2001/223
ROYAL COURT
(Samedi Division)
5th November 2001
Before: |
H.W.B. Page., Q.C., Commissioner and Jurats Le Ruez, and Clapham. |
Between |
Robert Andrew Brown |
Plaintiff |
|
|
|
And |
Barclays Bank plc |
Defendant |
IN THE MATTER OF
Application for an adjournment pending determination of an appeal to the Court of Appeal from an Interlocutory Order.
The Plaintiff on his own behalf.
Advocate D.J. Benest for the Defendant.
judgment
THE COMMISSIONER:
Background
1. In this action Mr. Robert Brown sues Barclays Bank for what he alleges were defamatory statements contained in a letter dated 24th November, 1994 written by Miss Jenny Pallot, one of the Bank's Corporate Lending Officers at its Business Centre in Jersey, to a customer of the Bank, a Mr May. Mr. May had applied to the Bank for a business loan and had submitted as part of his application a set of accounts for his travel business, in the production of which accounts Mr. Brown had been involved in the course of his work, as an accountant, under contract with Mr May. Mr Brown qualified some years ago as a Chartered Accountant, though at the time in question, his qualification (by which, one assumes that he means his membership of the Chartered Institute of Accountants in England and Wales and practising certificate) had, according to a letter from him to the Bank dated 18th February, 1997, lapsed in 1992.
2. The passage in the letter of which complaint is made consisted largely of a number of critical comments about the accounts but also included a sentence reading "I do feel that we need some sort of certification of Mr Brown's qualifications." It is common ground that to a large extent, at least, the accounts, were not, in fact, incorrect.
3. The action began some four years ago, the Order of Justice being filed on 21st November, 1997. In its Answer the Bank pleaded among other things (including a plea of justification, since withdrawn) that the occasion on which the words complained of, in the letter to Mr May, was one of qualified privilege. To this, Mr Brown responded in a Reply dated 10th February, 2000, that the publication was actuated by express malice, listing eleven points by way of Particulars in support of this allegation. The Bank strenuously denies this, and asserts that in so far as Miss Pallot's criticisms were erroneous this was simply because she was confused by the particular format in which the accounts were presented.
4. The action was set down for trial beginning on 8th October this year with an estimate of three to four days. Directions were given for the exchange of the reports of expert witnesses not later than one month before trial.
5. On 20th September, 2001, the Bank was given leave by Master Wheeler, Greffier Substitute, to file an amended Answer incorporating substantial particulars of the original somewhat cursory plea of justification, these particulars being based on the expert accountants' report that had by then been obtained by the Bank. Mr Brown was given leave to file an amended Reply with the proviso that such amendments were to be restricted to "those consequential on the amendments to the defendant's answer". At that stage Mr Brown was still represented by Michael Voisin & Co, as he had been since the start of the action in 1997.
6. However, on 1st October, 2001, some seven days before the start of the trial, Michael Voisin & Co informed the Bank that they were no longer instructed on behalf of Mr Brown and that Mr Brown would be conducting his own case at trial. At about the same time Mr Brown served a considerably extended Amended Reply, accompanied by an 'Addendum' in which he said among other things that he had decided to conduct his own case due to the costs of legal representation and his inability "in the time available" to find an expert accountant to appear on his behalf.
7. The Bank objected to a number of aspects of this Amended Reply on the ground that they went beyond what was proper by way of legitimate response to the Bank's own amended pleading and thus breached the proviso made in the order of 20th September, 2001. On Monday 8th October, 2001, the first day of what should have been the start of the substantive trial, while permitting the greater part of Mr Brown's Amended reply to stand, the court disallowed certain aspects including a passage on page 12 which sought to enlarge one of the points previously pleaded by way of Particulars in support of Mr Brown's case on express malice. Particular (6) of paragraph 4 of the original Reply (in relation to malice) had read
"Further, the plaintiff had been a client of the Defendant for several years, and was personally known to Ms Pallot who had been the Plaintiff's Account Manager."
But, beyond this, nothing was said about this period. What Mr. Brown's Amended Reply now sought to do was, in effect, to plead that his relationship with the Bank during those years had not been an entirely smooth one and to invite the court
"to infer evidence of ill-will on the part of the Defendant to the Plaintiff prior to the date of the letter complained of."
8. At the same time as seeking to amend his case in this way, Mr. Brown also sought to produce, by way of supplementary discovery, a file of documents consisting of correspondence and bank statements between 1991 and 1994 that he wished to use in evidence to support his new allegation of pre-existing ill-will on the part of the Bank.
9. The Bank objected to this extension of Mr Brown's pleaded case and to the admission in evidence of these earlier documents on the ground that it was far too late; that it would put an altogether different complexion on the case and substantially enlarge the scope and duration of the trial; that it would require a substantial further exercise of discovery and statement-taking from witnesses going back to the early 1990's; and that a sufficient adjournment of the trial to enable this to be accomplished would be required. It appeared to the Court that the Bank's objection to the enlargement of the issues in this way at this very late stage was well-founded, that to allow the amendment would cause considerable prejudice to the Bank, and that there was no good reason why the allegation could not have been made long ago. Introduction of the passage in paragraph 4(6) and sub-sub-paragraph (i) thereof, on page 12 of the Amended reply, beginning with the words "Furthermore the Plaintiff will contend..." and ending with "... the letter complained of" was accordingly disallowed. From this it followed that the bundle of related documents that Mr. Brown wanted to introduce was ruled inadmissible.
10. At the sitting of the Court the following morning (Tuesday 9th October, 2001) Mr. Brown indicated that he wished to appeal this ruling; but the following day, having had the necessity of seeking leave to bring any such appeal explained to him and having considered the practical implications of pursuing such a route, Mr Brown informed the Court in terms that he did not, after all, wish to appeal and accordingly withdrew his application for leave.
11. For reasons that it is unnecessary to go into here, on the third day of the hearing, Wednesday, 10th October, 2001, (at which stage the Court was still engaged in dealing with a series of other interlocutory matters), there was an unexpected turn of events when, because of certain concerns expressed by Mr Brown, Jurat Tibbo concluded that it would be best in the circumstances, if he were to recuse himself from further involvement in the case. This resulted in an adjournment of some four weeks, during which the Court has been re-constituted with Jurat Clapham taking the place of Jurat Tibbo. (Mr Brown has confirmed that he has no reason to express any reservation about Jurat Clapham's service on the Court.)
12. In the light of this adjournment, Mr Brown was also given leave to serve a report from an expert accountancy witness, despite the fact that the time previously set by the Court for service and exchange of such reports had long since expired. This indulgence was granted on strict terms that any such report should be served by not later than Friday 26th October, 2001 (as, in the event, it was).
Reasons for granting adjournment
13. There was a further unexpected development when, in the course of last week, a matter of days before the adjourned trial was due to start, Mr. Brown indicated that, having taken advice, he did after all want to pursue an appeal from the Court's disallowance of his pleading of prior ill-will on the part of the Bank and of his attempt to introduce documentary evidence relevant to this issue. He said that he understood that leave to pursue such an appeal had already been granted; but he was supplied by the Judicial Greffe with an extract of the hearing on Wednesday 10th October that makes it clear that this was not so, Mr Brown having chosen at that point to withdraw any such application. It was also re-emphasised to him by the Judicial Greffe that in order to pursue any appeal, leave must be obtained either from the Court making the order in question or from the Court of Appeal.
14. In the event, no application for leave has been made to this Court. Instead on last Friday, 2nd November, 2001, Mr Brown simply lodged a Notice of Appeal with the Judicial Greffe seeking, in effect, orders permitting him to plead prior ill-will on the part of the Bank and to adduce documentary evidence in support of that allegation (originally, the Notice incorrectly made reference to the date of the order appealed from as "1st November, 2001," but this was corrected before filing). Receipt of that Notice was acknowledged by Mr Sergeant, the Assistant Judicial Greffier in a letter to Mr Brown dated 2nd November, 2001. In that same letter Mr Sergeant also informed Mr Brown that the appeal had been set down in the list of appeals saying:
"I should also take the opportunity to mention that there is, as you know, a question as to whether this appeal comes before the court as an appeal or as an application for leave to appeal. Following the decision of the Court in E .Farley Ltd -v- Takilla Ltd (1984) JJ 123, it is not for the Judicial Greffier to take such procedural points, but you should be aware that it is open to the Respondent or to the Court itself to do so",
and gave full and careful information to Mr. Brown as to the current practice of the Civil Division of the Court of Appeal in considering an application for leave to appeal.
15. Conscious, no doubt, as this Court is, that the distinction between seeking leave to appeal and pursuing a substantive appeal is not something that a layman grasps as readily as a lawyer, Advocate Benest made it clear that the Bank, for its part, would not wish to take any point on the absence of any grant of leave as such. As far as he is concerned he is content to treat the Court of Appeal as properly seized of Mr Brown's substantive appeal; and, in the light of that statement and our decision to grant Mr Brown's application for an adjournment of the trial pending the hearing of his appeal, it was unnecessary and undesirable for this Court to say anything further on the matter.
16. At the opening of the adjourned hearing on Monday 5th November, 2001, it was made clear that Mr Brown wished to have an adjournment of the trial until such time as his interlocutory appeal had been disposed of. Crucially, that application was not opposed by the Bank. Indeed Mr Benest made it clear that, as far as his clients were concerned, they would prefer to have the subject matter of the appeal determined before the trial proceeds any further rather than run the risk of succeeding in the action only to find judgment in their favour overturned on appeal and a new trial ordered on the ground that Mr. Brown was wrongly prevented from raising the issue of prior ill-will at the original trial
17. Despite this approach by the Bank, it is not without considerable misgivings that we granted Mr Brown's application for an adjournment.
18. In the first place (applying, by analogy the same guiding principles as that governing applications for leave to appeal) it seems to this Court that the prospect of any appeal by Mr Brown succeeding is remote. The Court's reasons for refusing to permit Mr Brown to raise the issue of prior ill-will (though expressed only cursorily at the time) were as follows:
(1) The amendment sought, would, as the Bank submitted, have substantially altered the complexion and scope of the trial and put the Bank at considerable disadvantage. It would almost certainly have involved the parties in a fresh round of witness interviews and statements in relation to matters going back some seven to ten years and also a further exercise in discovery: if nothing else, Mr Brown has made it clear that he would expect to seek further discovery from the Bank. A substantial adjournment would have been inevitable. (At the time when the order in question was made, the possibility that there might have to be an adjournment in any event because of the recusal of a member of the Court had not yet been raised).
(2) Mr. Brown was unable to offer any satisfactory explanation as to why this important allegation had not been pleaded long since. The plea of malice was first made in February 2000. The matters now sought to be raised are and always have been entirely within Mr Brown's own knowledge. It was only very recently that he ceased to be legally represented. He says that, although the matter had been touched on with Michael Voisin & Co some time ago, it was only in mid-September 2001 or so that he went back and looked afresh at the file of his dealings with the Bank and realised the importance of the earlier history to his case; to use Mr Brown's own words in a letter to Advocate Benest dated 4th October, 2001:-
"Whilst this (6)(i) was an issue that had been mentioned at the commencement of the case to my advocate, it had been forgotten, until very recently when it was raised by Advocate Preston. The time was a very painful period for me and I had no desire to revisit it. At the suggestion of Advocate Preston, during preparation, I did revisit it and found that the accounts and letters, took from a historical stand point a very different perspective to that I remembered. It was therefore decided to include them in evidence. I accept that the lateness is regrettable, but the same genre of issues could be raised in respect of the lack of response of the Defendant to the amended response of the Plaintiff."
But this is hardly an explanation deserving of any weight and is, in any event unsupported by any sworn evidence either from Mr Brown himself or from Michael Voisin & Co.
(3) Given that Mr. Brown according to his own explanation, has dispensed with legal representation at trial on grounds of cost, there must be some element of doubt as to whether he would necessarily be able to meet any order that might be made against him in relation to the costs of any adjournment of the kind that would inevitably be involved. Mr. Brown claimed that he would certainly be able to do so, but there was nothing for the Court to go on other than his assertion that this is so. The costs of these proceedings and considerations of proportionality were already matters of concern to the Court (as it made known to the parties at the conclusion of the first day of the previous hearing).
(4) The public interest requires that the administration of justice is conducted in as efficient and expeditious a way as possible. Last minute amendments that require the adjournment of a trial are highly disruptive, in many ways, both for the other party to the proceedings (for whom a costs order in his favour is rarely full and complete compensation) and also for witnesses who have made arrangements to attend at court. Of equal importance is the consequential waste of court resources and disruption of the listing of matters awaiting trial.
(5) Looking at the matter in the round, considerations of justice and fairness require that Mr. Brown should not be permitted to raise this issue of alleged prior ill-will at the eleventh hour.
19. These are, we believe, legitimate matters for a Court to take account of when exercising its discretion to allow or disallow a late amendment. The old rule-of-thumb that amendments, however late, ought generally to be allowed provided that any prejudice to the other party can be compensated for by an appropriate order for costs may still have some validity. But in recent years it has, with increasing frequency, been qualified in decisions in the English courts by an emphasis on the need also to take account of the public interest in the expeditious and efficient administration of justice and of overall fairness: see, for example, Ketteman -v- Hansel Properties [1987] AC189 per Lord Griffiths at 220; Bower -v- Maxwell (8th May 1989) CA (unreported) per Woolf L.J at 11 & 12, and Sir Denys Buckley at 16 & 17; Lubin -v- HTV.Cymru/Wales (19th July, 1991) CA (unreported); and Woods -v- Chaleff (28th May 1999) CA (unreported) which was also a case in which a late application to expand particulars of malice in a defamation action was refused. And, while the Woolf reforms in the English Courts have by no means been adopted as such in the practice and procedure of civil litigation in Jersey, there is every reason why this particular shift of emphasis towards applications for late amendment should also be reflected in the practice of the Royal Court; all other considerations apart, to do so would be consistent with the admonition of the Court of Appeal (Southwell, Nutting and Vaughan JJA) in In Re the Esteem Settlement (27th July, 2000) Jersey Unreported, that in future
"it has to be appreciated by all who are involved in civil proceedings in the Royal Court that their objective has to be to progress those proceedings to trial in accordance with an agreed or ordered timetable, at a reasonable level of cost, and within a reasonably short time."
20. In the second place (continuing with our reservations about the appropriateness of granting an adjournment pending an appeal), the practical implications of a further adjournment, in terms of wasted time and resources for all concerned, including those charged with responsibility for managing Court business, are significant. This is, moreover, the second occasion on which the start of the trial will have been adjourned. Because of the heavy list of matters already awaiting hearing by the Court of Appeal, it would, in addition, be necessary to convene a special sitting of the Court of Appeal in order to deal with this matter.
21. And in the third place, we are conscious of the fact that it is important that litigants and members of the legal profession should not be encouraged to suppose that recourse to the Court of Appeal from any adverse interlocutory order made in the course of a trial is something that is readily available. In an island jurisdiction, where the Court of Appeal does not sit in permanent session and where the members of that Court for the most part live and practice in the United Kingdom and come to Jersey for specific sittings arranged long in advance, this is simply not feasible.
22. As against these concerns, this is a case in which
(1) (of foremost consideration) the Bank itself has expressed a clear preference for having the interlocutory issue determined by the Court of Appeal before the case proceeds further;
(2) the Plaintiff - Appellant is now a litigant in person, with quite evidently a deep sense of grievance (rightly or wrongly);
(3) as yet, this Court has only been concerned with interlocutory matters of one kind and another: the substantive trial has yet to begin; and
(4) it appears likely, exceptionally, that arrangements could be made for a special sitting of a division of the Court of Appeal at relatively short notice, in the first week of December this year, so that the re-fixing of a trial date could be put in hand with the minimum of delay.
In these circumstances, it seemed to us that the right thing to do was to grant the adjournment sought on condition (to which Mr Brown consented) that he lodge the documents required under Rule 8 of the Court of Appeal (Civil) (Jersey) Rules 1964 by 4.00pm on Monday 19th November, 2001.
Authorities
Ketteman -v- Hansel Properties [1987] A.C. 189.
Bower -v- Maxwell (8th May, 1989) Unreported Judgment of the Court of Appeal of England.
Lubin -v- HTVCymru/Wales (19th July, 1991) Unreported Judgement of the Court of Appeal of England.
Woods -v- Chaleff (28th May, 1999) Unreported Judgment of the Court of Appeal of England.
In re Esteem Settlement (27th July 2000) Jersey Unreported CofA: [2000/150]