2002/84
royal court
(Samedi Division)
24th April, 2002
Before: |
M.C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Le Ruez and Allo. |
Between |
David Eves |
First Plaintiff |
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And |
Helga Maria Eves (née Buchel) |
Second Plaintiff |
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And |
The Tourism Committee of the States of Jersey |
Defendant |
Appeal by the Plaintiffs, under Rule 15(2) of the Royal Court Rules 1992, as amended, against the Order of the Master of the Royal Court of 10th January, 2002, striking out the Order of Justice.
Advocate A.D .Hoy for the first and second Plaintiffs.
Advocate K. O. Dixon for the Defendant Committee.
judgment
the deputy bailiff:
1. This is an appeal from the decision of the Master on 10th January 2002, to strike out this action under Rule 6/20 (1) of the Royal Court Rules 1992. The history can be shortly stated. On 24th February, 1993, the plaintiffs issued an Order of Justice against the Tourism Committee, claiming damages in respect of losses following the forced sale of the Glendale Hotel, St Martin, after the Committee allegedly acted illegally by revoking the registration of the hotel under the Tourism Jersey Law 1948 with effect from the 8th September, 1990.
2. The procedural history of the action is as follows:
(i) On the 15th April, 1993, an answer was filed by the Committee denying liability.
(ii) On 28th May, 1993, the plaintiffs applied for the matter to be set down on the hearing list, but the Greffier refused to do so for the reasons set out in a letter to the plaintiffs dated 8th June, 1993.
(iii) On the 4th October, 1993, the Royal Court ordered that various parts of the Order of Justice be struck out as disclosing no reasonable cause of action.
(iv) On the 15th October, 1993, a reply was filed by the plaintiffs.
(v) On 26th October, 1996, the Judicial Greffier ordered that substantial parts of the reply be struck out.
(vi) Since then the Court file does not suggest any procedural activity; the case has not been set down on the hearing list, and remains on the pending list.
(vii) In 1999 and 2000 circulars were issued by the Deputy Judicial Greffier giving notice of the possible dismissal of this action pursuant to Rule 6/20(1), which allows the Court to dismiss an action of its own motion if the matter has not been set down on the hearing list for more than 5 years since being placed on the pending list. On each of these occasions Mr Eves wrote to the Deputy Judicial Greffier, asking that the action not be dismissed and accordingly it remained in being.
(viii) On 9th February, 2001, the Master issued a third standard circular. However, this year following the judgment of the Court of Appeal in Re Esteem Settlement (27th July 2000) Jersey Unreported CofA; [2000/150], the circular stated that any party objecting to an action being dismissed must do so by issuing a summons to show cause why the action should not be struck out. It is clear from the circular that a firmer line was being taken on long delayed cases, and that they would no longer automatically be allowed to continue merely because one of the parties asked for it. The relevant part of the circular read as follows:
"It is not sufficient to write to the Judicial Greffier requesting that the action be allowed to continue. A summons must be issued within the specified time; otherwise the action will be dismissed. Even if parties to an action all agree that it will continue a summons must still be issued to show cause why that is appropriate. It should not be assumed that the Master will readily agree to an action being allowed to continue. He will require the applicant to convince him that this is appropriate. If the Master does agree then the summons hearing will be used as an opportunity to give directions for orderly and expeditious conduct of the action to trial as soon as possible. Parties issuing such a summons should, therefore, put forward proposals to be considered in any directions hearing.
(ix) On the 6th March, 2001, the plaintiffs issued a summons seeking an Order that the action should not be dismissed. For reasons, which are not entirely clear to us, the summons did not come on for hearing until 17th December, 2001. It was heard together with two other actions which the plaintiffs were bringing in relation to the Glendale Hotel affair. The Master struck out all three actions in a written decision delivered on 10th January, 2002.
3. We should begin by mentioning that paragraph (1) of Rule 6/20 was revoked by the Royal Court Amendment (No. 16) Rules, 2001, which came into effect on 1st November, 2001. However, Mr Hoy did not take any point on this either before the Master, or before this Court. When the Court raised the point with him, he accepted that as both the circular and more particularly the plaintiffs' summons were issued pursuant to paragraph (1) of Rule 60 at a time prior to the Amendment coming into force, the decision on the summons fell to be determined under the Rules as they were in force at the time of the issuing of the summons. We think that he was right to do so. The position of parties to a cause in relation to a specific interlocutory application cannot be altered retrospectively by a change in the Rules brought in after the particular application has been brought before the Court by way of summons. Accordingly, we must consider whether the action should be dismissed pursuant to paragraph (1) of Rule 6/20 as contemplated in the circular.
4. Secondly, we remind ourselves that in accordance with the decision in Broad Street Investments (Jersey) Limited-v-National Westminster Bank plc (1985/86) JLR 6 and other cases cited to us, this Court must consider the matter afresh, notwithstanding that we are hearing an appeal from the decision of the Master. The Court must exercise its own discretion and consider the matter de novo whilst, of course, taking due note of the Master's decision and the reasons for that decision.
5. The Master applied the test which he had set out in Kinsella-v-Lido Bay Hotel (Jersey) Ltd (2001) JLR 247. Thus he asked himself three questions: (1) had there been an inordinate delay; (2) was that delay inexcusable: (3) if so, would such delay give rise to a substantial risk that it was not possible to have a fair trial of the issues in the action, or was it such as was likely to cause, or to have caused, serious prejudice to the defendant. The Master answered all these questions in the affirmative.
6. We agree that Kinsella-v-Lido Bay Hotel (Jersey) Ltd sets out the correct approach and accordingly we will consider the same three questions. First, has there been inordinate delay? For these purposes "inordinate" means materially longer than the time regarded by the profession as an acceptable period. In this case, the last step taken by the plaintiffs was in October, 1993, when they filed their reply. The sole step since then was the striking out of part of the reply in October, 1996, but this was, of course, action originated by the defendant. In our judgment the relevant period to be considered is from October 1993 to February 2001, when the circular was issued. We have no hesitation in concluding that a period of 7½ years, during which the plaintiffs had done nothing to progress this action, amounts to inordinate delay. Our conclusion is the same, even if the period is treated as running from October 1996 when parts of the reply were struck out.
7. Secondly, was this delay excusable? The plaintiffs say that it was. They contend that allowance should be made for the fact that they are litigants in person, and have been involved in a number of actions relating to the Glendale Hotel, Blue Horizon Holidays and consequent en désastre and dégrèvement proceedings. Furthermore, from May, 1998, they have been concerned to defend an application by Hambros Bank (Jersey) Limited to the effect that the plaintiffs should be declared a form of vexatious litigant under the inherent jurisdiction of the court and should be prevented from bringing any action against Hambros. They have been successful in defeating that application. However, it is fair to say that they were legally represented in that matter which turned largely on points of law.
8. In addition, although they did not rely on this matter before the Master, the plaintiffs allege there was confusion over whether Michael Voisin & Co were representing them on legal aid in relation to this action, or whether they were representing themselves. We were referred to a legal aid certificate dated 13th March, 1996, addressed to Advocate Strang, of Michael Voisin & Co appointing him to act in the matter of "review of advice given by Advocate Sharpe". We were told that Advocate Sharpe's advice related to the action presently before us. Mr Hoy also handed to the Court at the hearing, a letter dated 17th April, 2002, from Mr Eves to Advocate Hoy, denying that the plaintiffs had been acting for themselves in relation to this case and listing correspondence and meetings with Advocate Hoy which had taken place.
9. Clearly, it is not possible for us to resolve this confusion on the information before us. On the face of it the legal aid certificate is concerned with the obtaining of a second opinion (c.f. the wording in the certificate dated 21st February, 1996, instructing Advocate Hoy to act for Mr Eves in relation to the claim against Hambros). Furthermore, the circulars warning of the possible dismissal of the action in 1999 and 2000 were sent to the plaintiffs personally and they responded personally, asking that the action be allowed to continue. Michael Voisin & Co were of the opinion that they were being asked only to give a second opinion, but Mr Eves asserts that the firm was acting generally for the plaintiffs in relation to the action.
10. In our judgment the point does not ultimately assist the plaintiffs, as we have found that nothing happened from their point of view from October, 1993 until February, 2001. Even assuming in the plaintiffs' favour, that they thought Voisins were acting for them, that does not amount to an excuse for such a long period of inaction. The client is ultimately responsible for the conduct of his action. The defendant is not concerned with whether the delay is caused by the plaintiff or his lawyer, nor is the court when considering whether to strike a matter out. If a case is struck out because of delay by the lawyer, the plaintiff may have an appropriate remedy. It was for the plaintiffs to clarify and resolve the question of whether they were represented and to ensure that their action was progressed in a timely manner.
11. It is relevant that even after receiving the circulars in 1999 and 2000, and responding personally to the Judicial Greffe requesting that the actions be kept in being, the plaintiffs did nothing to progress them. Even making allowance for the fact that the plaintiffs were, or may have been, litigants in person and that there may have been a misunderstanding as to whether Michael Voisin & Co were acting for them generally in relation to the action, and that they were much involved in other litigation, including the vexatious litigant litigation between 1998 and 2001, we have no doubt that the delay in this case was inexcusable.
12. Finally, we turn to the third issue, namely does the delay give rise to a substantial risk that it would not be possible to have a fair trial, or that serious prejudice is likely to be caused to the defendant? In this connection, Mr Dixon, on behalf of the Committee, has referred to an affidavit from Mr Nigel Philpott, an officer of the Tourism Committee. Mr Philpott refers to the fact that it may be necessary to call oral evidence from those tourists who complained about the Glendale Hotel in the period 1988 - 1990 and that it may no longer be possible to trace these tourists.
13. We appreciate that discovery has not yet taken place and that this may affect the nature and width of the evidence to be called; but we cannot at present see that it will be relevant to call such tourists to give evidence. The question before the Court would appear to be whether the Tourism Committee acted illegally in reaching its decision to revoke the registration of the Glendale Hotel. That will involve the consideration of the information available at the time to the Committee and upon which the Committee based its decision. What a tourist may now tell the Court about the conditions at the hotel cannot be relevant to that issue. What is relevant is what the tourist told the Committee at the time, and that would presumably be proved either by production of a written complaint or evidence from an officer of the Committee as to what was said orally by way of complaint and what he, the officer, reported to the Committee in respect of that complaint.
14. Next Mr Philpott referred to the fact that it would not be possible to have a site visit as the Glendale is no longer a hotel. Again, we do not at present see that as being a material disadvantage when considering whether, on the material before it, the Committee acted lawfully in cancelling the registration.
15. However, it will be necessary for the Court to hear evidence about the Committee's decision and the grounds which supported it. Evidence is likely to be needed from Committee members, officers and possibly from others. These witnesses will be trying to recall events which took place between 1988 and 1990, i.e. some 12 to 14 years ago. Mr Hoy argued that, as the Jersey prescription period in contract is 10 years, it will often be the case that evidence which is 12 to 14 years old will need to be heard in the Jersey courts. In our judgment that is not the point. This action was begun in 1993. If it had been progressed by the plaintiffs in a timely manner, it would have been finally adjudicated upon many years ago when memories were comparatively fresh. We remind ourselves of the strong admonition of the Court of Appeal in re Esteem Settlement (27th July, 2000) Jersey Unreported CofA [2000/150] at page 7 of the Judgment:
"From now on 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."
16. In our judgment the delay in this case has lead to a substantial risk that it will not be possible to have a fair trial or that serious prejudice is likely to be caused to the defendant, because witnesses, if still available, will have to give evidence of events 12 to 14 years old. This will be particularly relevant for the defendant's witnesses who will no doubt have been busy doing other things in the meantime and will not have thought about these matters in the intervening period. It will therefore be very difficult for them to recall accurately events which took place so long ago.
17. As a postscript we should add that, even at this hearing, despite the reference in the circular of 9th February, 2001, to the need for plaintiffs to put forward proposals for directions for the orderly and expeditious conduct of the action to be tried as soon as possible, no written proposals were put to us. The best Mr Hoy could offer was an oral suggestion at the close of his submissions that, if it did not strike out the action, the Court might consider making an order for discovery and an order that the parties attend to fix a date for the hearing in early course. He added that his clients had prepared detailed witness statements and they would therefore be happy for an order that witness statements or affidavits be exchanged with the defendant, but he had not approached the defendant to seek its reaction to this idea. We do not think that an oral summary of the sort of orders the Court might make is what the circular had in mind. Plaintiffs must put forward precise, written draft directions for the Court's consideration.
18. In all the circumstances we are satisfied that all three of the questions set out in Kinsella-v-Lido Bay Hotel (Jersey) Limited (2001) JLT 247 should be answered in the defendant's favour and this action should therefore be struck out. We therefore dismiss this appeal.
(Discussion followed on costs)
19. I order costs against the plaintiffs on the standard basis.
Authorities
Kinsella-v-Lido Bay Hotel (2001) JLR 247
Eves-v-Hambros Bank (1995) JLR 344.
In re Esteem Settlement (27th July, 2000) Jersey Unreported CofA.
Broad Street Investments-v-National Westminster Bank (1985/86) JLR 6