Jersey Unreported Judgments

2001/241

COURT OF APPEAL

 

4th December, 2001.

 

 

 

 

Application by the Plaintiff/APPELLANT for leave to appeal from so much of the interlocutory Order of the Royal Court of 8th October, 2001, as ruled that:

 

1.             the Plaintiff shall have leave to file and serve an amended reply and accompanying addendum in the terms of a draft submitted to the Royal Court, dated September, 2001, (pages 1 to 41 inclusive) save as to the passage on page 12, sub paragraph (6), from the beginning of the second sentence ("Furthermore the Plaintiff will contend...) to the end of sub sub paragraph i ("...the letter complained of"); and

2.             the Plaintiff's application to adduce in evidence documents listed in his Supplemental Affidavit of Discovery, dated 27th September, 2001, be dismissed.

The Plaintiff/APPELLANT on his own behalf.

Advocate D.J. Benest for the Defendant/RESPONDENT.

 

 

judgment

the president:

1.        The plaintiff, Mr Robert Brown, qualified as a chartered accountant, though it appears that before the time with which we are concerned his membership of the relevant professional body had lapsed.

2.        On 24th November, 1994, an officer of Barclays Bank wrote a letter to a customer of the Bank making critical comments about that customer's accounts which had been prepared by Mr Brown.  Apart from that customer and Mr Brown, there was no further publication of the letter.  Mr Brown had also before that date himself been a customer of the Bank.

3.        Mr Brown complained to the bank about the letter of 24th November 1994 (which I will call "the Letter").  It appears that the Bank apologised to Mr Brown by letters dated 30th November and 14th December 1994 and 13th March 1997, and by an oral apology by the author of the Letter.  The Bank also explained itself and apologised to the customer in question by a letter dated 30th November 1994.

4.        Nevertheless on 21st November 1997, a few days before the expiry of the prescription period, Mr Brown filed an order of justice against the Bank.  Then and for some years afterwards Mr Brown was represented by Michael Voisin & Co.  Having started defamation proceedings so long after the event it was incumbent on Mr Brown and his advocates to pursue the action at a rapid pace.  In fact the action has been taken forward slowly.  The pleadings have been the subject of several amendments and interlocutory skirmishes.  The conduct of this action has not been in accordance with the principles set out in the judgment of the Court of Appeal in In re Esteem Settlement (2000) JLR N 41, in particular that

"The objective of all involved in civil proceedings is to progress to trial in accordance with an agreed or ordered timetable, at a reasonable level of cost, and within a reasonably short time."

5.        The action was finally set down for a trial starting on 8th October, 2001.

6.        On 20th September 2001 the Bank was given leave to file an amended Answer and Mr Brown was given leave to file an amended Reply provided that any amendments were to be restricted to any consequential on the amendments to the Answer.

7.        On 1st October 2001 Michael Voisin & Co withdrew from the action and Mr Brown became a litigant in person.  He filed a much amended Reply, including for the first time an allegation of ill-will by the Bank towards him in the period before the date of the Letter, and sought to produce by a supplement to his disclosure a file of documents from the period between 1991 and 1994 in support of that allegation.

8.        On 8th October 2001, on what should have been the first day of the trial, the Royal Court (in which Mr Commissioner Howard Page QC presided) heard argument about the pleadings and held that Mr Brown should not be permitted at so late a time to rely on the allegation of ill-will preceding 24^th November 1994 or the further documents.  The Royal Court's reasons for so deciding were set out in a reserved judgment handed down on 5th November 2001, in which the Commissioner dealt fully with these and other matters.

9.        The trial was then adjourned for the reasons set out in the Royal Court judgment until 5th November 2001.

10.      On 2nd November 2001 Mr Brown lodged a notice of appeal against the exclusion of the part of his amended Reply to which I have referred, and against the exclusion of the further documents.  Mr Brown seems to have failed to apply first to the Royal Court for leave, as he should have done.  This Court is, however, prepared to treat Mr Brown as applying for leave to this Court, on the footing that it is clear from the judgment of the Royal Court that it would have refused leave to appeal.

11.      On 5th November 2001 the Royal Court adjourned the trial pending disposal of Mr Brown's application to this Court.

12.      As is relatively common practice in this Court, we have heard full argument by Mr Brown as if we were hearing his substantive appeal.

13.      The starting point is that the decision of the Royal Court was made in the exercise of its judicial discretion in the management of this action.  The exercise of such a discretion by the Royal Court is not to be interfered with by the Court of Appeal except in the circumstances which were spelled out by this Court in A E Smith & Sons Ltd v L'Eau des Iles (Jersey) Ltd (1999) JLR 319 at pages 321-322:

"The Court's exercise of its discretionary power is to be set aside only where the Court (a) has acted on a wrong view of the relevant principles of law; (b) has taken into account immaterial matters or failed to take into account material matters;  (c) has reached a plainly wrong decision; (d) has been unable to take into account a material change of circumstances occurring after the Court reached its decision;  or (e) has reached its decision in a manner which will result in injustice to one of the parties."

It is for Mr Brown to show that one or more of these grounds for interfering with the Royal Court's exercise of its discretion exists in the present case.

14.      The bases for the Royal Court's exercise of its discretion to exclude the amendment and the documents were set out in paragraphs 9 and 18 of its judgment.  These can be summarised as follows:

(1)       Mr Brown's attempt in October, 2001 to introduce for the first time allegations and documents relating to a period before the Letter was sent on 24 November 1994 was far too late.

(2)       If permitted, that would alter the complexion of the action and substantially enlarge the scope and duration of the trial.

(3)       A substantial further exercise of discovery and production of documents by the Bank, and of taking statements from witnesses about matters going back to 1991, would be involved.

(4)       The allegation as to matters occurring before 24th November, 1994, could have been made long before, and should have been made either in the original Order of Justice of 21st November, 1997, or soon thereafter.

(5)       Permitting Mr Brown to raise these further matters would result in a long adjournment of the trial date.

As to the last point I observe that in the event Mr Brown has secured already a substantial adjournment of a trial which ought to have taken place in 1998 or 1999, and not in 2002.

15.      Mr Brown's written skeleton and oral arguments have been somewhat confused.  But it is possible to summarise his grounds of appeal in this way:

(1)       Since he is now a litigant in person he should be given indulgence such as might not be given to a litigant represented by an advocate.

(2)       Justice requires that amendment of pleadings should be allowed, even at as late a date as in this action, where the disadvantages to the other party can be remedied, for example, by a costs order.

(3)       This amendment is crucial to the fair determination of the issues in the action.

(4)       Mr Brown would limit the extent to which he would rely on the new allegation in the manner described at pages 131-132 of his file.

(5)       As so limited, the allegation would not greatly extend the ambit of issues and documentary and oral evidence at the trial, and the impact on the trial would be small.

(6)       The Bank had been allowed at a late stage to plead in response to recklessness, and having added to its plea of justification by amendment then withdrew that plea.

(7)       Justice required that a balance between the parties should be maintained.

(8)       There would be no real prejudice to the Bank as a large company.

16.      We did not call on Advocate Benest for the Bank to address this Court.

17.      Mr Brown in his written and oral arguments, and Mr Benest in his written arguments, have raised questions as to the correct approach to be adopted by the Jersey Courts where a late amendment of pleadings is sought to be made, whether by the plaintiff or by the defendant.  Both have referred rather extensively to English decided cases.  Though English cases may sometimes be persuasive in the field of civil procedure, there is in my judgment some danger in trying to apply, in the circumstances of civil litigation in Jersey, principles laid down in the greatly different circumstances prevailing in the much larger jurisdiction of England and Wales.  Such differences and the need for a different approach in Jersey can be seen, for example, in the judgment of this Court in Solvalub Ltd v Match Investments Ltd (1996) JLR 361 per Sir Godfray Le Quesne JA at pp.369-370.

18.      The view in the earlier part of the twentieth century in England and Wales was that, in general, pleading amendments should be allowed, however late, provided that (1) allowing the amendment would not cause undue prejudice to the other party, and (2) such prejudice as would be caused could reasonably be remedied by payment of the other party's costs and by appropriate adjournment.

19.      This approach had begun to disappear in the latter part of the twentieth century (see eg Ketteman v Hansel Properties [1987] AC 189 per Lord Griffiths at p.220), and was largely changed in the reforms to English civil procedure embodied in the new Civil Procedure Rules (CPR).  Today in England and Wales the Courts will take account of the following (amongst other) factors - the strains which litigation imposes on personal litigants, and on particular individuals in litigating companies and other bodies; the expectation that all the issues have already been fully defined; the efficient disposal of the particular case in ways proportionate to the sums involved, its importance, its complexity, and the parties' respective financial positions; the effects on the efficient disposal of other cases; the use of an appropriate share of the Court's resources; and similar matters covered by Part 1 of the CPR, in which an "overriding objective" is encapsulated.

20.      Jersey civil procedure has not been taken down the same route as the CPR.  But the statement of principle in Esteem Settlement quoted in paragraph 4 above and the other observations in that and subsequent Jersey cases show that by judicial decisions rather than wholesale rewriting of rules, Jersey civil procedure is moving in a similar direction, though with material differences.  For example, in a smaller jurisdiction such as Jersey with a relatively small number of fought civil actions, and a reasonable number of permanent Judges and part-time Commissioners, it is less likely that any impact on the progress of other actions will prove to be strongly relevant in a case such as the present.

21.      Where there is a late application for an amendment to the Order of Justice (or to the answer or reply) the Jersey Courts have to strike a balance which is primarily between the parties to the instant case.  The burden on the applicant is a heavy one to show, for example, (1) why the matters now sought to be pleaded were not pleaded before, (2) what is the strength of the new case, (3) why an adjournment should be granted, if one is necessary, (4) how any adverse effects on the other party including the effects of any adjournment, any additional discovery, witness statements or experts reports, or other preparation for trial can be remedied, and (5) why the balance of justice should come down in favour of the party seeking to change its case at a late stage of the proceedings.

22.      Where the Royal Court has decided against allowing a late amendment, as here, in the Court of Appeal the approach is (as I have already indicated in paragraph 13 above) in accordance with the L'Eau des Iles principles.  The Royal Court has the management of the actions proceeding in that Court, and the Court of Appeal should interfere with Royal Court decisions on the management of actions only if it is clear that something has gone wrong.

23.      In my judgment leave to appeal should not be given in this action, because the attack by Mr Brown on the exercise of the Royal Court's discretion is misconceived for the following reasons:

(1)       The matters which Mr Brown has sought to raise in October, 2001, were fully known to him in November, 1994, when the Letter was sent.  The first letter of apology from the Bank dated 14th December 1994 suggests to my mind that Mr Brown had, in discussion with the Bank, raised his concerns about the Bank's conduct before the Letter was sent.  In his original Reply dated 10th February 2000 Mr Brown through his Advocates (and with the help of specialist English counsel) pleaded the pre-existing relationship, and did not make any suggestion that there had been anything in that relationship which could form the basis of an allegation of pre-existing ill-will.  It seems therefore that his failure to raise these matters before October, 2001 was a result of a decision or decisions not to do so on the part of himself or his advocates or both.

(2)       The criticisms made in the Letter were the subject of immediate apologies by the Bank, and (irrespective of any legal defences which may or may not succeed) could have been disposed of before November, 1997 when this action was started.  The volume and complexity of the pleadings and the issues, and the potential costs of the action to each party, are already not commensurate with or proportionate to the nature of the complaint.

(3)       The Royal Court correctly concluded that the attempt to introduce these matters (which were known to Mr Brown throughout the course of the action) for the first time a few days before trial was far too late.

(4)       If Mr Brown were allowed to introduce the new allegations and the further documents, that would inevitably cause some enlargement of the issues, some further discovery by the Bank, some further examination of witnesses, and some enlargement of the scope and duration of the trial.

(5)       No ground falling within the statement of principles in L'Eau des Iles has been made out by Mr Brown for this Court to interfere with the Royal Court's discretion in the management of this action.

(6)       In a small dispute of this kind, the balance of justice requires that the scope of the trial and its length and cost be kept within commensurate confines.

(7)       The trial ought to have taken place in 1998 or 1999, and adjournment of the trial to 2002 so as to enable Mr Brown to raise this matter before the Court of Appeal was and is inappropriate. 

24.      The trial should now be fixed for as early a date as the Royal Court can reasonably make available.

CAREY JA:

25.      I agree.

Vaughan JA:

26.      I agree.

 

 

 

Authorities

In re Esteem Settlement (2000) JLR N.41. CofA.

A.E. Smith and Sons, Ltd -v- Eau des Iles (1999) JLR 319 CofA.

Solvalub Ltd -v- Match Investments Ltd (1996) JLR 361 CofA.

Ketteman -v- Hansel Properties (1987) A.C. 189.

Best -v- Charter Medical of England, Ltd and Anor. (26^th October 2001) Unreported Judgment of the Court of Appeal of England.

Woods -v- Chaleff, Church of Scientology and Ors. (28^th May 1999) Unreported Judgment of the Court of Appeal of England.

McPhilemy -v- Times Newspapers (21^st May 1999) Unreported Judgment of the Court of Appeal of England.

Lubin and Ors. -v- HTV Cymru and Ors. (19^th July 1991) Unreported Judgment of the Court of Appeal of England.

Bower -v- Maxwell (8^th May 1989) Unreported Judgment of the Court of Appeal of England.