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Abel Lyall

Abel Lyall

Partner | Guernsey

The question of third party disclosure in Guernsey

Guernsey law generally follows other commonwealth jurisdictions on the point of disclosure and discovery in civil proceedings, in that pre-action disclosure is generally not available outside of personal injury cases.

It's important to be aware of the powers you may use, and to which you may be subject to, to get information from those not directly involved in a dispute. This is particularly relevant for financial services businesses given the useful (and often sensitive) information they hold.

The principal mechanisms by which third party disclosure can be sought in Guernsey may be used for pre-action disclosure; ancillary orders for injunctions and as standalone applications within wider actions both in Guernsey and in aid of foreign proceedings. They include:

• Norwich Pharmacal Orders, aka Third Party Disclosure Orders;

• Anton Piller Orders aka Search and Seizure Orders;

• Bankers Trust Orders; and

• Bankers' Books Orders.

These can be extremely useful evidential tools for domestic and international actions in Guernsey.

These orders may override legitimate expectations of confidentiality and privacy. As such, while these tools are available, applicants can expect the Guernsey court to be exacting in considering applications seeking them.

There is no guarantee of success, but aspects which will be viewed favourably by the court are parties acting promptly, adducing strong evidence of fraud, making applications open and on notice where appropriate, demonstrating the impossibility of obtaining the evidence elsewhere, limiting the disclosure sought by document type and time range, and being entirely transparent regarding what you will do with the disclosure obtained.

 

Contact

Abel Lyall

Abel Lyall

Partner | Guernsey

About Mourant

Mourant is a law firm-led, professional services business with over 60 years' experience in the financial services sector. We advise on the laws of the British Virgin Islands, the Cayman Islands, Guernsey, Jersey and Luxembourg and provide specialist entity management, governance, regulatory and consulting services.

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