Jersey Unreported Judgments

2002/159

ROYAL COURT

(Samedi Division)

 

28^th August, 2002 

 

 

 

 

 

Appeal, under Rule 15(2) of the Royal Court Rules, 1992, as amended, by the Plaintiffs/Appellants against the interlocutory Order of the Master of the Royal Court of 13^th June, 2002, whereby it was ordered that (1) their application for summary judgment be adjourned sine die; and (2) the costs thrown away as a result of the adjournment paid by the Plaintiffs/Appellants to the Defendant/Respondent on the standard basis.

 

Advocate M Renouf for the Plaintiffs/Appellants.

Advocate P C Sinel for the Defendant/Respondent.

 

 

judgment

 

the bailiff:

1.        This is an appeal from a decision of the Master of the 13^th June, 2002, to adjourn sine die an application for summary judgment by the First Plaintiff.  The Master referred erroneously to the application having been made by both plaintiffs, and we shall revert to that in relation to the question of costs in due course.

2.        The application had been set down for hearing at 2.30 p.m.  At 1.23 p.m. a fax was sent by counsel for the Defendant to the Plaintiff's legal advisers indicating that a preliminary objection was to be made as to the contents of the affidavit filed in support of the First Plaintiff's application.  The authorities in relation to this objection were furnished just before 2.30 p.m.  Notwithstanding, this late notice which might very well have justified an application by the First Plaintiff for an adjournment of the application the matter proceeded.

3.        The relevant part of the Master's reasons conveniently records what then transpired - and we do not think that we need to read them out; we propose to refer to paragraphs 5, 6, 7, 8, 9 and 10 of the Master's reasons and they will be attached as an annexure to this judgment.

4.        Advocate Renouf submitted that the Master had reached the wrong decision, in part at least, because his attention was drawn only selectively to the Rules of the Supreme Court in England.  Order 41/6 which empowers the Court:

           "to strike out any affidavit or any matter which is scandalous, irrelevant or otherwise oppressive"

was drawn to the Master's attention.  Advocate Sinel did not however refer the Master to Order 41/5 which provides:

"Subject to Order 14, rule 2 (2) and 4(2), an affidavit may contain only such facts as the deponent is able of his own knowledge to prove".

5.        Order 14/2 deals with the contents of an affidavit where an application is made for summary judgment. 

6.        We do not find it necessary to decide whether the Master was in fact unaware of the existence of Order 14/2 although we doubt that a judge of his experience would have overlooked a provision which is for all practical purposes identical to Rule 7/1 of the Royal Court Rules 1992.  We think it more likely that the Master was fully cognisant of the relevant provisions of the Royal Court Rules and their inter-relationship with the 1999 circular letter which he quoted in his Reasons. 

7.        We accept that the decision of this Court in Murphy-v-Collins (2000) JLR 276 makes it clear that an appeal from the Master is not a hearing de novo as of right but that the Court is entitled to look at the matter afresh.  Having said that, this decision of the Master was a case management decision and strong grounds would be required to persuade us to disagree with a reasoned decision as to how the proceedings should best be ordered before him.  Counsel for the plaintiffs conceded before the Master that the affidavit in question was not in proper form.  Counsel repeated that concession before us in respect of paragraphs 12 and 15 of Mr Coutanche's affidavit.

8.        We accept, however, the submission of Mr Sinel that the affidavit was in fact deficient in many more respects, containing as it did a number of submissions as to the law and inferences to be drawn.  We agree with Counsel for the Plaintiffs that it is permissible to lay the foundations for the requisite statement of the deponent's belief under Rule 7 that there is no defence to the claim.  Furthermore, the Court should not be over-sensitive to procedural niceties particularly where the amount in issue is not particularly large.  Nonetheless, in the light of Counsel's concession that the affidavit was not in proper form, and our own finding that it was indeed defective, it is quite impossible for us to conclude that the Master acted other than sensibly and reasonably in ordering an adjournment so that the affidavit could be appropriately revised. 

9.        The appeal is therefore dismissed save in one respect.  It is clear, as we have said, that the application for summary judgment was made only by the First Plaintiff.  The order of the Master is therefore varied to the extent that the costs of the hearing before him will be paid by the First Plaintiff alone.

10.      So far as the costs of this appeal are concerned, my decision is that the appellants will pay the costs of the respondents on the standard basis.  I will only add this: the Court of Appeal Circular of the 31^st July, 2000, set out some guidelines for the profession, both as to the contents of documents before the Court, and as to the conduct of proceedings, and indicated clearly that procedural decisions need to have some regard to the objective of ensuring justice at a reasonable cost.  I am quite clear that this is an appeal which ought not to have been brought.  If the Master's decision had been accepted and the affidavit of the deponent revised as ordered by the Master none of the disproportionate costs incurred in this appeal would have been incurred.  I considered at one stage whether a different order should be made.  I accept, however, that there was no question here of procedural games being played and that the decision to appeal was made in good faith.  I do, however, consider that it was the wrong decision and perhaps these remarks ought to be borne in mind by the appellants' legal advisers when the question of their own costs in relation to this appeal are considered.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annexure

 

Reasons for Master's Decision given on 13th June, 2002

 

(1)            The factual basis of this action is relatively straightforward.  The plaintiffs claim that in August 1998, acting through a third party, they agreed with the defendant to place in storage various furniture and other household goods which the defendant would collect.  This was done and subsequently £250 was paid on account of storage charges.  In August 1999 the defendant informed the plaintiff that the goods placed in storage had been sold at auction or dumped because of the plaintiffs' failure to pay storage charges.  The plaintiffs claim damages for loss of the goods which are alleged to have been worth approximately £55,000.

(2)            In its answer and counterclaim the defendant says that the terms and conditions of the agreement with the plaintiffs entitled it to sell the goods concerned because of non-payment of storage fees.  The goods sold at auction realised only £1,323.45.  The defendant counterclaims for £8,206.55 being the cost of the removal of the plaintiffs' effects and outstanding storage charges.  In their reply the plaintiffs join issue with the contentions of the defendant as set out in the answer and counterclaim.

(3)            On 16th May, 2002, the plaintiffs acting through their lawyers issued a summons seeking summary judgment against the defendant pursuant to Rule 7/1 of the Royal Court Rules 1992 and consequential directions.  An affidavit sworn by the first plaintiff in support of that summons was filed on 23rd May, 2002.

 (4)           The matter came for hearing before me on 13th June, 2002 when the plaintiffs were represented by Advocate Mark Renouf and the defendant by Advocate P. C. Sinel.

(5)            At the hearing before me on 13th June, 2002 Advocate Sinel raised a preliminary objection.  He argued that the affidavit filed by the plaintiffs in support of their application for summary judgment was fundamentally flawed because in essence it contained only submissions.  He contended that an affidavit should only contain evidence and not submissions on law.  The position of the Royal Court regarding the contents of affidavits is set out in a Circular Letter issued by Deputy Judicial Greffier on 30th March, 1999 the relevant extract of which reads as follows:-

Contents of affidavits

                       "In relation to Mr. Sinel's affidavit this Court notes that it contains extensive legal submissions.  The Court once again repeats what this Court and the Court of Appeal have repeatedly stated, that affidavits should contain evidence of fact, or where material of opinion, and should not be made a vehicle for submissions whether as to the facts or of law."

(6)                Advocate Sinel also referred me to Order 41 rule 6 of the Rules of Supreme Court 1999 which is in the following terms:-

"The Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive."

(7)            Advocate Sinel argued that the affidavit in the present case was, as a whole, scandalous and so should be removed.  He therefore asked that I strike out the affidavit and dismiss the application for summary judgment.  Alternatively, he invited me to "edit" the affidavit and strike out the extraneous parts.

(8)            Advocate Renouf on behalf of the plaintiff conceded that the affidavit was not in proper form.  He argued, however, that there were sufficient facts and documentary material in the affidavit to enable the Court to hear the application and he urged that I should do so.

(9)            Having heard the arguments on behalf of both parties I decided as follows:-

    (i)         I saw no useful purpose in striking out the affidavit and dismissing the claim as the plaintiffs would have been entitled to issue another summons seeking the same relief.

    (ii)         I accepted (as was openly conceded by Advocate Renouf) that the affidavit did not comply with the requirements set out in the Circular Letter of 30th March, 1999.

    (iii)        I did not think it appropriate, having considered in detail the terms of the affidavit, for me to seek to edit it.  Because of the nature and extent of the defects I thought instead that it should be redrawn by the plaintiffs.

(10)          I therefore ordered that the application for summary judgment be adjourned sine die to enable Advocate Renouf to revise the affidavit in the manner suggested.  I also ordered that the costs thrown away as a result of the adjournment should be paid by the plaintiffs to the defendant on the standard basis.

Authorities

Murphy-v-Collins (2000) JLR 276.

Lumley-v-Osborne (1901) 1QB.

O'Hare & Hill: "Civil Litigation" (2000 Ed'n): 14.008: Drafting: Evidence for use at an interim hearing.