (4)
on such terms as it thinks just.
(6) When
a defendant has convened a third party, the Court may at or after the trial of
the action or, if the action is decided otherwise than by trial, on an
application by summons give such judgment as the nature of the case may require
for the defendant against the third party or for the third party against the
defendant.
(7) Where
in any action judgment is given against a defendant and judgment is given for
the defendant against a third party, the judgment shall not be put into
execution against the third party without the leave of the Court until the
judgment against the defendant has been satisfied.
(8) If
in any action a defendant in his or her answer –
(a) claims
against a person who is already a party to the action any contribution or
indemnity; or
(b) claims
against such a person any relief or remedy relating to or connected with the
original subject-matter of the action and substantially the same as some relief
or remedy claimed by the plaintiff; or
(c) requires
that any question or issue relating to or connected with the original
subject-matter of the action should be determined not only as between the
plaintiff and the defendant but also as between either or both of them and some
other person who is already a party to the action,
the Court may after hearing the parties make an order that such
person be convened as a third party by the defendant and paragraph (2)
shall apply.
(9) If
a defendant has convened a third party and the third party makes such a claim
or requirement as is mentioned in paragraph (1) or (8), this Rule shall
apply as if the third party were a defendant; and similarly where any further
person, to whom by virtue of this paragraph this Rule applies as if that person
were a third party, makes such a claim or requirement.
6/11 Consolidation of
causes or matters
(1) If,
when two or more actions are pending, it appears to the Court that –
(a) some
common question of law or fact arises in both or all of them; or
(b) the
rights to relief claimed therein are in respect of or arise out of the same
transaction or series of transactions; or
(c) for
some other reason it is desirable to make an order under this Rule,
the Court may order that those actions be consolidated on such terms
as it thinks just or may order that they be tried at the same time or one
immediately after another or may order that any of them be stayed until the
determination of any of them.
(2) Actions
that have been consolidated may be de-consolidated at any stage of the
proceedings.
6/12 Amendment of claim
or pleading
(1) The
Court may at any stage of the proceedings allow a plaintiff to amend his or her
claim, or any party to amend his or her pleading, on such terms as to costs or
otherwise as may be just.
(2) Any
party may at any stage of the proceedings amend his or her pleadings with the
consent of the other parties.
6/13 Striking out
(1) The
Court may at any stage of the proceedings order to be struck out or amended any
claim or pleading, or anything in any claim or pleading, on the ground that –
(a) it
discloses no reasonable cause of action or defence, as the case may be;
(b) it
is scandalous, frivolous or vexatious;
(c) it
may prejudice, embarrass or delay the fair trial of the action; or
(d) it
is otherwise an abuse of the process of the Court,
and may make such consequential order as the justice of the case may
require.
(2) No
evidence shall be admissible on an application under paragraph (1)(a).
6/14 Striking out where
proceedings should have been for judicial review
(1) When
a person seeks an order in any action and the only relief sought should have
been sought by an application for judicial review under Part 16, any
person against whom such relief is sought may apply to the Court for an order
striking out the proceedings as an abuse of process and the Court shall make
such an order unless –
(a) the
Court considers the person bringing the proceedings could not reasonably have
known that the relief should have been sought by an application for judicial
review and (unless the proceedings were instituted within 3 months from
the date when grounds for the application first arose) the Court is satisfied
that allowing the matter to proceed will not be likely to cause substantial
hardship to, or substantially prejudice the rights of, any person or be
detrimental to good administration; or
(b) the
Court considers that in all the circumstances of the case, it is just and
convenient to allow the proceedings to continue,
provided in each case, that the Court is satisfied that leave would have
been granted to move for judicial review if an application for leave had been
made.
(2) Applications
for an order under paragraph (1) must be brought within 28 days from
service of the action upon the defendant. The person applying for such an order
must serve notice of the application on all other parties.
(3) In
cases falling within sub-paragraph (1)(a) or (b), the Court may direct
that the action be treated as if it had begun by way of an application for
judicial review and Part 16 shall apply accordingly and the Court may make
such consequential orders as it considers necessary.
(4) When
a person seeks in an action relief which could have been sought by way of
action and relief which could have been sought by an application for judicial
review, any person against whom such relief is sought may apply to the Court
for an order striking out any claim relating to matters that could have been
the subject of an application for judicial review and the Court shall make such
an order if, having regard to all the circumstances of the case, it considers
that the matter was not properly included in the action or that it was not
appropriate to include that claim in the action rather than pursuing that claim
by way of an application for judicial review.
(5) An
application for an order under paragraph (4) must be brought within
28 days of service of the action upon the defendant. The person applying
for such an order must serve notice of the application on all other parties.
(6) If
a person seeks an order under paragraph (4), and the Court does not strike
out any claim relating to matters that could have been the subject of an
application for judicial review, the Court may, on application by any party or
of its own motion at any stage of the proceedings make such orders as it thinks
fit for dealing with any or all of the claims raised in the action and such
orders may include staying all or part of the claim, directing that all or part
of the claim be treated as if it had begun by way of an application for
judicial review so that Part 16 applies to that claim or part of a claim,
and making any consequential orders that it considers necessary.
6/15 Further and better
statement of particulars
(1) In
any proceedings, the Court may order a party to serve on any other party
particulars of any claim, defence or other matter stated in a pleading, or a
statement of the nature of the case on which the party relies, and the order
may be made on such terms as the Court thinks just.
(2) Before
applying for particulars by summons, a party may apply for them by letter.
(3) Particulars
of a claim shall not be ordered under paragraph (1) to be delivered before
defence unless the Court is of opinion that they are necessary or desirable to
enable the defendant to plead or ought for any other special reason to be so
delivered.
(4) All
particulars, whether given in pursuance of an order or otherwise, must be filed
within 24 hours of being furnished to the party requiring them.
6/16 Discovery by
interrogatories
(1) In
any proceedings a party may with leave of the Court deliver interrogatories in
writing for the examination of an opposite party.
(2) A
copy of the interrogatories proposed to be delivered must be filed when the
summons is issued and a further copy must be served with the summons.
(3) Interrogatories
must, unless otherwise ordered, be answered by affidavit to be filed within 14 days.
6/17 Discovery and
inspection of documents
(1) The
Court may order any party to any proceedings to furnish any other party with a
list of the documents which are or have been in his or her possession, custody
or power relating to any matter in question in the cause or matter and to
verify such list by affidavit.
(2) An
order under paragraph (1) may be limited to such documents or classes of
documents only, or to such only of the matters in question in the proceedings,
as may be specified in the order.
(3) If
it is desired to claim that any documents are privileged from production, the
claim must be made in the list of documents with a sufficient statement of the
grounds of the privilege.
(4) A
party who has furnished any other party with a list of documents in compliance
with paragraph (1) must allow the other party to inspect the documents
referred to in the list (other than any which the party furnishing the list
objects to produce) and to take copies thereof and, accordingly, must give the
other party notice in writing stating a time within 7 days after
furnishing the list at which the said documents may be inspected at a place
specified in the notice.
(5) The
Court may order any party to any proceedings in whose pleadings or affidavits
reference is made to any document to produce that document for the inspection
of any other party and to permit the other party to take copies thereof.
(6) Before
applying by summons, a party may apply by letter to any other party to furnish
him or her with such a list and allow him or her to inspect and take copies of
the documents referred to therein.
6/18 Pre-action
disclosure
(1) An
application for an order (hereinafter called “a disclosure order”)
under Article 2(1) of the Law Reform
(Disclosure and Conduct before Action) (Jersey) Law 1999[21] (hereinafter called
“the 1999 Law”) for the disclosure of documents before the
commencement of proceedings must be made by representation.
(2) A
representation under paragraph (1) must be supported by an affidavit which
must –
(a) state
the grounds on which it is alleged that the applicant and the person against
whom the order is sought are likely to be parties to subsequent proceedings in
which a claim for personal injuries is likely to be made; and
(b) specify
or describe the documents in respect of which the order is sought and show, if
practicable by reference to any pleading intended to be served in the
proceedings, that the documents are relevant to an issue likely to arise out of
a claim for personal injuries likely to be made in the proceedings and that the
person against whom the order is sought is likely to have or have had them in
his or her possession, custody or power.
(3) A
copy of the supporting affidavit must be served with the representation on
every person against whom a disclosure order is sought.
(4) A
disclosure order may be made conditional on the applicant’s giving
security for the costs of the person against whom it is made or on such other
terms, if any, as the Court thinks just, and shall require the person against
whom the order is made to make an affidavit stating whether any documents
specified or described in the order are, or at any time have been, in that
person’s possession, custody or power and, if not, then in that
person’s possession, custody or power, when he or she parted with them
and what has become of them.
(5) No
person shall be compelled by virtue of such an order to produce any documents
which that person could not be compelled to produce if the subsequent
proceedings had already been begun.
(6) In
this rule “a claim for personal injuries” means a claim in respect
of personal injuries to a person or in respect of a person’s death.
6/19 Admissions
(1) A
party to any proceedings may give notice, by a pleading or otherwise in
writing, that that party admits the truth of the whole or any part of the case
of any other party.
(2) A
party to any proceedings may, not later than 28 days after the proceedings
are set down for trial or hearing, serve on any other party a notice requiring the
other party to admit, for the purpose of those proceedings only, the facts
specified in the notice.
(3) An
admission made in compliance with paragraph (2) must not be used against
the party by whom it was made in any proceedings other than the proceedings for
the purpose of which it was made or in favour of any person other than the
person by whom the notice was given, and the Court may at any time allow a
party to amend or withdraw an admission so made by that party on such terms as
may be just.
(4) When
admissions of fact are made by a party to the proceedings either by that
party’s pleadings or otherwise, any other party to the proceedings may
apply to the Court for such judgment or order as on those admissions that other
party may be entitled to, without waiting for the determination of any other
question between the parties, and the Court may give such judgment or make such
order on the application as it thinks just.
6/20 Evidence
(1) Subject
to these Rules and to any other enactment relating to evidence, any fact
required to be proved at the hearing of any action by the evidence of witnesses
shall be proved by the examination of the witnesses orally and in open court.
(2) However,
the Court may –
(a) subject
to paragraph (4), order that any particular facts to be specified may be
proved by affidavit;
(b) order
that the affidavit of any witness may be read at the hearing on such conditions
as the Court thinks reasonable;
(c) order
that evidence of any particular fact to be specified shall be given at the
hearing by statement on oath of information and belief or by production of
documents or entries in books or by copies of documents or entries or otherwise
as the Court may direct; and
(d) order
that not more than a specified number of expert witnesses may be called.
(3) The
Court shall have full discretionary power, at any time before the delivery of
judgment in an action, to receive such further evidence as in the opinion of
the Court the justice of the case may require, and may of its own motion direct
that additional witnesses be heard.
(4) When
it appears to the Court that any party reasonably desires the production of a
witness for cross-examination and that such witness can be produced, an order
shall not be made authorizing the evidence of such witness to be given by
affidavit.
(5) Any
party may apply to the Court –
(a) for
an order authorizing the Greffier or the Viscount or an advocate or solicitor
to take in writing, on oath, the evidence of any person who is a party or
witness in any proceedings, other than criminal or quasi-criminal proceedings,
and who is in the Island at the time of the application;
(b) for
a commission or for letters of request to examine a person who is a party or
witness in any suit and who is not in the Island at the time of the
application.
(6) Any
party to criminal or quasi-criminal proceedings may apply to the Court for an
order authorizing the Greffier or the Viscount to take in writing, on oath, the
evidence of any person who is in Jersey at the time of making the application,
whose evidence is required for the proceedings, and who –
(a) will
or may be out of Jersey at the date of the hearing;
(b) is
prevented by sickness or other infirmity from coming to Court; or
(c) it
is feared may die before the hearing.
(7) Unless
otherwise directed by the Court, evidence taken in accordance with paragraph (5)
or (6) of this Rule shall not be admissible at the hearing unless the
Court is satisfied that the deponent is dead or out of Jersey or unable from
sickness or other infirmity to attend Court, in any of which cases the
depositions duly certified shall be admissible in evidence.
(8) Persons
called to give evidence before the Court must be summoned through the
intermediary of the Viscount’s Department at least 2 clear days before
the day on which their appearance is required.
6/21 Hearsay notices
(1) A
notice under Article 4 of the Civil
Evidence (Jersey) Law 2003[22] (hereinafter referred to as
a “hearsay notice”) must –
(a) state
that it is a hearsay notice;
(b) identify
the hearsay evidence;
(c) identify
the person who made the statement which is to be given in evidence; and
(d) state
why that person will (or may) not be called to give oral evidence.
(2) A
single hearsay notice may deal with the hearsay evidence of more than one
witness.
(3) The
requirement to give a hearsay notice does not apply to –
(a) evidence
which is authorized to be given by or in an affidavit; or
(b) a
statement which a party to an action relating to an estate desires to give in
evidence and which is alleged to have been made by the person whose estate is
the subject of the action.
(4) A
party who desires to give in evidence at the trial or hearing of a cause or
matter hearsay evidence must –
(a) if
the cause or matter is required to be set down for trial or hearing, within
28 days after it is set down or within such other period as the Court may
specify; and
(b) in
any other case, not later than 14 days before the cause or matter first
comes before the Court, or within such other time as the Court may specify,
serve a hearsay notice on every party to the cause or matter.
6/22 Power to call
witness for cross-examination on hearsay evidence
(1) If
a party tenders as hearsay evidence a statement made by a person but does not
propose to call the person who made the statement to give evidence, the Court
may, on application, allow another party to call and cross-examine the person
who made the statement on its contents.
(2) Notice
of an application under paragraph (1) must be delivered to all other
parties not later than 28 days after service of the hearsay notice.
(3) When
the Court allows another party to call and cross-examine the person who made
the statement, it may give such directions as it thinks fit to secure the
attendance of that person and as to the procedure to be followed.
6/23 Credibility
(1) If
–
(a) a
party tenders as hearsay evidence a statement made by a person but does not
call the person who made the statement to give oral evidence; and
(b) another
party intends to attack the credibility of the person who made the statement,
that other party must notify the party tendering the hearsay
evidence of that intention.
(2) A
notice under paragraph (1) must be given not later than 28 days after
service of the hearsay notice or within such lesser period as the Court may
specify.
6/24 Reference of
questions to Court before setting down for hearing
When in any action on the pending list it appears to the Greffier
that a question raised by a pleading should be determined before the action is
set down for trial or hearing, the Greffier may refer such question to the
Court and may give such directions as he or she deems appropriate for securing
the attendance of the parties before the Court.
6/25 Dismissal of
actions
(1) When
an action has been adjourned sine die, if at
the expiration of 5 years from the date on which it was first so adjourned
no further steps have been taken, the action shall be deemed to have been
withdrawn.
(2) If
at the expiration of 3 years from the date on which an action was set down
on the hearing list, the trial of the action before the Royal Court has not
been completed, the Court may, of its own motion, after giving not less than 28 days’
notice in writing to all the parties to the action, order that it be dismissed.
(3) This
Rule does not affect the power of the Court under any other provision of these
Rules to dismiss an action.
6/26 Summons for
directions
(1) With
a view to providing an occasion for the consideration by the Court of the
preparations for the trial of an action so that –
(a) all
matters which must or can be dealt with on interlocutory applications and have
not already been dealt with may so far as possible be dealt with; and
(b) such
directions may be given as to the future course of the action as appear best
adapted to secure the just, expeditious and economical disposal thereof,
the plaintiff must, within one month after the time limited for
filing pleadings has expired, issue a summons for directions to be heard at
least 14 days, and no more than 42 days, thereafter in the form (or
substantially in the form) prescribed in Schedule 3.
(2) If
the plaintiff does not issue a summons for directions in accordance with paragraph (1),
the defendant or any other party to the action may do so or apply for an order
to dismiss the action.
(3) On
an application by a party to dismiss the action under paragraph (2), the
Court may either dismiss the action on such terms as may be just or deal with
the application as if it were a summons for directions.
(4) On
the hearing of a summons for directions, the Court shall consider whether –
(a) it
is possible to deal then with all matters which must or can be considered on
the hearing of the summons for directions; or
(b) it
is expedient to adjourn the consideration of all or any of those matters.
(5) If,
when the summons for directions first comes to be heard, the Court considers
that it is possible to deal with all the said matters, it shall deal with them
forthwith and shall endeavour to secure that all other matters which must or
can be dealt with on interlocutory applications and have not already been dealt
with are also dealt with then.
(6) If,
when the summons for directions first comes to be heard, the Court considers
that it is expedient to adjourn the consideration of all or any of the matters
which must be considered on the hearing of the summons, the Court shall deal
forthwith with such of those matters as it considers can conveniently be dealt
with and shall endeavour to secure that all other matters which must or can be
dealt with are dealt with then or at a resumed hearing of the summons for
directions.
(7) At
the hearing of the summons for directions, the Court shall endeavour to secure
that the parties make all admissions and all agreements as to the conduct of
the proceedings which ought reasonably to be made by them and may record in its
act any admissions or agreements so made, and (with a view to such order, if
any, as to costs as may be just being made at the trial) any refusal to make
any admission or agreement.
(8) Without
prejudice to the generality of paragraph (12), if the Court on any hearing
of the summons for directions requires a party to the action or that
party’s advocate or solicitor to give any information or produce any
document and that information or document is not given or produced, the Court
may –
(a) record
the facts in its act with a view to such order, if any, as to costs as may be
just being made at the trial; or
(b) if
it appears to the Court to be just to do so, order that the whole or any part
of the pleadings of the party concerned be struck out, or order that the action
or counterclaim be dismissed on such terms as may be just.
(9) Notwithstanding
anything in the foregoing provisions of this Rule, no information or documents
which are privileged from disclosure shall be required to be given or produced
under this Rule by or by the advocate or solicitor of any party otherwise than
with the consent of that party.
(10) Any
party to whom the summons for directions is addressed must so far as
practicable apply at the hearing of the summons for any order or directions
which that party may desire as to any matter capable of being dealt with on an
interlocutory application in the action and must, not less than 7 days
before the hearing of the summons, serve on the other parties a notice
specifying those orders and directions in so far as they differ from the orders
and directions asked for by the summons.
(11) If the
hearing of the summons for directions is adjourned and any party to the
proceedings desires to apply at the resumed hearing for an order or directions
not asked for by the summons or in a notice given under paragraph (10),
that party shall, not less than 7 days before the resumed hearing of the
summons, serve on the other parties a notice specifying those orders and
directions in so far as they differ from the orders and directions asked for by
the summons or in any such notice as aforesaid.
(12) If any
party fails to comply with an order made under the provisions of this Rule, the
Court may, on the application of any other party to the action, make such order
as it thinks just including, in particular, an order that the action be
dismissed or, as the case may be, that the answer or other pleading be struck
out and judgment entered accordingly.
(13) If 2 months
have elapsed from the time limited for filing pleadings and no summons has been
issued pursuant to any of the foregoing provisions of this Rule, the Court may
of its own motion, after giving not less than 28 days’ notice in
writing to all parties to the action, order that the action be dismissed, and
the Court may make such consequential order as to costs or otherwise as it
thinks fit.
6/27 Setting down for
hearing
(1) If
the Court, on the application of any party or otherwise, is satisfied that an
action is ready for trial or hearing, it shall cause the action to be set down
on the hearing list and the Greffier shall notify every party to the action
accordingly.
(2) If
the Court is not so satisfied it may, notwithstanding any other provision of
these Rules, require the appearance of the parties before it and give such
directions as it deems appropriate.
6/28 Stay to allow for
the settlement of proceedings
(1) In
this Rule, “alternative dispute resolution” means any method of resolving disputes otherwise than
through the normal trial process and, without prejudice to the generality of
the foregoing, includes mediation and conciliation.
(2) Notwithstanding
any other provision of these Rules, the Court may at any stage of any
proceedings either on the application of any party to the proceedings or of its
own motion direct that the proceedings be stayed for such period as the Court
thinks fit to enable the parties to try to settle the proceedings by
alternative dispute resolution.
(3) The
Court may extend any stay which it has granted under paragraph (2) of this
Rule until such date or for such specified period as it considers appropriate.
(4) As
a condition of granting a stay under this Rule the Court may require the
parties to report back on progress made to settle the proceedings or if a
settlement is reached.
(5) If
the Court is not told by the end of the period of the stay that a settlement
has been reached the Court may give such directions as to the management of the
case as it considers appropriate.
6/29 Fixing day for
trial
(1) When
an action has been set down on the hearing list any party may apply to the
Bailiff in chambers for a day to be fixed for the trial or hearing of the
action.
(2) The
party applying must, not less than 4 days before making an application
under paragraph (1) notify in writing the other parties to the action of
his or her intention to make the application and when it is intended to make it.
(3) When
a date has been fixed for the trial or hearing of an action the party applying
must, within 24 hours, notify that date to every other party who was not
present at the hearing of the application.
6/30 Procedure after
decision on preliminary issue
(1) When
the Court has given judgment on a preliminary issue, it may direct that the
case be restored to the pending list if further pleadings are required, or it
may direct that the case remain on the hearing list.
(2) If
the Court directs that the case be restored to the pending list, the foregoing
provisions of this Part shall, with the necessary modifications, apply to the
subsequent steps in the action.
6/31 Withdrawal and
discontinuance
(1) Except
with the consent of the other parties to the action, a party may not
discontinue an action or counterclaim, or withdraw any particular claim made by
that party therein, or withdraw his or her defence or any part of it, without
the leave of the Court, and any such leave may be given on such terms as to
costs, the bringing of a subsequent action or otherwise as the justice of the
case may require.
(2) Subject
to the terms imposed by the Court in granting such leave, the fact that a party
has discontinued an action or counterclaim or withdrawn a particular claim made
by that party therein shall not be a defence to a subsequent action for the
same, or substantially the same, cause of action.
(3) When
a party is liable to pay any costs under paragraph (1), then if, before
payment of such costs, that party subsequently brings an action for the same,
or substantially the same, cause of action, the Court may order the proceedings
in that action to be stayed until those costs are paid.
6/32 List of witnesses
(1) Not
less than 48 hours before the time fixed for the hearing of an action the
plaintiff must deposit with the Greffier a billet
with a list of the plaintiff’s witnesses, if any, to which shall be
affixed the fee prescribed for the first day of the hearing.
(2) Similarly
any other party to the action must deposit with the Greffier a list of the
witnesses, if any, whom that party intends to call.
6/33 Payment into Court
(1) In
any action before the Court any defendant may at any time pay into Court a sum
of money in satisfaction of any cause of action in respect of which a claim is
made.
(2) Such
payment shall be made by lodging a sum of money with the Greffier who, unless
otherwise directed, shall place the money on deposit with a bank that is a
registered person within the meaning of the Banking Business (Jersey) Law 1991[23] or with a finance and
investment subsidiary of such a bank.
(3) The
Greffier shall within 7 days of receipt of payment give notice of the
payment to all parties to the action.
(4) Except
with the consent of the other parties to the action, no payment may be
withdrawn without leave of the Greffier, such leave to be obtained by summons.
(5) Except
when the tender of payment is pleaded by the party making payment, the fact
that payment into Court has been made shall not be disclosed to the Court
before whom the action is tried until all questions of liability and of the
amount of debt or damages have been decided.
(6) Subject
to paragraph (7), the Court when awarding costs may take into
consideration the fact that payment into Court has been made.
(7) Nothing
in this Rule derogates from the discretion of the Court to make such order as
to costs as it deems just.
6/34 Ex parte representations
Except by leave of the Court, no ex parte
representation may be presented to the Court unless a copy thereof has been
delivered to the Bailiff and to the Greffier at least 24 hours before
presentation.
6/35 Injunctions
(1) Any
injunction may be varied by the Bailiff or the Greffier in the terms agreed by
the parties to the proceedings in which the injunction has been obtained.
(2) If
any variation is made in the absence of the Greffier, the Bailiff shall make
his order in writing and transmit it to the Greffier.
6/36 Misjoinder and
nonjoinder of parties
At any stage of the proceedings in any cause or matter the Court may
on such terms as it thinks just and either of its own motion or on application –
(a) order
any person who has been improperly or unnecessarily made a party or who has for
any reason ceased to be a proper or necessary party, to cease to be a party;
(b) order
any of the following persons to be added as a party, namely –
(i) any
person who ought to have been joined as a party or whose presence before the
Court is necessary to ensure that all matters in dispute in the cause or matter
may be effectually and completely determined and adjudicated upon, or
(ii) any
person between whom and any party to the cause or matter there may exist a
question or issue arising out of or relating to or connected with any relief or
remedy claimed in the cause or matter which in the opinion of the Court it
would be just and convenient to determine as between that person and that party
as well as between the parties to the cause or matter,
but no person may be added as a plaintiff without that
person’s consent signified in writing or in such other manner as the
Court may direct.
PART 7
SUMMARY JUDGMENT AND DISPOSAL OF CASE ON
POINT OF LAW
7/1 Application
by plaintiff for summary judgment
(1) Subject
to paragraph (2), when an action has been placed on the pending list, the
plaintiff may, on the ground that the defendant has no defence to his or her
claim, or to a particular part of that claim, or has no defence to such a claim
or part except as to the amount of any damages claimed, apply to the Court for
judgment against the defendant.
(2) This
Rule does not apply to an action which includes a claim by the plaintiff –
(a) for
libel, slander, malicious prosecution or false imprisonment;
(b) based
on an allegation of fraud;
(c) which
is disputed, that a party to the action is the father of a child.
(3) An
application under paragraph (1) must be made by summons and be supported
by an affidavit verifying the facts on which the claim, or the part of the
claim, to which the application relates is based and stating that, in the
deponent’s belief, there is no defence to that claim or part, as the case
may be, or no defence except as to the amount of any damages claimed.
(4) Unless
the Court otherwise directs, an affidavit for the purposes of this Rule may
contain statements of information or belief with the sources and grounds
thereof.
(5) The
summons and a copy of the affidavit must be served on the defendant not less
than 10 clear days before the day on which the defendant is required to appear.
7/2 Judgment
for plaintiff
(1) Unless
on the hearing of an application under Rule 7/1 either the Court dismisses
the application or the defendant satisfies the Court with respect to the claim,
or the part of a claim, to which the application relates that there is an issue
or question in dispute which ought to be tried or that there ought for some
other reason to be a trial of that claim or part, the Court may give such
judgment for the plaintiff against the defendant on that claim or part as may
be just having regard to the nature of the remedy or relief claimed.
(2) The
Court may by order, and subject to such conditions, if any, as may be just,
stay execution of any judgment given against a defendant under this Rule until
after the trial of any counterclaim made or raised by the defendant in the
action.
7/3 Leave
to defend
(1) A
defendant may show cause against an application under Rule 7/1 by
affidavit or otherwise to the satisfaction of the Court.
(2) Rule 7/1(4)
applies for the purposes of this Rule as it applies for the purposes of that
Rule.
(3) The
Court may give a defendant against whom an application is made under this Rule
leave to defend the action with respect to the claim or part of the claim to
which the application relates either unconditionally or on such terms as it
thinks fit.
(4) On
the hearing of an application under this Rule the Court may order a defendant
showing cause or where that defendant is a body corporate, any director,
manager, secretary or other similar officer thereof, or any person purporting
to act in such a capacity –
(a) to
produce any document;
(b) if
it appears to the Court that there are special circumstances which make it
desirable that he or she should do so, to attend and be examined on oath.
7/4 Application
for summary judgment on counterclaim
(1) A
defendant to an action which has been placed on the pending list who has served
a counterclaim on the plaintiff may, on the ground that the plaintiff has no
defence to a claim made in the counterclaim, or to a particular part of such
claim, apply to the Court for judgment against the plaintiff on that claim or
part.
(2) Rules
7/1(2), (3) and (4), 7/2 and 7/3 shall apply with the necessary modifications in
relation to an application under paragraph (1) as they apply to an
application under Rule 7/1(1).
7/5 Directions
When the Court –
(a) orders
that a defendant or a plaintiff have leave (whether conditional or
unconditional) to defend an action or counterclaim, as the case may be, with
respect to a claim or part of a claim; or
(b) gives
judgment for a plaintiff or defendant on a claim or part of a claim but also
orders that execution of the judgment be stayed pending the trial of a counterclaim
or of the action, as the case may be,
the Court may give directions as to the further conduct of the
action.
7/6 Right
to proceed with residue of action or counterclaim
(1) If
on an application under Rule 7/1(1) the plaintiff obtains judgment on a
claim or part of a claim against any defendant, the plaintiff may proceed with
the action as respects any other claim or as respects the remainder of the
claim or against any other defendant.
(2) If
on an application under Rule 7/4(1) a defendant obtains judgment on a
claim or part of a claim made in a counterclaim against the plaintiff, the
defendant may proceed with the counterclaim as respects any other claim or as
respects the remainder of the claim or against any other defendant to the
counterclaim.
7/7 Judgment
by default
Any judgment given against a party who does not appear at the hearing
of an application under Rule 7/1 or 7/4 shall be treated as a judgment by
default, and Rule 11/2 shall apply.
7/8 Determination
of question of law or construction
(1) The
Court may upon the application of a party or of its own motion determine any
question of law or construction of any document arising in any proceedings at
any stage if it appears to the Court that –
(a) such
question is suitable for determination without a full trial of the action; and
(b) such
determination will finally determine (subject only to any possible appeal) the
entire proceedings or any claim or issue therein.
(2) Upon
such determination the Court may dismiss the proceedings or make such order or
judgment as it thinks just.
(3) The
Court shall not determine any question under this Rule unless the parties have
either –
(a) had
an opportunity of being heard on the question; or
(b) consented
to an order or judgment on such determination.
(4) Nothing
in this Rule limits the power of the Court under Rule 6/14 or any other
provision of these Rules.
7/9 Manner
in which application under Rule 7/8 may be made
An application under Rule 7/8 may be made by summons or made
orally in the course of any interlocutory application to the Court.
PART 8
INTERIM PAYMENTS
8/1 Interpretation
and application for interim payment
(1) In
this Part “interim payment” in relation to a defendant means a
payment on account of any damages, debt or other sum (excluding costs) which
the defendant may be held liable to pay to or for the benefit of the plaintiff,
and any reference to the plaintiff or defendant includes a reference to any
person who, for the purpose of the proceedings, acts as guardian ad litem of the plaintiff or defendant.
(2) The
plaintiff may, at any time after an action has been placed on the pending list,
apply to the Court for an order requiring the defendant to make an interim
payment.
(3) An
application under this Rule must be made by summons and be accompanied by an
affidavit which –
(a) verifies
the amount of the damages, debt or other sum to which the application relates
and the grounds of the application; and
(b) exhibits
any documentary evidence relied on by the plaintiff in support of the
application.
(4) The
summons and a copy of the affidavit in support and any documents exhibited
thereto must be served on the defendant against whom the order is sought not
less than 10 clear days before the day on which the defendant is required to
appear.
(5) Notwithstanding
the making or refusal of an order for an interim payment, a second or
subsequent application may be made upon cause shown.
8/2 Order
for interim payment in respect of damages
(1) If,
on the hearing of an application under Rule 8/1 in an action for damages,
the Court is satisfied –
(a) that
the defendant against whom the order is sought (in this paragraph referred to
as “the respondent”) has admitted liability for the
plaintiff’s damages; or
(b) that
the plaintiff has obtained interlocutory judgment against the respondent for
damages to be assessed; or
(c) that,
if the action proceeded to trial, the plaintiff would obtain judgment for
substantial damages against the respondent or, where there are two or more defendants,
against any of them,
the Court may, if it thinks fit, and subject to paragraph (2),
order the respondent to make an interim payment of such amount as it thinks
just not exceeding a reasonable proportion of the damages which in the opinion
of the Court are likely to be recovered by the plaintiff after taking into
account any relevant contributory negligence and any set-off, cross-claim or
counterclaim on which the respondent may be entitled to rely.
(2) No
order may be made under paragraph (1) in an action for personal injuries
if it appears to the Court that the defendant is not a person falling within
one of the following categories, namely –
(a) a
person who is insured in respect of the plaintiff’s claim;
(b) a
public authority or body; or
(c) a
person whose means and resources are such as to enable that person to make an
interim payment.
8/3 Order
in respect of sums other than damages
If, on hearing an application under Rule 8/1, the Court is satisfied –
(a) that
the plaintiff has obtained an order for an account to be taken as between the
plaintiff and the defendant;
(b) that
the plaintiff’s action includes a claim for possession of land and, if
the action proceeded to trial, the defendant would be held liable to pay to the
plaintiff a sum of money in respect of the defendant’s use and occupation
of the land during the pendency of the action, even if a final judgment or
order were given or made in favour of the defendant; or
(c) that,
if the action proceeded to trial, the plaintiff would obtain judgment against
the defendant for a substantial sum of money apart from any damages or costs,
the Court may, if it thinks fit, without prejudice to any
contentions of the parties as to the nature or character of the sum to be paid
by the defendant, order the defendant to make an interim payment of such amount
as it thinks just after taking into account any set-off, cross-claim or
counterclaim on which the defendant may be entitled to rely.
8/4 Manner
of payment
(1) The
amount of any interim payment ordered to be made shall be paid to the plaintiff
unless the order provides for it to be paid into Court, and where the amount is
paid into Court, the Court may, on the application of the plaintiff, order the
whole or any part of it to be paid out to the plaintiff at such time or times
as the Court thinks fit.
(2) An
application under paragraph (1) for money in Court to be paid out may be
made ex parte, but the Court may direct a
summons to be issued.
(3) An
interim payment may be ordered to be made in one sum or by such instalments as
the Court thinks fit.
(4) When
a payment is ordered in respect of the defendant’s use and occupation of
land, the order may provide for periodical payments to be made during the
pendency of the action.
8/5 Directions
When an application is made under Rule 8/1, the Court may give
directions as to the further conduct of the action and, in particular, may
order an early trial of the action.
8/6 Non-Disclosure
of interim payment
The fact that an order has been made under Rule 8/2 or 8/3 shall not
be pleaded and, unless the defendant consents or the Court so directs, no
communication of that fact or of the fact that an interim payment has been
made, whether voluntarily or pursuant to an order, shall be made to the Court
at the trial or hearing of any question or issue as to liability or damages
until all questions of liability and amount have been determined.
8/7 Payment
into Court
When, after making an interim payment, whether voluntarily or
pursuant to an order, a defendant pays a sum of money into Court under
Rule 6/33, the notice of payment must state that the defendant has taken
into account the interim payment.
8/8 Adjustment
on final judgment or order or on discontinuance
If a defendant has been ordered to make an interim payment or has in
fact made an interim payment, whether voluntarily or pursuant to an order, the
Court may, in giving or making a final judgment or order, or granting the
plaintiff leave to discontinue the action or to withdraw the claim in respect
of which the interim payment has been made, or at any other stage of the
proceedings, on the application of any party, make any order with respect to
the interim payment as may be just and, in particular –
(a) an
order for the repayment by the plaintiff of all or part of the interim payment;
(b) an
order for the payment to be varied or discharged; or
(c) an
order for the payment by any other defendant of any part of the interim payment
which the defendant who made it is entitled to recover from the other defendant
by way of contribution or indemnity or in respect of any remedy or relief
relating to or connected with the plaintiff’s claim.
8/9 Counterclaim
and other proceedings
This Part shall apply, with the necessary modifications, to any
counterclaim or other proceedings where one party seeks an order for an interim
payment to be made by another.
PART 9
PROVISIONAL DAMAGES
9/1 Application
and Interpretation
(1) This
Part applies to actions to which Article 3 of the Administration of Justice (Interim Payments and Provisional
Damages) (Jersey) Law 1993[24] (hereinafter referred to as
“Article 3”) applies.
(2) In
this Part “award of provisional damages” means an award of damages
for personal injuries under which –
(a) damages
are assessed on the assumption that the injured person will not develop the
disease or suffer the deterioration referred to in Article 3; and
(b) the
injured person is entitled to apply for further damages at a future date if that
person develops the disease or suffers the deterioration.
9/2 Order
for provisional damages
(1) The
Court may on such terms as it thinks just and subject to this Rule make an
award of provisional damages if –
(a) the
plaintiff has pleaded a claim for provisional damages; and
(b) the
Court is satisfied that the action is one to which Article 3 applies.
(2) An
order for an award of provisional damages shall specify the disease or type of
deterioration in respect of which an application may be made at a future date
and shall also, unless the Court otherwise determines, specify the period
within which such application may be made.
(3) The
Court may, on the application of the plaintiff within the period, if any,
specified in paragraph (2), extend that period if it thinks it just to do
so, and the plaintiff may make more than one such application.
(4) An
award of provisional damages may be made in respect of more than one disease or
type of deterioration and may in respect of each disease or deterioration
specify a different period within which an application may be made at a future date.
9/3 Offer
to submit to an award
(1) When
an application is made for an award of provisional damages, any defendant may
at any time (whether or not the defendant makes a payment into Court) make a
written offer to the plaintiff –
(a) to
tender a sum of money (which may include an amount, to be specified, in respect
of interest) in satisfaction of the plaintiff’s claim for damages
assessed on the assumption that the injured person will not develop the disease
or suffer the deterioration referred to in Article 3 and identifying the
disease or deterioration in question; and
(b) to
agree to the making of an award of provisional damages.
(2) Any
offer made under paragraph (1) shall not be brought to the attention of
the Court until after the Court has determined the claim for an award of
provisional damages.
(3) If
an offer is made under paragraph (1), the plaintiff may, within 21 days
of receipt of the offer, give written notice to the defendant of acceptance of
the offer and must on such acceptance make an application to the Court for an
order in accordance with Rule 9/2(1).
9/4 Application
for award of further damages
(1) This
Rule applies when the plaintiff, pursuant to an award of provisional damages,
claims further damages.
(2) No
application for further damages may be made after the expiration of the period,
if any, specified under Rule 9/2(2) or of such period as extended under
Rule 9/2(3).
(3) The
plaintiff must give not less than 3 months’ written notice to the
defendant of intention to apply for further damages and, if the defendant is to
the plaintiff’s knowledge insured in respect of the plaintiff’s
claim, to the insurers.
(4) The
plaintiff must issue a summons for directions as to the future conduct of the
action within 21 days of the expiry of the period of notice referred to in
paragraph (3).
(5) On
the hearing of the summons for directions the Court shall give such directions
as may be appropriate for the future conduct of the action including, but not
limited to, the disclosure of medical reports and the place and date of the
hearing of the application for further damages.
(6) Only
one application for further damages may be made in respect of each disease or
type of deterioration specified in the order for the award of provisional
damages.
(7) Part
8 (interim payments) shall, with the necessary modifications, apply to an
application made under this Rule.
(8) The
Court may include in an award of further damages simple interest at such rate
as it thinks fit on all or any part thereof for all or any part of the period
between the date of notification of the plaintiff’s intention to apply
for further damages and the date of the award.
PART 10
PROCEEDINGS AT THE TRIAL
10/1 Opening speeches
(Civil proceedings)
At the hearing of any civil proceedings where any party intends to
adduce evidence, that party or, if represented by an advocate, that
party’s advocate shall, before adducing such evidence, be entitled to
open that party’s case to the Court.
10/2 Opening speeches
(Criminal proceedings)
(1) On
the trial of any person before the Court, the Attorney General shall, before
adducing evidence, be entitled to open the case to the Court or jury, stating
the leading facts on which the prosecution relies and, where the accused person
or defendant intends to adduce evidence, that person or defendant or, if
defended by an advocate, that advocate shall, at the close of the case for the
prosecution, be entitled to open the case for the defence to the Court or jury,
stating the leading facts on which the defence relies.
(2) The
rights conferred by this Rule on the Attorney General and the accused person or
defendant, or the defence advocate, to address the Court or the jury are
without prejudice to their respective rights to sum up the evidence when all
the evidence has been taken.
10/3 Presence of
parties not required if represented by advocate
In any civil proceedings before the Court, the presence of a party
shall not be required so long as that party appears through the intermediary of
an advocate.
10/4 Clameur de Haro
(1) The
fines imposed by the Court in matters of Clameur de
Haro or of contempt thereof shall be in the discretion of the Court.
(2) Actions
resulting from the raising of the Clameur de Haro
shall be instituted in conjunction with the Attorney General and shall be dealt
with as causes de brièveté.
10/5 Power to adjourn
trial or hearing
The Court may, if it thinks it expedient in the interests of justice,
postpone or adjourn a trial or hearing of any proceedings for such time and on
such terms, if any, as it thinks fit.
10/6 Non-compliance
with Rules of Court or rule of practice
Subject to Rule 10/7, non-compliance with Rules of Court, or
with any rule of practice for the time being in force, shall not render any
proceeding void unless the Court so directs, but the proceeding may be set
aside either wholly or in part as irregular, or amended, or otherwise dealt
with, in such manner and on such terms as the Court thinks fit.
10/7 Non-compliance as
to mode of beginning proceedings
(1) No
proceedings shall be void, or be rendered void or wholly set aside under
Rule 10/6 or otherwise, by reason only of the fact that the proceedings
were begun by a means other than that required in the case of the proceedings
in question.
(2) If
proceedings are begun as mentioned in paragraph (1) then, subject to that
paragraph, the Court may make any order which it has power to make under Rule 10/6,
and paragraph (1) shall not be taken as prejudicing the power of the Court
to make any order it thinks fit with respect to the costs of those proceedings.
10/8 Power to award
costs against a plaintiff who fails to appear
If the plaintiff in an action fails to appear at any stage of the
proceedings, the Court may order the plaintiff to pay to a defendant who
appears such sum by way of costs as it thinks just and reasonable.
PART 11
PROCEEDINGS ETC. SUBSEQUENT TO TRIAL
11/1 Application for an
order Vicomte chargé d’écrire
(1) When the Court has
granted an act condemning a defendant to pay the amount for which judgment is
given, the plaintiff may, without obtaining an acte
à peine de prison against the defendant, apply to the Court for
an order Vicomte chargé d’écrire.
(2) However,
no such application may be made before the expiration of one month from the
date of such act.
11/2 Power to set aside
judgments by default
(1) Any
judgment by default may be set aside by the Court on such terms as to costs or
otherwise as it thinks fit.
(2) An
application under paragraph (1) must be made by summons supported by an
affidavit stating the circumstances under which the default has arisen.
(3) “Judgment
by default” does not include any judgment to which the defendant has
given notice in writing to the Court that the defendant submits.
11/3 Authority to
satisfy judgment debts by distraint
(1) When
the Court grants a judgment condemning a defendant to pay a sum of money, the
judgment shall be taken to authorize the plaintiff to cause the moveables of
the defendant to be distrained on unless the Court directs otherwise.
(2) Moveables
distrained on shall be applied towards the satisfaction of the judgment debt
and costs, or sold (either at a public auction or at a valuation) and the
proceeds of sale so applied without the plaintiff’s being required to
obtain any further judgment.
11/4 Sale of moveables
on which distraint has been made
(1) No
sale of moveables on which a distraint has been made may take place without the
leave of the Court unless the Viscount is satisfied that the defendant is aware
of the making of the distraint.
(2) No
sale of moveables on which a distraint has been made by virtue of an authorization
granted under Rule 11/3 may without the leave of the Court take place,
except at the request of the defendant, before the expiration of 15 days
after the day on which the distraint is made.
(3) No
sale of moveables on which a distraint has been made which requires
confirmation by the Court may without the leave of the Court take place, except
at the request of the defendant, before the expiration of 15 days after
the date of the act of the Court confirming the distraint.
(4) A
notice that moveables on which a distraint has been made are to be sold must be
published in the Jersey Gazette not less than 10 days before the date
fixed for the sale.
(5) A
notice indicating the place and date of such sale, together with all
particulars relating to the sale, must be published in the Jersey Gazette not
less than 2 days before such date.
(6) The
name and address of the defendant must be mentioned in both such notices.
11/5 Fines and
forfeitures
(1) It
shall be the duty of the Viscount to collect all fines and other penalties
imposed by the Court and to dispose of all forfeitures ordered by the Court.
(2) An
order imposing a fine or other penalty shall be taken to authorize the Viscount
to distrain on the moveables of the offender and to apply them, or the proceeds
of sale thereof (the sale being effected either at a public auction or at a
valuation), towards the satisfaction of the fine or other penalty and of the
costs incurred by the Viscount.
PART 12
COSTS
12/1 Interpretation
In this Part, unless the context otherwise requires –
“the standard basis” means the basis of taxation of
costs described in Rule 12/4;
“the indemnity basis” means the basis of taxation of
costs described in Rule 12/5;
“the receiving party” means a party in favour of whom
the Court has made an order for costs; and
“the paying party” means a party against whom the Court
has made an order for costs.
12/2 Amount of costs
recoverable
(1) Subject
to the provisions of this Part, the amount of costs which any party shall be
entitled to recover is the amount allowed after taxation on the standard basis
unless it appears to the Court appropriate to order costs to be taxed on the
indemnity basis.
(2) When
an action has been commenced by summons for the recovery of a debt or
liquidated sum and judgment is obtained in default or without opposition,
without any order for substituted service or service out of the jurisdiction
having been made or without the action having been placed on the pending list,
the plaintiff in whose favour an order for costs has been made shall, unless
the Court otherwise orders, recover such costs on the basis of a scale of fixed
costs issued from time to time by the Greffier pursuant to Rule 12/14.
12/3 Taxation by the
Greffier
(1) The
Greffier shall have the power to tax –
(a) the
costs of or arising out of any cause or matter in the Court; and
(b) any
other costs the taxation of which is directed by order of the Court.
(2) An
order for costs shall be liable to taxation and payment forthwith unless it
appears to the Court that some other order should be made.
(3) Without
prejudice to Rules 12/2(2) and 12/6, if the Court makes an order for costs
without indicating the basis of taxation, the costs must be taxed on the
standard basis.
12/4 The standard basis
On a taxation of costs on the standard basis there shall be allowed
a reasonable amount in respect of all costs reasonably incurred and any doubts
which the Greffier may have as to whether the costs were reasonably incurred or
were reasonable in amount shall be resolved in favour of the paying party.
12/5 The indemnity
basis
On a taxation of costs on the indemnity basis all costs shall be
allowed except insofar as they are of an unreasonable amount or have been
unreasonably incurred and any doubts which the Greffier may have as to whether
the costs were reasonably incurred or were reasonable in amount shall be resolved
in favour of the receiving party.
12/6 Litigants in
person
(1) Subject
to this Rule, on a taxation of the costs of a litigant in person, there shall
be allowed such costs as would have been allowed if the work and disbursements
to which the costs relate had been done or made by an advocate on the
litigant’s behalf.
(2) The
amount of costs allowed where a litigant in person does any item of work for
his or her case or part thereof shall be –
(a) if
the work is undertaken in the litigant’s normal working hours and thereby
causes the litigant pecuniary loss, either –
(i) the actual
pecuniary loss, or
(ii) up to two-thirds
of the sum which in the opinion of the Greffier would have been allowed in
respect of that item if the litigant had been represented by an advocate,
whichever is the lower; or
(b) if
the work is undertaken outside of the litigant’s normal working hours, at
such rate per hour as determined by the Greffier in respect of the time
reasonably spent by the litigant on the work.
(3) Where
an assessment is made under paragraph (2)(a), the amount of work done in
the litigant’s working hours shall be calculated by the number of working
hours the litigant was away from his or her work in respect of the time
reasonably spent by the litigant to do the work, as deposed in an affidavit
made by the litigant himself or herself and, for this purpose, the number of
working hours in any one week for which the litigant can claim shall not exceed
40.
(4) Disbursements
shall be allowed to the extent that they are actually and reasonably incurred
and are reasonable in amount.
(5) A
litigant who is allowed costs in respect of attending Court to conduct his or
her own case shall not be entitled to a witness allowance in addition.
12/7 Lawyers outside
the jurisdiction
The cost of advice obtained from or work done by lawyers outside the
jurisdiction shall be allowable on taxation to the extent that –
(a) where
that advice or work done could, in the context of those proceedings, reasonably
have been obtained from or done by a Jersey lawyer, the costs allowable on
taxation shall be no greater than those allowable on taxation in respect of a
Jersey lawyer’s fees; and
(b) where
that advice or work done could not, in the context of those proceedings,
reasonably have been obtained from or done by a Jersey lawyer, the costs
allowable on taxation shall be no greater than those which are reasonable in
all the circumstances of the case.
12/8 Costs of the
taxation proceedings
(1) Subject
to any order made by the Court, the receiving party shall be entitled to his or
her costs of the taxation proceedings.
(2) If
it appears to the Greffier that, in all the circumstances of the taxation
proceedings, some other order should be made as to the whole or any part of the
costs of those proceedings, the Greffier shall have in relation to the costs of
those proceedings the same powers as the Court has in relation to costs.
12/9 Offer to pay costs
(1) The
paying party may make a written offer to pay a specific sum in satisfaction of
any order for costs which offer is expressed to be “without prejudice
save as to the costs of taxation” at any time, and where such an offer is
made, the fact that it has been made shall not be communicated to the Greffier
until the question of the costs of the taxation proceedings falls to be
decided.
(2) The
Greffier may take into account any offer made under paragraph (1) which
has been brought to the Greffier’s attention.
12/10 Commencement of proceedings
(1) The
receiving party must commence proceedings for the taxation of his or her costs –
(a) if
the order is made in relation to an interlocutory application, within 2 months of
the date of that order; or
(b) if
the order is made in relation to the determination of the main cause or action,
within 3 months of the date of that order,
and if the receiving party fails to commence proceedings for
taxation within those time limits, the paying party may with the leave of the
Greffier commence taxation proceedings on such terms as the Greffier shall deem
appropriate.
(2) Leave
under paragraph (1) must be applied for by letter to the Greffier which must
be copied to every other party entitled to be heard on taxation; and if leave
is granted to the paying party, that party shall be entitled to recover the
costs of commencing the taxation proceedings.
(3) Proceedings
for the taxation of costs shall be commenced by producing to the Greffier –
(a) a
copy of the act of Court with the relevant order in respect of costs identified
thereon;
(b) if
there is more than one bill of costs to be submitted, a statement of the name
of every party entitled to submit a bill of costs in the taxation proceedings;
(c) a
statement of the name of every party entitled to be heard in the taxation
proceedings and each party’s address for service;
(d) a
bill of costs in such form as shall be specified by practice direction issued
from time to time pursuant to Rule 12/14 unless in the circumstances the
Greffier is prepared to order that no bill of costs be submitted at that stage
in the taxation proceedings; and
(e) all
supporting material necessary to vouch the items on the bill of costs unless
and to the extent that the Greffier otherwise orders.
(4) If
the Greffier grants leave to the paying party to commence taxation proceedings,
the receiving party may nevertheless commence proceedings for the taxation of
the costs in respect of which leave has been granted to the paying party and
thereupon the proceedings, if any, commenced by the paying party shall be
stayed pending the determination of issues as to the costs of taxation
proceedings in relation to the relevant order for costs.
(5) If
the receiving party does not commence taxation proceedings pursuant to paragraph (4)
within 21 days of receipt of notice that taxation proceedings have begun,
the paying party may apply to the Greffier by summons for directions.
12/11 Subsequent procedure
(1) A receiving
party who has begun proceedings for taxation must, within 7 days thereof,
give notice to the paying party that taxation proceedings have begun requiring
the paying party within 28 days of receipt of the notice to notify the
Greffier and the receiving party in writing –
(a) that
the paying party wishes to respond to the bill of costs by written objections
in which case the paying party must set these out in full within the said
period whilst reserving the right to be heard at a taxation hearing;
(b) that
the paying party has no objections to the bill of costs; or
(c) that
the receiving and paying parties have agreed to a provisional taxation in
accordance with Rule 12/13.
(2) If
the paying party fails to notify the Greffier and the receiving party in
accordance with paragraph (1), the paying party shall be deemed to have no
objections to the bill of costs.
(3) If
the paying party submits written objections pursuant to paragraph (1)(a)
then, where the receiving party wishes to file a reply or the Greffier so
orders, the receiving party must file the reply with the Greffier and send a
copy to the paying party within 21 days receipt of the said written
objections or order as the case may be.
(4) If,
at the expiration of 14 days from the date on which either a reply is
filed or the period for filing a reply has expired, whichever is the sooner,
neither party has notified the Greffier in writing that –
(a) he or
she wishes to be heard at a taxation hearing; and
(b) a
provisional taxation in accordance with Rule 12/13 has been agreed,
the Greffier shall proceed to tax the bill of costs.
12/12 Date for taxation hearing
The date for a taxation hearing shall be fixed by the Greffier in
consultation with the receiving and paying parties.
12/13 Provisional taxation
When taxation proceedings have been commenced in accordance with Rule 12/10(3),
if –
(a) the
paying party fails to notify the Greffier and the receiving party in accordance
with Rule 12/11(1) and the Greffier considers it reasonable to proceed by
way of provisional taxation; or
(b) the
Greffier has been notified in accordance with paragraph (1)(c) or paragraph (4)(b)
of Rule 12/11 that the parties have agreed to proceed by way of
provisional taxation,
a provisional taxation of the bill of costs filed in those
proceedings shall be undertaken and completed; and the Greffier shall send to
the receiving party and to the paying party notice specifying the amount which
the Greffier proposes to allow in respect of the bill and requiring the said
parties to inform the Greffier within 14 days after receipt of the notice
if they wish to raise written objections to the provisional taxation and, if
either of them does, to set these out in full within the said period; and after
the expiry of the said period of 14 days the Greffier shall proceed to
finalise the taxation of the provisional bill of costs on the basis of any such
written objections.
12/14 Practice directions
The Greffier shall, subject to the approval of the Bailiff, issue
practice directions from time to time in relation to taxation practice and
scales of fixed costs for the purposes of this Part.
PART 13
DIVISION OF ESTATES, AND DOWER
13/1 Division of
moveable estate
(1) Actions
with regard to the division of moveable estate on an intestacy must be
instituted against the administrator of such estate and the division thereof
must proceed on the basis of the inventory and accounts prepared by the
administrator in pursuance of the Probate
(Jersey) Law 1998.[25]
(2) If
appointed arbitre, the Greffier shall give
directions to effect the division of the estate and, if it appears that any
question raised by the parties should be determined before the division of the
estate can proceed, shall refer such question to the Court.
(3) When
the division of the estate has been completed, the Greffier shall prepare a
record of the proceedings and either party may action the opposite party to
witness confirmation by the Court of such record and the making of an order
that it be registered in the Public Registry.
(4) Subject
to paragraph (3), if a party actioned fails to appear, the Greffier may
allot to such party that part of the moveable estate to which that party
appears to be entitled.
13/2 Actions for dower
(1) An
action against the legatees for dower must be instituted by summons and, unless
the Court otherwise directs, the Greffier shall be appointed arbitre.
(2) The
legatees must produce to the Greffier an entier
of the immoveable estate in triplicate.
(3) The
widow must produce to the Greffier a statement that divides the immoveable
estate into three parts.
(4) The
legatees must choose two parts and the widow shall take her dower on the
remaining part.
(5) The
right to dower dates from the day on which the summons in the action is served.
(6) The
procedural steps in Rule 13/1(2)-(4) shall apply, with the necessary
modifications, to an action for dower as they apply to an action with regard to
the division of movable estate on intestacy.
PART 14
VUES
14/1 Vue de Vicomte
(1) Upon
having fixed a day for a Vue, the Viscount
shall give at least 14 clear days’ notice thereof to the parties to
the action.
(2) Written
pleadings may be filed with the Viscount and in such case the Viscount shall
give such directions as may be appropriate for this purpose, and the Viscount
shall have the same powers as the Greffier under Rules 6/11 and 6/26.
(3) A
party filing a pleading must, within 24 hours after it is filed, deliver a
copy to the other parties to the action or their advocates or solicitors.
(4) The
Viscount shall select and summon a panel of 10 experts for the purposes of
the Vue.
(5) Experts
related to each other in a degree closer than, and including, uncle and nephew,
whether by blood or marriage, cannot serve on the same panel.
(6) Each
of the parties may challenge one expert peremptorily and may challenge any
other expert for cause.
(7) The
number of experts required for a Vue de Vicomte
is 6.
(8) If,
for any reason, the number of experts summoned by the Viscount proves
insufficient, the Viscount may select additional experts de circumstantibus.
(9) The
experts shall be sworn by the Viscount, the pleadings shall be read, witnesses
may be heard and the parties shall be heard.
(10) The
Viscount shall explain to the experts their duty and they shall execute such
duty accordingly.
(11) When the
experts have arrived at a decision, they shall communicate it to the Viscount
and, if they are divided in opinion, the decision shall be that of the
majority.
(12) The
Viscount shall prepare a record of the proceedings (which shall incorporate any
pleadings filed) and either party may action the other party before the Court
to witness the confirmation of such record and, if need be, the making of an
order that it be registered in the Public Registry.
(13) A party
who wishes to challenge the decision made at a Vue de
Vicomte must do so in Court when actioned to witness the confirmation of
the Viscount’s record and a party who does so shall be entitled to have
the proceedings at the Vue de Vicomte reviewed
at a Vue de Justice.
14/2 Vue de Justice
(1) A Vue de Justice shall be held before the Bailiff.
(2) The
number of experts required for a Vue de Justice
is 12, that is to say, 6 experts in addition to those whose decision is
challenged.
(3) However,
if any of the experts whose decision is challenged are dead, or can satisfy the
Viscount that they have a legitimate excuse for not acting at the Vue de Justice, they shall be replaced by experts
selected and summoned in pursuance of paragraph (4).
(4) When
the Bailiff has fixed a date for the Vue de Justice,
the Viscount shall select and summon 10 (or more, if need be) additional
experts for the day fixed, and shall also summon for that day the available
experts whose decision is challenged and shall give notice thereof to the
parties to the proceedings.
(5) Paragraphs
(5), (6) and (8) of Rule 14/1 shall apply when the additional experts summoned
are empanelled.
(6) Paragraphs
(9), (10), (11) and (12) of Rule 14/1 shall apply to the proceedings, with the
substitution of references to the Greffier for references to the Viscount in paragraphs (9)
and (12) and with the substitution of references to the Bailiff for references
to the Viscount in paragraphs (10) and (11).
(7) The
decision of the 12 experts on a matter lawfully submitted to them at a Vue de Justice is final and without appeal.
14/3 Costs at Vues
Part 1 of the Civil
Proceedings (Jersey) Law 1956[26] shall apply to the costs of
and incidental to a Vue de Vicomte or a Vue de Justice as if they were proceedings in the
Royal Court.
PART 15
APPEALS FROM ADMINISTRATIVE DECISIONS
15/1 Application and
interpretation
(1) Except
where provision is otherwise made, this Part applies to appeals to the Court
from an administrative decision of a Committee of the States or other body or
person in exercise of a right of appeal conferred by or under any enactment
(including an Act of the Parliament of the United Kingdom or instrument
thereunder extended by Order in Council to, or otherwise having effect in,
Jersey).
(2) In
this Part, unless the context otherwise requires –
“appeal” means an appeal to which this Part applies and
“appellant” shall be construed accordingly;
“the respondent” means the Committee or other body or
person whose decision is appealed from.
15/2 Notice of Appeal
and fixing day for trial
(1) An
appeal to the Court shall be brought by serving on the respondent a notice of
appeal in the form set out in Schedule 4, and every such notice must
specify the grounds of the appeal with sufficient particularity to make clear
the nature of the appellant’s case.
(2) The
appellant shall not, except with the leave of the Court, be entitled to rely on
any ground of appeal unless it is specified in the notice of appeal.
(3) The
appellant must –
(a) within
2 days after service of the notice of appeal furnish a copy of the notice
to the Greffier together with a copy of the record of the Viscount certifying
that the notice of appeal has been duly served;
(b) within
5 days after the service of the notice of appeal apply to the
Bailiff’s Secretary for a day to be fixed for the hearing of the appeal.
(4) If
the appellant does not apply for a day to be fixed for the hearing of the
appeal in accordance with paragraph (3)(b), the appeal shall be deemed to
have been withdrawn.
(5) Except
with the leave of the Bailiff, the day fixed for the hearing of the appeal
shall be not more than 4 months from the date of service of the notice of
appeal.
15/3 Documents for use
of the Court
(1) Within
28 days after receiving notice of appeal, the respondent must lodge with
the Greffier and serve on the appellant an affidavit setting out –
(a) a
statement of the decision from which the appeal is brought; and
(b) the
facts material to the decision and the reasons for it and exhibiting all
documentary evidence relating thereto.
(2) Within
21 days after service of the affidavit on the appellant in accordance with
paragraph (1), the appellant must lodge with the Greffier and serve on the
respondent an affidavit in response.
(3) The
respondent may, within 14 days after service of the appellant’s
affidavit in accordance with paragraph (2), lodge with the Greffier and
serve on the appellant an affidavit in reply thereto.
(4) Not
less than 14 days before the date of the hearing of the appeal, the
appellant and the respondent must each furnish to the Court (and serve upon one
another) a written statement of the submissions that the appellant or the respondent,
as the case may be, will make at the hearing concerning the issues in dispute
between them.
15/4 Amendment of
notice of appeal, etc
The Court may at any stage of the proceedings allow the appellant to
amend his or her notice of appeal, or the appellant or the respondent to file
supplementary affidavits, on such terms as to costs or otherwise as may be
just.
15/5 Dismissal of
appeal for non-prosecution
(1) Without
prejudice to Rule 15/2(4), if the appellant or the respondent fails to
comply with any requirement of this Part or with an order of the Court made in
connexion with the appeal, the Court may, on the application of either party to
the appeal, make such order as it thinks fit, including an order as to costs
and, in the case of an application by the respondent, an order that the appeal
be dismissed.
(2) If,
after 6 months have elapsed from the day the appeal was brought, the
appeal has not been heard, the Court may, of its own motion, after giving not
less than 28 days notice in writing to the appellant and to the respondent,
order that the appeal be dismissed, and the Court may make such consequential
order as to costs or otherwise as it thinks fit.
PART 16
APPLICATIONS FOR JUDICIAL REVIEW IN CIVIL
PROCEEDINGS
16/1 Application and
interpretation
(1) Except
in cases where an appeal is available against a decision of a public authority
or body, and subject to paragraph (3), an application for a declaration,
injunction or any other order in any public law matter must be brought by way
of an application for judicial review made in accordance with this Part unless
the Court otherwise orders.
(2) For
the purposes of this Part, an application is made in a public law matter if the
application relates to the validity of a judgment, decision, order or other
action of a public authority or body, or seeks relief to compel a public
authority or body to perform a duty owed by it in public law or seeks to
restrain it from acting in a way that would be invalid.
(3) In
determining whether an application falls within paragraph (1), the Bailiff
or Court shall have regard to –
(a) the
nature of the matters in respect of which relief is sought;
(b) the
nature of the persons and bodies against whom relief is being sought; and
(c) all
the circumstances of the case.
(4) This
Part applies only to applications for judicial review in civil proceedings.
16/2 Grant of leave to
apply for judicial review
(1) No
application for judicial review may be made unless the leave of the Bailiff has
been obtained in accordance with this Rule.
(2) An
application for leave must be made ex parte to
the Bailiff, sitting as sole judge and constituting the Inferior Number of the
Royal Court, by filing with the Bailiff –
(a) a
notice substantially in the appropriate form set out in Schedule 5 containing a
statement of –
(i) the name and
description of the applicant,
(ii) the interest of
the applicant in the matter to which the application relates,
(iii) the judgment, decision,
order or other proceeding in respect of which relief is sought,
(iv) the relief sought and
the grounds upon which it is sought,
(v) any alternative
remedies which are or were available to the applicant, and if they have not
been pursued, the reasons why,
(vi) the reasons for any
delay in making the application for judicial review,
(vii) the name and address of the
applicant’s advocate or solicitor (if any), and
(viii) the applicant’s address for
service; and
(b) an
affidavit setting out the facts relied on.
(3) The
Bailiff may determine the application without a hearing, unless a hearing is
requested in the notice of application.
(4) The
Bailiff may, after considering the application for leave, direct that it be
listed for oral hearing and may direct that any person against whom relief is
sought be given notice of the hearing.
(5) At
any oral hearing of an application for leave, the Bailiff may permit any person
against whom relief is sought to make representations and, if the Bailiff
considers that that person may not have received notification of the hearing of
an application for leave, the Bailiff may adjourn the hearing and direct that
any person against whom relief is sought be notified of the hearing of the
application for leave.
(6) The
Bailiff need not sit in open court in considering an application under this
Rule.
(7) If
any such application is determined in the absence of the Greffier, the Bailiff
shall record his order in writing and send the original thereof, together with
the originals of the documents filed pursuant to paragraph (2), to the
Greffier.
(8) The
Bailiff may grant leave generally or on one or more grounds only and may grant
leave in respect of one or more judgments, orders, decisions or other
proceedings.
(9) An
applicant may not rely on any ground where leave has been refused in relation
to that ground and may not seek relief in respect of any judgment, order,
decision or proceeding in respect of which leave was refused unless the Court
otherwise directs.
(10) The
Bailiff may allow the applicant’s statement to be amended, whether by
specifying different or additional grounds of relief or otherwise, on such
terms, if any, as the Bailiff thinks fit.
(11) The
Bailiff shall not grant leave unless the Bailiff considers that the applicant
has a sufficient interest in the matter to which the application relates.
(12) If leave
is sought to apply for an order to quash any judgment, order or other
proceeding which is subject to appeal and a time is limited for the bringing of
the appeal, the Bailiff may adjourn the application for leave until the appeal
is determined or the time for appealing has expired.
(13) If the
Bailiff grants leave, the Bailiff may impose such terms as to costs and as to
giving security as the Bailiff thinks fit and shall specify the persons on whom
the proceedings shall be served pursuant to Rule 16/4(2).
(14) If leave
to apply for judicial review is granted, the Bailiff may direct that the grant
shall operate as a stay of any proceedings to which the application relates or
may at any time make such interim order on such terms and conditions, including
conditions as to the giving of cross-undertakings in damages whether in respect
of any person against whom relief is sought or any other person, as the Bailiff
considers appropriate.
(15) Notice
of the application for a stay or interim order (whether such application is
made in the application for leave or otherwise) must, except in cases of
urgency, be served on any person against whom relief is being sought and any
other person who would be directly affected by the grant or stay or interim
order 2 days before the hearing of the application. The application must
set out a brief description of the stay or interim order sought and the grounds
upon which it is sought, and be accompanied by an affidavit verifying the facts
relied upon in support of the application.
(16) If leave
has not been granted or if the persons referred to in paragraph (15) have
not been served with notice of the application, the Bailiff may grant a stay or
make such interim order as is referred to in paragraph (14) for such
period and on such terms and conditions as the Bailiff thinks fit if satisfied
that the matter is urgent and that in the circumstances it was not practicable
to serve the notice for the application for leave to be made or determined
prior to the grant of a stay or the making of an interim order.
16/3 Delay in applying
for relief
(1) Subject
to paragraphs (2) and (3), an application for leave to apply for judicial
review must be made promptly and in any event not later than 3 months from
the date when grounds for the application first arose.
(2) The
Bailiff may refuse an application made within the period of 3 months if
satisfied –
(a) that
the application is not sufficiently prompt; and
(b) that
if the relief sought were granted, on an application made at this stage, it
would be likely to cause substantial hardship to, or substantially prejudice
the rights of, any person or be detrimental to good administration.
(3) An
application may be made after the end of the period of 3 months if the
Bailiff is satisfied –
(a) that
there is good reason for the application not having been made within that
period; and
(b) that
if the relief sought were granted, on an application made at this stage, it
would not be likely to cause substantial hardship to, or substantially
prejudice the rights of, any person or be detrimental to good administration.
(4) The
Court hearing the substantive application may reconsider whether there was good
reason for extending the period of 3 months and may refuse any relief if
it considers that granting such relief would cause substantial hardship to, or
substantially prejudice the rights of, any person or be detrimental to good
administration.
(5) If
the relief sought is an order in respect of any judgment, order or other
proceeding, the date when grounds for the application first arose shall be
taken to be the date of that judgment, order or proceeding.
16/4 Mode of applying
for judicial review
(1) When
leave has been granted to make an application for judicial review, the
application must be brought, within 14 days from the date on which leave was
granted, by serving through the Viscount a notice substantially in the appropriate
form set out in Schedule 5, together with a copy of the order granting
leave and a copy of the statement and accompanying affidavit in support of an
application for leave under Rule 16/2.
(2) The
documents referred to in paragraph (1) must be served on all persons
directly affected and where they relate to any proceedings in or before a court
and the object of the application is either to compel the court or an officer
of the court to do any act in relation to the proceedings or to quash them or
any order made therein, the documents must also be served on the Greffier and, if
any objection to the conduct of the Judge is to be made, on the Judge.
(3) Unless
the Bailiff has otherwise directed, there must be at least 10 days between
the service of the documents referred to in paragraph (2) and the hearing.
(4) The
applicant must, within 2 days of service of the documents referred to in paragraph (2),
furnish a copy of the said documents to the Greffier together with a copy of the
record of the Viscount certifying that the said documents have been duly
served.
(5) If
on the hearing of the application the Court is of opinion that any person who
ought, whether under this Rule or otherwise, to have been served has not been
served, the Court may adjourn the hearing on such terms (if any) as it may
direct in order that the documents referred to in paragraph (2) may be
served on that person.
16/5 Statements and
affidavits
(1) Subject
to paragraphs (8), (9) and (10) of Rule 16/2 and paragraph (2)
of this Rule, no grounds may be relied upon or any relief sought at the hearing
of the application except the grounds and relief set out in the statement in
support of the application for leave.
(2) The
Court may on hearing the application allow the applicant to amend the
statement, whether by specifying different or additional grounds of relief or
otherwise, on such terms, if any, as it thinks fit and may allow further
affidavits to be used by the applicant.
(3) If
the applicant intends to ask to be allowed to amend the statement or to use
further affidavits, the applicant must give notice of such intention, together
with a copy of any amended statement or further affidavits, to every other
party.
(4) Any
respondent who intends to use an affidavit at the hearing must file it with the
Greffier and furnish a copy of it to every other party as soon as practicable
and in any event, unless the Bailiff or the Court otherwise directs, within 56 days
after service upon the respondent of the documents required to be served by
Rule 16/4(2).
16/6 Setting aside of
leave
(1) Any person served under
Rule 16/4(2) who did not appear before the Bailiff to make representations
prior to the granting of leave may, within 14 days of service, apply to
the Bailiff sitting as sole judge and constituting the Inferior Number to have
the leave set aside by making an application substantially in the appropriate
form set out in Schedule 5 and the Bailiff may make an order setting aside
the leave if satisfied that the applicant did not disclose all material facts
in the application or that for some other substantial reason it is just to make
such an order.
(2) Notice
of any application made under paragraph (1) must be accompanied by an
affidavit verifying any facts relied upon. The notice and any accompanying
affidavits must be served on the applicant and any other person served under
Rule 16/4(2).
16/7 Summons for
directions and interlocutory applications
(1) The
applicant must, within 14 days from –
(a) the
date on which the time limited for the filing of the respondents’
affidavits in accordance with Rule 16/5(4) shall expire; or
(b) the
date by which every respondent shall have filed their affidavit,
whichever date is the earlier, apply to the Bailiff in chambers for
a day to be fixed for the hearing of a summons for directions, for the hearing
of such interlocutory applications as the applicant may wish to make and for
the fixing of the day for the hearing in relation to the application for judicial
review.
(2) Any
respondent who intends to make an interlocutory application in relation to the
application for judicial review must, within the period of 14 days
referred to in paragraph (1), apply to the Bailiff in chambers for a day
to be fixed for the hearing of a summons for the hearing of such interlocutory
application.
(3) In
this Rule “interlocutory application” includes an application for
an order under Rule 6/17, for an order for the attendance for
cross-examination of a person making an affidavit or for an order that viva voce evidence be heard in relation to any
particular issue in the proceedings.
(4) The
applicant and every respondent must, at least 2 clear days before the hearing
of the summons referred to in paragraph (1), furnish to the other parties
and file their estimate of the length of the hearing of the application for
judicial review.
(5) No
order under Rule 6/17 or requiring any person making an affidavit to
attend for cross-examination or order that viva voce
evidence be heard in relation to any particular issue in the proceedings or any
like order may be made unless the Court considers that, for some substantial
reason, the application cannot be disposed of fairly unless a document or class
of document is produced for inspection or there is cross-examination of a
deponent or deponents or viva voce evidence is
heard in relation to a particular issue or any other order sought is made.
16/8 Dismissal of
application for non-prosecution
If, at the expiration of the date on which the applicant is required
to apply for a day to be fixed for the hearing of the summons referred to in
Rule 16/7(1), the applicant has not so applied –
(a) any
respondent may, after giving not less than 4 days’ notice to the
Greffier and to the applicant, apply to the Court for the application to be
dismissed, and the Court may dismiss the application or make such order as it
thinks fit; or
(b) the
Court may give notice to the applicant and to every respondent that in the
absence of any application being made within 14 days from the date of such
notice for a day to be fixed for the hearing of the summons, the Court will
order, of its own motion and without further notice, that the application be
dismissed and that the applicant be condemned to pay the costs of and
incidental to the application.
16/9 Claim for damages
(1) On
an application for judicial review the Court may, subject to paragraph (2),
award damages, restitution or recovery of money to the applicant if –
(a) there
has been included in the statement in support of the application for leave
under Rule 16/2 a claim for damages, restitution or recovery of money
arising from any matter to which the application relates; and
(b) the
Court is satisfied that, if the claim had been made in an action begun by the
applicant at the time of making the application, the applicant could have been
awarded damages, restitution or recovery of money.
(2) Rule 6/8
shall apply to a statement relating to a claim for damages, restitution or
recovery of money as it applies to a pleading.
16/10 Hearing of application for
judicial review
(1) On
the hearing of an application for judicial review, any person who desires to be
heard in opposition to the application, and appears to the Court to be a proper
person to be heard, shall be heard, notwithstanding that that person has not
been served with notice of the application.
(2) When
the relief sought is or includes an order to quash any proceedings, the
applicant may not question the validity of any order or record unless before
the hearing of the motion or summons the applicant has filed a copy thereof
verified by affidavit or accounts for failure to do so to the satisfaction of
the Court hearing the application.
(3) If
the Court is satisfied that there are grounds for quashing the decision to
which the application relates, the Court may, in addition to quashing it, remit
the matter to the court, tribunal or authority concerned with a direction to
reconsider it and reach a decision in accordance with the findings of the
Court.
(4) If
the relief sought is a declaration, an injunction or damages and the Court
considers that it should not be granted on an application for judicial review
but might have been granted had it been sought in an action begun by order of justice
by the applicant at the time of making the application, the Court may, instead
of refusing the application, order the proceedings to continue as if they had
been begun by order of justice and the Court may make such orders as to the
future procedure in the proceedings as shall be appropriate.
PART 17
TRANSACTION OF BUSINESS IN CHAMBERS
17/1 Non-contentious
business which may be transacted before the Bailiff and Jurats
The following non-contentious business may be transacted in chambers
before the Bailiff and two Jurats, namely, applications in pursuance of Article 47(1)
and applications for leave in pursuance of Article 47(3) of the Trusts (Jersey) Law 1984,[27] and the making of adoption orders.
17/2 Non-contentious
business which may be transacted before the Bailiff
(1) The
following non-contentious business of the Court may be transacted in chambers
before the Bailiff alone, namely –
(a) the
registration of the Viscount’s report on an inquest held on the body of a
deceased person;
(b) the
making of an order seeking aid from a court outside Jersey exercising
jurisdiction in relation to insolvency; and
(c) the
making of an order providing for obtaining evidence in Jersey under the
Evidence (Proceedings in Other Jurisdictions) Act 1975, as extended to Jersey
by the Evidence (Proceedings in Other
Jurisdictions) (Jersey) Order 1983.[28]
(2) If
any such business is transacted in the absence of the Greffier, the Bailiff
shall make the order in writing and transmit it to the Greffier.
17/3 Non-contentious
business which may be transacted before the Greffier
(1) The
following non-contentious business may be transacted in chambers before the
Greffier, namely –
(a) the
grant of an application for the registration of a will of immoveables;
(b) the
hearing and determination of an application for the registration of a power of
attorney (other than a power naming an attorney without whom the donor may not
transact in respect of moveable or immoveable property) or of an instrument
revoking or abandoning a power of attorney (other than such a power as
aforesaid);
(c) the
hearing and determination of an application for registration, and the making
(and where so provided in the relevant legislation, the rescission) of orders
for the cancellation of such registration, as an architect under the Architects (Registration) (Jersey) Law 1954,[29] a dentist under the Dentists (Registration) (Jersey) Law 1961,[30] a medical practitioner under
the Medical Practitioners (Registration)
(Jersey) Law 1960,[31] an ophthalmic optician or a
dispensing optician under the Opticians
(Registration) (Jersey) Law 1962,[32] a pharmacist under the Pharmacy, Poisons and Medicines (Jersey) Law 1952,[33] or a veterinary surgeon
under the Veterinary Surgeons (Jersey) Law 1999.[34]
(d) the
following matters under the Loi (1862) sur les teneures en fidéicommis
et l’incorporation d’associations[35] –
(i) the acceptance of
a declaration with regard to the appointment of a new trustee made in
accordance with Article 3,
(ii) the approval by
the Court of any modification of the constitution (objet
et règles) of an association pursuant to the third paragraph of
Article 4,
(iii) the acceptance of a
declaration of the name of the person charged to represent an association made
in accordance with the first or second paragraph of Article 5,
of that Law;
(e) the
hearing and determination of an application for the registration of a deed
poll;
(f) the
grant of an application for the registration of a notice served under Article 2(3)
of the Sewerage (Amendment) (Jersey) Law 1953,[36] under Article 2(1A) of
the Roads (Drainage) (Jersey) Law 1962,[37] under Article 9(5) or (7)
of the Island Planning (Jersey) Law 1964,[38] or under Article 3(1)
of the Water (Jersey) Law 1972;[39]
(g) the
hearing and determination of an application made under Article 3 of the Service of Process and Taking of Evidence
(Jersey) Law 1960;[40]
(h) the
hearing and determination of an application for the rectification of the
register under Article 10 of the Patents
(Jersey) Law 1957,[41] Article 11 of the Registered Designs (Jersey) Law 1957[42] and Article 14 of the Trade Marks (Jersey) Law 2000;[43]
(i) the
grant of an application under Article 13 of the Compulsory Purchase of Land (Jersey) Law 1961[44] for the registration of an
award of the Board of Arbitrators;
(j) the
hearing and determination of an application for the registration of a
co-ownership declaration (déclaration de
copropriété) under Article 3 of the Loi (1991) sur la copropriété des
immeubles bâtis[45] or of any amendment to such
a declaration;
(k) the
grant of an application under Article 9(8) of the Island Planning (Jersey) Law 1964[46] or Article 6(2) of the Island Planning (Amendment No. 3) (Jersey) Law
1983[47] for the registration of a
notice served under Article 9 of the Island
Planning (Jersey) Law 1964[48] and the grant of an
application under Article 8A(15) thereof for the registration of a planning
obligation or under Article 8A(16) for the registration of an agreement
modifying or discharging a planning obligation;
(l) the
grant of an application for an order under Article 5(2) of the Drug Trafficking Offences (Jersey) Law 1988;[49] and
(m) a declaration
pursuant to Article 213 of the Companies
(Jersey) Law 1991[50] that the dissolution of a
company is void.
(2) Every
such application or declaration except in respect of paragraph (1)(b) must
be in writing and be signed by the applicant or declarant or by an advocate or
solicitor on behalf of the applicant or declarant.
PART 18
REGISTRATION OF TITLE, HYPOTHECS, ETC.,
PROCEDURE ON CAVEATS, ETC.
18/1 Mode of
registration and indexing
(1) Subject
to paragraph (2), registration of a document which is to be retained at
the Judicial Greffe may be effected by placing the document in a file, and
registration by enrolment may be effected either by any mechanical means,
including photography or similar process, on individual sheets which are
subsequently filed or bound or by keeping an image of the document on a
computer.
(2) Registration
by enrolment of a document in any of the registers of the Public Registry and
the indexing thereof may be effected on a computer.
(3) Entries
in the indices shall be made –
(a) in
relation to a married woman, both under her maiden name and under the name of
her husband;
(b) in
relation to a guarantee in a contract, under the name of the guarantor;
(c) in
relation to a woman who abandons her right of dower, both under her maiden name
and under the name of the man from whom she derives her dower; and
(d) in
relation to the registration of a will of immoveables, under the names of the
testator and the devisees.
18/2 Registration of
sundry acts, instruments and judgments
(1) Acts
directing the registration of –
(a) wills
and codicils disposing of immoveable property;
(b) co-ownership
declarations (déclarations de
copropriété) under Article 3 of the Loi (1991) sur la copropriété des
immeubles bâtis[51] or amendments to such
declarations;
(c) notices
served under paragraph (3) of Article 2 of the Sewerage (Amendment) (Jersey) Law 1953,[52] or under paragraph (1)
of Article 3 of the Water (Jersey)
Law 1972,[53]
shall be enrolled in the Register of Contracts and in no other
register.
(2) An
instrument repealing or abandoning a power naming an attorney without whom the
donor may not transact in respect of moveable or immoveable property, and a
judgment given by a court of competent jurisdiction affecting –
(a) the
validity of any such power; or
(b) the
appointment of a curator, guardian or administrator,
shall be enrolled in the Register of Procurations, and a reference
to the entry shall be made in the margin of the entry of the power or letters
of appointment affected.
(3) Deeds
poll registered in the Royal Court and executed by persons whose names appear
in the Register of Contracts or the Register of Procurations or as a defendant
in the Register of Obligations shall be enrolled in whichever of those
registers their name appears, and the application for registration of the deed
poll shall contain all such information as may be necessary for this purpose.
(4) A
judgment affecting the validity of an hereditary contract or testamentary disposition
of immoveable property given by a court of competent jurisdiction shall be
enrolled in the Register of Contracts, and a reference to the entry shall be
made in the margin of the entry of the contract or testamentary disposition
affected and in the index of the Register.
(5) An
order of the Family division relating to immoveable property shall be enrolled
in the Register of Contracts.
18/3 Registration of
instruments relating to the title of immoveable property
(1) No
instrument relating to the title of immoveable property is valid unless
registered in the Public Registry.
(2) Any
such instrument shall be deemed to be so registered if it is in the custody of
the Greffier for the purposes of registration, and its effective date shall be
deemed to be, if a contract, the date on which it was passed before Court or,
if another instrument, the date on which its registration in the Public
Registry was ordered by the Court.
18/4 Judicial hypothecs
(1) When
the Court gives an act or judgment of a kind referred to in Article 13 of
the Loi (1880) sur la
propriété foncière,[54] the Court, on the
application of the plaintiff, shall order the registration of the act or
judgment in the Register of Obligations and, in such a case, the judicial
hypothec resulting from the registration shall bear the same date as that of
the act or judgment and shall confer on the plaintiff the same rights as the
plaintiff would have had had the plaintiff remitted it to the Greffier within 15 days
of the date thereof in accordance with the provisions of the said Article 13.
(2) Actions
for the acknowledgement of a debt by consent (reconnaissances)
must be brought before the Greffier in chambers.
(3) An
action for the acknowledgement of a debt by consent shall be instituted by the
delivery to the Greffier of an acknowledgement document which must –
(a) state
the full names of all parties to the action (including, in the case of a woman,
her maiden name);
(b) be
in or substantially in the appropriate form set out in Schedule 6;
(c) be
executed by each defendant or by that defendant’s duly authorized
attorney or by an advocate or solicitor on the defendant’s behalf and by
the plaintiff or by an advocate or solicitor on the plaintiff’s behalf;
(d) state
the date for which registration of the relevant act is requested by the
plaintiff or, where immediate registration of the act is not being sought, the
date of the act recording acknowledgement only, which date shall in either case
be –
(i) a date upon which
public passing of contracts takes place, or
(ii) where the
borrowing relates to a contract passé dans le
particulier, the date of passing the contract;
(e) be
typewritten or printed in either single or 1½ line spacing on paper
of A4 size, and shall be set out in such a manner as to leave a clear
margin at least 2½ inches in depth at the foot of the paper below
the signatures;
(f) state
the amount to be acknowledged expressed in both words and figures and dates
expressed in the form “the 1st January, 20--”;
(g) have
the revenue stamps in respect of the fee payable on an action for the
acknowledgement of a debt under the Stamp
Duties and Fees (Jersey) Law 1998[55] affixed either to the back
of the acknowledgement document or to a separate sheet of paper attached
thereto;
(h) where
the registration of an act in relation to the acknowledgement of a debt is
intended by the parties thereto to operate as a hypothec on a specific property,
contain a description of the property which must –
(i) include, wherever
practicable, details of the title by which the property was acquired by the
borrower,
(ii) be expressed,
wherever practicable, in the form of a street address,
(iii) be no longer than is
necessary for the purpose of identifying the property,
but not include any description of boundaries or abutments (other
than the name of the road which the property borders or from which access is
gained to it) except where necessary for the purpose of demarcating the
property to be hypothecated from other property belonging to the borrower; and
(i) be
presented to the Greffier after 9 a.m. on the date referred to in sub-paragraph (d),
provided that no acknowledgement document may be presented to the Greffier
after 4 p.m. on the said date except with the leave of the Bailiff.
(4) If
the plaintiff requests immediate registration of the act in relation to the
action the Greffier shall register it in the Public Registry in accordance with
paragraph (10).
(5) If
the plaintiff requests an act recording acknowledgement only, the Greffier
shall, subject to the provisions of paragraph (9), make such an act in the
terms of the acknowledgement document.
(6) No
attestation of the execution by a defendant of an acknowledgement document
shall be necessary except such attestation, in the case of a body corporate, as
its constitution may require.
(7) A
debt acknowledged in the manner prescribed by paragraph (3) shall be
deemed, unless otherwise stated in the acknowledgement, to be without prejudice
to any indebtedness of the debtor to the creditor previously or concurrently
secured by hypothec or acknowledged before Court, and the hypothecs relating to
the respective debts shall be without prejudice to one another.
(8) If
the bond, note of hand, guarantee or other similar document to which an action
for the acknowledgement of a debt refers is required to be marked (merché) by the Greffier, it must be presented
to the Greffier for marking at the same time as the acknowledgement document is
delivered to the Greffier and the Greffier shall mark it and hand it back
forthwith to the person who presented it.
(9) An
action for the acknowledgement of a debt instituted in accordance with paragraph (3)
may, at any time not later than 4 p.m. on the date referred to in paragraph (3)(d),
be withdrawn by the advocate or solicitor acting for the plaintiff.
(10) In the
case referred to in paragraph (4) the Greffier shall, after the time
within which an action for the acknowledgement of a debt delivered for
registration on a particular date may be withdrawn, sign and seal the
acknowledgement document which shall thereupon become an act and be enrolled in
the Register of Obligations in accordance with the provisions of Article 13
of the Loi (1880) sur la
propriété foncière.[56]
(11) At the
beginning of each working week, the Greffier shall place in the Public Registry
copies of all acts in relation to actions for the acknowledgement of a debt
registered in the manner prescribed in paragraphs (4) and (10) and all
other acts of Court, which were ordered to be registered in the Public Registry
during the preceding week, and shall attach to the said copies a statement of
the number of such copies.
(12) In the
case envisaged in paragraph (3)(h), the act is made without the Greffier
pronouncing on the effect thereof.
18/5 Lodging and effect
of a caveat (opposition)
(1) A
caveat (opposition) against the alienation of a
person’s immoveable property may not be lodged without the leave of the
Bailiff.
(2) An
application for leave under paragraph (1) must be made in writing and be
supported by an affidavit, and the application may be made ex parte.
(3) If
the Bailiff grants the application the Bailiff shall notify the Greffier that
the caveat has been lodged and the Greffier shall, on receipt of a copy of such
notification, cause it to be placed, until the caveat has been lifted or is no
longer in force, in a file forming part of the Public Registry.
(4) A
caveat renders void any contract of alienation of immoveable property passed
while it is in force by or in the name of the person against whom it has been
lodged and, for this purpose, it does not come into force until the date on
which it is placed in the file referred to in paragraph (3).
(5) Any
person prejudiced by the continuation in force of a caveat may summons the
caveator to appear before the Court to show cause why the caveat should not be
lifted.
(6) A
summons under paragraph (5) must be in the form in Schedule 7
supported by an affidavit verifying the facts on which it is based and be
tabled in accordance with Rule 6/5 but, when the case is called, the
Court, notwithstanding Rule 6/6, shall not (unless cause to do so is shown
by the defendant) place the action on the pending list, but may adjourn or
otherwise hear or dispose of the summons as it thinks fit and, without
prejudice to the generality of the foregoing, may order the payment of damages.
18/6 Injunctions
against transactions in immovables
(1) When
the Greffier receives notification from a plaintiff that the Court has granted
an injunction restraining any person from disposing of or hypothecating
immovable property, the Greffier shall cause a copy thereof to be placed, until
the injunction expires or is lifted, in the file referred to in
Rule 18/5(3).
(2) A
contract of alienation of immovable property passed while an injunction against
such alienation is in force, or a hypothec obtained against immovable property
while an injunction against the hypothecation thereof is in force (other than
by virtue of the registration of an act or judgment relating to a debt incurred
before the granting of the injunction), is void and, for this purpose, the
injunction does not come into force until the date on which it is placed on the
file referred to in Rule 18/5(3).
18/7 Marginal note to
be made of revocation or abandonment of power of attorney
When a power of attorney enrolled in the Register of Procurations is
revoked or abandoned, the Greffier shall insert a note to that effect in the
margin of the entry.
18/8 Signing of contracts
(Acte authentique)
An hereditary contract is duly authenticated if signed or initialled
on either the first or the last page thereof by the persons before whom it has
been passed.
18/9 Engrossment of
contracts
(1) In
this Rule, “contract” includes a receipt for the reimbursement of a
rente or simple conventional hypothec, a
document evidencing the discharge of an obligation imposed by virtue of a will
in respect of immoveable property, a power of attorney and letters of
appointment of a guardian or administrator.
(2) The
following provisions apply in relation to the engrossment of contracts –
(a) the
contract shall be engrossed on single sheets of durable paper 17 inches in
height and 10¾ inches in width;
(b) there
shall be a margin, to be left blank, of at least 2 inches in width on the
left hand side, and at least 1½ inches at the head and foot, of
each page of the contract;
(c) if
the Greffier considers that a contract is unsuitable for reproduction, the
Greffier may require an engrossment suitable for reproduction to be lodged;
(d) contracts
shall be coded on a separate sheet and the revenue stamps shall be affixed to
the blank side of the coding sheet;
(e) when
a contract is typewritten, the spacing between the lines shall be that known as
“1½ spacing”;
(f) boundaries
of immoveable property may be described by reference to a plan forming part of
the contract, and any such plan shall be drawn in black, without the use of
colour, on paper of the size and quality prescribed by sub-paragraph (a);
(g) no
document annexed to a contract, other than a plan of the kind and for the
purpose provided by sub-paragraph (f), shall be enrolled in the Public
Registry.
(3) However,
the Greffier may accept a contract for registration which does not comply with paragraph (2)
if the Greffier thinks fit.
18/10 Co-ownership declarations
(1) In
this Rule “the 1991 Law” means the Loi (1991) sur la copropriété des
immeubles bâtis.[57]
(2) The
Court may refuse to grant an application for the registration of a co-ownership
declaration under Article 3 of the 1991 Law if the declaration does not –
(a) state
the name of –
(i) the owner of the
property to which the declaration relates, and
(ii) the
co-owners’ association to be constituted under Article 5 of the 1991
Law;
(b) contain
a description of the property in respect of which the declaration is made
sufficient to identify the boundaries and title (provenance)
thereof;
(c) state
the number of shares (lots) into which the
property is to be divided;
(d) contain
a sufficient statement (whether by reference to a plan forming part of the
declaration or otherwise) of –
(i) how the ownership
of the property has been divided (l’état
déscriptif de division),
(ii) the destination of both the private units and the common
parts, as well as the conditions of their enjoyment,
(iii) subject to the
provisions of the 1991 Law, the rules relating to the administration of the
common parts,
(iv) in respect of each
share (lot) the proportionate interest in the
common parts and the proportionate liability with regard to each category of
the common expenses.
(3) An
application for the registration of a co-ownership declaration under Article 3
of the 1991 Law may also be refused if in the opinion of the Court –
(a) the
name of the co-owners’ association is in any way misleading or is
otherwise undesirable; or
(b) the
declaration is unsuitable for reproduction.
(4) Paragraphs
(2) and (3) apply to the registration of any amendment of a co-ownership
declaration as they apply to the registration of the original declaration.
(5) The
requirements of Rule 18/9(2) apply in relation to the engrossment of
co-ownership declarations and amendments thereof (subject to paragraph (3)
of that Rule) as they apply in relation to the engrossment of contracts save
that –
(a) sub-paragraph (c)
shall not apply;
(b) the
reference to boundaries of immoveable property in sub-paragraph (f) shall
include the état déscriptif de division
of the property to which the declaration relates and the common parts, the
collective services, common facilities and any singular or reciprocal right or
servitude as between the shares (lots) of which
that property comprises;
(c) sub-paragraph (g)
shall not prevent the registration of a co-ownership declaration (or any
amendment thereof) to which is annexed a schedule making detailed provision in
relation to any matter required to be stated in the declaration or otherwise
for the administration of the property to which the declaration relates, if
that schedule forms part of the declaration and otherwise complies with the
said paragraph (2).
18/11 Passing of hereditary
contracts for and on behalf of the Public
(1) The
Attorney General or the Solicitor General, as the case may be, may appoint an advocate
or solicitor employed in the Law Officers’ Department to be party to
hereditary contracts in his or her place for and on behalf of the Public of the
Island.
(2) An
appointment under paragraph (1) –
(a) may
be made in relation to contracts generally or in relation to one contract or
several contracts specifically; and
(b) must
be notified in writing to the Greffier as soon as it is made,
but shall be taken to have been withdrawn if the person appointed
ceases to be employed in the Law Officers’ Department.
PART 19
ORDER FOR ELECTION OF CONNETABLE,
CENTENIER OR PROCUREUR DU BIEN PUBLIC
19/1 Definition
In Rule 19/2 “expiry date” means the date, not less
than 6 weeks hence, upon which the term of office of a Connétable,
a Centenier or a Procureur du Bien Public is due to expire.
19/2 Procedure
After receiving notification of an expiry date from the
Connétable, the Attorney General shall inform the Inferior Number of that
date and the Court shall order that an election be held on a date as soon as
may be on or after the expiry date for the office of Connétable,
Centenier or, as the case may be, Procureur du Bien Public of the relevant
Parish.
PART 20
MISCELLANEOUS
20/1 Applications for
orders and hearing of summonses
(1) Every
application for an order under these Rules must be made, and any leave or
directions must be obtained, by summons.
(2) The
day for the hearing of a summons which is to be heard before the Greffier shall
be fixed by the Greffier in such manner as the Greffier shall direct, and the
summons shall be countersigned by the Greffier.
(3) The
day for the hearing of a summons to be heard before the Court shall be fixed by
application made to the Bailiff in Chambers, and the summons shall be
countersigned by the Bailiff or the Bailiff’s Secretary.
(4) Rule 6/29(2)
shall apply to an application under paragraph (3) as it applies to an application
under that Rule.
(5) A
summons may be heard on any day on which the Court may sit.
(6) If
the summons is heard before the Greffier, the Greffier may make such order as
he or she thinks fit, or may adjourn the summons or any question arising therefrom
to the Court for its decision and, pending the final determination of the
summons, may make an interim order upon such terms as he or she thinks just.
(7) If
the summons is heard before the Court, the Court may make such order as it
thinks fit.
20/2 Appeal from order
or decision of Greffier
(1) A
party to proceedings before the Greffier may appeal by summons to the Court
from an order or decision made or given by the Greffier in those proceedings.
(2) To
the summons referred to in paragraph (1) there must be appended a notice
of appeal setting out the grounds of appeal and the relief sought and these must
be filed with the Greffier and served on every other party to the proceedings
in respect of which the appeal is being made within 10 days of the making
of the order or decision complained of.
(3) Paragraphs
(3) and (5) of Rule 20/1 shall apply in relation to appeals under this
Rule as they apply in relation to summonses to the Court.
(4) The
party issuing a summons under paragraph (1) must, not later than 10 days
after giving notice of appeal under paragraph (2), apply to the Bailiff in
chambers for a day to be fixed for the hearing of the appeal and, if that party
fails to do so, the appeal shall be deemed to have been abandoned.
20/3 Proceedings before
the Viscount or Greffier
(1) The
Viscount and the Greffier may administer oaths to witnesses who appear to give
evidence in proceedings before them.
(2) In
proceedings before the Greffier in any cause or matter a party may be
represented by an advocate or a solicitor.
20/4 Change of advocate
or solicitor
Any party may change his or her advocate or solicitor at any stage
of the proceedings but, until notice of any such change is filed by the new
advocate or solicitor and copies of the notice are served on every other party
to the action (not being a party in default), the former advocate or solicitor
shall be taken to be the advocate or solicitor of the party.
20/5 Signing of orders
of justice
(1) An
order of justice must be signed by the Bailiff or by an advocate or solicitor
unless an interim injunction, arrêt entre mains
or other judicial act is sought therein, in which case it shall be signed by
the Bailiff.
(2) Any
solicitor who applies to the Bailiff for an order of justice containing an interlocutory
injunction must give a written undertaking to the Bailiff that he or she has
instructed an advocate in relation to the proceedings.
20/6 Duration of orders
of justice, provisional orders and caveats (oppositions)
(1) An ordre provisoire shall remain in force for one year
from the date of issue.
(2) An
order of justice shall remain in force for one year from the date of issue but,
if issued by the Bailiff, may be renewed annually by the Bailiff.
(3) A
caveat (opposition) against the passing of a
contract of alienation of immoveable property shall bear the date of its being
lodged with the Bailiff and shall remain in force for 6 months from that date
but may be renewed from time to time upon application being made in accordance
with Rule 18/5(2).
20/7 Correction of
judgments or orders
Clerical mistakes in acts, judgments or orders, or errors arising
therein from any accidental slip or omission, may at any time be corrected by
the Court either of its own motion or upon application by summons.
20/8 Affidavits
(1) An
affidavit for the purposes of these Rules may be sworn before any person
authorized to take affidavits in the country where it is made.
(2) Any
affidavit or statutory declaration may be sworn before or signed in the
presence of the Viscount or the Greffier.
20/9 Use of English
(1) Subject
to this Rule, anything done or written in English in connection with any cause
or matter in the Court is as valid and effectual as if done or written in
French.
(2) The
Bailiff may issue practice directions enabling the use of English in contrats and other deeds passés
devant justice to such extent and for such purposes as the directions
may specify.
(3) Directions
under paragraph (2) may include translations of words and phrases to be
taken as standard in the drafting of such contrats
and other deeds.
20/10 Seal of the Court and sealing
of documents
(1) The
Superior Number shall cause a seal to be made for the use of the divisions of
the Court other than those for which a seal is prescribed by any enactment, and
may cause the same from time to time to be broken, altered and renewed at its
discretion.
(2) All
acts, judgments, orders and other instruments, and copies thereof, purporting
to be sealed with such seal shall be received in evidence without further proof
thereof.
(3) Contracts
and other like documents shall be sealed with such seal.
PART 21
CONCLUDING PROVISIONS
21/1 Revocation
The enactments set out in Schedule 8 are hereby revoked.
21/2 Citation and
commencement
These Rules may be cited as the Royal Court Rules 2004 and shall
come into force on 1st February 2005.
J.G.P. WHEELER
Master of the Royal Court.