Getting the Deal Through: Asset Recovery

This chapter featured in Getting the Deal Through: Asset Recovery 2016.
Civil asset recovery

1 Legislation

What are the key pieces of legislation in your jurisdiction to consider in a private investigation?

In the pretrial and investigation stages the following may be important:
• Service of Process and Taking of Evidence (Jersey) Law 1960;

• Royal Court Rules 2004, which deal with court procedure, including interlocutory applications; and

• Service of Process Rules 1994, which include rules about the circum-stances in which process can be e ected upon defendants outside Jersey.

It is almost inevitable that an investigation into Jersey assets will encounter a variety of structures and entities. The following pieces of legislation are likely to be relevant.
• the Trusts (Jersey) Law 1984;

• the Companies (Jersey) Law 1991; and

• the Foundations (Jersey) Law 2009.

If an approach to the authorities is being contemplated, an investigator will need to be aware of the powers of the Attorney General to investigate serious fraud under the Investigation of Fraud (Jersey) Law, 1991.

The freezing by the authorities of assets which may be the proceeds of crime is pursuant to the Proceeds of Crime (Jersey) Law, 1999.

An investigator should be aware of the investigative powers of the Jersey Financial Services Commission, which are set out principally in the Financial Services (Jersey) Law, 1998.

The Civil Evidence (Jersey) Law 2003 deals with the admissibility of evidence, particularly hearsay evidence, in civil proceedings.

The Judgments (Reciprocal Enforcement) (Jersey) Law 1960 provides for the enforcement of judgments obtained in another jurisdiction.

2 Parallel proceedings

Is there any restriction on civil proceedings progressing in parallel with, or in advance of, criminal proceedings concerning the same subject matter?

In Jersey there exists a maxim of customary law (le criminel tient le civil en état), which operates to give the court discretion to manage any civil proceedings so as not to prejudice any related criminal proceedings. Generally, this means that criminal proceedings take place rst, but this is far from a rigid rule. Even where criminal proceedings are decided rst, it is nevertheless possible to proceed with the interlocutory stages of related civil proceedings.

3 Forum

In which court should proceedings be brought?

Cases involving asset tracing will almost invariably be brought before the Royal Court, which is the island’s main court. The usual way of commencing proceedings is by Order of Justice, which can include a claim for injunc- tive relief.

The intermediate court of appeal is the Jersey Court of Appeal and the ultimate court of appeal is the Judicial Committee of the Privy Council, which sits in London.

William Redgrave Simon Thomas
Partner
williamredgrave@bakerandpartners.com

 

Simon Thomas
Advocate
simonthomas@bakerandpartners.com

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