Jersey Unreported Judgments

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URL: http://www.bailii.org/je/cases/UR/1998/158.html
Cite as: [1998] UR 158

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ROYAL COURT

(Samedi Division)

20 July 1998

Before: Advocate B I Le Marquand, Greffier Substitute

Between	John Anthony Le Boutillier	Plaintiff
And	Jane Maguire	First Defendant
And	Alan Maguire	Second Defendant
And	The Education Committee of the States of Jersey	Third Defendant

Application by the third defendant for the Order of Justice to be

struck out as against the third defendant.

Advocate N M Santos-Costa for the third defendant

Advocate M P G Lewis for the plaintiff

THE GREFFIER SUBSTITUTE: On the 25 June 1998, I heard the third defendants application to strike out this action as against it only and adjourned the further hearing of the said striking out application pending the filing by both parties of pleadings in relation to the issue of prescription.

I have been asked by the advocate for the third defendant to provide brief reasons for that decision.

The action is brought in tort and relates to incidents during the period 1997 to 1998. The plaintiff was born on 27 September 1971, and was therefore aged 20 on 27 September, 1991. The action was served on the third defendant on 27 February 1998. On the face of the Order of Justice, the right of action would appear to be prescribed and, accordingly, the third defendant has brought an application for striking out upon the basis of prescription. However, the third defendant has never pleaded to the Order of Justice although the third defendant has clearly indicated to the plaintiff, through his lawyers, that prescription will be an issue.

Advocate Costa invited me to strike out the action upon the basis that the Order of Justice does not indicate any circumstances which would prevent the prescription period having started to run from the plaintiffs twentieth birthday. In my view, a plaintiff is not under any duty to plead such circumstances and would not normally do so as a plaintiff will not at the time of issuing the Order of Justice know that the defendant is going to plead prescription and it was therefore inappropriate to strike out the Order of Justice upon this basis.

Advocate Lewis had available at the hearing an affidavit of the plaintiff which dealt with the matter of prescription but he had not filed this in advance of the hearing and did not want to have to put this in at this stage because it would reveal not just the factual basis for the claim that the right of action was not prescribed but also some of the evidence in relation thereto.

I was, therefore, faced with two options. I could have required Advocate Lewis to produce the affidavit and could then have gone on to consider the striking out application upon that basis. However, it seemed to me to be better to take the second option which was to require both parties to first plead in relation to prescription so that, once the factual basis for the claim of the plaintiff that the action is not prescribed was clear, the plaintiff could then decide if he wished to proceed with the strike out application.

This case raises an interesting procedural point as to whether the third defendant ought first to have filed an answer dealing with the matter of prescription before seeking to strike out upon this basis. In my view that was not essential as no indication had been made by the plaintiff that there was a basis upon which prescription would not apply. If that had happened then an application for striking out before pleadings would not, in my view, have been appropriate. It would, in my view, have been helpful, once the plaintiff realised that the strike out was based upon prescription, for the plaintiff to have given to the third defendant some indication of the reasons why the plaintiff believed that the action was not prescribed.

However, no real harm has been done here and I have merely decided upon what I viewed to be the best way for the matter to proceed form a procedural point of view.

In so doing, I took the view that it would not be right for me to force the plaintiff, at this stage, to reveal evidence upon which he will be relying, but merely that the plaintiff, after the filing of an answer raising the issue of prescription by the third defendant, be obliged to give details in a reply of the facts which form the basis for his claim that the action is not prescribed.

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