In late 2025 the Supreme Court of Gibraltar, in Felicity Consultants Limited -v- Moises Gertner (2025/GSC/056), clarified two areas where Gibraltar law departed from the position in England and Wales: first, when hearings may be held in private; and second, when a new defendant is effectively added to proceedings for the purpose of limitation. These divergences have implications for practitioners in respect to litigation risk, strategy and timing.
The claimant sought to lift a stay under a 2012 Tomlin Order, join an individual as a party, and enforce a £1m covenant contained in a confidential deed executed in 2012. The application was issued on the last day of a twelve-year limitation period.
Privacy starts neutral
In England and Wales, courts begin with a presumption of open justice and require case-specific justification to depart from it. Gibraltar, like many other British Overseas Territories, has a written constitution. Section 8(9) of the Gibraltar Constitution Order 2006 states that proceedings "shall be held in public," but where all parties agree to privacy, the court does not apply an elevated presumption for or against. The court's approach is instead to start from a neutral position and weigh the merits of a privacy order, with the parties' agreement to conduct hearings privately being a factor to consider but not a decisive one.
This ‘neutral starting point’ approach was confirmed by the Chief Justice in AB -v- Line Trust Corporation Ltd [2022] Gib LR 355 and reaffirmed by the Court of Appeal in related proceedings before the Court of Appeal in AB -v- Line Trust Corporation [2025] GCA 004 (with Sir Patrick Elias JA dissenting).
Mr Justice Yates in Felicity applied the Chief Justices' approach in AB -v- Line and granted a narrower privacy order to protect the confidentiality of a particular clause of the settlement, while keeping the rest of the hearing public.
This means confidentiality provisions made to resolve disputes can be protected in Gibraltar, but privacy is never automatic. The Gibraltar Court will confine any privacy order to what is strictly necessary, as it did here by protecting only the settlement terms rather than the entire hearing.
In Felicity, the court accepted that only the settlement provision itself justified restriction, and structured the order so that the hearing remained public save for the minimum necessary derogation. The parties' agreement was relevant for the purposes of the court exercising its discretion, but the court's focus was on necessity and proportionality.
In practice, applicants should be specific in identifying what they deem proportionate and necessary to keep private. Narrow privacy applications align with the judgment in Felicity and AB -v- Line Trust, and are more likely to be granted than broad or generic applications.
Gibraltar rules pre-date LA 1980
The sharper practical divergence concerns limitation and adding new parties. English law has a limited "relation-back" rule (s. 35 Limitation Act 1980, CPR 19.6) through which, under certain circumstances, new claims or parties are treated as having been commenced when the original action began.
Gibraltar has no statutory equivalent, so pre-1980 common law applies. Mr Justice Yates relied on the leading judgment of Lord Griffiths in the House of Lords decision of Ketteman -v- Hansel [1987] A.C.220, where the English Court held that an added defendant does not become a party until the amended originating process is served, and limitation runs until that moment.
The Supreme Court of Gibraltar applied that rule and emphasised CPR 19.4(9) expressly providing that a "new defendant does not become a party to the proceedings until the amended claim form has been served on them".
Two further issues are relevant: firstly, the proceedings had been stayed under the Tomlin Order; no procedural step (including joinder) could occur until the stay was lifted, which happened months after limitation had expired. Secondly, even though the deed provided that the proposed defendant irrevocably agreed to be joined, and any claim must be brought in these proceedings; it did not waive the right to plead limitation.
It was also unsuccessful in accelerating the effective date of joinder to the date the application was filed. The earliest possible joinder date would have been when the court granted permission and the amended claim form was served, by which time the limitation period had expired. The court therefore refused joinder as serving "no useful purpose" because a limitation defence would inevitably succeed.
In practical terms, practitioners should treat the “effective date” as the date of service of the amended claim form after permission; a contractual “irrevocable agreement to be joined” neither waives limitation nor backdates joinder.
The presence of a Tomlin Order compounds this risk. While a stay is in place, no step can be taken. Where limitation expires before the stay is lifted and service of the amended claim form effected; the joinder will be refused. The court in Felicity [at 58-59] made clear that applicants should have realistic expectations surrounding the listing of such hearings and act promptly. The fact that a hearing could not be arranged before expiry will not convert the filing date into the joinder date.
For those accustomed to English practice, this is a material recalibration of litigation risk and timing. Late attempts to add defendants in Gibraltar are vulnerable unless service of the amended claim form can be accomplished before the limitation period expires.
Implications on settlement and future proceedings
Felicity highlights settlement drafting considerations when future enforcement depends on joinder. In the instant case, a requirement to apply within the original proceedings and an irrevocable consent to joinder did not defeat limitation or the Tomlin Order. For long-term enforcement, avoid dependence on clauses binding parties to joinder.
Under such circumstances, good practice would be to issue a protective claim against the covenantor early and stay enforcement, or incorporate early action triggers into the settlement, especially where a Tomlin Order may delay steps until the stay is lifted.
A generic "consent to joinder" clause will not displace limitation in Gibraltar. When drafting a settlement, set out the steps required under CPR 19.4 and build a timetable that secures both leave and service before the limitation period.
Key Considerations
Privacy
Gibraltar's constitutional framework supports the making of a targeted application for privacy orders where parties agree and the justice of the case requires it, but the Gibraltar Court will calibrate any order to avoid unjustified derogations from open justice. If all parties agree, the Gibraltar Courts start from a neutral position and will weigh factors for and against privacy, often granting narrow orders to protect settlement terms without cloaking the entire hearing. This is distinct from England and Wales' stronger presumption in favour of the open justice principle.
Joinder and Limitation
Gibraltar lacks England's 'relation-back' rule provided in s. 35 Limitation Act 1980. A new defendant becomes a party only on service of an amended claim form, and a stay prevents any step toward joinder until lifted. An agreement to be joined does not waive a limitation defence. Late applications risk being refused as futile.
If you are negotiating settlements or planning Gibraltar litigation that may involve adding parties later, early advice on timing, process, and confidentiality is essential to preserve rights and manage exposure.
Copyright & permissions
