The chief source of
Guernsey’s rules of civil procedure are currently the Royal Court Civil Rules (RCCR) which date back to 1989. These are largely based on the English Rules of the Supreme Court (RSC), which have now been superseded in
England by the Civil Procedure Rules (CPR) 1998. The CPR came into force on 26 April, 1999, as a result of Lord Woolf’s recommendations to consolidate and modernise the rules of civil procedure in the
UK. The aim of the new rules was to simplify and speed up the process of taking cases through the courts. Among other things, the new rules introduced strict timetables and pre-action protocols consisting of guidelines on the steps to be taken before commencing a court action.
An important development was the introduction of ‘judge-led’ progress of a case with much closer scrutiny by the court of the conduct of proceedings. The adoption of the CPR left Guernsey in a somewhat odd position as it was no longer possible, necessarily, to take English case law at face value.
However, some 18 years after they were first codified, Guernsey’s procedural rules are to be amended and a consultation paper is currently being considered by the judiciary and the local Bar. This is demonstrative of a reformist and modern attitude among the present judiciary. By amending the RCCR now, some eight years after the CPR came into force, Guernsey obtains the benefit of hindsight and is able to assess the success of the changes implemented by the CPR.
The differences between Guernsey and UK jurisdictions mean that the CPR is unlikely to be adopted lock, stock and barrel in Guernsey. Instead, the CPR is more likely to be used as a starting point. This approach will assist in ensuring that any changes to civil procedure in Guernsey reflect what is appropriate to this jurisdiction and are in keeping with a policy of avoiding over-regulation.
Under the current RCCR, there are no automatic directions, nor is there any custom of giving standard directions as a matter of course in Guernsey. This can be a little baffling to a lawyer fresh off the plane from a jurisdiction such as New Zealand, where the steps taken prior to a hearing are clearly set out with rules relating to the applicable timeframes and case management conferences are held to monitor a case’s progress. The civil procedure rules as they currently stand in Guernsey, arguably, do not at present fully assist the progress of a case and litigation here can last much longer than in England.
Civil procedure in Guernsey would be greatly assisted if the RCCR was amended to include a provision similar to that contained in the CPR whereby the ‘overriding objective’ of the civil procedure rules, which is to enable the court to deal with cases justly. Dealing with cases justly means:
l ensuring the parties are on an equal footing;
l saving expense;
l dealing with the case in ways which are proportionate;
l ensuring it is dealt with expeditiously and fairly.
As part of dealing with cases justly, the Guernsey Court would come under a duty to actively manage cases. This would bring Guernsey more in line with the mainland and other jurisdictions and is likely to reduce the time spent bringing or defending a claim and the associated costs of doing so — a boon to all concerned.
However, in the event that such reforms were to be instituted in Guernsey, a quirk of Guernsey law is still likely to remain as a thorn in the side of lawyers, particularly those lawyers trained in England and the Antipodes — the unique hearsay rule that still applies in Guernsey.
Article 36 of the Loi Relative Aux Preuves 1865 provides that: “Hearsay is not admissible in evidence except in the special cases recognised by law.” The hearsay rule has been widely criticised by the legal profession, but was upheld in what is currently the leading Guernsey case of Webber v Dunbar Assurance [2001] where the strict and extensive operation of the hearsay rule was upheld. The following definition of hearsay was adopted in Webber: “An assertion otherwise than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.”
An added difficulty is that in civil trials in Guernsey, the finders of fact are jurats (a form of professional juror). One of the practical effects of the hearing rule is that witness statements cannot be put to the jurats and written expert reports are not able to be relied on. In effect, the maker of the statement has to give evidence in person in court for their evidence to be admissible. This can be difficult if the witness is unavailable to attend court, for example if they reside off the island or if they have died.
A restrictive view of what constitutes ‘special cases recognised by the law’ was also taken in Webber. It was held that the use of witness statements and expert reports at trial would breach Article 36, even where the witness appeared in person to verify their statement or report and be cross-examined. The practical effect of this is that a witness has to give all their evidence in chief orally for it to become part of the record and in order for it to be relied upon at law. This greatly extends the length of the trial. This is time-consuming and accordingly expensive, where it is a witness of fact or expert witness giving evidence.
It was further held that the general power contained at RCCR 43 to give directions as to the hearing of any action could not be used to combat Article 36.
Guernsey’s Lieutenant Bailiff declined to find that RCCR 43 is one of the special cases of hearsay recognised by law as referred to in Article 36. However, were the rules to be amended such that the court had the power to deal with a matter on written representations submitted by the parties instead of by oral representations, it may be that the standard procedure of exchanging witness statements prior to attending court and relying on expert reports, which is something taken for granted in so many other jurisdictions, may also emerge in Guernsey as standard practice.
Guernsey is a unique legal jurisdiction in which to practice. While bearing in mind that Guernsey does not want to lose its unique identity, there comes a time when practicalities need to be taken into account. A more structured, streamlined system in which the parties know when and what is required of them has to be of benefit to everyone, whether they wish to simply recover a debt or unravel a more complex trust issue. However, it remains to be seen just how far the proposed reforms will go.
Doug Hayter is a lawyer at AO Hall in Guernsey.
