ROYAL COURT
(Samedi Division)
9 November 1998
Before B I Le Marquand, Greffier Substitute
BetweenTakilla Limited First Plaintiff
Francis John Callaghan Second Plaintiff
Maureen Natalie Callaghan neƩ Bottrell Third Plaintiff
And Andrew Quentin Schofield Green First Defendant
Geoffrey Le Vesconte Fiott and David Peter
Huelin practising as Fiott & Huelin Second Defendant
And Geoffrey Le Vesconte Fiott and David
Peter Huelin practising as Fiott & Huelin First Third Party
Malcolm Leslie Sinel, Julian Anthony
Clyde-Smith, Michael Cameron St. John Birt,
Jonathan Greville White, Marc Sylvanus
Dorey Yates and Stephen Alexander
Meiklejohn practising as Ogier & Le Cornu Second Third Party
Andrew Quentin Schofield Green Third Third Party
Applications by the First and Second Defendants for the claims of the Plaintiffs against each of them to be struck out for want of prosecution.
Advocate A D Robinson for the First Defendant
Advocate M St J O’Connell for the Second Defendants
Advocate A J D Winchester for the Plaintiffs
JUDGMENT
THE GREFFIER SUBSTITUTE: On 16 October 1998, I heard these applications and reserved judgment.
In June, 1979, Takilla Limited purchased a house and part of its garden from Ernest Farley & Son Limited (hereinafter referred to as "Farley"). There were various covenants placed in the contract in favour of Takilla Limited, the most significant of which was a height restriction on any building erected on the part of the property retained by Farley (hereinafter referred to as "the Height Restriction"). On September 23 1979, Takilla Limited obtained an injunction in relation to a building being constructed by Farley but this was lifted within a few days. On February 18 1982, Farley commenced an action against Takilla Limited seeking a declaration in relation to the building to be erected. In early 1984, the Royal Court struck out Farleys pleadings. On December 20 1984, Takilla Limited began an action against Farley claiming an injunction but this action was withdrawn by agreement on June 10 1985. Also on December 20 1984, Takilla Limited began a further action (hereinafter referred to as "the First Action") against Farley alleging a breach of the Height Restriction and seeking an order that the height of the block of flats which were being built on Farley’s property be reduced. The First Action was heard before the Royal Court which on July 2 1986, gave judgment in favour of Takilla Limited and ordered Farley to remove a portion of the building which exceeded the height shown on plan 326/12 . On May 11 1989, the Court of Appeal overturned that decision and held that on its proper interpretation the Height Restriction had not been breached.
On 24 May 1989, Takilla Limited commenced another action (hereinafter referred to as "the Second Action") in which it sought an order for the rectification of the 1979 contract so as to bring the Height Restriction into conformity with its interpretation. On the basis of the covenant in rectified form, Takilla Limited again sought an order that the block of flats should be reduced in height in accordance with the original judgment of the Royal Court and claimed damages against Farley for misrepresentation, alternatively breach of warranty, alternatively negligence in relation to the Height Restriction. The Second Action was struck out by the Judicial Greffier on the basis of res judicata but that decision was overturned by the Royal Court. On 25 February 1992, the Court of Appeal reinstated the judgment of the Judicial Greffier and thus struck out the Second Action.
In May 1992, Takilla Limited commenced the present action against various of its previous legal advisers. Parts of these proceedings have now been withdrawn but the action continues against the first and second defendants. The latter have each brought each other in as third parties and the first defendant has also brought in the legal firm of Ogier & Le Cornu as a third party.
The claims in the current action against the first defendant are summarised in paragraph 19.2 and possibly paragraph 15 of the amended Order of Justice and are as follows:-
(1)That the first defendant failed to advise the plaintiffs that Takilla Limited should include in its pleadings in both the Declaration Proceedings and the First Action the allegations of fact and prayers for relief set out in the Order of Justice in the Second Action. Advocate Winchester averred that that was a continuing obligation up to the end of the trial before the Royal Court in 1986 and possibly beyond.
(2)There may be a second claim that in reliance upon the advice of the first defendant the plaintiffs commenced the Second Action.
The plaintiffs claims against the second defendants are summarised in paragraphs 19.1 and 19.2 of the Amended Order of Justice and are as follows:-
(1)That the second defendants allowed the Height Restriction to be inserted in the original contract of sale in inadequate terms.
(2)That the second defendants failed to advise the plaintiffs that Takilla Limited should include in its pleadings in both the Declaration Proceedings and the First Action the allegations of fact and prayers for relief set out in the Order of Justice in the Second Action. Again it is alleged that that is a continuing obligation.
Thus, the first part of the claim against the first defendant relates to the period from 1982 to 1986 or 1989 (depending upon whether the continuing obligation includes the appeal proceedings to the Court of Appeal in relation to the First Action) and the possible second part of the claim against the first defendant relates to 1989.
The first part of the claim against the second defendants relates to the period up to June, 1979, and the second part relates to the period from 1979 to 1986 and not beyond.
All the parties agreed that all the rights of action would be prescribed if brought again in a fresh Order of Justice. The recent case of Stead -v- Allen (17 September 1998), Jersey Unreported includes the following passage with comments on the first page:-
"The first question which arises is the basis of the jurisdiction in Jersey to dismiss an action for want of prosecution. The defendant’s summons included, in addition to the grounds set out above, grounds of striking out which correspond to Rule 6/13 (1)(c) and (d) of the Royal Court Rules, 1992, as amended. However, both parties were agreed that striking out for want of prosecution in Jersey takes place under the inherent jurisdiction of the Court and that is also my view. The situation in England is explained in section 25/1/4 on page 461 of Volume 1 of the 1997 White Book, which section commences as follows:-
"Dismissal for want of prosecution - general - Para (4) of this rule expressly empowers the Court to dismiss any action for want of prosecution if the plaintiff does not issue the summons for directions within the proper time. There are similar express provisions elsewhere in the R.S.C. e.g. in O.19, r.1 (default in service of the statement of claim); O.24, r.16 (1) (default in discovery); O.34, r.2 (default in setting down). But in addition to these express provisions the Court has inherent jurisdiction to dismiss an action for want of prosecution if there has been default in complying with the rules or excessive delay in the prosecution of the action. Generally speaking the same principles are applied whether the Court is acting under its express power or under its inherent jurisdiction."
In Jersey, where we do not have similar rules to those quoted in the section set out above the Court exercises its inherent jurisdiction in relation to the dismissal of an action for default in complying with the rules or for excessive delay in the prosecution of the action."
Commencing on page 2 of the case of Stead and Allen I quoted the following section from my judgment in the case of Beasant -v- Pavan (1997) JLR 270, as follows:-
"In the case of Skinner v Myles [1990] JLR 89 the principles are set out clearly in the following section on page 93 of the Judgment:-
"These cases show that there are two distinct, although related, circumstances in which an action may be dismissed for want of prosecution. They are: (a) where a party has been guilty of intentional and contumelious default (this head is not relied upon by the first defendant); and (b) where there has been inordinate and inexcusable delay in the prosecution of the action. It is under this head that the first defendant, supported by the second defendant, has asked this court to strike out the plaintiff’s claim. To the requirement that there has been inordinate and inexcusable delay on the part of the plaintiff there must be added one of two additional grounds for striking out. These are: (a) that such delay will give rise to substantial risk so that it is not possible to have a fair trial of the issues in the action; or (b) is such as is likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiff, or between each other, or between them and a third party. Whilst Mr White for the plaintiff drew our attention to the second head we have just mentioned, he based his main submissions on the first requirement (as claimed by defendant), namely, that the delay in this case has given rise to a substantial risk that it would not be possible to have a fair trial."
The following section from page 555 of the case of Allen v Sir Alfred McAlpine & Sons [1968] 1 All ER 543 is helpful:-
"It is thus inherent in an adversary system which relies exclusively on the parties to an action to take whatever procedural steps appear to them to be expedient to advance their own case, that the defendant, instead of spurring the plaintiff to proceed to trial, can with propriety wait until he can successfully apply to the court to dismiss the plaintiffs action for want of prosecution on the ground that so long a time has elapsed since the events alleged to constitute the cause of action that there is a substantial risk that a fair trial of the issues will be not possible."
In the headnote to the Roebuck v. Mungovin action [1994] 1 All ER 568 an additional principle is introduced as follows:-
"Held - Where a plaintiff was guilty of inordinate and inexcusable delay which prejudiced the defendant, subsequent conduct by the defendant which induced the plaintiff to incur further expense in pursing the action did not constitute an absolute bar preventing the defendant from obtaining an order striking out the claim. Such conduct on the part of the defendant was a relevant factor to be taken in to account by the judge in exercising his discretion whether to strike out the claim but the weight to be attached to it depended on all the circumstances of the particular case. Applying that principle, the plaintiffs inordinate and inexcusable delay coupled with the prejudice caused to the defendant had been such that the plaintiffs action should be struck out notwithstanding the correspondence between the parties after the delay had occurred."
In the case of Shtun v. Zalejska [1996] 3 All ER 411 on page 428 starting in section c there is the following helpful paragraph:-
"When a case, such as the present case, depends upon conflicting oral testimony to be given about what was said or understood some 15 years earlier, the quality of the recollection of a witness is bound to be central to the trial and, in respect of the evidence of the party on whom the evidential burden lies, critical to the establishment of their case. The cross-examination of such a witness is bound to be directed primarily to attacking the reliability of the witness’s recollection and testing it by reference to other evidence that may be adduced at the trial. It is unreal to expect a defendant to do more at the stage of his application for dismissal in demonstrating the existence of the substantial risk."
The 1997 White book at section 25/1/6 on page 462 of the first volume thereof contains the following helpful sections:-
"(1)"Inordinate and inexcusable delay" - The requirements are: (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.
The forgoing statement of the law was approved in Birkett v. James [1978] AC 297 at 318; [1977] 3 WLR 38; [1997] 2 All E R 801, HL But what is "serious prejudice" depends on the facts; if the plaintiff has already added to the defendant’s difficulties by taking full advantage of the delay permitted by the Limitation Acts, any further prejudice beyond the minimal may be "serious".
(2)"Inordinate delay" - Time which has elapsed before the issue of the writ within the limitation period cannot of itself come within these words. Only delay after the issue of the writ is relevant. But the later the plaintiff starts his action the higher his duty to prosecute it with diligence (Birkett v. James [1978] AC 297; [1977] 2 All ER 801, HL: Tabata v. Hetherington, The Times, December 15, 1983). Thus although time elapsed before the issue of the writ within the limitation period cannot of itself constitute inordinate delay such as to justify dismissal of the action, once a writ has been issued the plaintiff is bound to observe the RSC and to proceed with reasonable diligence; accordingly inordinate delay by a plaintiff within the limitation period can be relied upon to support a defendant’s application to strike out after the expiry of the limitation period (Ruth v. CS Lawrence & Partners [1991] 1 WLR 399, CA; [1991] 3 All ER 679). But delay (in the particular case of some 28 years) in commencing an action for personal injury on the part of a plaintiff under a disability was irrelevant when the action was begun within the limitation period and called for no explanation no matter what prejudice may have been caused to the defendant, Headford v. Bristol and District Health Authority; The Times November 30, 1994, CA See further "Subsidiary points - Limitation Act", para 25/1/7 below.
Where a long delay before the issue of the writ causes the defendant prejudice, he has to show only something more than minimal additional prejudice as the result of any post-writ delay to justify the action being struck out (Department of Transport v. Chris Smaller (Transport) Ltd [1989] 1 All ER 897, HL)
"Inordinate" means "materially longer than the time usually regarded by the profession and Courts as an acceptable period" (Birkett v James, above). It is easier to recognise than to define.
(3)"Inexcusable delay" - This ought to be looked at primarily from the defendant’s point of view or, at least, objectively; some reasonable allowance, for illness and accidents may, be made. But the best excuse is usually the agreement of the defendant or difficulties created by him.
The absence of legal aid in libel proceedings should be treated sympathetically where it is asserted by the plaintiff that the delay was caused by lack of finance, Gillberthorpe v Hawkins, The Times, April, 3, 1995.
The fact that an action has been stayed by order of the Court pending the giving by the plaintiff of security for the defendant’s costs does not excuse delay if the plaintiff could, at any time during the relevant period, have caused the stay to be lifted by giving the security or by making an appropriate application to the Court (Thomas Storey Engineers Ltd v. Wailes Dove Bitumastic Ltd, The Times, January, 21, 1988, CA).
(4)Prejudice to the defendant - This is a matter of fact and degree and has been discussed in Allen v McAlpine [1968] 2 QB 229; [1968] 1 All ER 543, CA and in a large number of reported cases. The effect of the lapse of time on the memory of witnesses or, in the course of such time of their death or disappearance are the most usual factors. Their importance depends upon the circumstances, the issues and the other evidence that can be given. Thus the lapse of time may be very prejudicial if the circumstances of an accident or oral contracts or representations are in issue, but it is of much less importance in a heavy, well-documented commercial action (National Insurance Guarantee Corp. Ltd v Robert Bradford & Co. Ltd (1970) 114 S.J. 436, CA). In a case of prolonged culpable delay following long delays in serving of proceedings, the Court may readily infer that memories and reliability of witnesses has further deteriorated in the period of culpable delay; Benoit v. Hackney Council, February 11, 1991, CA Transcript No 91/0116 unrep. Bald assertion of prejudice or of a substantial risk that a fair trial was not possible are insufficient. There has to be some indication of prejudice, e.g. that no witness statement was taken at the time so that a particular witness who would have been called on a particular issue had no means of refreshing his memory or that a particular witness was of advanced age and no longer wished to give evidence or had become infirm or unavailable in the period of inordinate and inexcusable delay; Hornagold v Fairclough Building Ltd [1993] PIQR 400; The Times June 3, 1993, CA See further Rowe v Glenister, The Times, August 7, 1995 and Slade v. Adco, The Times, December 7, 1995 (both C.A.) reiterating the requirement of some evidence to support the inference of prejudice in the form of lost or less cogent recollection.
The prejudice to the defendant must be caused by delay since the issue of the writ; the defendant cannot rely upon prejudice relating wholly from earlier delay. Evaluation of the degree of prejudice caused by delay since issue of the writ, however, is likely to require consideration of the context of such delay and, thereof, of the effect of the total lapse of time since the events giving rise to the dispute (James Investments (I.O.M.) Ltd v Phillips Cutler Phillips Troy, The Times, September 16, 1987, CA). See also Donovan v Gwentoys Ltd [1990] 1 All E.R. 1018; HL, where the House of Lords, in exercising a different jurisdiction (namely under s.33 of the Limitation Act 1980) similar view of how prejudice should be evaluated."
I add to the paragraphs quoted above the following paragraphs from section 25/1/8 on page 465 of Vol 1 of the 1997 White Book:-
"(7)Both to blame - the Court will look at the conduct of both parties. If the defendant has considerably contributed to the delay or, a fortiori, has actually agreed to it, he will seldom obtain the dismissal of the action (Austin Securities v Northgate and English Stores Ltd. [1969] 1 W.L.R. 529; [1969] 2 All ER 753, CA; Banco Popolare di Novara v John Livanos & Sons Ltd (1973) 117 S.J. 509).
(8)"Sleeping Dogs" - It has been said that a defendant may properly take no action at all to stimulate the plaintiff but may "let sleeping dogs lie" in the hope that the action my die a natural death. (See Lord Salmon’s speech in Birkett v. James and his judgment in Allen v McAlpine, above). But it is not always easy to draw the line between proper inactivity and actual encouragement of, or contribution to, delay (see "Both to blame," above). In many cases the prospects of a successful application are much improved by one or two reminders to the plaintiff that he should either proceed with the action or abandon it."
The first issue which I have to determine is whether, in the conduct of this action, there has been inordinate and inexcusable delay after the commencement of the action on the part of the plaintiffs or their lawyers.
Both defendants produced chronologies in relation to the conduct of this action. In the case of the first defendant, the action was served upon him on 8 May 1992, and placed on the pending list on 15 May 1992. Thereafter, this action has proceeded extremely slowly, as a result of which, although the plaintiffs have made a number of attempts to set the action down on the hearing list, it still has not arrived at that stage after almost six and a half years. In addition to general slowness in the conduct of this action, Advocate Robinson, on behalf of the first defendant, pointed me to a period of inactivity of about one year from September, 1992, to October, 1993, a period of inactivity of about ten months from November, 1993, to October, 1994, and a period of inactivity of about two and a half years from March, 1996, until the summons to strike out was issued by the first defendant in September, 1998. Advocate Winchester submitted that a great deal of delay had occurred because of the loss of control of this action on the part of his clients which had arisen by reason of the third party claims. Advocate Winchester also submitted that the first and second defendants had not proceeded with any urgency in relation to the matter and that at times his clients had had to pressurise them to take the next procedural steps and this particularly in relation to the third party proceedings.
The third plaintiff died on 20 May 1996, and Advocate Winchester submitted that this had been a significant factor which had contributed to delay. He also submitted, although no evidence by affidavit was produced in relation to this, that there had been a disagreement between the plaintiffs and their former lawyers, Messrs Olsen, Backhurst & Dorey in relation to fees which had greatly contributed to the period of delay from 1996 to 1998.
Applying the test in relation to inordinate of "materially longer than the time usually regarded by the profession and Court as an acceptable period", there has clearly been inordinate delay on the part of the plaintiffs in this action. Notwithstanding the difficulties in relation to third parties, I would have expected the matter to have been set down in a period of about two years. Thus the inordinate delay is about four years four months. I accept that there is some excuse in relation to the death of the third plaintiff, although it appears to me that it is the second plaintiff who has really driven the proceedings at all stages. That, coupled with difficulties with Olsen, Backhurst & Dorey would amount to about six months of excusable delay. Furthermore, I accept that neither defendant has been co-operative in pushing the matter forward. That in my view provides a further three months of excusable delay. Accordingly, I am of the opinion that the inexcusable delay amounts to about three and a half years in the case of the first defendant and that the most serious period of this would amount to about two years of the two and a half year period from March 1996 to September, 1998.
I turn now to the chronology produced on behalf of the second defendants. The pattern here is fairly similar. Right at the commencement of the proceedings the plaintiffs voluntarily gave the second defendant a five months delay in relation to filing an answer. There was a nine month period from November 1993, to August 1994, when nothing procedural was occurring. There was a three month period of procedural inactivity from late October 1994, to February 1995. There was a further period of inactivity from June 1995 to November 1995. Finally, and most seriously, there was a period of inactivity from May 1996, until September, 1998, when the second defendants issued their summons seeking dismissal of the action against them.
Again, it seems to me that, even allowing for the difficulties in relation to the third party proceedings, that the case ought to have proceeded to its present stage in about two years so that there are about four years and four months of inordinate delay as against the second defendant, of which nine months is excusable for the reasons set out above. Thus again there are three and a half years of inexcusable delay with the most serious of these being the period of twenty-two months representing two years and four months from May 1996, to September 1998, less six months of excusable delay which have been allowed for that period.
The next issue for me to consider is the issue as to whether the three and a half years of inordinate and inexcusable delay in both cases has given rise to a substantial risk that is not possible to have a fair trial of the issues in this action or is likely to cause or to have caused serious prejudice to either of the defendants either as between themselves and the plaintiff or between each other or between them and a third party.
It is clear from the section which I have quoted above on "inordinate delay" that, although only delay after the issue of the writ is relevant, the later the plaintiff starts his action the higher his duty to prosecute it with diligence. That is reinforced by the final paragraph which I quoted above in relation to section (4) on "Prejudice to the defendant".
Advocate Winchester submitted that there had not been any delay on the part of the plaintiffs in commencing proceedings against the first and second defendants because it was not until after the Second Action had been struck out by the Court of Appeal that it was known that this action was necessary. Whether or not that is so, it seems to me, in relation to the question of the increased duty of plaintiffs to prosecute an action diligently where there has been substantial delay, that the substantial delay must relate to the period of time between the relevant dates in relation to which evidence will have to be given and the date of commencement of the action. In my view, the relevant cases are indicating that the older the evidence, and in particular the oral evidence of witnesses, the greater the duty to diligently prosecute the matter.
In relation to the first defendant, by the commencement of this action in 1992, the relevant evidence was already up to ten years old. In the case of the second defendants, in relation to the allegation of negligence in connection with the drafting of the Height Restriction, the evidence was, at the commencement of this action, already thirteen years old and, in relation to the claim in relation to the bringing of the First Action, the evidence was, at the commencement of this action, up to thirteen years old.
The section in relation to "Prejudice to the defendant" also very helpfully deals with the question of the nature of the evidence involved in the case. Where such evidence is heavily documented and the documents are still available, much less prejudice can be expected than in a situation where the case will turn on the memory of witnesses.
Both defendants submitted, through their respective lawyers, that a great deal would turn upon oral evidence in relation to such matters as the instructions that were given for the drafting of the Height Restriction, the instructions and advice which were given in relation to the commencement of the First Action and in relation to the conduct thereof and the instructions and advice which were given in relation to the commencement of the Second Action.
Advocate Winchester submitted that because lawyers were involved it was likely that documents such as notes of instructions, draft contracts, letters of advice etc would still exist and that, therefore, this case should be categorised as a heavily documented case. Both defendants submitted that, although there would be some documents in relation to this action, the verdict of the Court would still turn upon oral evidence. In particular, Advocate Robinson submitted that there was very little in the way of documents in relation to the first defendant and that this was because the first defendant, as he has pleaded, was not acting for the plaintiffs during the relevant period.
Both advocates for the defendants drew my attention to the fact that witness statements had not been taken in relation to the witnesses for their clients. Advocate Winchester quoted from the sentence in the section on "Prejudice to the defendant" which reads, "Bald assertion of prejudice or of a substantial risk that a fair trial was not possible are insufficient" and alleged that the defendants had only made bald assertions. However, I have also considered the passage from the Shtun case which I have quoted above in relation to the difficulties of a defendant in demonstrating the existence of the substantial risk that it will not be possible to have a fair trial of the issues in an action.
It seems to me to be clear that, in relation to issues of fact in the period up to the passing of the contract in June, 1979, it will be impossible for there to be a fair trial of the issues in this action. That clearly applies in relation to the part of this action brought against the second defendants which relates to the drafting of the original contract. However, one of the matters which the plaintiffs have pleaded is that set out in paragraph 17 of the amended Order of Justice namely:-
"Had the allegations made and the relief sought in the Order of Justice in the Second Action been included in the Order of Justice in the First Action Takilla would have been successful in the First Action and would have been awarded the relief claimed in both the First Action and the Second Action."
The relevant evidence in relation to this goes back to 1979 because the additional pleas contained in the Second Action relate to allegations, amongst other things, that the plaintiffs had been misled by a Mr Gillham, on behalf of Farley, to the effect that the plan to which the Height Restriction related meant something different to what the Court of Appeal eventually found that it meant. Although the second plaintiff gave evidence on this point at the trial of the first Action, that evidence was eventually held to be irrelevant and Mr Gillham never gave evidence on this point. After the lapse of more than nineteen years since the passing of the first contract, it seems to me that it is impossible for there to be a fair trial of those issues. Furthermore, it seems to me that there is a substantial risk that it is not possible to have a fair trial of issues relating to the conduct of the first Action up to the trial before the Royal Court in 1986 and the hearing before the Court of Appeal in 1989. The matters relating to the trial before the Royal Court in 1986 are now thirteen years old and matters relating to the conduct of the hearing before the Court of Appeal are ten years old.
The issues as between the first and second defendants who have third partied each other go back to the period of time from 1979 to 1989 as do the issues between the first defendant and the second third parties. Again it appears to me that serious prejudice will be caused to each of the defendants in relation to prosecuting these third party claims because there is a substantial risk that it is not possible to have a fair trial of these issues.
This is not a case in relation to which the principle set out in Roebuck -v- Mungovin (supra) applies because since the final lengthy period of inordinate and inexcusable delay, nothing further has occurred other than the present applications.
In my view, when the plaintiffs commenced this action in 1992, the underlying facts, and in particular those relating back to 1979, were already old and a fair trial was going to be difficult. Accordingly, the plaintiffs were under a high duty to prosecute this action to trial with due diligence. They have failed to fulfil that duty and, in particular, the period of three and a half years of inordinate and inexcusable delay is very substantial in the context of that high duty.
Accordingly, in the exercise of my discretion in relation to this matter I have come to the conclusion that the interests of justice lie in favour of this action being dismissed as against both the first and second defendants by reason of inordinate and inexcusable delay. Although that decision deprives the plaintiffs of any further remedy, the impossibility of a fair trial or substantial risk that there cannot be a fair trial of the issues, where there has been substantial inordinate and inexcusable delay as in this case, renders this decision inevitable.
There is one technical point which I also have to consider, which relates to the fact that the third defendant in this action remains Mrs Callaghan although she has died. Although none of the lawyers knew whether letters of administration had been taken out, Advocate Winchester was clear that the second defendant is the person entitled to a grant of administration of his late wifes movable estate. I have come to the conclustion that there is no injustice in the part of the action brought by the third plaintiff being dismissed, even in the absence of a personal representative, as the second defendant was represented and as the issues before me in relation to all three plaintiffs are identical.
Finally, I shall need to be addressed both in relation to the costs of and incidental to the summonses for striking out and in relation to the costs of and incidental both to the claims in this action brought by the plaintiffs against the first and second defendants and the third party claims brought by the first and second defendants.
Authorities
Stead -v- Allen (17 September 1998) Jersey Unreported
Beasant -v- Pavan (1997) JLR 270
Allen -v- Sir Alfred MacAlpine & Sons [1968] 1 All ER 543
Roebuck -v- Mungovin [1964] 1 All ER 568
Shtun-Zalejska [1996] 3 All ER 411
RSC (1997 Ed’n): 25/1/6 (p.462); 25/1/8 (p.465)
RSC (1999 Ed’n): Vol 1: 25/6/1-25/6/22
Skinner -v- Myles (1990) JLR 88
Le Gall -v- Coutanche (9 December 1997) Jersey Unreported
Birkett -v- James (1997) 2 All ER 801
Grovit & Ors -v- Doctor & Ors [1977] 2 All ER 417
Barratt Manchester Ltd -v- Bolton MBC & Anor [1998] 1 All ER 1
Arbuthnott Latham Bank Ltd -v- Trafalgar Holdings Ltd [1998] 2 All ER 181
Simaan General Contracting Co -v- Pilkington Glass [1987] 1 All ER 345
Dixon & Ors -v- Jefferson Seal Ltd (13 January 1998) Jersey Unreported CofA
E Farley Ltd -v- Takilla Ltd (11 May 1989) Jersey Unreported
E Farley Ltd -v- Takilla Ltd (1992) JLR 54 CofA
Lora -v- Pedersen (11 June 1992) Jersey Unreported
Croxford -v- Le Claire (1994) JLR 304