Taking
of Evidence Rules 2019
1 Interpretation
In these Rules –
“application” means an application
made as a result of a request issued by or on behalf of a requesting court for
an Article 4 order;
“Article 4 order” means
an order of the Court under Article 4 of the Law of 1960 for
obtaining evidence in Jersey;
“civil procedure convention” means
any convention which applies or has been extended to Jersey providing for the
taking of the evidence of any person in Jersey for the assistance of a
requesting court;
“Court” means the Royal Court,
and includes the Greffier;
“Greffier” means the Judicial
Greffier;
“Law of 1960” means the Service of Process and Taking of Evidence
(Jersey) Law 1960;
“lodged” means lodged with the
Greffier;
“request” includes any
commission, order or other process issued by or on behalf of the requesting
court; and
“requesting court” is a
reference to a requesting court within the meaning of Article 3(a) of the
Law of 1960.
2 Application for an
order
(1) An application must be –
(a) made to the Court; and
(b) supported by affidavit.
(2) The application must be accompanied by the
request as a result of which the application is made and, where appropriate, a
translation of the request into English.
(3) The application may be made without notice.
3 Application by Attorney
General in certain cases
(1) Where a request is received in accordance
with a civil procedure convention, and no person is named in the document as
the person who will make the necessary application on behalf of a party to the
matter pending or contemplated before the requesting court, the Attorney
General may make an application for an Article 4 order and take such other
steps as may be necessary to give effect to the request.
(2) For the purposes of Rule 6(3) the
party who obtained the order means, in the case of an application made by the
Attorney General under this Rule, the person from whom the request was
received.
4 Person to take and
manner of taking examination
(1) An Article 4 order may direct that the
examination of a witness be taken before –
(a) the Viscount; or
(b) such other qualified
person as the Court sees fit.
(2) Subject to any directions contained in the
order –
(a) the examination must be
conducted in the same way as if the witness were giving evidence at a trial
save that the witness is permitted to have a legal adviser present when giving
evidence;
(b) the examiner may conduct
the examination in private if he or she considers it appropriate to do so; and
(c) the examiner must ensure
that all the evidence given by the witness is recorded.
(3) The order may also direct any person to
attend before the examiner and to be sworn for the purpose of the examination
or, as the case may be, to answer any lawful question or produce any document
at the examination.
5 Enforcing attendance of
witness
(1) If a person served with an order directing
the person to attend before an examiner –
(a) fails without reasonable
excuse to attend; or
(b) refuses to be sworn for
the purpose of the examination or to answer any lawful question or produce any
document at the examination,
the party requiring the deposition may summons the person to appear
before the Inferior Number of the Royal Court.
(2) If the Inferior Number finds the person in
breach of the order, it may –
(a) make such order in
relation to the person as it thinks fit, including a finding of contempt of
court; and
(b) may order the person to
pay any costs resulting from his or her failure or refusal to comply with the
order.
6 Fees and expenses of
examiner
(1) The Viscount and, if the Court so orders,
any other examiner appointed by the Court may charge a fee for the examination
and recover expenses incurred in the recording of the evidence.
(2) He or she need not release the deposition
unless the fee and his or her expenses have been paid.
(3) The examiner’s fees and expenses must be
paid by the party who obtained the order for examination.
(4) The Greffier may order the party who
obtained the order for examination to lodge a specified sum in respect of the
examiner’s fees and, where the Greffier does so, the examiner will not be asked
to act until the sum has been lodged.
(5) If the fees and expenses due to an examiner
are not paid within a reasonable time, he or she may report that fact to the
Greffier.
(6) An order under this Rule does not affect
any decision as to the party who is ultimately to bear the costs of the
examination.
7 Dealing with the
deposition
(1) Unless an Article 4 order otherwise
directs, the examiner before whom the examination of a witness was taken must
lodge the deposition of that witness, and the Greffier shall –
(a) give a certificate under
the seal of the Royal Court for use out of the jurisdiction identifying the
following documents annexed to the certificate –
(i) the request,
(ii) the order of the Court
for examination, and
(iii) the deposition taken in
accordance with the order; and
(b) send the certificate with
the annexed documents to the appropriate person for transmission to the
requesting court.
(2) The appropriate person in paragraph (1)(b)
is the person specified in practice directions or the person to whom the Court
orders that the certificate should be sent.
8 Claim to privilege
(1) The provisions of this Rule shall have
effect where a claim by a witness to be exempt from giving any evidence on the
ground specified in Article 5(1)(b) of the Law of 1960 is not supported or
conceded as mentioned in paragraph (2) of that Article.
(2) The examiner may, if he or she thinks fit,
require the witness to give the evidence to which the claim relates and, if the
examiner does not do so, the Court may do so, on the application, without
notice being served on any other party, of the person who obtained the order
under Part 2 of the Law of 1960.
(3) If such evidence is taken –
(a) it must be contained in a
document separate from the remainder of the deposition of the witness;
(b) the examiner shall send
to the Greffier with the deposition a statement signed by the examiner setting
out the claim and the ground on which it was made;
(c) on receipt of the
statement the Greffier shall, notwithstanding anything in Rule 7, retain
the document containing the part of the witness' evidence to which the claim
relates and shall send the statement and a request to determine the claim to
the foreign court or tribunal with the documents mentioned in Rule 7;
(d) if the claim is rejected
by the foreign court or tribunal, the Greffier shall send to that court or
tribunal the document containing that part of the witness’ evidence to which
the claim relates, but if the claim is upheld the Greffier shall send the
document to the witness, and shall in either case notify the witness and the
person who obtained the order under Part 2 of the Law of 1960 of the court
or tribunal’s determination.
9 Citation and
commencement
These Rules may be cited as the Taking of Evidence Rules 2019 and
come into force on 28th October 2019.