CODE OF CIVIL PROCEDURE IN GIBRALTAR

This article will provide guidance on the Code of Civil Procedure in Gibraltar.  This article will provide guidance on the Code of Civil Procedure in Gibraltar. The judicial process is a very adversarial environment in Gibraltar. The Civil Procedure Rules of England and Wales (CPR) are comparable to their Gibraltar counterparts. 

All original civil procedures before the Supreme Court (Gibraltar's counterpart of the High Court) are governed by the rules of court that apply in the High Court of England and Wales, subject to the limitations and exceptions set down in the Supreme Court Rules.

BACKGROUND

It is before Gibraltar's highest court, the Supreme Court, that proceedings are launched in cases involving major economic issues. The Court does not have formal divisions due to the absence of English regulations governing the creation of High Court divisions and allocating cases to those courts. Since Gibraltar follows the legal structure of the UK, process service must be handled with care. It is preferable to engage the services of a reputed and experienced private Gibraltar process service agency like Undisputed Legal to be assured of the status of their documents. 

The Common Law and the principles of equity should govern legal proceedings. The Parliament of Gibraltar has complete legislative authority with the exception of the ministries of foreign affairs and defense. The majority of laws are modeled after their UK counterparts.

Gibraltar's government and parliament, distinct from the United Kingdom, are responsible for implementing EU legislation. A lot of inspiration was taken from the English and Welsh judicial system while creating the Gibraltar system. Criminal and civil concerns are the main focus of a Magistrates' Court.

The Supreme Court hears all civil proceedings and major criminal issues that are beyond the jurisdiction of the Magistrates' Court, making it the equivalent of the High Court and Crown Court in England and Wales. The Court of Appeal, made up of former justices from the English Court of Appeal, is the highest court in the country. When necessary, the European Court of Justice and the European Court of Human Rights might be referred to for further review. It is vital for an individual in Gibraltar to identify the court rules for each of the institutions in Gibraltar to comply with specific process service requirements. Consequently, it is necessary to involve a process service agency adept and experienced in serving said courts. 

PRE-ACTION CONDUCT IN GIBRALTAR

The Supreme Court of Gibraltar has instituted regulations concerning pre-action behavior after introducing CPR. Gibraltar itself is a British Overseas Territory with complete sovereignty. A private process service agency like Undisputed Legal must ensure that the service of papers internationally in Gibraltar complies with the requirements of the Hague Service Convention and domestic rules and regulations of the state. 

The CPR allows the court to consider whether or not practice directives and procedures were followed when managing proceedings orders and determining costs. In reality, this implies that a party's failure to comply with a pre-action procedure may result in that party being required to pay all or a portion of the expenses associated with the proceedings. Alternatively, the court may extend the period for the defendant to submit a defense or even suspend the claim pending appropriate compliance with the relevant protocol if a party has launched proceedings prematurely without complying with the applicable protocol.

 Each party to the lawsuit must affirm whether they have followed any applicable pre-action procedure in the directives questionnaire (a court document submitted to the litigation before the first case management meeting). The court is responsible for managing the claim and, if necessary, penalizing the parties for failing to follow its orders. An ‘originating procedure’ must be submitted to the Supreme Court Registry to initiate a case. The party that issues the process must also ensure it is served on any opposing parties within the required time frames. Currently, no electronic filing option is available via the Supreme Court Registry.

SERVING A SUMMONS ON AN INDIVIDUAL IN GIBRALTAR

Pre-action protocol communication and the service of the claim form and particulars of the claim officially notifies the defendant of the claim. If the claim was served in Gibraltar, the defendant has twenty-eight days to respond, providing they do not argue jurisdiction and instead submit an acknowledgment of service within fourteen days. The defendant has only fourteen days to respond to the claim without acknowledging service.

One might move to dismiss the other party's case or seek summary judgment. Suppose the defendant fails to respond to the claimant's summons and complaint within the allotted time. In that case, the claimant may seek to enter default judgment (either on the application or by request, depending on the circumstances.)  

Default judgments are governed by CPR 12, which outlines the necessary elements for obtaining one and the circumstances under which one cannot be obtained. The defendant may request claims expense security. With all the facts considered, the court may issue a security for costs order if it finds that doing so would be reasonable and if one of the elements in Rule 25.13(2) is met (or an enactment permits the court to require security for costs). 

TREATY RELEVANCE IN GIBRALTAR

A document is disclosed when a party admits to its existence or past existence. Except where the disclosing party has a right to withhold inspection, where the document is no longer in the custody of the disclosing party, or as otherwise specified in CPR 31.3, the person to whom a document has been revealed has a right to view the document.

When a potential defendant learns oundhe is a potential plaintiff in a lawsuit, he must make reasonable efforts to preserve any records that may be useful in the eventual litigation. While legal actions are continuing, the need to disclose remains in effect. The court will consider the nature of the disclosure order at the first or any future case management conference, considering the overarching purpose and the requirement to restrict disclosure to that required to deal with the matter fairly. There are three main types of disclosure orders: [A.] ordinary disclosure, [B.] particular discovery, and [C.] orders dispensing with the requirement for disclosure (very rare in commercial litigation.

In the wake of the United Kingdom's withdrawal from the European Union on January 31, 2020, Gibraltar also left the bloc. This followed the signing of the Withdrawal Agreement, which paved the way for a smooth exit of the United Kingdom from the European Union. These plans include the inclusion of Gibraltar. As a result, Gibraltar has not changed its policy of freely and independently applying EU law on questions of applicable law (in the absence of the specific repeal of EU legislation). Presently, Gibraltar's conflict of law provisions is based on EU legislation.

The Hague Service Convention was approved on November 15, 1965, by the member nations of the Hague Conference of Private International Law in Hague, Netherlands, and is used by our process servers in Gibraltar to serve civil and commercial issues. It was created so that lawyers could effectively and reliably serve papers on defendants and plaintiffs in another nation. Service of process in civil and commercial cases, but not criminal ones, is governed by the convention. If the address of the person to be served is unknown, the Convention will not apply either.

In addition, Gibraltar is included in the Hague's Choice of Court Convention since the United Kingdom is a signatory. The law to be applied to a certain contract is established by Rome I according to a set of standards that vary depending on the nature of the agreement. Standardly, the law of the nation where the party performing the contract has their primary abode is the law that will apply.

PROCESS SERVICE IN GIBRALTAR

Legal process serving must be done in line with Part 6 of the CPR and the relevant Supreme Court Rules. An individual may serve a document by personal service or through certified mail to the intended recipient's attention at their current or last known address or via any procedure deemed unacceptable by the court.

A corporation's registered office is an acceptable place for service. It should be noted that when serving legal documents in a foreign country, it is customary also to include a translation of the documents. The Hague Service Convention of 1965 provides for the international service of judicial and extrajudicial documents in civil and commercial matters (if the foreign court is outside the EU and in a state party to the Convention). The Registrar of the Supreme Court of Gibraltar is the highest official in the territory, and the office of the Registrar is typically where service of process. Our process servers will ensure that the process is served upon the Central Authority. Unless prohibited by local law, the Central Authority of the State addressed shall serve the document or arrange to have it served by an appropriate agency in one of two ways: a) in the manner prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory; or b) in the manner requested by the applicant. The document in question must be drafted in, or translated into, the language(s) recognized as legal by Gibraltar.

Requests from other EU member states are subject to the Taking of Evidence Regulation (1206/2001) in Gibraltar. Some international treaties, such as the 1970 Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, are also in effect in Gibraltar (Hague Evidence Convention).

It is the practice in jurisdictions outside the European Union and those that are not signatories to the Hague Evidence Convention to collect evidence. 

RECOGNISING AND ENFORCING FOREIGN JUDGEMENTS

Judgments and awards in monetary form rendered in a foreign jurisdiction are enforceable in the methods described within the framework of the revised Brussels Regulation (for a judgment from an EU member state subject to the Regulation).

According to the New Lugano Convention or the Brussels Convention on Jurisdiction (for example, for judgments from Denmark and Switzerland). Court orders may be enforced in each other's jurisdictions thanks to the Judgments (Reciprocal Enforcement) Act of 1935. (which applies to judgments from certain Commonwealth countries).

The Administration of Justice Act of 1920 (which also applies to various Commonwealth countries under the English Application Act). Legally, this is done by filing a local common law action to collect on the debt established by the foreign judgment (for judgments from other countries).

Since Gibraltar has unilaterally adopted EU law as domestic law after the Brexit transition period, enforcement of judgments under the Recast Brussels Regulation and the Brussels Jurisdiction and New Lugano Conventions continues. Regarding the international enforcement and registration of decisions rendered in the United Kingdom and Gibraltar, the two jurisdictions are considered distinct Regulation states on account of bilateral agreements.

At Undisputed Legal, we understand that service of process from overseas is a complicated affair. The papers have to go through a lengthy process of being deemed okay from both sides to be finally served upon the defendant. In this case, hiring a private process server like Undisputed Legal with sufficient experience and who adheres to service requirements is important. Our process servers are well-qualified to handle your documents, and we will attempt to make foreign process service timelines as short as possible without compromising the safety of your documents. 

OUR PROCESS

Documents can be faxed at (800) 296-0115, emailed ps@undisputedlegal.com or uploaded to our website. We do require prepayment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.

Drop-offs must call and make an appointment first to be added to building security to permit access to our office. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC.; All documents are received by our receptionist.

DOMESTIC COVERAGE AREAS:

Alaska | Alabama | Arkansas | Arizona | California | Colorado | Connecticut | District of Columbia | Delaware| Florida | Georgia | Hawaii | Iowa | Idaho | Illinois | Indiana | Kansas | Kentucky | Louisiana | Maryland | Massachusetts | Maine| Michigan | Minnesota | Mississippi | Missouri | Montana | North Carolina | North Dakota | Nebraska | New Hampshire | New Jersey | New Mexico | Nevada | New York | Ohio | Oklahoma | Oregon | Pennsylvania | Rhode Island| South Carolina | South Dakota | Tennessee | Texas | Utah | Virginia | Vermont | Washington | West Virginia | Wisconsin | Wyoming

INTERNATIONAL COVERAGE AREAS:

Albania | Andorra | Anguilla | Antigua | Argentina | Armenia | Australia | Austria | Azerbaijan | Bahamas | Barbados | Belarus | Belgium | Belize | Bermuda | Bosnia and Herzegovina | Botswana | Brazil | British Honduras | British Virgin Islands | Bulgaria | Canada | Cayman Islands | Central and Southern Line Islands | Chile|China (Macao) | China People's Republic | Colombia | Costa Rica | Country of Georgia | Croatia | Cyprus| Czech Republic | Denmark | Dominican Republic | Ecuador | Egypt | Estonia | Falkland Islands and Dependences | Fiji | Finland | France | Germany | Gibraltar| Gilbert and Ellice Islands | Greece | Guernsey | Hong Kong | Hungary | Iceland | India | Ireland | Isle of Man | Israel | Italy | Jamaica | Japan | Jersey Channel Islands | Jordan | Kazakhstan | Korea | Kuwait | Latvia | Lithuania | Luxembourg | Malawi | Malaysia | Malta| Mauritius | Mexico| MonacoMontenegro | Montserrat | Morocco | Namibia | Netherlands | New Zealand|Nicaragua | Norway | Pakistan | Panama | Paraguay | Peru | Philippines | Pitcairn |Poland | Portugal | Republic of Moldova | Republic of North Macedonia | Romania |Russian Federation | Saint Vincent and the Grenadines | San Marino | Saudi Arabia | Serbia | Seychelles | Singapore| Slovakia | Slovenia | South Africa | Spain | Sri Lanka | St. Helena and Dependencies | St. Lucia | Sweden | Switzerland | Taiwan | Thailand | Tunisia| Turkey | Turks and Caicos Islands| UkraineUnited Kingdom of Great Britain and Northern Ireland | Uruguay | US Virgin Islands | Uzbekistan | Venezuela | Vietnam

OFFICE LOCATIONS

New York: (212) 203-8001 – 590 Madison Avenue, 21st Floor, New York, New York 10022
Brooklyn: (347) 983-5436 – 300 Cadman Plaza West, 12th Floor, Brooklyn, New York 11201
Queens: (646) 357-3005 – 118-35 Queens Blvd, Suite 400, Forest Hills, New York 11375
Long Island: (516) 208-4577 – 626 RXR Plaza, 6th Floor, Uniondale, New York 11556
Westchester: (914) 414-0877 – 50 Main Street, 10th Floor, White Plains, New York 10606
Connecticut: (203) 489-2940 – 500 West Putnam Avenue, Suite 400, Greenwich, Connecticut 06830
New Jersey: (201) 630-0114 - 101 Hudson Street, 21 Floor, Jersey City, New Jersey 07302
Washington DC: (202) 655-4450 - 1101 Pennsylvania Avenue, Suite 300, Washington DC 20004

FOR ASSISTANCE SERVING LEGAL PAPERS IN GIBRALTAR

Simply pick up the phone and call Toll Free (800) 774-6922 or click the service you want to purchase. Our dedicated team of professionals is ready to assist you. We can handle all your Gibraltar process service needs; no job is too small or too large!

Contact us for more information about our process serving agency. We are ready to provide service of process to all our clients globally from our offices in New York, Brooklyn, Queens, Long Island, Westchester, New Jersey, Connecticut, and Washington, D.C.

"Quality is never an accident; it is always the result of high intention, sincere effort, intelligent direction, and skillful execution; it represents the wise choice of many alternatives"- Foster, William A

Sources

1. Whoever makes a factual assertion must prove it beyond a reasonable doubt (usually the claimant in civil litigation). In a breach of contract action, for instance, the plaintiff has the burden of proof regarding the contract's existence and the alleged violation. The burden of evidence in a civil case is on the party presenting the counterargument.

2. Litigation involving very little amounts (usually cases less than GBP10,000).  Jump the queue (usually cases valued between GBP10,000 and GBP25,000).

Cases that don't fit into the fast track or the small claims track are heard on the multi-track system (typically involving amounts more than GBP25,000 and including more difficult matters of law and fact).

3. Rule 8 and Schedule 2, Supreme Court Rules 2000. However, according to CPR 26.6, patients might be assigned to one of three tracks.’

4. The British colony of Gibraltar joined the European Economic Community in 1973 as a British overseas territory. With regard to the European territory for which foreign relations a Member State is accountable, the treaty applies solely to Gibraltar under Article 355(3) (formerly Article 299(4)).

5. Despite being a member of the EU, Gibraltar does not participate in the customs union or the VAT area, is not subject to the Common Agricultural Policy, and is not included in the Schengen Area.

6. In civil and criminal cases, the method and practice closely resemble those in England and Wales. Gibraltar has a merged legal profession in which barristers may also practice as solicitors and have unlimited court access.

7. If not the text, the spirit of the Practice Direction and Protocols must be followed, as stated in the Practice Direction on Pre-Action Conduct.

8. Part 7 Claim Forms are used for this purpose in almost all cases

9. If the court believes the following, it may strike down the plaintiff's statement of case:

  1. There are no plausible arguments in favor of or in defense of the claim that can be found in the case statement.
  2. The statement of the case is an improper use of the judicial process or is otherwise likely to delay or prevent a fair resolution of the proceedings.
  3. The offender has disregarded a law, regulation, or judicial mandate.

10. CPR 25.13 lays forth the prerequisites that must be met

11. As part of the United Kingdom's withdrawal from the European Union, the European Union (Withdrawal Agreement) Act of 2020 will make the Brexit Withdrawal Agreement a binding legal document in Gibraltar. The Act's transitional period will terminate at the end of 2020. The European Union (Withdrawal) Act 2019, which transforms EU law relevant to Gibraltar at the time of leaving into Gibraltar law, ensures that directly applicable EU law will continue to apply in and regarding Gibraltar after the United Kingdom's withdrawal.

12. 593/2008, also known as the Rome I Regulation.  Directive (864) from Rome II.

13. After Brexit, Gibraltar will continue to be subject to the EU framework, namely the Recast Brussels Regulation (1215/2012). Recast Brussels Regulation's primary provision is that a defendant must be sued in their country's courts. The Recast Brussels Regulation generally maintains and recognizes jurisdiction agreements; however, there are several exceptions. However, the Recast Brussels Regulation does not apply to arbitration, succession, or insolvency cases.

The courts of an EU member state have exclusive jurisdiction over the following sorts of disputes:

  1. Disputes involving rights in real property shall be resolved by the courts of the Member State in which such real property is situated; 
  2. Disputes involving the validity of entries in public registers shall be resolved by the courts of the Member State in which such register is kept; 
  3. Disputes involving certain issues of company law shall be resolved by the courts of the Member State in which the company's seat is situated.

14. (Supreme Court Rule 3(l) of the Rules of the Supreme Court of 2000.)

15. Regulation (EC) No. 1393/2007 on Service of Documents (if the foreign court is in the EU).

16. In accordance with CPR Rule 34 and Schedule 2 of the Evidence Act 1948.

17. Enforcement and registration of judgments are governed by CPR Rule 74.