International Law

Discovery is Possible in Jersey

By Rick Rein

Discovery is an important component to a successful asset recovery. In Jersey, the idea behind discovery is full and frank disclosure to eliminate surprises.

Once pleadings are complete, each party must list the documents in their "possession, custody or power". That disclosure includes documents that will be relied upon, that adversely affect the case or support your opponent's case, and that are required by relevant practice direction. Relevance means information which may enable the party to advance his case or to damage that of his adversary. The obligation of discovery continues throughout the proceeding such that if further documentation comes to light it must be disclosed. The definition of documents is also expansive and includes hard copies and electronic ones.  

Discovery from non-parties is rare. The exception is if discovery is the only means of obtaining the necessary information to proceed against a wrongdoer whose acts are facilitated by the non-party. In other words, discovery will be permitted against a non-party when (1) without the information from the non-party, no action against the wrongdoer could be commenced and (2) the non-party had innocently facilitated the wrongdoer. In Macdoel Investments Ltd. v. the Federal Republic of Brazil (2007) JLR 201, the court reasoned that the power to make such an order is not restricted to specfic kinds of cases and the"determinative question in an individual case would be whether justice required the requested disclosure to be ordered."

Thus, discovery can be an important tool in Jersey to discovering the identity of the wrongdoer and documents that implicate him/her.

Full post as published by International Asset Recovery Law Blog on December 24, 2008 (boomark / email).