Citizens Advice Bureau

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LOCAL INFORMATION
4.5.1.L3
Contracts and Court Remedies

Extent: Jersey
Updated 11 April 2018
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Words you may need to know

Absolute right – a right that cannot be taken away

To contract – to enter into an agreement with someone

Discovery - when documents belonging to one side are handed over for the other side to see

En preuve – ‘put to the test’. Someone has to prove their case

File – papers that have been prepared must be ‘filed with’ or given to the Court

In the context of   something done in a way that suits a specific set of circumstances

Particulars of claim – details about the case and the accusation that is made

Pending list – list of cases that are waiting to be heard by the Court

Personal service – when something is delivered by one person to another person and not, for example, delivered by post or email

Relief sought – what you want to get as compensation for the damage you have been caused

Retention of ownership – you remain the legal owner of something

Extracts From A Talk Given by Advocate S.A. Meiklejohn to Highlands College Management Centre in 1990 (with some minor amendments). Words in brackets () have been added as explanation. 

Essential Contract Conditions

(a)        Be clear that you know who you are contracting with (e.g. if A telephones and asks for goods to be delivered to B,  is your contract with A or B?).

Is that person suitable to do business with?

(b)        "La convention fait la loi des parties".

(The following paragraph should be read in the context of UK legislation)

This can be broadly defined (translated) as ‘the agreement makes the law between the parties’. There is a limited amount of legislation which imputes (brings) conditions into commercial contracts and they (the Courts) are generally reluctant to impute terms into agreements.  Therefore it is  important to have established the terms upon which business is to be done before entering into a binding contract.

Whilst essential terms will vary according to the type of business being conducted, examples of such terms are:

(i)         the nature and extent of the services to be provided

(ii)        payment terms

(iii)       timing - is time of the essence?

(iv)       interest on late payment

(v)        delivery - method and time

(vi)       retention of title pending payment in full

(vii)      buyer to rely on examination

(viii)     any guarantee provisions

Judicial remedies

In the event that it is necessary to enforce contractual rights by reference to the Courts what remedy will the Courts offer?

Royal Court

(1)        In the event that the claim in question exceeds £30,000, or there is a question of general damages, proceedings have to be commenced in the Royal Court.

(ii)        Certain proceedings can be instituted by simple action (i.e. by way of Summons a draft copy of which appears in the Schedule) and these include actions:

(aa)      for a debt or liquidated demand

(bb)      for the acknowledgement of debt

(cc)      for the confirmation of arrests

(iii)       In other cases actions must be commenced (started) by way of Order of Justice which requires the Plaintiff to state fully and concisely the nature of his claim as well as the relief sought.

(iv)       In the case of actions commenced either by way of simple Summons or Order of Justice the Defendant then has to be served and is convened (called) to appear before the Court on the first Friday which falls at least four clear days from the date upon which service is effected (completed).

(v)        When the action is called that Friday the Defendant has an absolute right to place the action on the "Pending List". This right exists even if the claim is unanswerable and the procedure to be adopted thereafter is as follows:

(aa)      where the action is being commenced by simple action particulars of claim must be filed within twenty-one days.

(bb)      a defence must be filed within twenty-one days of either the date when the Order of Justice came before the Court or the date upon which particulars are filed.

(cc)      the Plaintiff may reply to the defence if appropriate within twenty-one days of it being filed.

(dd)     discovery takes place

(ee)      the action is set down for hearing and a date is fixed.

(vi)       A simple Summons can be served by post or by leaving it at the proper address of the person to be served whereas service of an Order of Justice has to be effected (carried out) by personal service through the Viscount’s Department.

Petty Debts Court

(i)         In the event that the claim in question is less than £30,000 proceedings have to be commenced in the Petty Debts Court.

(ii)        Proceedings are usually instituted by simple action (i.e. by way of Summons a draft copy of which appears in the Schedule) and these include actions:

(aa)      for a debt or liquidated demand

(bb)      for the acknowledgement of debt

(cc)      for the confirmation of arrests

(iii)       In the case of actions commenced by way of simple Summons the Defendant then has to be served and is convened to appear before the Court on the first Wednesday which falls at least four clear days from the date upon which service is effected.

(iv)       When the action is called that Wednesday the Defendant has an absolute right to place the action "en preuve". This right exists even if the claim is unanswerable and the procedure to be adopted thereafter is as follows:

(aa)      where the action is being commenced by simple action particulars of claim must be filed within fourteen days.

(bb)      a defence must be filed within fourteen days of the date upon which particulars are filed.

(cc)      the Plaintiff may reply to the defence if appropriate within fourteen days of it being filed.

(dd)     discovery takes place

(ee)      the action is set down for hearing and a trial date is fixed.

(vi)       A simple Summons can be served by post or by leaving it at the proper address of the person to be served.

Enforcement of Judgment

(a)        Permission to sell - Before the commencement of any insolvency (bankruptcy) proceedings a creditor who obtains judgment in the Royal Court may ask for permission to sell the debtor’s personal property in satisfaction of the judgment debt. This has the same effect as a confirmed arrest on the debtor’s personal property.

(b)        Acte a peine de prison - A creditor may apply for judgment against a debtor with a Court Order that in default of payment the debtor shall be imprisoned.

(c)        Order Provisoire - Saisie - The obtaining of an Order Provisoire signed by the Bailiff acts as an immediate interim injunction authorising the Viscount to arrest the debtor's personal property and in some cases his person. It is a provisional order issued to the creditor on an ex parte application and once the distraint on the property has been effected the matter must be brought back to the Court on the following Friday to be witnessed by the debtor and confirmed. If the arrest is confirmed, the creditor is then authorised to sell the property so distrained upon.

(d)       Mareva Injunctions - A Mareva Injunction is a procedure which first appeared before the English Court in the mid 1970’s. It is a special form of injunction which restrains a debtor from dealing with all or part of its assets pending determination of the Plaintiff’s claim. In effect the purpose of the injunction is to prevent the Plaintiff’s proceedings being rendered nugatory by the debtor moving or dissipating his assets prior to the determination of the Plaintiff’s claim. This procedure does not accord any priority to the Plaintiff’s claim over and above claims of other creditors.

(e)        Costs - In Royal Court actions costs are generally charged on a time basis and rates will vary from firm to firm. On small debt collection matters costs are occasionally charged on a commission basis an indication of which is to be found in the Schedule.

Where a Plaintiff succeeds against a Defendant he will generally be awarded taxed costs. Unfortunately, these are only likely to amount to between 50% and 100% of the total costs incurred by the successful party. 

(f)        Interest - Interest can claimed by the Plaintiff either as a matter of right because the contract between the parties provided for it, or alternatively the Plaintiff may ask the Court to grant statutory interest on the debt from the date upon which the debt became due. Statutory interest is in the discretion of the Court although it tends to be awarded in most cases.