ROYAL COURT
(Samedi Division)
27 April 1998
Before: FC Hamon Esq Deputy Bailiff
BetweenMargaret Milne BoydPlaintiff
AndBarry Keith Pickersgill and
David Eldon Le Cornu
exercising the profession of Solicitor, Advocate and
Notaries Public under the name and style of
Pickersgill & Le CornuDefendants
Advocate P de C Mourant for the plaintiff
Advocate R J Michel for the defendants
This is a summons by the defendants for an application under the provisions of Rule 7/8 of the Royal Court Rules 1992 for a preliminary hearing on prescription of three years for tort and ten years for contract. These prescription periods were pleaded by the defendants in answer to an Order of Justice commenced on 21 April 1997.
The Greffier Substitute had already refused the plaintiff's request that she be permitted to issue a summons for an order under Rule 6/19 to refer the matter to court for determination prior to trial.
The Greffier Substitute, it is felt, found himself bound by the words of the Court of Appeal in Maynard v Public Services Committee (1996) JLR 343 where the Court said:-
"It appears from the order of the Judicial Greffier of September 30, 1994 that the issue he ordered to be heard as a preliminary issue, "whether the plaintiff’s right of action is prescribed," was an issue of both fact and law. In the event, it was argued before the Lieutenant Bailiff and before this court simply as involving points of law. To choose points of law such as these for initial decision seems to us to be within the current practice of the Royal Court of Jersey. However, in our judgment, the Royal Court should reconsider its current practice. To single out bare points of law in this way (which might, when the facts are found, prove to be hypothetical) is likely to increase costs and to extend the time before the plaintiff knows whether he or she is to receive damages for his or her injury and receives the damages awarded. Justice delayed is usually justice denied, particularly in personal injury cases, in which the normal approach should be to fix as early a date as possible for the trial of all issues together."
Whilst that part of the judgment is clearly obiter it has the authority of the Court of Appeal and should not be lightly ignored. In my view, it is not, in any event, applicable to this case.
Maynard was a personal injuries case. This case is founded on tort and contract and is as near a mirror image case to that of Purdie v Bailhache & Bailhache (11 May 1987) Jersey Unreported as one could hope to find. That case was upheld on appeal Purdie v Bailhache & Bailhache (1989) JLR 111. In that case the Court of Appeal said at page 116:-
"Painting with a broad brush on this particular canvas, we conclude as follows: if time runs in both the tortious and contractual claims from the date of the agreement, May 21 1974, then this action dies and there is no need to engage in a full-scale trial. However much the plaintiffs might wish to establish the professional negligence of the defendants, it will profit them nothing to have their claim prescribed after an inevitably costly piece of litigation. If time runs from any date later than September 18 1974, then there will be no prescription in contract, or possibly in tort. But in the course of the preliminary issue evidence will need to be elicited about the nature and extent of the duties of advocates in advising clients on the sale of land, such that it is highly likely that the issue of professional negligence will have been pinpointed, if not finally determined without the need for a full trial. In these unusual circumstances, we have no hesitation in coming to the conclusion that, exceptionally, the trial of this action should be split so that the question of presciption, and the facts supporting or negating it, can be dealt with by way of preliminary process. But even if we doubted the proper conclusion or had cause to contemplate a contrary view, that would not lead to a reversal of the decision of Mr Commissioner Le Cras."
In this case there are no disputed facts, no problems of "empĂȘchement de fait" that will have to be aired at trial.
Mr Michel, who was supported in this application by Mr Mourant also quoted the words of Sir Thomas Bingham MR given in the White Book in a discussion of Order 14A which was a template for our Rule 7/8 as follows:-
"Sir Thomas Bingham MR, considering the inter-relation of striking out and O14A, expressed unease at "... deciding questions of legal principle without knowing the full facts." However he continued "But applications of this kind are fought on ground of a plaintiff choosing, since he may be generally assumed to plead his best case ... (If] the legal viability of a cause of action is unclear (perhaps because the law is in a transition), or in any way sensitive to the facts, an order to strike out should not be made. But if, after argument, the court can be properly persuaded that no matter what (within the reasonable bounds of the pleading) the actual facts (are] the claim is bound to fail for want of a cause of action, I can see no reason why the parties should be required to prolong the proceedings before that decision is reached". (E (a Minor) v Dorset CC [1995] 2 AC 633 [1995] 3 All ER 353, HL (E). these words were approved on appeal to the House of Lords by Lord Browne-Wilkinson (the other members of the Appellate Committee concurring) reported sub nom X(Minors) v. Bedfordshire County Council (another appeal heard at the same time) at [1995] 2 AC 633 [1995] 3 All ER 353, H. (E)."
Dates are fixed for July at the latest and both counsel are in agreement. In my view the difficulties faced in Maynard are wholly distinguishable and the interests of both parties (following the decision in Purdie) are best served by hearing this preliminary matter. I therefore make the order but I leave over the question of costs to that preliminary hearing.
Authorities
Maynard -v- Public Services Committee [1996] JLR 343
Purdie -v- Bailhache & Bailhache (11 May ’87) Jersey Unreported
Purdie -v- Bailhache & Bailhache [1989] JLR 111 CofA
R.S.C. (1997 Ed’n) paras 14A/ 1- 2/2; 2/4; 2/5
B ( a Minor ) -v- Dorset County Council [1994] 4All ER 640; [1995] 2 AC 633