Jersey Unreported Judgments

[2003] JRC114A

royal court

(Samedi Division)

7^th July 2003 

Appeal, by the Plaintiff, under Rule 15(2) of the Royal Court Rules, 1992, as amended, from the decision of the Master to strike out the Plaintiff's claim.

Advocate A.D. Hoy for the Plaintiff.

Advocate R.J. Michel for the First, Second and Fourth Defendants.

Advocate M.J. Thompson for the third Defendant.

judgment

the bailiff:

1.        This is an appeal against a decision of the Master of the Royal Court of 10^th March 2003.  The facts are relatively straightforward.  We can do no better than adopt the Master's summary of the facts and of the procedural history in the following terms:

"1. At some time during 1987 or 1988 the plaintiff was introduced, through the first defendant, to a Mr. David Anthony Warren.  The plaintiff and Mr. Warren entered into arrangements for the purchase and development of land in Portugal with the plaintiff providing the finance.  The land in question was purchased in March 1988.  The plaintiff claims that he appointed the first defendant to act as his agent in respect of the agreement with Mr. Warren and alleges that the first defendant, the second defendant (of which the first defendant is a partner) and the fourth defendant (of which is a servant, agent or employee) acted in breach of the retainer in failing to exercise reasonable skill and care.  As a result, the land purchased could not be developed and payments were made on the plaintiff's behalf which were unauthorised totalling some £89,450.  This was in addition to other payments authorised by the plaintiff for the purchase of the land.  The plaintiff claims the total sums expended by him namely £242,004.18 as well as general damages, interest and costs.

2.  The defendants deny liability to the plaintiff.  The first, second and fourth defendants say that the agreement regarding the purchase of the land was made between the plaintiff and Mr. Warren and the defendants were not party or privy to that contract and did not give any advice or make an representations in relation to it.  They also claim they had authority to make the payments requested on behalf of the plaintiff.  The third defendant also denies liability saying it had authority to make the payments concerned.  Alternatively, the third defendant claims an indemnity from the other defendants in respect of the transfers which the plaintiff contends were wrongly made.

3.  A brief procedural history of the action is as follows.  The Order of Justice was issued and served at the end of August 1994 (i.e. some 6½ years after the land purchase had been completed).  Answers were filed in September and October 1994 and then various applications for further and better particulars and interrogatories were dealt with between May and October 1995.  On 24th October, 1995, the Judicial Greffier set the action down for hearing.  Various discovery issues and amendments of pleadings were dealt with between November 1995 and August 1998.  In March 1998 a date was fixed for the trial of the action namely from 30th November to 11th December, 1998.

4. On 16th October, 1998, an application was made by the defendants to vacate the trial dates which was granted by the Royal Court with the plaintiff being ordered to pay the costs of the application. This was in order to allow a Letter of Request to be sent to Portugal for the taking of evidence from various witnesses.  There followed some fairly cursory procedural activity in connection with the agreeing of the terms of the Letter of Request and ultimately, in January, 2001, the Court formally ordered the issue of the Letter of Request to the Portuguese authorities and also ordered that the trial of the action be stayed until depositions had been filed.  Efforts were made by the third defendant's lawyers, between January and September, 2001, to agree translation costs being borne by the parties equally in respect of the Letter of Request but no response was ever forthcoming from the plaintiff on this proposal.  It transpired at the hearing before me that the Letter of Request has still not been translated or formally sent to the Portuguese authorities.  From a procedural point of view the Court File shows no activity from the Order of January 2001 until the present summons."

2.        The summons was in fact issued by the Plaintiff following the issuance of a Court Circular indicating an intention to strike out this action, amongst others, in default of cause being shown to the contrary.  The Plaintiff's summons was heard on 18^th February 2003 and the Master's decision to strike out was given, as we have stated, on 10^th March 2003.  The Master, having cited all the relevant authority, reached his conclusion in this way.

"In the present case, in applying the principles of law to which I have referred, I am satisfied that the inexcusable and inordinate delay of the Plaintiff is such as to lead 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 Defendants. 

In considering all the circumstances and in coming to that conclusion, I think I am entitled to draw, and do so, an inference that by reason of the delay of the Plaintiff, serious prejudice would be caused to the Defendants as a result of the impairment of witnesses' recollection."

3.        Mr Hoy, who presented his case on behalf of the Plaintiff with commendable realism, did not suggest that the Master had misrepresented the Law.  He conceded, furthermore, that there had been an inordinate and inexcusable delay between 9^th January 2001 and the date of issuing the Plaintiff's summons.  That concession was plainly right and indeed no explanation has been offered even at this hearing for the complete absence of meaningful activity on the Plaintiff's part between these dates. 

4.        Mr Hoy advanced his argument on the footing that this was a document-based action and that no additional prejudice had been shown to exist by reason of the delay between January 2001 and today.  He submitted that all the recent decisions of this Court, Garfield-Bennett -v- Phillips (6^th November 2002) Jersey Unreported; [2002/214], Eves -v- The Tourism Committee of the States of Jersey (24^th April 2002) Jersey Unreported; [2002/84] and De Moulpied -v- Sturdy [2003] JRC079 had been evidence-based actions where the fragility of human memory had been a significant factor.  Counsel referred to the celebrated English case of Birkett -v- James (1978) AC 801 and relied upon a passage from the judgment of Lord Salmon as follows:

"When cases (as they often do) depend predominantly on the recollection of witnesses delay can often be most prejudicial to defendants and to plaintiffs also.  Witnesses' recollections grow dim with the passage of time and the evidence of honest men differs sharply on the relevant facts.  In some cases it is sometimes impossible for justice to be done because of the extreme difficulty in deciding which version of the facts is to be preferred; but this is not such a case for its result must depend chiefly on the view which the Court takes of the integrity rather than the memory of the plaintiff and the defendant.  As far, however, as I can discern from the judgment of the learned judge and the Court of Appeal no consideration seems to have been given to the fact that the outcome of this case depends on who is lying and who is speaking the truth.  After all, a promise to pay £1,000,000 (if it was made), is hardly likely to slip the memory of the promiser or the promisee even after the passage of years.  I do not understand how such delay as there has been could prejudice the defendant or, for that matter, the plaintiff, when the judge comes to make up his mind which of them is speaking the truth and which of them is lying."

5.        Birkett -v- James is no longer an important authority in England following the procedural changes in the management of civil litigation brought about by the Woolf reforms.  Its star is probably waning in this jurisdiction too as indeed Birt, Deputy Bailiff, indicated in Garfield-Bennett -v- Phillips.  It is unnecessary, however, to consider whether Birkett -v- James should survive the more modest reforms instituted in Jersey by recent amendment to the Royal Court Rules 1992.  This does not appear to us to be primarily a case of deciding which of the parties is lying. 

6.        We have reached the conclusion that it is, however, not by any means an exclusively document- based action.  One has only to look at the schedule of questions set out in the request for evidence to be taken in Portugal to appreciate that the recollection of witnesses, whether or not aided by reference to documents, will be an important aspect of the case if this action were to proceed to trial.

7.        We think therefore that the Master was quite right to conclude that serious prejudice would be caused to the Defendants as a result of the impairment of witnesses' recollections.  Looking at the matter more broadly it is conceded by counsel for the Plaintiff that, if this action were to be allowed to proceed, it could not be ready for trial until 2004 at the earliest.  Counsel for the Defendants suggested that a date in 2005 might be more realistic.  Even assuming, however, that the action were to be tried in 2004, the Court would be considering events which took place sixteen years ago in 1988.  Delays of this order place impossible strains on the memory of witnesses and involve a considerable risk of injustice being done.  The leisurely pace at which the Plaintiff has proceeded is no longer acceptable in the context of civil litigation.  If a litigant seeks justice from the court, he must be prepared to advance his case with reasonable expedition.  The approach adopted by the Master cannot be faulted and the appeal is accordingly dismissed.

Discussion on costs followed.

8.        I order the Plaintiff to pay the costs of the Defendants of, and incidental to, the action and to the appeal on the standard basis. 

Discussion on leave to appeal followed.

9.        Mr Hoy, leave to appeal is refused.  It seems to me that this is a matter which should be pursued, if at all, with a single judge of the Court of Appeal.

Authorities

Eves -v- The Tourism Committee of the States of Jersey (24^th April 2002) Jersey Unreported; [2002/84]

McGorrin -v- Pascoe (7^th June 2002) Jersey Unreported; [2002/113]

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

De Moulpied -v- Sturdy [2003] JRC079.

Birkett -v- James (1978) AC 801.

RSC (1999 Edition) Vol. 1 Order 25.

Shtun -v- Zalejska (1996) 3 ALL ER 411.