Litigation and Dispute Resolution Around the Globe Jamaica Are there any rules which govern civil procedure? Yes. The Civil Procedure Rules (CPR) 2002 which can be accessed online at on the Ministry of Justice website http://www.moj.gov.jm/.

What are the main stages in civil proceedings and how long do claims usually take to reach trial? The commencement of action involves firstly the issue of Claim Form and/or Particulars of Claim. The subsequent stages include: Defence and Counterclaim (if necessary) or Affidavit (depending on whether it is a regular Claim Form and/or Particulars of Claim or a Fixed Date Claim Form). The Fixed Date Claim form is used in certain types of Claim where there are little or no disputes of fact, if it is permitted by statute, in claims for possession or mortgage claims Reply and/or Defence to Counterclaim Mediation (a mandatory process) Case Management Conference (CMC) - which becomes necessary if mediation is unsuccessful Pre-trial Review Trial Reserved Judgment Assessment of damages (if unspecified damages claimed) The time within which a matter proceeds to trial varies on a case by case basis. The issuance and service of Claim Forms and the time permitted for filing of Defence usually takes up to 56 days. Other documents such Reply etc might be required and so more time is allotted. Mediation thereafter takes up a lot of time. However, there may be cases where a party applies to dispense with mediation and proceed to (CMC) and the subsequent processes follow. There might be other hindrances such as the parties making various interim applications which would have to be determined before the matter proceeds. Further, a losing party in an application may wish to appeal which, in many cases, the main proceedings is stayed pending determination on appeal. With this in mind, cases may take up to a year to reach trial.

Do juries play any role in civil proceedings and, if so, how can they be chosen? Juries play an insignificant role in civil proceedings. The only civil cases in which juries are involved are defamation, fraud and cases involving breach of a promise of a marriage. They are selected in the same way as in criminal proceedings. They are selected from among persons who are eligible to vote and whose names are recorded on the voter’s list.

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Are court proceedings public? Court proceedings are generally in public. Interlocutory proceedings and proceedings on Fixed Date Claim Forms are heard in Chambers.

Are there any alternatives to court proceedings? Yes, the common alternatives are mediation and arbitration.

Are alternative methods governed by any rules and are decisions binding? Mediation is governed by the Civil Procedure Rules, however, the setting is usually informal and the formalities of the court are discarded. Mediators do not make decisions but try to let the party reach an agreement, as such, it is not binding. However, if an agreement/settlement is reached it becomes binding on the parties. On the other hand, arbitration is usually governed by agreement made by parties and the decisions of an arbitrator are binding. There is an Arbitration Act. There are no arbitration rules, the parties by agreement select the rules of arbitration that govern their procedure.

What are the costs of court proceedings and does the 'loser' always pay? Costs vary depending on the size and nature of the matter and even the seniority and experience of counsel. court fees are payable at various stages in the proceedings and these fees will largely depend upon the value of the claim. Generally, the losing party pays costs to the winning party. However, exception to this general rule lies in the discretion of the judge who has an unfettered discretion.

Can I do anything to alter the 'usual' costs position? Yes. The courts through alternative dispute resolutions try to achieve its overriding objectives in saving time and expenses. They encourage early settlements through these mechanisms. However, if a party unreasonably refuses a settlement, though he may eventually succeed, the court may not award him cost. You can make an offer to settle. If the settlement is reasonable and within 80% of the amount awarded, you will not have to pay costs of the amount awarded after the date of the expiration of the last date that the party could have accepted the offer. In addition to that if the party acted unreasonably at any point throughout the costs position may be altered as well. In other words, costs is in the discretion of the court and so an argument could be made to alter the costs position in the right circumstances.

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What, if any, limitation periods apply? There are limitation periods in both substantive and procedural matters. The Limitation of Actions Act governs various substantive actions while the CPR provide time limit for doing certain actions, failing which might have disastrous consequences.

Are there any formalities which must be complied with before proceedings are issued? Yes. In certain actions, before commencing, a demand should be made on or notice given the party to be sued. Also, one has to ensure that the correct documents are prepared and the parties are identified by name, occupation etc.

Is there an allocation system for cases or are they all treated alike? There is no allocation system for cases per se. However, there are two methods of commencing claims. This is either by way of Fixed Date Claim or by way of Claim Forms. The Fixed Date Claim is given a date on issue. It is in that sense a more expedited form of claim than a matter commenced by Claim Form. This is because a matter commenced by Fixed Date Claim always has a date and is likely to be heard quickly. Those matters are usually not subject to the mandatory mediation requirement.

Are there any particular rules about funding litigation? No. However, a party may require of the other to provide security for cost where it can be shown that the Claimant will put the Defendant at risk in if the Claim is pursued. This is especially so in the claim of companies or where the Claimant is resident abroad.

What is the standard of proof? In civil litigation, the party has to prove his case on a balance of probabilities in order to succeed, while in criminal litigation, the prosecution has the burden of proving its case beyond a reasonable doubt.

What are the basic rules of disclosure? The basic rules on disclosure are that a party must disclose documents which are or have been is his control if he intends to rely on it or if the other party wishes to rely on his documents. There is standard as well as specific disclosure. Standard disclosure means disclosure of all documents relevant to the matter in question. While specific disclosure is as it suggests.

What evidence is admissible? Generally all relevant evidence is admissible.

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When do you need to file evidence? Evidence may be filed at various stages eg at the commencement of a suit which is commenced by way of Fixed Date Claim Form. If the claim is commenced by Claim Form, evidenced is filed after the Case Management Conference and usually after standard disclosure.

Can a third party be required to disclose documents? Yes. There will be willingness to make a third-party disclose documents in his possession once it is shown that those documents are relevant, and he is “mixed up” in the wrongdoing of a party to the proceedings.

What are the rules of privilege? There are three types of privilege known to our law; privilege against self-incrimination, “without prejudice” communication and legal professional privilege. With the first type of privilege, a person would be precluded from answering questions or disclosing documents if that answer or disclosure would have the effect of exposing him to criminal charges or penalties. With the second privilege, things said or written in an attempt to negotiate a settlement would be privilege from disclosure. The third privilege is common between and lawyer and client who is under a duty to assert that privilege in response to a request for disclosure unless the privilege is waived by the client. It is further provided that the privilege can be waived at the instance the client thus exposing the conversation or documents subject to disclosure. It is further provided that if a privileged document has been inadvertently disclosed, reliance on it has to be with the permission of the court or by agreement by the parties.

Can a third party be joined to proceedings? Yes. This can be done if it appears to the court that it is desirable to add the third party so that the court can resolve all the matters in dispute in the proceedings or that there is an issue involving a third party which is connected with the matter in dispute. Third parties are known as ancillary parties in this jurisdiction.

What remedies can the courts award? The court has jurisdiction to award both common law (damages etc) and equitable (injunction etc) remedies and even public law remedies (certiorari, mandamus etc).

Can I appeal? Yes. Every losing party who is dissatisfied with a decision of a court may appeal up to the highest court with the jurisdiction. This is to the court of appeal in Jamaica and thereafter to the Privy Council.

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In which cases can the appeal have suspensive effects as to the enforcement of the judgment subject to the appeal? There are no cases that the appeal has a suspensive effect. The party requiring a reprieve pending an appeal, must apply for a stay pending the appeal.

How can judgments be enforced? The CPR as well as rules of common law provide various methods for the enforcement of judgment for example Charging Orders over property (real or personal), Imprisonment, Sale of Land and Writs of Execution such as for Seizure and Sale.

This questionnaire was submitted by Henlin Gibson Henlin //henlin.pro/.

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