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A Guide To The Obtaining Of Evidence In Jersey

Michael Wilkins and Anthony Dessain

Introduction

This Guide has been compiled to assist practitioners, essentially from outside the Island, in addressing the question whether deposition and other evidence can be obtained by means of Letters of Request from non-parties in Jersey for use in court and related proceedings elsewhere. The starting point will be the various statutory provisions which authorise and facilitate the taking of evidence in the Island. These are:

• Service of Process and Taking of Evidence (Jersey) Law 1960, as amended by the Service of Process and Taking of Evidence (Amendment) (Jersey) Law 1985 (‘the 1960 Law");

• Bankers’ Books Evidence (Jersey) Law 1986 ("the 1986 Law");

• Evidence (Proceedings in Other Jurisdictions) (Jersey) Order 1983 ("the 1983 Order");

• Investigation of Fraud (Jersey) Law 1991, as amended ("the 1991 Law");

• Drug Offences (International Co-operation) (Jersey) Law 1996 ("the 1996 Law");

• Bankruptcy (Désastre) (Jersey) Law 1990, as amended ("the 1990 Law").

The 1985 amendment to the 1960 Law enabled Jersey fully to fulfil international obligations under The Convention on the Taking of Evidence abroad in Civil or Commercial Matters, concluded on March 18th, 1970 at The Hague ("the Hague Convention"). The purpose of the Convention is to facilitate the transmission and execution of Letters of Request and to improve mutual judicial co-operation in civil or commercial matters. [1]

The 1960 Law is in fact the principal route by which requests for depositions are directed to Jersey: accordingly, a detailed procedural summary will now be provided principally in the context of obtaining oral evidence under the 1960 Law, (and, necessarily, also in the context of The Hague Convention). However, it is to be noted that the procedural summary will also apply, mutatis mutandis, to requests emanating from non-Convention countries [2] and to those arising under the other enactments listed above.

1. Civil Or Commerical Matters

Service of Process and Taking of Evidence (Jersey) Law 1960, as amended

Part II of the 1960 Law makes provision for the taking of evidence in Jersey in proceedings pending or in contemplation before courts outside the Island ("requesting courts"). The proceedings in question must relate to civil or commercial matters (Article 4(c)) arising in a court or tribunal having jurisdiction in the relevant country or territory (Article 3). Where these criteria are met, the requesting court may apply to the Royal Court [3] for assistance in obtaining evidence. Under Article 4, the Royal Court is empowered to make such provision for the obtaining of evidence in Jersey as may appear to be appropriate.

Issuing a Request to the Royal Court

When a foreign judicial authority [4] has issued a Request seeking the assistance of the Royal Court to obtain evidence in Jersey the Request should be remitted with the sealed, original Order of the requesting court, usually via official channels, to the Attorney General on behalf of the Royal Court. The Law Officers’ Department will advise whether it will progress the Request in-house or whether legal representation in Jersey must be engaged for this purpose [5] . It may also suggest whether a Request needs refinement in any way so as to comply with any of the necessary requirements.

Contents of a Request

A Letter of Request should be in English or French (or accompanied by an English translation) and specify:

• the identity and address of the sender

• the authority requesting its execution

• any date by which the request needs to be acted upon

• the names and addresses of the parties to the proceedings and their representatives

• whether the parties to the proceedings and/or their representatives are to be notified of the arrangements made for the Jersey examination [6]

• the nature of the proceedings

• the evidence to be obtained and the means of obtaining it

• the names and addresses of the persons to be examined

• the questions to be put to the persons to be examined (or a statement of the subject-matter about which they are to be examined)

• details of documents (or property) to be inspected

• the requirement as to the giving of evidence on oath or otherwise

Additionally, so as to facilitate the expeditious execution of a Letter of Request, it (or instructions accompanying it) should confirm:

• whether foreign counsel are to appear in, or be present at, the Jersey examination

• what documents are to be served on the witness and whether he may be provided with a prior sight of the questions to be put to him

• what arrangements are to be made to discharge necessary disbursements

• whether an interpreter will be required at the Jersey examination

• whether a sound recordist, shorthand-writer or transcriber will be required (or will be provided)

• what arrangements are to be made for the production of the transcript

• how the transcript is to be authenticated

• to whom the transcript is to be transmitted, and by what means

• whether the parties may be provided with a copy of the transcript

• what privileges may be claimed by the witness in the requesting jurisdiction [7]

Form and execution of a Request

Subject to the above, a Letter of Request may take such form as the requesting court deems expedient. The Royal Court is itself likely to be flexible as to the actual format of a Letter of Request, though of course such format may be prescribed within the territory of the requesting court by regulations applicable there. (Note further that in 1985 the Special Commission of the Conference on the Operation of the Hague Convention revised a model Letter of Request recommended for use in applying the Convention.) Article 9 of the Hague Convention requires Letters of Request to be executed expeditiouslyand in any event, as already seen, the Request should specify any date by which the transcript of evidence is sought.

Types and extent of examination

In granting a Request for such assistance the Royal Court may make provision (Article 4 of the 1960 Law) for:

• the examination of witnesses, either orally or in writing

• the production of documents

• the inspection or protection of any property

• the taking of property samples

• the medical examination of any person

• the taking of blood samples from any person

Nonetheless, an order made under the 1960 Law cannot require any steps to be taken which cannot be taken in the context of civil proceedings in the Royal Court itself. But in acceding to a Request under the 1960 Law, the Royal Court may permit a person to give evidence other than on oath [8] if this is sought by the requesting court.

Documents disclosable

An order made under the 1960 Law may not require a person to state what relevant documents are, or have been, in his possession, custody or power (Article 4(4)). He may only be required to produce particular documents specified in the order as documents appearing to the Royal Court to be in his possession. [9]

Summoning the witness

By Rule 6/18(7) of the Royal Court Rules, 1992, as amended, any party required to give evidence before the Royal Court shall be summoned to appear at least two clear days (excluding Saturday, Sunday and Public Holidays [10] ) before the day on which his appearance is required. In most cases, it will thus be necessary to summon the witness through the Viscount’s Officer (‘the Officer’) accordingly [11] . However, witnesses are sometimes prepared to attend to be examined by agreement, in which event counsel may decide to forego the formality (and protection) of issuing a summons. In any event, it is usually advisable for counsel for the party at whose behest the Request has issued (‘the applicant party’) to confirm with witnesses their availability prior to issuing a summons. Clearly, a busy professional person (for example, a banking officer) may well feel unable to prepare himself adequately to give evidence and produce documents in a complicated commercial matter, within the short period of notice allowable under Rule 6/18(7). A witness who finds himself unable reasonably to respond to the terms of a summons requiring him to attend for examination may apply to the Presiding Officer for an adjournment of the examination.

Record of service

The witness having been duly summoned, the Officer’s official Record of Service will be provided by the Officer to the applicant party. The Record of Service should also be copied by the applicant party (or by the Officer) to the Presiding Officer. Thereafter, parties’ representatives in the requesting jurisdiction are normally to be notified of the date fixed for the Jersey examination, in accordance with the terms of the Request. In practice, it is for the parties’ Jersey counsel to ensure that this notification takes place.

Open or closed proceedings?

The examination of witnesses normally takes place in a court-room, though formally such proceedings take place in chambers and the public has no right of admission [12] . It would be illogical if this were not so since such proceedings invariably precede the trial of the issue in question in the country or territory of the requesting court. As the proceedings are in chambers, the Presiding Officer and counsel do not robe.

Presiding Officer

In practice, the Royal Court normally appoints the Viscount (the chief executive officer of the Court) or the Judicial Greffier (the clerk to, and Interlocutory Judge of, the Court) to take the examination of any witness required to give evidence under the 1960 Law. Article 2 of the Hague Convention specifies that Letters of Request are to be executed by a competent authority. Article 3 of the 1960 Law permits the Royal Court to appoint any person named in its order to act as Presiding Officer.

Order and exclusion of witnesses

Where there is more than one witness to be examined the witnesses will be examined in the order agreed by the parties, or failing such agreement, in the order that the applicant party requests. Upon the request of the applicant party, witnesses will be excluded from hearing each other’s testimony, in accordance with general principles in Jersey.

Proceedings at the examination

The form of the proceedings will to some extent be decided by the Request for assistance. For example, if a Request which has been approved by the Royal Court simply requires the witness to answer a number of particular questions (i.e. interrogatories [13] ), then the entire examination may be conducted by the Presiding Officer [14] with only the witness and a sound recordist or shorthand writer present. However, much will depend upon the requirements for the admission and proof of evidence in the requesting court. As indicated, not all jurisdictions are dependent upon the processes of examination-in-chief, cross-examination and re-examination which is the customary way of adducing evidence viva voce in Jersey (and in most common law jurisdictions): indeed, in many foreign courts the court alone questions the witness. In any event, the parties to foreign litigation often wish to be present when evidence is taken in Jersey and the customary approach is the one most commonly adopted.

Who may appear?

In Wigley and others v Dick [15] , foreign counsel or solicitors were authorised to appear before the Viscount, as Presiding Officer, in order personally to conduct the examination of Jersey witnesses. Since that time, foreign counsel have frequently availed themselves of this option (one not actually available before the Royal Court itself, before which only Jersey counsel may appear) which allows them to test the veracity of Jersey-based witnesses themselves. Foreign counsel who appear are normally those having conduct of the matter before the requesting court: this option enables counsel having a detailed knowledge of a foreign cause to act directly therein, in Jersey, without re-instructing Jersey counsel. However, it is usually advisable for a Jersey advocate or solicitor also to be present so as to introduce the proceedings to the Presiding Officer and to deal with any aspects of Jersey law or procedure which may arise.

Compellability of witnesses

A witness formally and properly summoned to appear to give evidence will be bound to comply with the terms of the summons served upon him, anyone competent to give evidence being generally compellable to do so. However, it should be borne in mind that, albeit rarely, certain categories of witness - such as a spouse of an accused party in criminal proceedings [16], those holding information the disclosure of which would be prejudicial to State security [17] or, it seems, even the Jersey Comptroller of Income Tax [18] - may actually be non-compellable as a matter of Jersey law, or may seek to establish such a claim either before the Royal Court or the Presiding Officer. Any such matter should always be resolved, if possible, prior to the hearing before the Presiding Officer, for the proper course is for the Presiding Officer to refer any such application to the Royal Court if the parties do not do so themselves.

Objections to answering questions

When a compellable witness is giving evidence pursuant to an order made under the 1960 Law, such witness cannot be compelled (Article 4(A)) to give any evidence which he could not be compelled to give in civil proceedings in the Island or in such proceedings in the country or territory in which the requesting court exercises jurisdiction. However, in the latter circumstances such privilege is not claimable unless the claim to it is either supported by a statement contained in the Request or is conceded by the applicant party. Nonetheless Article 4 permits the taking of the evidence provisionally where neither avenue is available [19] . The practical result of the protection given by Article 4(A) is that a witness will normally be able to claim both a privilege against self-incrimination and legal professional privilege. It is axiomatic that outside the scope of the 1960 Law, a Jersey witness will in any event be able to claim both privileges from the standpoint of domestic procedure in Jersey; and, on the same basis, he will also be able to claim objection to answering questions on the grounds of irrelevance and unwarrantedbreach of third party confidentiality (Wadman v Dick [20] ). When any such privilege or objection is claimed or raised by a witness during the course of his examination the procedure is that the Presiding Officer will make a note of the claim or objection and the ground for it. Once any such privilege or objection is claimed or raised by a witness in this way the Presiding Officer has no power to direct the witness to answer the question: if necessary, the matter will be referred back to the Royal Court for a decision on whether the witness must indeed answer the question in issue.

Representation of the witness

Counsel for the witness under examination may be present during the course of the examination. In civil proceedings in Jersey a witness who is not a party would not normally have such a right. However, if this were not accorded in the present context it might well be impossible for a witness properly to raise claims of privilege or objection. Such a situation would entail unfairness to the witness and impose an undesirable burden on the Presiding Officer who would then be left to protect the witness. Nonetheless, when counsel appears in representation of a witness in this way, counsel’s function is purely protective: obviously, it is not open to the witness to confer with, or seek advice from, counsel as to how the witness should answer the questions put to him [21] . It is to be noted that it will be inappropriate for counsel for the witness to raise with the Presiding Officer at the time of the examination questions relating to the validity of the Act of the Royal Court which has authorised the Presiding Officer to take the witness’s evidence. The Presiding Officer will not go behind an Act of the Royal Court and enquire into its validity [22] . All such questions should either be raised with the Royal Court or resolved between counsel for the parties and for the witness prior to the examination.

Use of interpreters

It should not be forgotten that the language in use in the country or territory of the requesting court may not be English and that the trial may be heard in a non-English speaking country. Where, therefore, it is intended that foreign counsel will conduct the examination of witnesses in Jersey - where the proceedings would normally be in English and the witnesses would usually be English-speaking, it may be necessary for the parties also to engage the services of an official interpreter. Where an interpreter is used, the production of the transcript would nonetheless be in English.

Recording and transcribing evidence

As stated above, the normal mode of adducing evidence, viva voce, before the Royal Court is by the oral examination of witnesses. The usual method of recording such evidence in Jersey is by tape recording. It follows that the evidence of witnesses heard before the Viscount or Judicial Greffier pursuant to a Letter of Request will generally be so recorded by staff of the Royal Court. In ordinary circumstances, those staff would also provide a transcription service. However, circumstances may arise in which it is beyond the resources of the Royal Court to provide a transcription service when acting in aid of a requesting court. In such circumstances and in others, such as where the transcript of the proceedings is urgently required, the usual available alternatives are that:

• the Royal Court will provide a sound recording service only. Copy tapes will then be sent to transcription specialists in England

• the parties to the proceedings themselves engage a specialist stenographer (if necessary utilising a Computer Aided Transcription System - which would provide for the production of an instantaneous transcription)

Until recently, it was not clear whether the Royal Court would authorise the video-taping of a Jersey witness’ evidence on behalf of a foreign court. This was because the Royal Court’s own Rules did not make specific provision for use of the facility domestically (Wright v Rockway & others [23] ). However, the Criminal Justice (Evidence and Procedure) (Jersey) Law 1997, provides inter alia for the giving of evidence by means of video recording in certain cases where, for example, the victim of an alleged offence is a child. In Att. Gen. v Young and others [24]the Royal Court did allow the examination by satellite-link of a witness too ill to travel to Jersey from Canada in order to give evidence at the trial. Further, in the context of the civil case of Shirley v R.W. Roberts [25] proceeding in the District Court, Bexar County, Texas, the video-taping of such proceedings was specifically authorised. The present position may therefore be taken to be that, if specifically requested within a Letter of Request, proceedings before the Viscount or Judicial Greffier may be video-taped, subject to the discretion of the Presiding Officer. Obviously circumstances may arise, as they did in Shirley v Roberts, where the requesting court seeks the supply of both a video-tape and a written transcript of the Jersey proceedings. This appears to be the standard procedure applied in England and Wales. It will be apparent that other than in cases where the Royal Court has found it possible to provide a sound recording and transcription service in-house (where specified fees will apply) all disbursements relating to providing any of the alternative services mentioned will be payable by the applicant party.

Privacy and ‘gagging’ orders

As stated, such proceedings take place in chambers and, therefore, in private. However, in appropriate circumstances privacy and ‘gagging’ orders will be obtainable in Jersey (for example) to prevent the witness from disclosing to any party that he has been subjected to examination in Jersey. Such an order can also extend to preventing the unauthorised use, copying or dissemination of the transcript of the Jersey proceedings. In re C Ltd [26] information disclosed to the Royal Court but deemed to be otherwise confidential was withheld from persons convened to give evidence in an application arising under Article 48 of the 1990 Law. All such requests should be included in the Letter of Request. There have been cases where it has been suggested that an order made by the Royal Court preventing unauthorised copying or dissemination of the content of a Jersey examination may be subsequently disregarded in that the content of the Jersey examination becomes public domain material once introduced into the proceedings in the requesting court. It is submitted that this is a specious argument. Orders of the Royal Court should be complied with even if they are difficult to enforce in the territory of the requesting court. Impliedly, it is a condition of the grant of assistance by the Royal Court to the requesting court that orders of the Royal Court will be respected within the territory of the requesting court. The correct procedure in circumstances such as those outlined is for Jersey counsel to make an application to the Royal Court seeking a variation of any confidentiality order earlier made by it. Leaving aside the question of enforceability, should such an order of the Royal Court be ignored within the territory of the requesting court, such conduct might well be taken into account in any subsequent application to the Royal Court from a court in the requesting territory.

Completion of testimony

Normally, the completion of a witness’s examination serves to finalise his testimony. However, circumstances may arise in which it may be preferable for counsel to seek to reserve before the Presiding Officer any purported rights of further examination and recall: in such circumstances, it may be prudent for counsel to ask for the examination to stand adjourned sine die rather than for his evidence to be acknowledged as complete.

Signing and transmission of the deposition

Subject to any special requirements of the requesting court, once the witness has approved the transcript of his evidence he will be required to appear before the Presiding Officer in chambers to authenticate the transcript by signing it. The Presiding Officer will then counter-sign the deposition in the presence of the witness. Counsel are not normally present when a deposition is authenticated in this way though they will usually have been provided with a draft for information. In cases where a witness becomes unavailable to authenticate his deposition it may be authenticated under the hand of the Presiding Officer alone. It is generally agreed that the parties and/or the witness may be provided with and retain copies of the authenticated transcript. Once authenticated, the original deposition will be transmitted to the requesting court by the means specified in the Letter of Request.

Costs

By Article 14 of the Hague Convention the execution of a Letter of Request shall not give rise to the reimbursement of taxes or costsof any nature. It follows that when witnesses are being examined in Jersey in a civil or commercial matter it is not appropriate for the Presiding Officer, or even the Royal Court, to make any order as to costs inter partes. These will in all cases fall to be determined subsequently by the requesting court.

Disbursements

However, the Presiding Officer has the right (under Article 14 of the Hague Convention) to seek provision for the reimbursement of, for example, fees paid to experts, interpreters and the expenses of any special procedure adopted when rendering assistance to the requesting court.

Further, under Article 26 of the Hague Convention fees and costs incurred in connection with the execution of Letters of Request, the service of process necessary to compel the attendance of a witness, the costs of attendance of any such witness and the cost of any transcript of evidence are likewise reimbursable.

As has been stated, circumstances may arise in which additional expenditure may have to be incurred within the context of the Jersey proceedings so as to enable those proceedings actually to take place: these may arise, for example, where copy tapes are to be sent to transcription specialists in England or where the parties have agreed to engage a specialist stenographer. All these expenses would appear to be reimbursable under Article 26. By virtue of Articles 14 and 26 it is the requesting State of origin which is technically bound to make the reimbursements. However, in practice, it is clear that the parties must agree to discharge these disbursements before they can be incurred and, indeed, the Act of the Royal Court authorising the taking of evidence in Jersey will have made necessary provision for the discharge of the Presiding Officer’s disbursements.

Witnesses’ allowances and expenses

Apart from the provision under Article 26 of the Hague Convention providing for the reimbursement of witnesses’ costs, attendance allowances and expenses unavoidably incurred in giving evidence in the context of civil proceedings of which a requesting court is seized, these will be reclaimable by a witness to the extent that a witness in civil proceedings before the Royal Court is able to claim similar payment (Article 6 of the 1960 Law) [27] . However, in our opinion this right will not extend to the repayment of counsel’s fee when he appears in representation of a witness since counsel’s fee would not be an unavoidable consequence of the witness’s attendance. It is recommended that the appropriate party should agree proposals for discharging the allowances and expenses of a witness without the involvement of the Royal Court or the Presiding Officer so as to obviate the need for ancillary applications in the context of the Jersey proceedings.

2. Civil Or Criminal Matters

Bankers’ Books Evidence (Jersey) Law 1986

Under the 1986 Law a bank, or officer of a bank, shall not, in any legal proceedings to which the bank is not a party, be compellable to produce any banker’s book, unless by order of the Royal Court made for special cause (Article 5). Nonetheless, on the application of any party to a legal proceedingthe Royal Court may order that such party be at liberty to inspect and take copies of any entries in a banker’s book for any of the purposes of such proceedings (Article 6(1)). In a criminal case an order under the 1986 Law may be made with or without summoning the bank or any other party and shall be served on the bank three clear days before the same is to be obeyed unless the Royal Court otherwise directs (Article 6(2)).

In acivil causean application for such an order must be made by summons served on the bank and on the other party and shall be supported by an affidavit showing the materiality of the inspection and demonstrating that the application is made in good faith. [28]

While the 1986 Law seems to have been implemented largely with proceedings arising in Jersey in mind, the words legal proceeding are defined in the 1986 Law as meaning any civil or criminal proceeding or enquiry in which evidence is, or may be given, and includes an arbitration. It therefore follows, in our view, that an application for the production of evidence in Jersey in foreign proceedings, civil or criminal, could be made to the Royal Court by a foreign court under the terms of the 1986 Law. It is to be noted, however, that the power of the Royal Court under Article 6 of the 1986 Law is entirely discretionary and will in all cases be exercised with caution, and only on the clearest grounds - Aldridge v Coxshall and others. [29]

3. Criminal Matters

Evidence (Proceedings in Other Jurisdictions) (Jersey) Order 1983

The Order extends to Jersey, with modifications, the Evidence (Proceedings in Other Jurisdictions) Act 1975, of the United Kingdom.

The 1983 Order gives the Royal Court power to render assistance to a foreign court in criminal proceedings. The Order essentially replicates Section 5 of the 1975 Act. This provides a facility not available under the 1960 Law. However, such assistance can only be rendered in relation to criminal proceedings which have already been institutedbefore the requesting court. The phraseology employed in the Act can give rise to difficulties for investigators from continental countries. In Re Imacu Limited [30] the Royal Court found that a Belgian juge d’instruction did not constitute a ‘court or tribunal’ under the 1983 Order. Further, no order arising can make provision otherwise than for the examination of witnesses, either orally or in writing, or for the production of particular documents: ‘fishing expeditions’ are again excluded. Indeed, many applications for assistance arising under the 1983 Order simply seek the production of documents: in such circumstances it is often not necessary to proceed to a full examination of the witness before a Presiding Officer, other appropriate arrangements being made under the aegis of the Law Officers’ Department. Unlike applications under the 1960 Law, cases arising under the 1983 Order will always be progressed in-house by the Law Officers’ Department. Under Rule 13/2(1)(c) of the Royal Court Rules 1992, as amended, an application seeking assistance under the 1983 Order may be transacted before the Bailiff or Deputy Bailiff in chambers.

Subject to the above comments, the procedural summary described under the heading Service of Process and Taking of Evidence (Jersey) Law 1960, will broadly apply to examinations authorised pursuant to the 1983 Order. However, note that where the privilege against self-incriminationis claimed as a right available in criminal proceedings in the Island, the effect is that the witness will not have to answer any questions at all: however, if he chooses to answer some questions then he must answer them all.

Investigation of Fraud (Jersey) Law, 1991, as amended

Under the 1991 Law, the Attorney General or any other designated person, may by notice in writing require a person under investigation, or any other person, who there is reason to believe has relevant information, to answer questions, furnish information or produce documentation (and provide copies) with respect to any matter where there is a suspected offence involving serious or complex fraud. Formerly there was an informal limit of £2 million, below which a fraud was not deemed to be "serious or complex". Now each case is considered on its merits. It will be evident that this statute can facilitate the investigation of serious fraud whether arising in or outside Jersey. This includes fiscal fraud. It can be, and frequently is, utilised to assist criminal investigations being undertaken by a foreign police force or prosecuting authority. Unlike the 1983 Order mentioned above, the 1991 Law’s application is not limited to the production of evidence. This is assistance at the investigatory stage, usually in virtue of a notice to answer questions or furnish information issued at the instance of the Attorney General under Article 2(2).

In Re McMahon [31] the Royal Court held that the Attorney General’s decision to issue a notice requiring the provision of information could not be judicially reviewed. Nevertheless the Court had a very limited power in appropriate cases to examine (a) whether the Attorney General had the power to make the decision; (b) the extent of any such power; and (c) whether it had been exerised in the appropriate form.

Interestingly the Guernsey Court of Appeal reached a contrary conclusion in Re Bassinton Ltd. [32]

Drug Offences (International Co-operation) (Jersey) Law 1996

The 1996 Law enables Jersey to co-operate with other countries in investigations and proceedings relating to drug offences, including the offence of laundering the proceeds of drug trafficking.

The incoming request is made to Her Majesty’s Attorney General for Jersey either by a court or by such other body as is authorised to issue international requests. If Her Majesty’s Attorney General is satisfied that there are reasonable grounds for suspecting that the offence (recognisable as such under Jersey law) has been committed and that either proceedings or investigations have been instituted, he may assist. He may nominate a Court, or the Viscount, to receive such evidence as is appropriate to give effect to the request. Matters concerning the hearing itself are dealt with in the Second Schedule to the 1996 Law.

4. Insolvency Matters

Bankruptcy (Désastre) (Jersey) Law, 1990, as amended

Under Article 48 of the 1990 Law the Royal Court has a discretionary power to render assistance to prescribed foreign courts in matters of insolvency. It seems that insolvency or bankruptcy matters fall within the meaning of civil or commercial matters for the purposes of the 1960 Law, and the Hague Convention. Accordingly, where litigation arising in the context of foreign insolvency or bankruptcy matters is pending or in contemplationbefore a court outside the Island, evidence for use in those proceedings may be obtained pursuant to the procedural summary already given. In granting such assistance the Royal Court may exercise, in relation to the matters to which the request relates, any jurisdiction which it or the requesting court could exercise in relation to those matters. However, this power is delimited by the rules of private international law so that it is unlikely that extensive assistance could be rendered under the Article in relation to, for example, a foreign "revenue" insolvency (that is, one where the petitioner in the foreign insolvency is that foreign territory’s revenue authority). See Re Tucker [33] . Subject to this caveat, it follows that in the context of a foreign insolvency, witnesses in Jersey may be examined in aid of the foreign insolvency office-holder. While such an examination would conform, broadly speaking, to the requirements set out above, a Jersey examination in aid of a foreign insolvency may well range over a broader area. For example, in a domestic insolvency in Jersey (a désastre) the Viscount (as official insolvency office-holder in Jersey) may summon before him any person known or suspected to have in his possession any property, document or knowledge of the affairs of the debtor (Article 20 of the 1990 Law). At the same time, material disclosed in this way may be available for more confined usage, for it is evident that material disclosed to assist an insolvency office-holder in carrying out his duties (effectively, locating, protecting and realising assets) may not necessarily be readily available or relevant for use in any subsequent or connected court proceedings. Special restrictions may therefore be placed by the Royal Court on the further use of information disclosed under this head. [34]

Territories presently prescribed in virtue of Article 48 of the 1990 Law are the United Kingdom, the Isle of Man, the Bailiwick of Guernsey and Australia [35] . The question arises therefore: is it possible for the Royal Court to render such assistance to a requesting court located in a non-prescribed country or territory? The answer is that the 1990 Law was not a codifying statute and that unless it is incompatible with it, the statute left the pre-existing common law of désastre intact [36] . Accordingly, a court of a non-prescribed country or territory could seek similar assistance from the Royal Court by virtue of the still prevailing common law right of similar relief, the grant of which was historically based on the recognition and application of principles of comity. It is to be noted that the Law Officers’ Department does not in fact usually act as a conduit in relation to insolvency requests: all such applications should be remitted directly to a Jersey lawyer for progressing [37] .

A checklist to follow when seeking assistance in Jersey by Letter of Request

Michael Wilkins has been the Judicial Greffier since 1997 and was Viscount between 1981 and 1997. Anthony Dessain is an advocate of the Royal Court and partner of Bedell and Cristin, P.O. Box 75, One the Forum, Grenville Street, St. Helier, Jersey, JE4 8PP.

Footnotes - (Top)

[1] - The Hague Convention was ratified by the United Kingdom on July 16th, 1976 but formally extended to Jersey only on January 6th, 1987.

[2] - The 1960 Law, as originally enacted and as preserved by the 1985 amendment, permitted the Royal Court of Jersey to render discretionary assistance (Part II, Article 3) to any court or tribunal of competent jurisdiction outside the Island. Hence, such assistance may likewise be rendered to non-Convention countries though it is suggested thatnon-Convention countries might profitably apply Hague Convention requirements as a model.

[3] - The Royal Court being the central authority in Jersey designated to execute Letters of Request, in virtue of Article 25 of the Hague Convention.

[4] - A description given, but not defined, in Article 1 of The Hague Convention. However, judicial clearly refers to an act within the functions of a requesting court.

[5] - A Request containing, for example, a short list of particular questions might be processed entirely in-house by the Law Officers’ Department whereas a Request that requires, for example, the in-depth examination of a witness is likely to need to be referred to a local legal practitioner. Effectively, the Law Officers’ Department acts as a conduit in such matters. See further: Who may appear?, below.

[6] - Article 7 of the Hague Convention requires, upon request, notice of the time and place of the examination to be sent to the requesting authority, or direct to the parties, to enable the latter, or their representatives, to be present. Under the Convention, such notice can, effectively, be given either by the Law Officers’ Department or the Presiding Officer but, in practice, the Presiding Officer delegates any such duty to the parties’ local representative(s). See further: Record of Service, below.

[7] - See Objections to answering questions, below

[8] - Evidence given viva voce in proceedings before the Royal Court is given on oath or by affirmation. (Note that by Article 7 of the 1960 Law, it is however an offence to give false testimony when that testimony is given otherwise than on oath.)

[9] - As in England and Wales, the discovery process in Jersey sets its face against ‘fishing expeditions’: like England and Wales, but unlike the USA, pre-trial discoveryis not available in Jersey. Article 4 (4) represents a specific reservation made by the Island in this regard under Article 23 of the Hague Convention. But see also now the Law Reform (Disclosure and Conduct Before Action) (Jersey) Law 1999, the purpose of which is to enable the Royal Court to order disclosure of documents relevant to a claim in respect of personal injury or death before proceedings are commenced.

[10] - Rule 1/3/6 of the Royal Court Rules 1992, as amended.

[11] - At this time it should be specified to the Officer what documents are to be served along with the summons: these might include a copy of the original order of the requesting court, the Letter of Request and any questions disclosable to the witness beforehand.

[12] - This is the same as the position which applies in England and Wales, see: Wright v Wilkin (1858) 6 ER 643

[13] - It is recommended that a Request seeking authority to ask particular questions should always seek to include a more general power of examination in relation to such questions. Such a facility would specifically enable background and supplementary issues also to be explored at least to a limited extent.

[14] - Or by counsel from the Law Officers’ Department appearing before the Presiding Officer for that purpose.

[15] - 1989 JLR 318

[16] - Not of course actually of relevance in the context of a Request arising in virtue of the 1960 Law, but possibly having application in cases falling under either of the categories of Criminal proceedings, below.

[17] - Article 4A(3) of the 1960 Law

[18] - By virtue of duties of non-disclosure imposed by the Comptroller’s oath of office - Income Tax (Jersey) Law, 1961, as amended (First Schedule).

[19] - Effectively, the witness answers the questions put to him but the requesting court is left to decide upon the validity of the objection - a practice evidently well-known to American lawyers.

[20] - 1993 JLR 52

[21] - Wigley and others v Dick 1989 JLR 318 at page 329.

[22] - As when it is being suggested that the Act, as issued, is too widely framed and wrongly permits, for example, a ‘fishing expedition’.

[23] - June 5th, 1996 unreported.

[24] - May 8th, 1998 unreported.

[25] - May 4th, 1999 unreported.

[26] - 1997 JLR N8

[27] - As to witnesses required to give evidence or provide information in the context of foreign criminal proceedings, such a witness seems to be under an obligation akin to a public duty; accordingly, there is no actual record of payments having been made to them: in any event, save for the possibility of claiming an attendance allowance under the 1983 Order, there is no statutory provision for the payment of expenses incurred in complying with that Order or the 1991 Law. See, though, the assurance sought by the Royal Court In the matter of the prosecution of Charlton and others 1993 JLR 360 at page 376

[28] - Note the Practice Direction (Inspection of bankers’ books) set out in 1987-88 JLR N11

[29] - June 5th, 1998 unreported.

[30] - 1989 JLR 17

[31] - 1993 JLR 35

[32] - December 1998, Guernsey unreported

[33] - 1987 – 88 JLR 473.

[34] - Re C Ltd 1997 JLR N8.

[35] - Bankruptcy (Désastre) (Jersey) (Amendment) Rules 1992

[36] - Re Baltic Partners Limited (en désastre) April 18th, 1996unreported

[37] - For a fuller discussion of issues arising under this heading, the reader is referred to chapter 6 in the authors’ Jersey Insolvency Law in Practice, published by Key Haven Publications plc