Jersey Unreported Judgments

[2003]JRC025

royal court

(Samedi Division)

 

4^th February 2003 

 

 

 

 

 

Application by the first Defendant to strike out proceedings.

 

Advocate M.E. Whittaker for the Plaintiff.

Advocate R.J. Michel for the Defendant.

 

 

judgment

the master: 

1.        The facts of this action are relatively straightforward.  In March, 1994, the plaintiff was visiting her daughter who lived in a flat at 3, St Mark's Road, St Helier.  Whilst the plaintiff was leaving the premises by means of an outside staircase, part of the staircase collapsed and the plaintiff suffered leg injuries.  The plaintiff claims that this resulted from the negligence of the defendant and the breach of her duty owed to a person visiting the premises.  The plaintiff claims both special and general damages.  The defendant denies liability and specifically denies the alleged negligence and breach of duty of care.

2.        The Order of Justice was issued in this action on 25^th September, 1997 (following agreement by the defendant to extend the prescription period beyond three years).  An Answer was eventually filed (again following agreed extensions of time) on 18^th December, 1997.  By agreement, the plaintiff was granted leave to amend her Order of Justice on 8^th July, 1999 and an amended Answer was filed by the defendant on 27^th July in that year.

3.        There were apparently cursory negotiations and correspondence between the parties between February 1998 and March 1999 but these came to nothing.  It was as a result of the breakdown in those negotiations that the amendments to the Order of Justice and the Answer came into being.

4.        There followed a degree of procedural activities.  On 9^th August, 1999, the plaintiff applied to the Judicial Greffier to set the action down for hearing.  On 11^th August, 1999 the Judicial Greffier wrote to the plaintiff's lawyers saying that a schedule of special damages needed to be provided and possible amendments to the Order of Justice also required consideration.  Nothing further happened until 27th July, 2000 when the plaintiff's lawyers advised the Greffier that the information requested would be provided "very shortly".  On 11^th August, 2000, I wrote to the plaintiff's lawyers requesting that the information be provided as soon as possible so that I could consider the setting down application.  I also stated that as the matter had been outstanding for a considerable time it should be moved forward in the interests of all the parties.  No reply was received from the plaintiff's lawyers until 26^th September, 2002, explaining that matters had been delayed to a large extent by the continuing ill health of the plaintiff and by the fact that the obtaining of all necessary medical reports had been a somewhat slow process.  The plaintiff also issued a summons for directions which was issued on 1^st October with a date fixed for the hearing of that summons being 9^th December, 2002.

5.        On 4^th December, 2002 the defendant issued a summons seeking to strike out the plaintiff's Order of Justice.  The defendant subsequently explained that the delay in issuing this summons was because there was no record of the defendant's lawyers having received the plaintiff's summons for directions.

6.        It was originally arranged that both summons would be heard before me on 9^th December.  Subsequently, however, I gave directions on 9^th December relating to the strike out summons which came before me for hearing on the 15^th January, 2003.  Having heard argument from the parties, I reserved my decision until today and I now give that decision and the reasons for it.

7.        At the hearing before me on the 15^th January, 2003, Advocate M. E. Whittaker appeared on behalf of the plaintiff and Advocate R. J. Michel represented the defendant.  Both parties provided written skeleton arguments and in addition made full oral submissions.  I am grateful to both counsel in this regard.  In support of the application to strike out the plaintiffs Order of Justice the defendant filed an affidavit sworn by Mr. R. A. Jeanne who was a representative of the defendant's insurers.  An affidavit sworn on 10^th January, 2003, by the plaintiff was filed in relation to her resisting the strike out application.

8.        The defendant's summons asks that the proceedings be struck out on the grounds that they may prejudice, embarrass or delay the fair trial of the action or that they are otherwise an abuse of the process of the Court.  These are the grounds specified in Rule 6/13 (1)(c) and (d) of the Royal Court Rules 1992.  Alternatively, the defendant asked that the proceedings be struck out in the exercise of the Court's inherent jurisdiction in that the plaintiff has been guilty of inordinate and inexcusable delay in the prosecution of these proceedings to the detriment of the defendant.

9.        In the course of his submissions, Advocate Michel on behalf of the defendant referred me to a number of authorities.  In essence, Advocate Michel's submissions fell into two parts.  Firstly, he argued that the plaintiff had been guilty of inordinate and inexcusable delay and as a result there was a substantial risk that it was not possible to have a fair trial or the delay was such as was likely to cause or to have caused serious prejudice to the defendant.  This is the test laid down in the English House of Lords case of Birkett v. James (1978) A.C.297 which has been applied by the Jersey Courts on a number of occasions.  Alternatively, Advocate Michel contended that, following the decision of the Royal Court in Garfield-Bennett v. Phillips (6^th November, 2002) Jersey Unreported; [2002/214] the legal principles as set out in Birkett v. James were no longer good law and ought not to be followed.  He referred to the decision of the Court Appeal In re Esteem Settlement (27^th July 2000) Jersey Unreported; [2000/150] (and contended that times have changed and all involved with proceedings before the Royal Court had to appreciate that their objective was to progress proceedings to trial within an agreed or ordered timetable and at a reasonable level of costs and within a reasonably short time.  He urged that I should adopt this approach in deciding whether or not to grant the defendant's application.

10.      On behalf of the plaintiff, Advocate Whittaker contended that I was obliged to follow the principles laid down in Birkett v. James which had been adopted and approved by the Jersey Courts on a regular basis.  She also contended that the application could not succeed.  She argued that the delay of the plaintiff was not inordinate, alternatively that even if it were it was excusable.  In any event, no prejudice had been caused to the defendant nor would any delay prevent a fair trial of the action.

11.      I turn now to review the law on the subject.  Although I was referred to a number of recent authorities (including a number of decisions of mine and the Royal Court) these largely related to applications brought under Rule 6/20 of the Royal Court Rules 1992 concerning the dismissal of actions on the initiative of the Court itself.  These cases approve the application of the test referred to in Birkett v. James which I have previously mentioned.

12.      This application, however, was bought under Rule 6/13 of the Royal Court Rules 1992 and, alternatively, sought dismissal of the proceedings under the inherent jurisdiction of the Court.  The summons itself refers specifically to sub-paragraphs (c) and (d) of Rule 6/13(1) of the Royal Court Rules 1992 in seeking that the proceedings be struck out on the grounds that they prejudice, embarrass or delay the fair trial of the action or are otherwise an abuse of the process of the Court.  The defendant alternatively relies on the inherent jurisdiction of the Royal Court for the reasons stated on the face of the summons.

13.      The law in Jersey is, in my view, quite straightforward in this particular area.  The first decision to which I would refer is that of Skinner v. Myles & Public Health Committee (1990) JLR 88.  This was, itself, a case in which an application had been sought to strike out proceedings under Rule 6/13(1)(c) and (d).  Having referred to a number of cases in England and the relevant provisions of Rules of the Supreme Court the Royal Court held that it could have regard to the English cases. The leading case was, of course, Birkett v. James.  Having said this the Royal Court then went on to state (at page 93 lines 12 to 26) as follows:-

"These cases show that there are two distinct, although related, circumstances in which an action may be dismissed for want of prosecution.  They are: (a) where a party has been guilty of intentional and contumelious default (this head is not relied upon by the first defendant); and (b) where there has been inordinate and inexcusable delay in the prosecution of the action.  It is under this head that the first defendant, supported by the second defendant, has asked this Court to strike out the plaintiff's claim.  To the requirement that there has been inordinate and inexcusable delay on the part of the plaintiff there must be added one of two additional grounds for striking out.  These are: (a) that such delay will give rise to a substantial risk so that it is not possible to have a fair trial of the issues in the action; or (b) 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."

These principles are considered in detail in the 1999 Edition of the Supreme Court Practice ("the White Book") at paragraphs 25/L/1 to 25/L/22 on pages 500 to 505.  They have been cited with approval before the Royal Court regularly.

14.      The relevant law was considered very recently by the Royal Court in the case of Garfield-Bennett v. Phillips.  In the judgment of the learned Deputy Bailiff in that case there is a very clear exposition of the law in paragraphs 10 to 13.  Those are the principles which I have applied in the present case.  For the purposes of this judgment it is necessary to do no more than quote paragraph 10 of the judgment which reads as follows:-

"It is well established at the level of the Royal Court that the principles to be applied on an application to dismiss for want of prosecution are those laid down in the leading English case of Birkett v. James (1978) AC 297 as subsequently elaborated by decisions of the English courts."

I should also point out that in the postscript to the Garfield-Bennett v. Phillips judgment as set out in paragraphs 30 and 31 of the Deputy Bailiff's Judgment the question of whether the principles laid down in Birkett v. James were continued to be applicable in Jersey was raised.  The reasons for raising that question are set out expressly in paragraph 30 of the judgment.

15.      Whilst there may well be grounds for reviewing the principles in Birkett v. James as expressly raised by the Royal Court in the Garfield-Bennett v. Phillips case I can do no more than quote the final words of the Deputy Bailiff in his judgment namely "all that is for another day".  I consider that I must apply those principles in the present application.  I do think, however, that I am entitled to look at them in the context of the current views of the Courts in Jersey regarding case management and the active involvement of the Courts in encouraging the expeditious resolution of actions.  In this regard, I would refer to the following extracts from the decision of the Court of Appeal delivered on 27^th July, 2000, in the case of In re: Esteem Settlement as set out in a circular of the Court of Appeal on 31^st July, 2000.  Paragraph (3) is particularly relevant being in the following terms:-

"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."

The Court of Appeal went on to emphasise that it was essential that there was a change to new ways of practice consistent with that stated objective.

16.      I now turn to apply the principles to the particular facts of this case.  I have already set out above at paragraphs 2-4 a brief chronology of the procedural history of this action.  The affidavit of Mr. Jeanne filed on behalf of the defendant in support of the application sets out a little more of the factual background.  From this it appears that the defendant's insurers were notified of the plaintiff's claim on 20^th March, 1994 (the accident having occurred on 3^rd March).  Following an exchange of correspondence in 1994 between the insurers and the plaintiff's advocate nothing happened until January 1997.  The insurers agreed an extension of the limitation period for six months up to August 1997 and the plaintiff's lawyers submitted a quantification of the claim in September 1997.  The limitation period was extended again by the insurers for a further month to 3^rd October, 1997 and proceedings were issued at the end of September with the matter coming before the Royal Court for the first time in October, 1997.  There were then cursory without prejudice negotiations by correspondence between February 1998 and March 1999 but these came to nothing.  Thereafter there was some activity in that the pleadings were amended.  Very little if anything of substance then occurred other than the matters relating to the setting down of the action to which I have previously referred and the issue of the summonses which are currently before the Court.

17.      Having referred, in his affidavit to the chronology of events Mr. Jeanne then asserts in paragraph 12 of the affidavit that the defendant has suffered prejudice.  He states that the defendant has had this litigation hanging over her since March 1994.  The action become time-barred in March 1997 and nearly six years have passed since then.  He concedes that his company did arrange in November 1997 for proofs of evidence to be taken from two material witnesses.  However, he goes on to say that had the action been pursued more vigorously both in 1994 and again in 1997 (no attempt to set it down having been made until August 1999) his company would have tried to identify additional possible witnesses not of the accident itself (because there were none) but as to the surrounding circumstances.

18.      In his submissions on behalf of the defendant Advocate Michel urged that the delays were without doubt inordinate, in other words the delays were materially longer than those usually regarded by the legal profession and the Courts as being acceptable.  He referred to the fact that the limitation period had been extended in favour of the plaintiff and the proceedings were only started on 26^th September, 1997 when the incident concerned had happened on 3^rd March 1994.  He also referred to the fact that pleadings had effectively closed on 17^th August 1999.  Since that time the plaintiff had purported to apply the Judicial Greffier to set the case down for hearing but a setting down had not been achieved.  No summons for directions had been issued by the plaintiff until 26^th September, 2002 which was over 37 months from the time that pleadings had closed.  He submitted that looked in the round these delays could be regarded as nothing other than inordinate.

19.      Advocate Michel also contended that the delays were inexcusable.  He pointed out that until he had seen the affidavit of the plaintiff filed in support of her resistance of the present application he was not aware of the reasons for the long delays.  He also pointed out that the plaintiff's ill-health had not prevented the Order of Justice being amended in August 1999.  He also queried why the plaintiff had not taken steps to have the issue of liability determined by the Court separately from that of quantum as this could easily have been done.  For myself, I am not persuaded that this was a good argument as the Courts have understandably shown reluctance generally in personal injuries claims to split issues of liability from those of quantum.  There seemed on the face of it no particularly good reason to depart from that approach in the present case.  Advocate Michel also urged that even from the plaintiff's explanations there was no reason why the plaintiff could not have applied by the end of 2001 to set the action down instead of waiting until the end of September 2002.  He argued that the plaintiff's ill health was not a justifiable excuse and in any event had the plaintiff's lawyers acted expeditiously all matters could have been resolved by now.  Instead, the action had not even been set down and directions given.  He urged on the basis of the grounds set out in Mr. Jeanne's affidavit that prejudice had been caused by defendant for the delays and therefore asked that the proceedings be struck out.

20.      Mrs. Whittaker on behalf of the plaintiff contended both in her written skeleton argument and her oral submissions that the delays which had occurred were not inordinate.  Bearing in mind that the incident on which the action is based occurred almost nine years ago this might be regarded as a little surprising.  This is especially of having regard to the views of the Court of Appeal as expressed in the Esteem Settlement case and the general approach now adopted by the Courts in relation to the progression of civil actions.  She went onto contend that even if the delays were inordinate they were excusable.  In particular she referred to the affidavit of the plaintiff sworn on 10^th January, 2003.  In that affidavit the plaintiff recites her medical problems (which are admittedly not related to the injuries she suffered in the accident) and which have existed since 1997.  Mrs. Whittaker also contended that even if she was wrong in her contention that the delays were neither inordinate nor excusable there was not, in any event, any prejudice to the defendant as a result of the delays.  She urged that the defendant had full knowledge of the basis of the claim with the supporting documentation from 1997 and knew very clearly what the issues were between the parties.  The issues in this case were very straightforward and witnesses were still available.  She argued that the delays were well within the period within which a strike out was inappropriate and therefore asked that the application of the defendant be dismissed.

21.      I consider that the proper approach is for me to apply to the facts of this case the principles as set out in the Garfield-Bennett case to which I have previously referred.  The delays in this action really fall into three categories.  Firstly there is the period of delay from March 1994 to September 1997 when the Order of Justice was issued.  Secondly there is the period from December 1997 to July 1999 where there were some cursory negotiations between the parties for at least part of that time.  I would say, however, that very little happened either in those negotiations or procedurally during that period.  Finally, there is the period from July 1999 to September last year when the question of setting down came into play.

22.      Looked at in the round I consider that a delay of almost 9 years between the incident which is the subject matter of the proceedings and a decision on the action being set down is, by any criterion, inordinate.  As stated in the Garfield-Bennett case the delay which must be shown to have caused the likelihood of prejudice or the risk that there will not be a fair trial is the delay which occurs after the issue of the proceedings.  The delays from December 1997 to date clearly fall within that period.  Garfield-Bennett goes onto say that where the plaintiff delays in issuing proceedings and by such delay causes prejudice the additional prejudice which must be shown to justify dismissal of the action need not be great provided that it is more than minimal.  Further, once the plaintiff is guilty of further delay causing more than minimal additional prejudice the prejudice caused by the totality of the period of her delay can be looked at.  In paragraph 12(1) of the Garfield-Bennett judgment the Deputy Bailiff states as follows:-

"It is clear that the later a plaintiff starts his action, the higher his duty to prosecute it with all due speed.  A pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before proceedings were issued.  (See Lord Diplock in Birkett -v- James at 322)."

23.      I now turn to the question of whether the delay is excusable.  The plaintiff relies predominately on her medical condition as detailed in her affidavit.  From the affidavit it is clear that this has been a problem from 1997 to date.  There were at least certain procedural actions between December 1997 and the hearing of the summons which did take place notwithstanding the plaintiff's medical condition.  Pleadings were, for example, amended and the plaintiff through her lawyers made some attempts (although not successfully) to have the action set down for hearing.  Having considered the matter very carefully, I have come to the conclusion that the plaintiff's medical problems as detailed are not such as to excuse in total the delays which have occurred.  They do not, in my view, justify the total procedural inactivity between July 1999 and September 2002.  Furthermore, they do not seem to have presented some activity in the action between December 1997 and July 1999.  The plaintiff does not, of course, seek to rely on her medical condition for the delay in the period between March 1994 when the incident occurred and the issue of proceedings in September 1997.  On balance, I have come to the conclusion that the delays to which I have referred are inexcusable.

24.      I now turn to the question of whether as a result of the inordinate and inexcusable delay the defendant has caused or is likely to cause serious prejudice to the defendant or is such as to give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action.  On balance, I have come to the conclusion that the delays are such as are likely to cause or to have caused serious prejudice to the defendant because she has not been able (through her insurers) to pursue the case in the manner in which she would have done according to Mr. Jeanne's affidavit.  For the same reasons, I consider that there is a substantial risk that a fair trial of the issues of the action may be prevented.  I will also deal briefly with the lateness of the proceedings being issued.  The Deputy Bailiff, in the Garfield-Bennett case, made it clear that the later a plaintiff starts his action the higher his duty to prosecute it with all due speed.  I consider that the plaintiff has failed to do this in the present action.  I find that the delay after the issue of proceedings has caused the risk that there will not be a fair trial or the likelihood of serious prejudice to the defendant.  I also find that I can have regard to the totality of the delay for the reasons clearly set out in the Garfield-Bennett judgement at paragraph 11.

25.      In all the circumstances, I grant the application of the defendant and order that the proceedings be dismissed.  I see no reason to depart from the principle that costs should follow the event.  I therefore order that the plaintiff should pay the costs of the defendant both of this application and the action generally on the standard basis.

Authorities

Royal Court Rules 1992, as amended, Rule 6/13.

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

Garfield-Bennett -v- Phillips 6^th November, 2002 (Jersey Unreported); [2002/214]

In re Esteem Settlement 27^th July, 2000 (Jersey Unreported); [2000/150]

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

The Supreme Court Practice (1999 Edition) pages 500 to 505.