Jersey Unreported Judgments

2001/89

Royal Court

(Samedi Division)

 

24^th April, 2001 

 

 

 

 

 

Application that action should not be dismissed  pursuant

to Rule 6/20 (1) of the Royal Court Rules 1992.

 

 

Advocate C. R. Deacon for the Plaintiff

Advocate D. Gilbert for the Defendant.

 

 

judgment

the MASTER:

1.   On 10^th April, 2001 I heard a summons issued by the Plaintiff on 8^th March, 2001 seeking to avoid the dismissal of this action pursuant to Rule 6/20 (1) of the Royal Court Rules, 1992.  Having heard both parties through their advocates I refused the application and dismissed the action but made no order as to costs.  On 18^th April, 2001 the Plaintiff's lawyer gave notice to the Judicial Greffier of her intention to appeal against my decision.  On 19^th April, 2001 the Defendant gave notice of intention to appeal against my decision as concerns costs only.  I now give the reasons for my decision on 10^th April, 2001.

 

2.   On 23^rd March, 1995 the Plaintiff issued an Order of Justice against the Defendant.  She alleges that on 3^rd June, 1992, whilst employed by the Defendant, she was scalded and suffered other injuries when she used a shower at the Defendant's premises.  The Plaintiff claims that the Defendant was negligent in that the shower was defective and / or inadequately maintained.  Alternatively, she claims that the Defendant was in breach of an implied term in her contract of employment by failing to ensure that the shower was in a safe condition.  As a result, the Plaintiff suffered injuries, loss and damage.

 

3.   The Order of Justice came before the Royal Court on 31^st March, 1995.  At the instance of the Defendant it was placed on the Pending List.  Since that date there has been no further procedural activity.

 

4.   On 9^th February, 2001 I issued a Circular giving notice of the intention of the Royal Court to consider dismissing a list of actions pursuant to the powers conferred by Rule 6/20 (1) and Rule 6/20 (3) of the Royal Court Rules, 1992.  It was in response to that Circular that the Plaintiff issued her summons on 8^th March, 2001.

 

5.   Rule 6/20(1) is in the following terms:

 

            "6/20 (1) Where, at the expiration of five years from the date on which an action was placed on the pending list, the action has not been set down on the hearing list, the Court may, of its own motion, after giving not less than 28 days' notice in writing to all the parties to the action, order that the action and any related counterclaim and/or third party claim, be dismissed."

 

     There are no authorities in Jersey on this particular provision.  In Croxford (née Fort) -v- Le Claire (1994) JLR 304 the Royal Court did consider Rule 6/20 (2) of the Royal Court Rules, 1992.  This latter provision is very differently worded from Rule 6/20 (1) and provides that if an action has been adjourned sine die for five years with no further steps being taken "it shall be deemed to have been withdrawn".  The Croxford case considered whether, in such an event, the Royal Court could use its inherent jurisdiction to restore an action which had automatically been deemed withdrawn under Rule 6/20 (2).  I do not think the Croxford case is of assistance in deciding whether to dismiss an action under Rule 6/20 (1).

 

6.  In the absence of any authority directly in point on how Rule 6/20 (1) should be applied, I think that the proper approach for me is to follow the principles which the Royal Court has adopted in considering whether to strike out an action for want of prosecution.  This requires consideration of English cases such as Birkett -v-  James (1978) A.C. 297 and subsequent decisions of relevance.  For examples of their application in Jersey see the decisions in Beasant  -v- Pavan and Public Health Committee (1997) JLR 270 and Skinner -v- Myles and Public Health Committee (1990) JLR 88.

 

 

7.  The English approach is considered in detail in the 1999 Edition of the Supreme Court Practice ("the White Book") at paragraphs 25/L/1 to 25/L/22.  Where a party has not been guilty of contumelious and intentional default the requirements are as stated in paragraph 25/L/4 of the White Book in the following terms:-

 

            "Inordinate and inexcusable delay - The requirements are: (a) that there has been inordinate and excusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.  The foregoing statement of the law was approved in Birkett v. James (1978) A.C. 297 at 318; (1977) 3 W.L.R38; (1977) 2 All E.R. 801, HL But what is "serious prejudice" depends on the facts; if the plaintiff has already added to the defendant's difficulties by taking full advantage of the delay permitted by the Limitation Acts, any further prejudice beyond the minimal may be "serious" (ibid.,at 323).

            It should be noted that requirement (b) set out above envisages two distinct situations and that the establishment of either suffices, see Pursey -v- British Areospace P.L.C., May 2, 1984, CA (unrep.).  It is, however, essential that the inordinate and inexcusable delay established must be causative of either situation before the jurisdiction to strike out hereunder can arise, see Purcell Meats (Scotland) Ltd v. Intervention Board for Agriculture Produce (1997) The Times, June 5."

 

     A detailed statement of the relevant principles and guidelines is also set out in the judgment of Neill L.J. in the English Court of Appeal decision in Trill -v- Sacher (1993) 1 W.L.R. 1379 at pages 1397 to 1400.

 

8.  I now turn to the facts in relation to the present action.  In broad terms the chronology of events is as follows:-

 

(a)  the incident complained of occurred on 3^rd June, 1992;

(b)  the Order of Justice was issued in March, 1995 and the action was placed on the pending list (although there had been correspondence and without prejudice discussions between July 1992 and that time);

(c)  there were further without prejudice negotiations but these ceased in October, 1995;

(d)  nothing else happened until June/July 1998 when there was further cursory correspondence which ended in July 1998;

(e)  nothing further happened until March this year when the present summons was issued.

 

9.  In support of the present summons, no affidavit evidence was adduced on behalf of the Plaintiff who relied exclusively on submissions made by Miss Deacon.  It is not for me to criticise the Plaintiff proceeding in this way but I must observe that submissions by counsel, however well-made and thorough, do not constitute evidence.  There was filed on behalf of the Defendant an affidavit sworn on 5^th April, 2001 by Mr. Alan Gambrill a Claims Adjuster for the insurers acting on behalf of the Defendant in this action.  A detailed chronology (which I have just paraphrased) is set out in paragraph 4 of Mr. Gambrill's affidavit to which is also exhibited relevant correspondence.

 

10. In considering whether the action should be dismissed under Rule 6/20 (1) the questions  which I have asked myself are as follows:-

 

(i)    has there been inordinate delay;

(ii)   is that delay inexcusable;

(iii) if so, will such delay give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is it such as is likely to cause or to have caused serious prejudice to the Defendant?

 

     I now proceed to consider these questions in turn.

 

11. The first question to consider is whether the delays in this action are inordinate.  According to paragraph 25/L/5 of the White Book "inordinate" means materially longer than the time regarded by the profession as an acceptable period.  It is easier to recognise than to define.  In fairness to the Plaintiff I have decided to ignore the period between the incident (3^rd June, 1992) and the issue of the Order of Justice (23^rd March, 1995) bearing in mind that correspondence and negotiations were taking place during that time.  There were, however, subsequent, quite considerable periods of delay namely October, 1995 to June, 1998 and July, 1998 to March 2001.  These total over five years.  I do not consider that the Defendant was responsible for these delays and I do find them inordinate.

 

12. I now turn to the question of whether the delays were inexcusable.  As I have already said, no evidence was adduced on behalf of the Plaintiff in support of the present application.  In the course of her submissions Miss Deacon did refer me to various matters by way of explanation (such as the Plaintiff being resident in Ireland, her medical history and so on).  I must repeat that no formal evidence was put before me on these matters.  In any event, I consider that no cogent or coherent explanations have been given by or on behalf of the Plaintiff for the delays.  I find the delays to be inexcusable.

 

13. In view of my findings on delay I now have to go on to consider whether that delay will give rise to a substantial risk that it is not possible to have a fair trial or it is such as is likely to cause or have caused serious prejudice to the Defendant.  These matters are addressed in paragraphs 7 and 8 of Mr. Gambrill's affidavit.  He deposes as to the difficulties which would arise with regard to medical reports some nine years after the event.  Furthermore, the Plaintiff does not have any medical reports post-1994.  He also questions whether the evidence of any witness nearly ten years after the event can be reliable.

 

14. I must be satisfied that the delay will give rise to a substantial risk that a fair trial will not be possible or is likely to cause serious prejudice to the Defendant.  Either will suffice but it is essential that the inordinate and inexcusable delay is causative of either before the jurisdiction to strike out can arise (see paragraph 25/L/4 of the White Book).  The question of prejudice is a matter of fact and degree and can, for example, encompass the effect of a lapse of time on the memory of witnesses and their importance having regard to the circumstances, the issues and any other evidence that can be given.  (See paragraph 25/L/7 of the White Book for a more detailed review of the question of prejudice to the Defendant).  

 

15. In considering whether the Plaintiff's inordinate and inexcusable delay does give rise to a substantial risk that it will not be possible to have a fair trial or is likely to cause or have caused serious prejudice to the Defendant, it is necessary to examine all the circumstances.  In an appropriate case the Court is entitled to draw an inference that, by reason of the delay complained of, serious prejudice would be caused to the Defendant as a result of the impairment of witnesses' recollections (see Shtun -v-  Zalejska (1996) 1 W.L.R. 1270.)

 

16. On balance, having considered carefully all the circumstances of the present case, I am satisfied that there is a substantial risk that it will not be possible to have a fair trial or there is likely to be serious prejudice to the Defendant as a result of the Plaintiff's inordinate and excusable delay.

 

17. In the course of her submissions Miss Deacon raised an additional ground on which the action should not be dismissed.  This is the principle established in Birkett -v- James that only in exceptional circumstances should an action be dismissed where a limitation period has not expired.  That principle has been approved in Jersey (see Benest -v- Kendall (24^th February, 1992) Jersey Unreported; 1992 JLR N - 263).  The Plaintiff's claim in this action is founded both in tort and in contract (breach of her contract of employment).  Although the limitation period in tort has long since expired that in contract has not.  Miss Deacon therefore urges that the action should not be dismissed.

 

18. In reality, the main thrust of the Plaintiff's claim is in tort being a personal injury claim based on the Defendant's negligence.  Although breach of contract is also alleged it is in my view ancillary to the main claim in tort.  I note in passing that it is not claimed in the Order of Justice that the Plaintiff was acting in the course of her employment when she was hurt.

 

19. I have come to the conclusion that there are exceptional circumstances in this case which do allow me to dismiss the action even though the limitation period in contract has not expired.  I therefore order that the action be dismissed pursuant to Rule 6/20 (1) of the Royal Court Rules 1992.  I do not, therefore, need to consider whether the limitation period point is still appropriate in the light of changed attitudes by the Royal Court to the whole issue of case management.

 

20. Having made my decision I then heard submissions from both parties on the question of costs.  Having regard to the Plaintiff's circumstances and the general inactivity of the Defendant in the action I consider that justice required a departure from the norm of costs following the event and I therefore made no order as to costs.

 

 

 

Authorities

Royal Court Rules 1992 - Rule 6/20 (1)

Croxford (née Fort) -v- Le Claire (1994) JLR 304

Beasant -v- Pavan and Public Health Committee (1997) JLR 270

Skinner -v- Myles and Public Health Committee (1990) JLR 88

Benest -v- Kendall (24^th February, 1992) Jersey Unreported; (1992) JLR N-213

Birkett -v- James (1978) A.C. 297

Trill -v- Sacher (1993) 1 W.L.R. 1379

Shtun -v- Zalejska (1996) 1 W.L.R. 1270

The Supreme Court Practice, 1999 Edition.