Guernsey Legal Resources

  Held: (1) It would be wrong to refuse to restore the action to the list. The factors the court should consider in exercising its discretion—though not exhaustive, since the court had to decide whether restoration was fair in all the circumstances of the case—included not merely the positions of the parties and the effect on them if the action were/were not restored, together with the reasons for the action becoming périmée, but also the existence of settlement discussions and any express or implied agreement not to take further steps in the action for the time being. The court also needed to consider whether there were any special factors peculiar to Guernsey, such as difficulties in quickly securing legal representation or delays in obtaining reports, which might have caused delay (Guernsey Annandale Tile Co. (1980) Ltd. v. Haines (1997), 24 GLJ 82, dicta of Southwell, J.A. applied; Stoneman v. Pannell Kerr Forster (1999), 27 GLJ 69, dicta of Day, Deputy Bailiff considered).

  (2) Here, although the action would be restored to the list, the dispute was eminently suitable for mediation, since it involved a relatively small sum. Discussions on mediation were already well advanced before the date of péremption and continued after that date with agreement being reached on a particular mediator. There were no special “Guernsey factors,” since the delay ultimately causing péremption had simply been caused by the defendants’ advocate apparently failing to contact the agreed mediator and the plaintiff’s advocate not pressing him to do so. The plaintiff had nonetheless discharged the burden of persuading the court to restore the action.