ROYAL COURT
(Samedi Division)
Before: FC Hamon Esq., Deputy Bailiff, Single Judge
6 August 1998
BetweenMargaret Milne BoydPlaintiff
AndBarry Keith Pickersgill
And David Eldon Le CornuDefendants
exercising the profession of Solicitor, Advocate and Notaries Public under
the name and style of Pickersgill & Le Cornu
Advocate P de C Mourant for the Plaintiff
Advocate RJ Michel for the Defendants
JUDGMENT
THE DEPUTY BAILIFF: This is a preliminary action on a matter of law. The facts are not in dispute for the purposes of this action.
An Order of Justice was signed by me on 21 April 1997 and the plaintiff claimed that the defendants, her former legal advisers, failed to advise her of the procedure known as an action "en licitation". As a result of that she has suffered loss and claims damages. Her claim is brought both in tort and contract. The Order of Justice was served upon the defendants on 21 April 1997. In their answer filed on 2 May 1997, the defendants pleaded (inter alia) prescription against the claims in tort and contract.
In their summons which the Court adjourned from 27 April the plaintiff asked the Court to decide on prescription. For reasons that will become clear, I need only deal with the argument that any claim for an alleged breach of contract was lost after ten years from the date upon which it is alleged that proper advice failed to be given.
The matrimonial dispute between the plaintiff and her husband was extremely bitter. None of the acrimonious background needs to be rehearsed here.
For the purposes of this hearing the Court was asked by agreement to assume that the defendants are liable to the plaintiff for their negligence and consequent breach of contract. (The action in tort is clearly statute-barred).
It is not in dispute:-
1.That the period of prescription in Jersey is 10 years from the date of the breach.
2.That the right of action arises from the contract and from the date of the breach.
and
3. The breach of the contract must have been prior to February 13 1987 The proceedings were instituted in April 1997.
On the face of it, the action is clearly prescribed by two months.
If the plaintiff is to succeed she has to rely on a maxim of law to remedy
the situation.
In Alsford v Boyd (5 April 1990) Jersey Unreported, the Court said:-
"At this time (21 February 1986) there was no immediate threat of a dégrèvement or réalisation, although it must have been clear to both of them that steps would have to be taken, and urgently, to dispose of at least one property."
Advocate Le Cornu acted for Miss Boyd from August, 1984, to 23 April 1987 and it is his failure to advise on the possibility of a licitation that is the important issue in the case because, Advocate Mourant says, she was deprived of the knowledge that gave her a cause of action. Mr Mourant says, in effect, that Miss Boyd had no knowledge of the right to licitation until (on the facts) she was advised of that right by the Judicial Greffier in a letter dated 21 August 1989. He relied heavily on the Royal Court judgment in Maynard v Public Services Committee [1995] JLR 65 of which the learned Court of Appeal stated in Public Services Committee -v- Maynard [1996] JLR 343 C.of A. at page 355:
"In expressing our views on this point, we have thought it right to do so in our own words and without reference to the judgment below of the Lieutenant Bailiff. He dealt with this part of the case in a careful and learned assessment of the many authorities placed before him. His conclusion was in these terms (1995) JLR at 101-102(:
"If there is a latent physical defect of which the claimant is ignorant without negligence on his part, the maxim will apply and prescription will be suspended until his ignorance ceases, or at any rate ought to cease. This point is of course a matter of fact in each case and is, as it must be, remitted for evidence to be heard ..."
As we have said, the right formulation is in our judgment that the plaintiff is under a practical impossibility to exercise his rights. This may amount to the same test as the Lieutenant Bailiff adopted by the words "ignorant without negligence", but we prefer to state it as a test of practical impossibility, which more closely accords with the words used by Pothier, "une véritable impuissance". Mr Maynard will be able to establish this, for example, if he shows that there were no obvious symptoms during the relevant period calling for medical examination, that in fact he did not undergo relevant medical examination during this period and that the insidious development of asbestosis in his lungs was such as not to give rise to any other reason for seeking medical advice. We would therefore uphold the judgment of the Lieutenant Bailiff except to the extent that the requirement for the operation of the maxim is stated in the terms we have indicated."
Mr Mourant relies heavily on those words of the judgment of the Royal Court which say:-
"If there is a latent physical defect of which the claimant is ignorant without negligence on his part, the maxim will apply and prescription will be suspended until his ignorance ceases, or at any rate ought to cease."
The argument then in skeleton form is this:-
1.In failing to give Miss Boyd advice on licitation (as opposed to giving her wrong advice) Advocate Le Cornu was in breach of his contractual duty.
2.It was unreasonable to hold that a cause of action arose while Miss Boyd was ignorant of her possible cause of action. That amounted to an "empêchement de fait".
3.Prescription would have started to run from 13 February 1987.
4.Prescription was suspended until the Judicial Greffiers letter of 21 August 1989.
5.In the premises Miss Boyd is still within the prescription period.
It is this argument that I am called upon to adjudicate.
Mr Mourant began his argument with a bold assertion. This Court, he says, has the ability to adapt principles of common law to modern circumstances and to produce decisions which are relevant to the modern day.
In Rumasa SA and Williams & Humbert Limited v W. & H. Trademarks (Jersey) Limited and six others (Viscount intervening), [1985-86] JLR 308 one of the questions asked was whether there was precedent for the appointment of an administrator of a company. The Court said this in the course of its judgment:-
"The common law is subject to development to meet the needs of the times and has developed to meet changing needs and circumstances."
I turn to the case of Morton v Paint (9 February 1996) Guernsey Court of Appeal) (a case of great interest in the development of the law in any jurisdiction.)
In that judgment Blom-Cooper JA said this (and his words are of general application):-
"Accordingly, Guernsey law, in adopting the English law rules in the field of tortious liability, could properly conform to what the UK Parliament had decreed was the "eminently sensible" rule. To bring the law of Guernsey into line with the statutory rule in England, and not to allow a parting of the ways for the two jurisdictions, does not have to await enactment of a similar law by the States of Guernsey. It can be done judicially. The argument, ably advanced by Mr Wessels for the respondent, would mean the ossifying of the very organism of the common law - namely, its constant adaptability to changing social conditions. It cannot be right that the law of negligence should remain stunted in its growth so long as the States of Guernsey fails to legislate.
As Lord Scarman observed in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at p.183D:
"It is, of course, a judicial commonplace to proclaim the adaptability and flexibility of the judge-made common law. But this is more frequently proclaimed than acted on. The mark of the great judge from Coke through Mansfield to our day has been the capacity and the will to search out principle, to discard the detail appropriate (perhaps) to earlier times and to apply principle in such a way as to satisfy the needs of his own time. If judge-made law is to survive as a living and relevant body of law, we must make the effort, however inadequately, to follow the lead of the great masters of the judicial art."
In the lead judgment of Southwell J, this was then said:-
"Having considered all the submissions fully during and after the hearing of this appeal, I am satisfied that it is right for this Court to continue to develop the common law relating to occupiers liability as applied in Guernsey, in a way which is consonant with the needs of the Guernsey community. "
In Selby v Romeril [1996] JLR 210 the Court said at page 218:-
"It is true that Pothier has often been treated by this court as the surest guide to the Jersey law of contract. It is also true, however, that Pothier was writing two centuries ago and that our law cannot be regarded as set in the aspic of the 18th century."
All this, says Mr Mourant, must give the ability to a Court, where necessary, to develop the common law. Mr Mourant gave the example of Cartledge v Jopling & Sons Ltd. H.L. (1963) A.C. 758 at 772.
"If this were a matter governed by the common law I would hold that a cause of action ought not to be held to accrue until either the injured person has discovered the injury or it would be possible for him to discover it if he took such steps as were reasonable in the circumstances. The common law ought never to produce a wholly unreasonable result, nor ought existing authorities to be read so literally as to produce such a result in circumstances never contemplated when they were decided."
Again in Gillick v West Norfolk Area Health Authority (1985) 3 All ER 402 at 419 Lord Scarman said:-
"The law has, therefore, to be found by a search in the judge-made law for the true principle. The legal difficulty is that in our search we find ourselves in a field of medical practice where parental right and a doctor’s duty may point us in different directions. This is not surprising. Three features have emerged in today’s society which were not known to our predecessors: (1) contraception as a subject for medical advice and treatment; (2) the increasing independence of young people; and (3) the changed status of women. In times past contraception was rarely a matter for the doctor; but with the development of the contraceptive pill for women it has become part and parcel of every-day medical practice, as is made clear by the department’s Handbook of Contraceptive Practice (1984 revision) esp para 1.2. Family planning services are now available under statutory powers to all without any express limitation as to age or marital status. Young people, once they have attained the age of 16, are capable of consenting to contraceptive treatment, since it is medical treatment; and, however extensive be parental right in the care and upbringing of children, it cannot prevail so as to nullify the 16-year-old’s capacity to consent which is now conferred by statute. Furthermore, women have obtained by the availability of the pill a choice of life-style with a degree of independence and of opportunity undreamed of until this generation and greater, I would add, than any law of equal opportunity could by itself effect.
The law ignores these developments at its peril. The Houses task, therefore, as the supreme court in a legal system largely based on rules of law evolved over the years by the judicial process is to search the overfull and cluttered shelves of the law reports for a principle or set of principles recognised by the judges over the years but stripped of the detail which, however appropriate in their day, would, if applied today, lay the judges open to a justified criticism for failing to keep the law abreast of the society in which they live and work.
It is, of course, a judicial commonplace to proclaim the adaptability and flexibility of the judge-made common law. But this is more frequently proclaimed than acted on."
It is on that basis that I have to turn to the meaning of the maxim "contra non valentem agere nulla currit praescriptio".
At this point I must turn, and be guided by, the judgment of the Court of Appeal in Public Services Committee v Maynard (1996) JLR 343 C.of A.
At page 354 of the judgment Southwell J said this:-
"We can summarize our conclusions so far on the application of the maxim in Jersey law in this way:-
a) It is common ground that the maxim can apply to the customary law prescription of claims in contract after 10 years, and is preserved by art. 2 of the 1960 Law in relation to the prescription of claims in tort after 3 years.
b) The principle underlying the operation of the maxim in Jersey law is the practical impossibility of the plaintiff being able to exercise his rights.
c) Mere ignorance does not bring the maxim into operation.
d) Where there is an impediment creating such a practical impossibility, of which ignorance is a part, then the maxim may come into operation and prevent time running."
Because of the wealth of learning contained in the Maynard judgment it is necessary for the purposes of this judgment to repeat what the Court said at page 353 of its judgment:
"Pothier goes on to give several examples of empêchements de fait. One example is of "les insensés" when they are without curators, and then definitely come within the scope of the maxim (op.cit., at 194-195). Mr. Pallot was given by one of us the example of a man hit on the head by a falling piece of concrete who then remained in a coma for more than three years. Unless the maxim applied, his cause of action in tort would, on Mr Pallots submissions, be prescribed, unless perhaps someone were able to issue proceedings on his behalf. In our judgment, the principle underlying the maxim would be applied to these circumstances just as much as to "les insensés" without curators. Pothier referred to the example of absence (op. Cit., at 195-196) and stated that the maxim would not avail the absent person unless it was impossible for him to inform himself of the circumstances, or in circumstances "dans lesquelles un absent a été dans une véritable impuissance, et lorsque cela est évidemment justifié..."
Dunod made it clear that mere ignorance does not bring the maxim into play (op. Cit., at 106-107). This conclusion is carried through to page 111, on which it is stated that "une simple ignorance" does not suffice: there must be circumstances "d’une absence privilégiée ou d’un autre juste empêchement ..."
In Merlins Répertoire, a similar distinction is made between mere ignorance and circumstances amounting to an empêchement which bring the resulting ignorance within the scope of the maxim (op. Cit., at 541-543). Dallozs Répertoire is to similar effect.
Planiol & Ripert dealt with the then current French law of prescription. They indicated that though by art. 2251 of the Civil Code the legislature had tried to limit the scope of the maxim, the Cour de Cassation had held in 1857 that "prescription is suspended whenever the owner may reasonably be unaware of the fact which gives rise to his right of action and his interest to act" (op. Cit., vol. 1, para. 2705, at 598). However, it is dangerous to apply modern French law by analogy to Jersey law. The same observations applies to Baudry-Lancantinerie (op. Cit., at 833-835) and to the article by Buy."
It appears to be accepted that if this action is to succeed the Court will have to move into unchartered waters.
The Plaintiff claims that she could not proceed with the action in negligence as she was unaware of her right to demand a licitation. The plaintiff relies on the maxim "à qui est empêché d’agir la prescription ne court point" and whether we employ the Latin phraseology that I used earlier or trace the maxim and its use from Terrien to the present day, the only issue is whether the maxim applies in the circumstances of this case.
It goes further than that of course because Mr Mourant made the submission first that the remedy was suspended during the period of "ignorance" but that when Miss Boyd at last understood her lost opportunity on 21 August 1989, it was then that the ten year period of prescription began running against her.
Are we in the field of "une véritable impuissance"? That is, the test of practical impossibility.
The headnote of Maynard is useful. It reads:
"Prescription would not run against the plaintiff (or indeed a potential plaintiff) if he could show at trial that he had been prevented from pursuing his legal rights by an empêchement de fait, or practical impossibility, under the maxim contra non valentem agere nulla currit praescriptio, which clearly applied to actions both in contract and in tort. Although ignorance of the necessary facts was alone insufficient to invoke the maxim, it could be a part of the necessary impediment, which in modern conditions could arise from a variety of circumstances. In the present case, the plaintiff would have to show that it would have been impossible for him to discover his illness any earlier, eg if he had suffered no obvious symptoms of asbestosis and had had no reason to seek medical examination".
I am left with precisely the question of law posed in Maynard (at page 351) :-
"In these circumstances we have to consider whether there could be in law a material "empêchement" amounting to a practical impossibility for Mr Maynard to commence legal proceedings".
It does not really concern the argument to know that the defendants in this case were at the material times concentrating on financial matters and never addressed the question of co-ownership. It does not need repeating that at the material time Miss Boyd was unaware of her rights of licitation. Always, however, I have the words of the Court of Appeal before me. "Mere ignorance by itself could not, in our judgment, give rise to the operation of the maxim". Any case of "mere ignorance" will contain a fact unknown to the plaintiff. The question is whether the plaintiff could reasonably have known of her common law right. It is not as though Miss Boyd was under curatorship or guided while a minor by a misguided tutor or held during the prescription period in an Arabian prison. She was of sound mind, actively involved in litigation and with a senior lawyer of her own choosing.
If the plaintiff is to succeed, I have to place the question of a lawyer’s failing to give advice in the same category of ignorance as, for example, a patient with a disease dormant within him during the prescription period. It is a difficult leap of intellect, but, of course, the list of examples can never be finite.
In his gloss of Terrien at page 79 of his judgment in Maynard Lieutenant Bailiff Le Cras says this:-
"The passage clearly applies to contract and, as the court reads it, provides that actions for the rescission of contracts founded on "dol" or other (similar) causes shall be prescribed after the lapse of 10 years, provided that the cause of the fear, violence or other legitimate cause hindering or preventing ("empeschant") in law or in fact the pursuit of such rescissions shall cease. It does, however, go further than dol and so forth by referring to "autre cause legitime empêschant de droict ou de faict..." The footnote to the words "de droict ou de faict" adds a gloss (op. Cit., at 332):
De droict ou de faict. De droict, comme la femme mariee, qui ne peut ester en jugement sans l’authorité de son mary: ou le fils de famille sans l’authorité de son pere: ou le mineur sans l’authorité de son tuteur. De faict, come si aucun est prins des ennemis, ou longuement detenu en prison ou maladie, ou absent pour la chose publique d’absence necessaire & non affectee: ou bien allant traffiquer en pays estrange, estant contraint y demourer long temps par quelque fortune. Car à ceux-la prescription ne court durant tels empeschemens, sinon qu’il fust en leur puissance de les oster. Rebus apres les autres."
The Court of Appeal in its judgment at page 100 makes the position even clearer:-
"The next author, and one whose view of the state of the law in the Island carries very considerable weight is, of course, Poingdestre. Now, it is quite clear that the court is not being asked to deal with an empêchement de droit, and questions of fraud, duress and so forth do not arise. At all times the plaintiff has had a legal right to sue. Prescription will only be suspended if he can show that he is suffering from an "empêchement de fait" within the ambit of the maxim. In the view of the court, there are solid grounds for supposing (see the fourth rule) that Poingdestre considered ignorance to be on the same plane as absence, as he considers them disjunctively. Even if the court is wrong in this assumption, it would by analogy extend ignorance of an unknown concealed latent defect to the lack of knowledge of an absentee in the conditions of the 17th century. If, as the court conceives, the rule were there to protect a claimant who could not properly obtain information, it must extend to someone who, even if not physically absent, is none the less in the same state of mental ignorance as a 17th century traveller, shipwrecked or detained in a far country."
It is not necessary for the purposes of this judgment to rehearse the learned findings of the Court of Appeal where it examined in particular the preferred words of Poingdestre and particularly the passage cited at page 353 of the judgment:-
"En tous lesquels cas, il faut bien considérer toutes les circumstances lesquelles peuuent informer les Juges de la sincerité des parties qui les alleguent: car ce qui se fait par fraude ou malice ou par quelqz desseing ne doit jamais estre receu pour excuser la partie qui en est coulpable: ny l’ignorance innocente & non affectée estre cause de condamner celuy qui en est enueloppé".
Prescription, according to the old commentators, is there to punish the negligent. Let us take a homely example. A Jerseyman long since has inherited a hut on the Minquiers. He has always used the same lawyer, who is well versed in his client’s ownership of property. He returns his clients rate returns each year for a fee. Forty two years later the client at last visits his hut to find a cousin happily ensconced in it, having taken possession forty years earlier. Do we extend the maxim in those circumstances?
It is submitted that this case is entirely different because Miss Boyd was relying on her lawyer to advise her and had no legal knowledge whatsoever.
There has to be a difference on the facts between latent asbestosis discoverable only after the prescription period has come to an end (the Maynard facts) and the short period between the petition for divorce and the renunciation of the property - some ten or eleven months - when the question of licitation might have been raised (the facts of this case).
If a cause of action did accrue, (and the plaintiff is to succeed) it must have accrued in 1989 when Miss Boyd apparently sought and obtained the advice of the Judicial Greffier. (I have not seen his letter). By then she had other lawyers. Mr Maynard could not have reasonably discovered his illness. Miss Boyd could have reasonably discovered her remedy at an earlier date than 1989 but even then she clearly did nothing between 21 August 1989 and the commencement of these proceedings on 21 April 1997. That is a period of eight years.
Even if the maxim applied to the circumstances of this case, of which I am doubtful, to apply a period of suspension to allow a ten year period to commence from that date seems, to me, to be an extension of a doubtful application.
The English Court of Appeal case of Bell & Peter Browne & Co. [1990] 2 QB 495 makes it clear that the limitation period begins to run from the date of the breach. (In this case no later than February 13 1987). By 21 August 1989, Miss Boyd was aware of her right of action. She was now of course advised by a different lawyer, having parted company with Pickersgill & Le Cornu in April 1987.
What "prevented" Miss Boyd in August 1989 from bringing an action in negligence? Nothing at all.
The "impediment" is something that prevents one from bringing an action. The right was always there waiting to crystallize in the mind of Miss Boyd. In the cogent words of the Court of Appeal:-
"In these circumstances, we have to consider whether there could be in law a material "empêchement" (to which add the words "within the prescriptive period") amounting to a practical impossibility for Mr Maynard to commence legal proceedings."
To argue that the prescription period only began when Miss Boyd received the Greffier’s letter is to help the indolent in unexceptional circumstances. That I am not prepared to do.
It cannot be argued that Miss Boyd was unable to exercise her rights within the ten year period and for that reason I find that her action in negligence was prescribed on 13 February 1997. Accordingly, this action fails.
Authorities
Law Reform (Miscellaneous Provisions) (Jersey) Law 1960
Maynard -v- Public Services Committee [1995] JLR 65
Public Services Committee -v- Maynard [1996] JLR 343
4 Halsbury 28: paras. 861 - 867
Jackson & Powell on Professional Negligence (4th Ed’n; 1997): paras 1-134 to 137
Ibid: 1st Supplement (1998): p.5
Chitty on Contract Law (27th Ed’n): vol 1 (1994): paras. 28-020-022
Ibid: 2nd Cumulative Supplement (1997): p.236
Morton -v- Paint (9 January 1996) Court of Appeal of Guernsey
Cartledge -v- E. Jopling & Sons Ltd. [1963] AC 758
Gillick -v- West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402
Rumasa S.A. and Williams & Humbert Ltd. -v- W & H Trademarks (Jersey) Ltd. [1985 - 86] JLR 308
Selby -v- Romeril [1996] JLR 210
Alsford -v- Boyd Jersey (5 April 1990) Unreported
Bell -v- Peter Brown & Co. [1990] 2 Q.B. 495