Jersey

The Royal Court is the principal court where most commercial litigation is resolved. It has original and unlimited jurisdiction. Commercial disputes are dealt with by the Samedi Division which handles all civil matters not assigned to other divisions (the Heritage Division which deals with matters relating to immovable property, the Family Division and the Probate and Protection Division).

The Royal Court judiciary is made up of the Bailiff, the Deputy Bailiff and a number of Commissioners.

When hearing civil matters, the Royal Court is usually made up of a judge and two jurats, who constitute what is known as the “Inferior Number”. The jurats are non-lawyers who are appointed based on their expertise and experience. Their role is to decide matters of fact. Where they reach a different view on a matter of fact, the judge has a casting vote. Where cases are deemed to be more serious or when hearing appeals, the Royal Court can sit as the “Superior Number” where there is one judge and five jurats.

Procedural hearings in relation to Royal Court claims are heard in the first instance by the Master who is a dedicated procedural judge.

Commercial claims with a value of less than GBP 30,000 (inclusive of interest) will be heard by the Petty Debts Court, before a Magistrate.

Appeals from the Royal Court are heard by the Court of Appeal. The losing party has an automatic right to appeal and must file its notice of appeal within 28 days of the final judgment or order in the proceedings. Judgments of the Court of Appeal may only be appealed to the Judicial Committee of the Privy Council with the permission of the Court of Appeal or the Privy Council itself. Permission to appeal to the Privy Council is subject to a test of general public importance.

Civil procedure in Jersey is governed by the Royal Court Rules 2004 (RCR). The RCR draw heavily on the former Rules of the Supreme Court of England and Wales (in place prior to the Woolf reforms) and are supplemented by Practice Directions which contain guidance in relation to filing, service, discovery etc.

For appeals, the applicable rules are the Court of Appeal (Jersey) Law 1961 and the Court of Appeal (Civil) Rules 1964. 

Practice Direction RC 17/01 covers pre action communications.

Before commencing proceedings, a proposed plaintiff is expected to send a “claim letter” to each proposed defendant setting out a clear summary of the facts and the legal basis of the claim. The proposed defendant must acknowledge receipt within 14 days and then provide a substantive response in a further period of 14 days to three months (in the most complex cases). A failure to comply will be considered by the court and may have costs consequences. This exchange of material information is intended to encourage parties to settle before proceedings are commenced.

There are some exceptions where Practice Direction 17/01 does not apply:

• applications for injunctive relief made without notice to a potential defendant;
• applications for directions pursuant to the Trusts (Jersey) Law 1984 (as amended); and
• administrative appeals and judicial review.

There is no pre-action disclosure jurisdiction in Jersey.

Mediation is the form of alternative dispute resolution used most frequently in Jersey. As a rule, mediation occurs in most commercial claims. The court may stay proceedings to allow for ADR either at the invitation of the parties or at its own discretion. While the court may not compel parties to engage in ADR, a party that unreasonably refuses to do so risks adverse costs consequences.

Arbitration is also used in Jersey, although it is less common. This is governed by the Arbitration (Jersey) Law 1998 (the “Arbitration Law”). Where there is a valid arbitration agreement in place between parties then the law provides for a mandatory stay of proceedings.

Other forms of ADR such as early neutral evaluation and party led negotiations are also used.

The timeframe for court proceedings to reach trial in Jersey varies with the complexity of the case but as part of the overriding objective of the court, cases should be dealt with “expeditiously and fairly”. In Ybanez v. BBVA Privanza Bank (Jersey) Ltd [2007] JLR Note 45 the court indicated that it expected actions should be concluded within a year and even a complex case should be concluded within two years.

In practice proceedings often take longer than that with more complex proceedings taking several years to reach trial; however, in certain circumstances the representation procedure is available and can achieve an outcome within six months to a year of issue.

Discovery is generally provided after pleadings have closed, although the obligation to disclose is ongoing. Each party must produce a list of all documents (as widely defined) that are or have been within its possession, custody, or power relating to any matter in issue, including those that are unhelpful to their case. This list must be verified by affidavit. While the disclosure duty is interpreted broadly, a party may apply to limit its scope where appropriate. If documents are subject to privilege (Jersey follows the English law principles of privilege), then a party has a right to withhold their disclosure. An advocate must certify that their client has complied with its discovery obligations by endorsing the client’s affidavit. Once disclosed, all non‑privileged documents must be made available for inspection and copying by the other party.

A party may seek further or specific discovery, but must show clear evidence that particular documents, or classes of documents are missing from the other side’s disclosure.

Documents disclosed are subject to an implied undertaking that they will not be used for any purpose outside the Jersey proceedings without the court’s permission.

In the representation procedure, which is a summary procedure, the approach to disclosure is in the discretion of the court and depends on the circumstances of the case.

Trial witnesses are examined orally and in open court. Parties will exchange witness statements setting out the “evidence in chief” of each witness in advance of trial but they will usually also be examined (briefly) and cross-examined in person. This may require witnesses located abroad to travel to Jersey or, with permission of the court, to give evidence by video-link. If a potential witness located abroad is not volunteered by a party, their evidence can only be compelled pursuant to the Hague Convention on the Taking of Evidence Abroad. Potential witnesses not volunteered by a party, but who are within the jurisdiction can be compelled by the court to attend trial to give evidence.

If a party wishes to rely on the evidence of a witness without calling them, it must file a hearsay notice, and the other side may apply to call the witness for cross-examination. If the witness does not appear, the hearsay evidence may be given reduced weight or even excluded.

The Royal Court has a wide power to award costs. Overall, costs awards should be based on two main considerations — the merits and the conduct of the parties in the litigation.

The general rule for cost recovery is that costs follow the event, so the unsuccessful party pays the winning party’s costs on a standard basis. It is open to the court to make an issues-based costs order if certain issues have been decided against the winning party, but the court may be reluctant to do so if that would not be a fair reflection of the overall result.

Costs are subject to assessment (referred to as “taxation”) by the Greffier (a judicial officer) if not agreed.

On a taxation of costs on the standard basis there is a test of “reasonableness” as to the costs incurred and any doubts the Greffier may have will be resolved in favour of the paying party.

Indemnity costs may be ordered by the court where it considers that the unreasonableness of a party’s conduct in the proceedings is such that it departs from the norm usually seen in standard commercial litigation. The starting point for indemnity costs is that all costs are allowed unless they are deemed to be “unreasonable” and where the Greffier has any doubts they would be resolved in favour of the receiving party. This results in a higher percentage of recovery.

A defendant can make a payment into court as a method of applying pressure to settle the action. If the plaintiff has not accepted the payment into court but goes on to receive judgment in which they receive less than the payment in then there may be cost consequences — the plaintiff may be awarded their costs up to the date of the payment in and the defendant may be awarded their costs from the date of payment up to the end of the trial.  These cost consequences are not mandatory and the court retains its discretion but the discretion should only be exercised where there is good reason to depart from the norm.

Any offers made on a “without prejudice save as to costs” basis can be reviewed by the court after judgment and may have a similar impact on the costs order made.

The Royal Court has an “inherent jurisdiction” to ensure that justice is done between the parties and to secure a fair trial. In any case where it would be just and convenient to make such an order to preserve assets pending judgment or final order, the court has several interim remedies available to it:

• Freezing orders both in relation to assets in the jurisdiction and worldwide assets.
• Interim payment orders (including interim payments on account of costs).
• Search orders/Anton Piller orders (which require the respondent to permit the plaintiff or his representative to enter their premises to inspect or take away material evidence pending trial).
• Norwich pharmacal orders (requiring third parties to provide information or documents to identify wrongdoers or trace assets).

These interim remedies may be ordered against defendants and local banks or trust companies and are often accompanied by disclosure orders.

The Arbitration Law governs arbitration in Jersey. The statute regulates both domestic and international arbitrations seated in Jersey. It is not based on the UNCITRAL Model Law but is instead modelled on historic UK Arbitration acts.

Jersey’s courts adopt a pro-arbitration approach and are generally willing to enforce arbitration agreements including a mandatory stay of court proceedings where a valid arbitration clause exists in an agreement. The courts will also support the arbitral process by making procedural order and assist with the taking of evidence and determining preliminary points of law if the parties or the tribunal consent.

Arbitrators do not have any statutory power to grant interim relief; in the absence of any agreement by the parties to rules which provide for the same, the parties must look to the court which has the same powers as it would in regular court proceedings to make orders.

Unless the arbitration agreement says otherwise, all arbitration agreements shall be treated as allowing the arbitrator to make an interim award if they think it is appropriate to do so.

Article 21 of the Arbitration Law allows a party to seek leave from the Royal Court to appeal an arbitration award on a question of law. The court may confirm, vary or set aside the award or remit the award to the reconsideration of the arbitrator together with the court’s opinion on the question of law which was the subject of the appeal.

Article 23 prevents the Royal Court from granting leave to appeal if the parties have agreed between them that the arbitration is final.

If it appears to the court that the award does not sufficiently set out the arbitrator’s reasoning, the court may order the arbitrator to state the reasons for their award in sufficient detail to enable the court, should an appeal be brought, to consider any question of law arising out of the award.

Judgments

Jersey is not a party to any international treaties or conventions in relation to the enforcement of judgments.

The registration of certain foreign money judgments is governed by the Judgments (Reciprocal Enforcement) (Jersey) Law 1960 (as amended) (the “1960 Law” or “Reciprocal Enforcement Regime”). The 1960 Law provides for the registration and enforcement in Jersey of judgments given in the superior courts of countries which accord reciprocal treatment to judgments given in Jersey. Presently, the reciprocating countries and their superior courts are as follows:

• England and Wales: UK Supreme Court; House of Lords; Court of Appeal; High Court of Justice.
• Scotland: UK Supreme Court; Court of Session; Sheriff Court.
• Northern Ireland: UK Supreme Court; Court of Judicature.
• Isle of Man: Her Majesty’s High Court of Justice (including the Staff of Government Division).
• Guernsey: Royal Court; Court of Appeal.

Other judgments obtained outside Jersey may be enforced in Jersey by action at common law.

The enforcement of foreign judgments is subject to requirements which are explored in the sections below.

Arbitral awards

The UK’s signature to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) was extended to Jersey in May 2002.

In order to be able to register (a precursor to enforcement) the judgment in Jersey pursuant to the Reciprocal Enforcement Regime must:

• be final and conclusive as between the parties; and
• provide for the payment of a sum of money, but not in respect of taxes or similar charges, or a fine or other penalty.

A judgment can be “final and conclusive” even though an appeal in the foreign court is pending or possible, although any such appeal will be relevant to an application to set aside registration.

If a foreign judgment falls within the Reciprocal Enforcement Regime, the judgment creditor must use the registration procedure.

In order to enforce a judgment in Jersey pursuant to common law similar rules apply except that the Court additionally has the discretion to enforce certain foreign non-money judgments.

Judgments

Registration procedure under the Reciprocal Enforcement Regime

The judgment creditor has six years to apply (ex parte) to the Royal Court. The application should be supported by affidavit evidence and exhibit a certified copy of the foreign judgment.

A foreign judgment will not be registered if, at the date of the application, it has been wholly satisfied or could not be enforced by execution in the foreign jurisdiction. However, the Royal Court may register the outstanding balance of a partially satisfied foreign judgment and may also register a foreign judgment to the extent that it orders the payment of a sum of money, excluding any non‑registrable elements (such as orders for specific performance). Any sum payable in a foreign currency will be converted into pounds sterling at the prevailing exchange rate. The registered judgment will include interest due under the law of the foreign country up to the date of registration, together with the reasonable costs of the registration process in Jersey.

Once registration has occurred, written notice of registration must be served on the judgment debtor, who then has a specified period (usually 14 or 28 days, subject to extension) to apply to set aside the registration. The judgment cannot be enforced until that period has expired or any application to set aside has been determined. Thereafter, the judgment may be enforced in the same manner as a domestic judgment in Jersey.

In practice, the key question is usually whether the foreign court had jurisdiction. This is determined by the Royal Court according to Jersey law. The foreign court will be held to have jurisdiction over the judgment debtor if, for example:

• they were physically present and served with the foreign process within that court’s territorial jurisdiction;
• they voluntarily appeared in the foreign proceedings to contest the action on its merits;
• they were the plaintiff or counterclaimed in those proceedings; or
• they agreed to submit to the foreign court’s jurisdiction (for instance, in a contractual jurisdiction clause).

Enforcement where registration is not available

Where registration is not available because, for example, the judgment is from a jurisdiction that is not party to the Reciprocal Enforcement Regime or because the judgment is not a money judgment then a foreign judgment may be enforced by commencing fresh proceedings in Jersey. The right to enforce such a judgment arises as a matter of Jersey law, on the basis that the judgment of a foreign court of competent jurisdiction imposes an obligation on the judgment debtor to pay the judgment debt and is therefore not dependent on principles of comity or reciprocity.

The present common law rules largely mirror those described above. In summary, to enforce a foreign judgment in personam at common law, the judgment must be final and conclusive, and given by a court of competent jurisdiction, but must not be impeachable on the grounds of fraud, or contrary to public policy, or natural justice.

It was once the case that in order to enforce at common law, a judgment had to be for a debt or a definite sum of money (but not payable in respect of taxes or similar charges or a fine or other penalty). However, in Brunei Investment Agency and Bandone v. Fidelis Nominees Limited 2008 JLR 337, the Royal Court held that: “it was in the interests of public policy that in modern times the court should have a discretion, to be exercised cautiously, to enforce foreign in personam non-monetary judgments given by courts of competent jurisdiction without reconsidering the merits”.

The same principles regarding jurisdiction of the foreign court as set out above also apply to enforcement under the common law.

It appears that there is no specific time limit in Jersey law for the enforcement of foreign judgments at common law; the judgment will however still need to be enforceable as a matter of the relevant foreign law.

Where the above criteria are met, the defences available to a judgment debtor are limited, and the Jersey courts ought not to enquire into the merits of the original action, nor review the measure of damages awarded. 

Arbitral awards

Enforcement of foreign arbitral awards in Jersey is principally governed by the Arbitration Law.

The rules surrounding enforcement depend on whether the award was made pursuant to an arbitration agreement in a state which is party to the New York Convention (a “Convention Award”).

Convention Awards are enforceable under Part 4 of the Arbitration Law in one of two ways:

• by issuing fresh proceedings based on the award and seeking a judgment from the Jersey Court giving the same relief as is granted by the award; or
• by following the same summary procedure as if a domestic arbitral award was being enforced (by seeking leave from the Court ex parte).

There is a strong presumption in favour of the enforcement of Convention Awards. Examples of situations in which enforcement may be refused include inter alia:

• if one of the parties to the arbitration agreement was under some incapacity;
• that the arbitration agreement was not valid;
• that the award has been set aside by a competent authority in the country in which, or under the law of which, it was made; or
• if enforcement of the award would be contrary to public policy.

The full list of circumstances is set out in Article 44 of the Arbitration Law.

If the New York Convention does not apply, or if the award was made pursuant to an arbitration agreement in a state to which the Geneva Convention on the Execution of Foreign Arbitral Awards 1927 applies then the award would be enforceable as a “Foreign Award” under Part 3 of the Arbitration Law.

For a Foreign Award to be enforceable under Part 3, it must have:

• been made in pursuance of an agreement for arbitration which was valid under the law by which it is governed;
• been made by the tribunal provided for in the agreement or constituted in manner agreed upon by the parties;
• been made in conformity with the law governing the arbitration procedure;
• become final in the country in which it was made; and
• been in respect of a matter which may lawfully be referred to arbitration under the law of Jersey.

In addition, the enforcement thereof must not be contrary to the public policy or the law of Jersey.

The following methods of execution are available:

• Arrêt. This derives from the French word for “arrest” and means that the debtor’s goods are restrained. There are various types including seizure of funds in bank accounts or shares in Jersey companies, arrest of wages and seizure and sale of goods by the Viscount.
• Arrêt entre mains. This is a remedy available to a plaintiff creditor either to satisfy a judgment in execution or as an interim measure pending judgment. It is a court order giving the plaintiff a right in respect of the debtor’s moveable property which is currently in the hands of a third party.
• Judicial hypothec. This is similar to a charge over immovable property.

Committal proceedings can be brought to enforce non-monetary judgments.

Upon application by a party, the Royal Court can grant interim relief in support of the enforcement of judgments to prevent the dissipation of assets while the registration process is underway.

The options available to the court include freezing injunctions, restraining the debtor’s assets either directly or indirectly through an arrêt or arrêt entre mains (see Question 9, above).

Following OWH SE.i.L v. RTI Ltd [2025] JRC 145 the Jersey court applies a lower threshold to the granting of a freezing injunction and ancillary disclosure in a post-judgment or post-award case than the English courts now appear to apply.

If the party seeking enforcement requires information about the debtor’s assets, then the court may grant free standing disclosure orders in favour of a judgment or award creditor to identify those assets against which enforcement is possible.

Proceeding on the assumptions outlined in the Model Answer, would a court in this jurisdiction recognise and enforce the arbitral award under the New York Convention?

In particular:

• Does the award fall within the scope of Article V(1) of the Convention, or would any of the grounds in Article V(1) justify refusal on the assumed facts?
• Is the subject matter of the dispute capable of settlement by arbitration under domestic law for the purposes of Article V(2)(a)?
• Would recognition or enforcement of the award be contrary to public policy within the meaning of Article V(2)(b)?

Response

Does the award fall within the scope of Article V(1) of the Convention, or would any of the grounds in Article V(1) justify refusal on the assumed facts?

In general terms, Jersey, in line with other jurisdictions which are a party to the New York Convention, takes a creditor-friendly and enforcement-friendly approach to the enforcement of New York Convention arbitral awards. Proceeding on the stated assumptions, a Jersey court, acting as the enforcing court under the New York Convention would in principle recognise and enforce the arbitral award.

For Convention Awards, the presumption is that an award would be enforced by the Jersey court. The onus is on the debtor to rebut that presumption on one of the limited grounds set out in Article 44 of the Arbitration Law (which largely mirrors Article V(1) of the Convention).

Is the subject matter of the dispute capable of settlement by arbitration under Jersey law for the purposes of Article V(2)(a)

Article 44(2) of the Arbitration Law sets out a list of technicalities whereby enforcement would be refused such as invalidity of the agreement or incapacity of one of the parties. Article 44(3) of the Arbitration Law mirrors Article V(2)(a) and (b) of the Convention and sets out more substantive reasons as to why enforcement might be refused; where the subject matter is not capable of settlement by arbitration or where the recognition or enforcement would be contrary to public policy.

The Jersey Arbitration Law does not define what is “arbitrable” and whether it would be open to the parties to enforce a separate contractual entitlement arising on non-payment via arbitration has not been tested in Jersey in this context. Where that is the case the Jersey court’s usual approach in this area of the law is to look to the approach of the English courts (where possible). They would therefore consider, and quite likely follow, the approach taken in Exfin Shipping (India) Ltd v. Tolani Shipping Co Ltd [2006] EWHC 1090, namely that non-payment of the judgment debt is a dispute “capable of settlement by arbitration”. The arbitral tribunal would not be duplicating or reviewing the work of the court which has already given judgment; they would instead be determining, as a separate contractual entitlement, whether the judgment is final and unpaid, ordering payment of the contractual sum, assessing interest and potentially ordering security for the award. We see no reason why such an agreement reached between fully informed consenting parties would not be given effect by the Jersey court. We note that foreign court judgments and arbitral awards are routinely recognised and enforced across multiple jurisdictions without any concerns about duplication, with the usual prohibition on double recovery applying. In our view the Jersey court would not be concerned about this mechanism giving rise to duplication in any additional sense.

Would recognition or enforcement of the award be contrary to public policy within the meaning of Article V(2)(b)?

In the recent decision of RTI Limited v. OWH [2025] JCA 327, the Royal Court referred to a historic English judgment in Deutsche Schachtbau-und Tiefbohrgsellschaft mbH v. R’As al-Khaimah National Oil Co [1986] 3 WLR 1023, 1035D where Sir John Donaldson MR said “Considerations of public policy can never be exhaustively defined, but they should be approached with extreme caution. As Burrough J remarked in Richardson v. Mellish (1824) 2 Bing. 229, 252, ‘It is never argued at all, but when other points fail.’ It has to be shown that there is some element of illegality or that the enforcement of the award would be clearly injurious to the public good or, possibly, that enforcement would be wholly offensive to the ordinary reasonable and fully informed member of the public on whose behalf the powers of the state are exercised.”

In our view it would be unlikely that the Jersey court would find it contrary to public policy (pursuant to Article 44(3) of the Arbitration Law, mirroring Article V(2)(b) of the Convention) for an award of this kind to be enforced in Jersey. The court would recognise that parties should be free to choose how they resolve their disputes (subject to necessary safeguards). Here if the parties chose to enter into an agreement containing such an arbitration clause, the Court would likely take into account the maxim “La convention fait la loi des parties” (the agreement makes the law of the parties – a well-established principle in Jersey contract law) as they did in RTI Limited v. OWH [2025] JCA 327, and conclude that the parties should be held to their agreement, as with the approach in Fiona Trust v. Privalov [2007] UKHL 40. In our view there is no element of abuse of process, procedural unfairness or circumvention of any mandatory rules of Jersey law or process inherent in enforcement of the award on the proposed basis.