Obtaining Evidence in Jersey or Guernsey for Use in Foreign Proceedings

We are seeing inquiries about the legal processes for obtaining evidence in Jersey or Guernsey for use in foreign proceedings – the processes in both Islands are similar, but there are some key differences with the English rules that practitioners should be aware of.

Applications to the Royal Courts of Jersey and Guernsey to collect and produce evidence are often made on short notice, and it is therefore imperative that the requirements in terms of drafting and procedure are met. The process typically takes a few weeks, and the requirements are set out in this note.

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A “Commission Rogatoire” (or as they are more commonly known in English, a Letter of Request) is a request for judicial assistance from a foreign entity to the Bailiff of Jersey or Guernsey (the “Bailiff”). Foreign courts are able to address such a Letter of Request to the Royal Court of either Island (the “Royal Courts”) to seek assistance in the collection and production of evidence for use in foreign civil proceedings.

Most often, this sort of application will involve a request for evidence to be taken on oath, or the production of documents in Jersey/Guernsey for use in foreign civil matters.

Whilst a Letter of Request should always be addressed formally to the Bailiff, the process can often be expediated by instructing an Advocate to prepare the appropriate application.

The letter of request submitted to the Royal Courts should contain the following information:

  • both the authority requesting execution and the authority from whom execution is requested - in Jersey or Guernsey the relevant authority is the Royal Court;
  • the names and addresses of any parties to the proceedings, and their legal representatives (if applicable);
  • details about the proceedings and the evidence that is required; and
  • why such evidence is necessarily required.
If appropriate, the letter of request should also specify:

  • the names and addresses of the person(s) to be examined;
  • the questions to be put to the person(s), or a statement on the subject matter on which they are to be examined; • the documents or other property (real or personal) to be inspected;
  • any requirement that the evidence is to be given on oath or affirmation; and
  • any special method or procedure to be followed.
The Royal Courts will ordinarily comply with such a request from a foreign judicial authority, provided that it is not incompatible with local laws. At this stage, the Royal Courts will then make the necessary orders to effect the request. Ordinarily, the orders will include the appointment of a Commissioner for the purposes of providing the assistance sought by the requesting authority. The orders will also normally direct that they, alongside the application, be served on the other party and if possible fix a date for the witnesses to be examined or documents produced before the Commissioner.

Witnesses are usually examined under oath, and proceedings can be recorded via video if required by the requesting authority. Generally, the Royal Courts will expect witnesses to be examined by an Advocate, however it is possible for foreign lawyers to be present. All the other parties, via their Advocates, will have an opportunity to cross-examine the witnesses.

A person may refuse to give evidence in the following circumstances:

  • They are able to assert privilege or have a duty to do so under local law or the law of the requesting judicial authority; or
  • They are not able to be compelled to give the evidence in civil proceedings in the UK or another jurisdiction; or
  • Being compelled to give evidence would be prejudicial to the security of the UK or the Bailiwick of Guernsey or Jersey.
It is common that these sorts of applications are made on short notice. It is therefore imperative that all Guernsey/Jersey law requirements (as applicable) are met in terms of drafting and procedure. Providing that the relevant witnesses and documents are available, proceedings can usually be concluded (and so the resulting evidence formally transmitted to the requesting authority) within a few weeks.

GUERNSEY
Adam ColePartnerT +44 (0) 1481 748 912adam.cole@walkersglobal.com
Alison OzannePartnerT +44 (0) 1481 748 905alison.ozanne@walkersglobal.com
Katherine JensenAssociateT +44 (0) 1481 748 944katherine.jensen@walkersglobal.com

JERSEY
Nigel SandersPartnerT +44 (0) 1534 700 862nigel.sanders@walkersglobal.com
Marc SeddonPartnerT +44 (0)1534 700 761marc.seddon@walkersglobal.com
Niall MacDonaldSenior AssociateT +44 (0)1534 700 885niall.macdonald@walkersglobal.com