ROYAL COURT
(Samedi Division)
27 November 1998
Before: Sir Philip Bailhache, Bailiff, and
Jurats de Veulle and Quérée
BetweenMartin George HaconPlaintiff
AndAnthony John OlsenDefendants
Michael John Backhurst
and
Caroline Julia Dorey
exercising the profession of Advocates under the name of
Olsen, Backhurst & Dorey,
formerly Anthony Olsen & Co
Action in professional negligence.
Application under Rule 6/13 of the Royal Court Rules 1992 to strike out
the Plaintiffs Order of Justice.
Advocate D M C Sowden for the plaintiff
Advocate N J Journeaux for the defendants
JUDGMENT
THE BAILIFF: The background to this case is sad, if not tragic. On the afternoon of 1 August 1985 the plaintiff, then a young man of twenty-one, fell through the perspex roof light of a corrugated asbestos roof of a pre-cast workshop. He fell some nineteen feet on to a concrete floor and suffered severe injury as a result of which his life has been blighted. At the relevant time the plaintiff had been employed as a painter by Philip Francis Godel and was engaged in repainting a feed hopper at Ronez Quarry in St. John for the purpose of which scaffolding had been erected by a company called Brocken and Fitzpatrick Limited. The plaintiff instituted proceedings against both Mr Godel and the company alleging negligence and breach of statutory duty in that the scaffolding boards at the north east corner of the hopper overlapped their supports by a margin which exceeded the statutory maximum, and furthermore there were no toe boards which again was contrary to the regulations. These defects were the cause, it was argued on the plaintiffs behalf, of his losing his balance and jumping from the scaffold on to the corrugated asbestos roof. The action was heard before this Court on 3 and 4 December, 1987, and 11 and 12 January and 3 February 1988. Judgment was reserved and delivered on 22 June 1988 when the action was dismissed. The plaintiff appealed to the Court of Appeal. The court set out the plaintiff’s case as pleaded in the order of justice and stated:
"The findings of fact of the Royal Court are to be found at letter E at p.573 of the Judgment (1987-88) JLR 547. Having carefully reviewed the evidence that they had heard as to the actions of the plaintiff and the way in which the accident had happened and the inferences to be drawn from the evidence they had heard, they stated at letter E as follows:
"We make the following findings of fact: the plaintiff was not painting the east elevation of the feed hopper, working on the north-east corner thereof as alleged in his Order of Justice. He had no reason connected with his work to go to the north or east side of the scaffold. If, as is alleged, the plaintiff noticed a foreign substance on the side of the hopper, which is not established, it could only have been either on the south or on the west side. If the plaintiff inadvertently dropped his paint scraper, which is not established, it could only be on the south or on the west side, probably on the latter where his paint kettle and brush were found. It was impossible therefore for the paint scraper to fall or bounce along to the north-east corner of the scaffold. There is no evidence to support the allegation in the Order of Justice as to the manner in which the plaintiff’s accident came about.
On the balance of probabilities he walked from the south side of the feed hopper where he was working to the west side where he left his paint kettle and brush, thence along the north side to the north-east corner and thence on to the roof of the adjacent precast workshop whilst on a frolic of his own.
The plaintiff did not jump on to the roof, he fell through the roof vertically and feet first and the accident was his own fault".
On those findings of fact the Royal Court then asked itself the question as to who was responsible for the accident. And having asked themselves that question they said at p.574 at line 37 of their judgment:
"We find that in substance and in reality the accident was due solely to the fault of the plaintiff".
Having indicated that if they had felt that any breach of statutory duty by either defendant had contributed in some measure towards the accident, they would, subject to the question of contributory negligence, have found in favour of the plaintiff, they went on at p.575 of their judgment at line 31 to say as follows:
"In our opinion on the balance of probability the plaintiff must have climbed down or let himself down on to the roof of the precast workshop and walked upon it. It was a negligent act; it was an unauthorised act in an unauthorised place for his own purposes. He could not but foresee the danger of going on to an asbestos and perspex roof. We are quite unable to find that the projecting boards or planks or the absence of toeboards were breaches of statutory duty without which the accident would not have occurred. The accident occurred because the plaintiff was on a roof that could not support his weight and was the plaintiff’s own fault".
Those are the findings of fact made by the Royal Court and it is those findings of fact which the appellant has to upset if he is to succeed in this appeal.
We have looked carefully at the evidence that was given in this trial. We have considered with great care the various criticisms made by Mr Renouf of the evidence which led the Royal Court to the findings of fact to which I have referred and we have considered the various aspects of the evidence which he claims contradict those findings. But having done so, we find ourselves unable to come to any other conclusion than that which was reached by the Royal Court.
The evidence of Mr Hacons fellow workmate, Mr Pallot, and his employer, Mr Godel, was to the effect that Mr Hacon never was painting either the east or the north elevation of the hopper as alleged in the Order of Justice. It is clear from their evidence that Mr Hacon that afternoon was in fact engaged in painting the south elevation, sitting alongside Mr Pallot, it is clear that no painting had in fact taken place at the east side of the hopper. The facts were that they had been instructed - that is Mr Pallot and Mr Hacon - to paint the south side and had been told that once they had finished they could go home. Neither Mr Pallot nor Mr Godel could think of any reason why Mr Hacon should have needed or wanted to go to the north or the east side of the hopper.
So the case as pleaded was in effect demolished by the evidence. Further, Mr Hacons paintpot was found not on the north or the east side of the scaffolding where it had been said he was painting, but halfway along the west elevation.
The case as pleaded, having as I say, been demolished by that evidence, we then have to ask ourselves how was it that this accident happened. Was it, as was claimed, that Mr Hacon was forced to jump onto the roof? Or was he walking across the roof at the time that he fell?
There is, in our view, every unlikeliness that the accident could have occurred in the manner claimed on Mr Hacons behalf."
The Court of Appeal then gave its own reasons for arriving at that view, and concluded that there was "no nexus between any breach of statutory duty that may have existed and the cause of this unfortunate accident", and dismissed the appeal. That judgment was delivered on 8 April 1992
On 26 November 1996 the plaintiff instituted these proceedings by order of justice against his legal adviser and counsel at the original hearing before this Court, Advocate Caroline Dorey and her two partners trading as Olsen Backhurst and Dorey ("the defendants"). Pleadings and further and better particulars were exchanged and on 14 May 1998 the defendants filed this summons seeking to strike out the plaintiffs order of justice on the grounds that it disclosed no reasonable cause of action, was scandalous, frivolous or vexatious and/or was otherwise an abuse of the process of the Court. At the hearing Mr Journeaux for the defendants advanced four arguments in support of his application.
(1)It was submitted that the alleged breaches of professional duty were such that the defendants were protected by the advocates’ immunity from suit.
(2)It was submitted that the proceedings were an abuse of process as an attempt to re-litigate issues which were decided at the original trial.
(3)It was submitted that the order of justice disclosed no cause of action because even if the plaintiff proved all facts alleged in the order of justice he was bound to lose at the trial.
(4)It was submitted that in relation to paragraph 16(vi) of the order of justice the plaintiff knew of no fact to support his allegations and this paragraph was therefore an abuse of process. Paragraph 16(vi) of the order of justice provides: "(vi) failing to keep the plaintiff sufficiently informed of the conduct of the proceedings."
We find it convenient to take first the second argument, viz. that the proceedings are an abuse of the process of the Court as being an attempt to re-litigate issues which were decided at the original trial. The categories of conduct rendering a claim frivolous or vexatious or an abuse of process depend upon the relevant circumstances. Counsel for the defendants referred us to a passage from the 1997 Supreme Court Practice at page 333:
"An action for damages for negligence against solicitors which if successful would impugn the correctness of a final decision of a Court of competent jurisdiction, whether civil or criminal, e.g. on the advice of counsel to plead guilty to a criminal charge, is an abuse of the process of the Court, and will be struck out as frivolous and vexatious."
This principle was restated by the Court of Appeal in Picot v Crills (1995) JLR 33 at page 44 when Le Quesne JA stated:
"There is no doubt that when an issue is decided by a subsisting order of a court, the law will not allow a collateral attack on the correctness of that judgment in a court of co-ordinate jurisdiction."
The validity of this statement of the law was not challenged by Miss Sowden for the plaintiff. She submitted that the plaintiff did not seek to claim that the Royal Court had been wrong in its original decision. She submitted however that there was fresh evidence which might have effected the courts judgment and she sought and obtained leave during the hearing to file an affidavit by David Watkins, a private investigator employed on the plaintiff’s behalf.
It is helpful to remind ourselves of the test laid down by the Court of Appeal in England as to the kind of fresh evidence which is necessary to lay the foundations for what has been called "satellite litigation" against advisers in previous litigation.
In Walpole and Another v Partridge and Wilson (a firm) [1994] 1 All ER 385 the plaintiff pig farmer sued his former solicitors alleging negligence in failing to pursue an appeal from a decision of the Crown Court dismissing his appeal against his conviction of an offence under the Animal Health Act 1981. The judge struck out the action as an abuse of process on the ground that it would necessarily involve the court of trial in an enquiry as to whether the Crown Court came to a correct decision. The Court of Appeal allowed the plaintiff’s appeal holding that there were exceptions to the principle that a collateral attack on a final decision made by another court of competent jurisdiction in previous proceedings was an abuse of process, e.g. if the plaintiff relied on fresh evidence obtained since the previous proceedings. Ralph Gibson LJ stated at page 391:
"Conclusion
In my judgment, for the reasons which follow, this appeal should be allowed and the plaintiffs’ claim should proceed to trial.
(i)The judge reached his conclusion by holding that the plaintiffs claim is an abuse of process within the principles stated by Lord Diplock in Hunter’s case [1981] 3 All ER 727 at 733, [1982] AC 529 at 541 as being -
‘the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack on a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.’
The decision of their Lordships in Hunter’s case, however, was, in my judgment, not that the initiation of such proceedings is necessarily an abuse of process but that it may be. The question whether it is so clearly an abuse of process that the court must, or may, strike out the proceedings before trial must be answered having regard to the evidence before the court on the application to strike out. There are, in short, and at least, exceptions to the principle.
(ii)Thus, in Hunter’s case itself, it was recognised that the initiation of proceedings, in which such a final decision will be questioned, will not be so clearly an abuse of process that the proceedings may be struck out, if the plaintiff relies upon fresh evidence. If the plaintiff is challenged, the fresh evidence on which he relies will have to be shown to meet the necessary standard of credibility and of probitive effect. In Hunters case [1981] 3 All ER Lord Diplock considered the circumstances in which the existence of fresh evidence, obtained since the criminal trial, and the probative weight of such evidence, justify making an exception to the general rule of public policy. He was in full agreement with the judgment of Goff LJ in the case (sub nom McIlkenny v Chief Constable of West Midlands Police Force [1980] 2 All ER 227, [1980] QB 283), who had examined the two suggested tests as to the character of fresh evidence which would justify departing from the general policy by permitting the plaintiff to challenge a previous final decision against him, and had adopted as the proper test that laid down by Earl Cairns LC in Phosphate Sewage Co Ltd v Molleson (1879) 4 App Cas 801 at 814, namely that the new evidence must be such as ‘entirely changes the aspect of the case’. Lord Diplock agreed with Goff LJ that, in the case of collateral attack in a court of co-ordinate jurisdiction the more rigorous test laid down by Earl Cairns LC is appropriate."
Mr Journeaux also drew our attention to a short report of a decision of the High Court in England in Oliver and Another v McKenna and Co. (a firm) (20 December 1995) TLR in the following terms.
"A plaintiff could only sue his advisers for negligently putting, or omitting to put, evidence before the court, which had led to the court making an order with which he was dissatisfied, if the inclusion, or exclusion, of such evidence had the effect of entirely changing the aspect of the case.
Mr Justice Laddie so held in the Chancery Division, on November 30 in dismissing an action for negligence brought by Laurence Edward Oliver and Design Ancillaries (Engingeering) Ltd against McKenna & Co. a firm of solicitors, for, inter alia, their recommendation of a particular incorporated insolvency practitioner which led to his appointment by Mr Justice Harman, on February 1, 1988, as the receiver of a partnership between the first plaintiff and his son.
His Lordship said that the purpose behind cases like Hunter v. Chief Constable of the West Midlands Police ([1982] AC 529) and Somasundaram v M Julius Melchior & Co ([1988] 1 WLR 1394) was to restrict to a minimum satellite litigation, the purpose or major effect of which would be to undermine in one court the considered decision of another court on the same issue.
In the instant case, the question was whether Mr. Justice Harmans decision to appoint the receiver was correct, not whether subsequent events would have justified the court in removing him."
In our judgment these principles should be adopted and applied as part of the law of Jersey.
We turn therefore to consider whether the fresh evidence put forward in the affidavit of Mr Watkins has the effect of entirely changing the aspect of the case. Mr Watkins is a private investigator who was formerly a senior police officer. He has no expertise which would enable him to give evidence relevant to the issues in this case. Strictly the plaintiff has put forward no relevant evidence such as to meet the test set out in the cases to which we have referred. However Mr Watkins has exhibited to his affidavit copies of correspondence which we have examined de bene esse. Mr Watkins enquiries were carried out with a view to establishing whether there existed technical, scientific or other evidence which might expose to doubt the conclusion of the Royal Court at the original hearing that the plaintiff did not jump onto the roof but fell through the roof vertically whilst walking upon it on a frolic of his own.
(1)Mr Watkins corresponded with Filon Products Limited in order to establish whether technical data was available as to the properties of Filon translucent sheeting manufactured in 1968-1969 which was thought to be the material on the roof at the time of the accident in 1985. That data was provided and showed that the sheets would remain structurally sound for between twenty-five to thirty years, although they were not designed to be walked upon. A letter dated 4 November 1994 from the company stated:
"However, in practice we know that many will walk on an asbestos cement roof without taking such precaution and generally the asbestos cement will take their weight, but there are accidents as a result of this and frequently the people concerned do not live to give their account. With the roof lights, generally people will avoid walking on them because they do give way, they do feel uncomfortable to stand on and generally will fail more readily than the asbestos cement. However in this particular case, you will note that the roof is generally covered with a layer of dust and, with the passage of time, the roof lights look very similar to the asbestos cement. Thus an unwary person working on the roof, without crawling boards, could readily make the mistake of walking on to the roof light with inevitable consequences."
The company was unable to draw any conclusions from the material placed before it as to whether the hole in the roof had been caused by a high or low velocity impact. This question was posed in order to establish whether the company considered it more or less likely that the hole had been caused by a man leaping eight feet on to the roof rather than walking upon it.
(2)Mr Watkins obtained a report from S R C (Consultants) Limited. This report concluded that two matters supported the plaintiff’s claim to have jumped on to the roof, namely -
(i)the absence of footprints in the dust on the roof, and
(ii)their conclusion that it was entirely feasible to jump the distance in question.
As to (i) we observe that this evidence was before the Royal Court in the original proceedings. As to (ii) the report offers no evidence in support of its conclusion that it was likely that the plaintiff did make the jump.
(3)Mr Watkins wrote to a stunt man, Mr Bill Weston, in an attempt to obtain evidence of the likelihood of the plaintiff having jumped the distance in question and caused the type of hole to the roof which was found. It appears that Mr Weston advised in a telephone conversation with Mr Watkins that the jump could have been made, but no written response from him was exhibited.
Even if the matters contained in the correspondence and documents exhibited to Mr Watkins affidavit were to be regarded as admissible evidence, we consider that they fall a long way short of satisfying the test of evidence which entirely changes the aspect of the case. But the plaintiffs difficulties are even greater. Even if there were credible evidence tending to show that the plaintiff had jumped on to the roof as a result of the defect in the scaffold, which in our judgment there is not, he would still have to overcome the hurdle of showing why he was on a part of the scaffold where he was not working and where he had no reason to be.
We have reached the conclusion that there is no credible evidence which has the effect of entirely changing the aspect of the case. The plaintiffs order of justice seeks to raise issues which have already been determined against the plaintiff both in this Court and in the Court of Appeal. The claim is an abuse of process and the order of justice must therefore be struck out in its entirety. Having reached this conclusion on the second argument, it is not necessary to consider the remaining arguments advanced by the defendants.
Authorities
Cooper -v- Resch (1987-88) JLR 428
Poole -v- Poole & Practice Direction (Striking Out) (1987-88) JLR N5
Lazard Brothers & Co (Jersey) Ltd -v- Bois and Bois, Perrier & Labesse (1987-88) JLR 639
TA Picot (CI) Limited -v- Michel, Crill and Hamon (1995) JLR 33
J Torrell & Another -v- Pickersgill and Le Cornu (1987-88) JLR 702
Johnson -v- Bingley Dyson & Finney (1997) PNLR 392
Hacon -v- Godel & Brocken & Fitzpatrick [1987-88] JLR 547
Royal Court Rules (1992) (as amended): Rule 6/13
Picot -v- Crills [1995] JLR 33
Saif Ali -v- Sydney Mitchell & Co. [1978] 3 All ER 1033
Atwell -v- Perry (27th July, 1998) TLR
RSC (1997 Ed’n) Vol. 1 paras 18/19
Phipson on Evidence (14th Ed’n) para. 4.29
Picot -v- Crills [1993] JLR 348
Jackson & Powell: Professional Negligence (4th Ed’n) paras 4-83; 4-84 & 4-189
Oliver & Another -v- McKenna & Co (a firm) (20th December, 1995) TLR
Walpole & Another -v- Partridge & Wilson (a firm) [1994] 1 All ER 385
Hunter -v- Chief Constable of West Midlands and Another [1981] 3 All ER 727
Nestlé -v- Best and Others [1996] PNLR 444
Steamship Mutual Underwriting Association Ltd and Another -v- Trollope & Colls [1986] 33 BLR 77
Hytrac Ltd -v- Conveyors International Ltd [1982] 3 All ER 415
Goymer -v- Lombard North Central Wheelease Ltd (1 April 1993) TLR
Halliday -v- Shoesmith & Another (1993) WLR CA