ROYAL COURT
(Samedi Division)
6 September 1999
Before: Sir Peter Crill, KBE, Commissioner,
and Jurats Le Ruez and Bullen
Application
BetweenIona Nicola Mackay HotchkissPlaintiff
AndChannel Islands Knitwear Company LimitedDefendant
Application by the defendant under Rule 8/5 of the Royal Court Rules 1992,
as amended and/or the Court’s inherent jurisdiction for an
adjournment of the hearing in the action.
Advocate N M C Santos Costa for the Plaintiff
Advocate C J Dorey for the Defendant
JUDGMENT
THE COMMISSIONER: The plaintiff in this action was employed by the defendant company over a period of time. She brings this action by way an Order of Justice taken out in September 1996 against her employer alleging that, as a result of the work she was required to do, she suffered injury through the negligence of the employer.
The claim is detailed in the Order of Justice. A break-down of the damages was sent at an early date to the defendant, and it was not left in any doubt as to what it was facing. The application today is for a postponement of the trial, which was set down as long ago as November last year, to commence on Monday next, 13 September. As far as the plaintiff is concerned, arrangements have been made for the witnesses and for their medical experts to come to Jersey to be available to the Court, together with an ergonomic expert and an accountant, the latter to assist the Court in getting its sums right, once it has agreed the principles, should we decide in favour of the plaintiff.
As against that, Miss Dorey argued most cogently that although her original doctor would have been available, it was only very recently that he notified her instructing solicitors - in fact on 11 August - that he would only be available for one day, namely 14 September, the second day of the trial if it were to take place in that week. Accordingly, her instructing solicitors made efforts to obtain an opinion from a second person, but that person has said he requires to make a thorough examination of the plaintiff. The plaintiff has already attended quite recently for a further examination by the first medical expert.
It is said that the practice in this Court is to hear the medical evidence at the end of the witnesses as to fact. That is by no means a fixed rule, to the extent that it cannot be departed from when the circumstances require, and we think this is a case where the circumstances do so require.
As regards the two other matters: the forensic accountant’s report and ergonomic report; it was apparent from Form 2 when the case was set down that there would be two expert witnesses, one medical and one ergonomic, so it was open then to the defendant to produce its own ergonomic expert by way of an exchange with that of the plaintiff.
The Court does not accept that it is proper to obtain expert evidence report and then to write about it. There should be mutual exchanges; that applies equally well to the medical reports as it does to financial experts or ergonomic experts in that very difficult and complicated field. Furthermore, there is a letter, although Miss Dorey was quite right to point out that we do not know the qualifications of the signatory to the letter, from a practice of doctors in Scotland saying that Miss Hotchkiss cannot really put up with further delay; it would be bad for her health. We can understand that, but more importantly the Court must take judicial note of the fact that the Court’s calendar is very full at the moment, and the possibility of getting an early hearing is fairly remote.
Both counsel agree that the Court has to have regard to a number of matters which are in the White Book, and which in fact have been accepted by this Court in the case of T.S. Engineering Limited -v- Raymond Bisson (12 June 1996) Jersey Unreported, and these matters are… to go through them very quickly: "The importance of the proceedings and their likely adverse consequences to the parties seeking the adjournment"; secondly: "The risk of the party being prejudiced in the conduct of the proceedings if the application were refused...". Well, we have been told that the defendant would not have time to answer fully the ergonomic report or the forensic accountant’s report. But then there is no obligation to make these reports available in any case, and the Court agrees that they should be exchanged on a mutual basis. Thirdly: "The risk of prejudice or other disadvantage to the other party if the adjournment were not granted. It is clearly to the disadvantage of Miss Hotchkiss; she has had this matter hanging around for a long time; it is equally clear that she has some injury, though whether it is to the extent she claims is not for us to say today, but she is clearly not a well person and if she has to wait for some time - and we think it would be for some time - even with the best will in the world, she would be disadvantaged. Moreover, the plaintiff has arranged for a medical witness to come to Jersey who is distinguished in his field, as indeed is the expert produced by the defendant, and it would be very difficult to alter the dates at such short notice.
"Convenience of the Court…" Well yes, of course, but if justice requires it our own convenience must be put aside. Generally, I think, we are entitled to take the interests of justice into account when dealing with the efficient dispatch of Court business.
This matter has been set down since 28 November 1998 "and the desirability of not delaying future litigants by adjourning early and thus leaving the Court…." That’s not quite the same point here, because we have fixed dates but that is all the more reason why we should keep as far as we can to our time table. "The extent to which the party applying for the adjournment has been responsible for creating the difficulty which has led to the application.." Well we don’t think there is much to be said to that.
Looking at it in the round, we think that this is not an application which, in the interests of justice, we feel we should grant, and therefore the case will proceed on Monday, and in the normal way, costs follow the event, and costs of this application will therefore be paid by the defendant.
Authorities
TS Engineering Ltd v Bisson (12 June 1996) Jersey Unreported.