[2004]JRC154
royal court
(Samedi Division)
7th September, 2004
Before: |
F.C. Hamon, Esq., O.B.E., Commissioner and Jurats Allo and Newcombe. |
Between |
Patrick Frawley |
Plaintiff/Appellant |
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And |
Jersey Steel Company (1935) Ltd |
Defendant/Respondent |
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Appeal, under Rule 15/2 of the Royal Court Rules, 1992, as amended, from the Order of the Master of 3rd June, 2004, striking out the Order of Justice, dated 20th July, 2000.
Advocate D. Steenson for the Plaintiff/Appellant.
Advocate J. Martin for the Defendant/Respondent.
judgment
the COMMISSIONER:
1. On the 3rd June, 2004, an Act of Court was issued in these terms:
"Whereas on the 20th April, 2004, after hearing the parties through the intermediary of their advocates, judgment was reserved on the application of the defendant to strike out the Plaintiff's Order of Justice.
Now this day it is ordered that:
1. The Plaintiff's Order of Justice be struck out and
2. The Plaintiff shall pay the costs of the defendant of this application and the action generally on the standard basis".
2. On that day the Master gave written reasons for his decision.
3. On the 16th June, 2004 the Plaintiff applied by summons to this Court to have the action restored to the Pending List and with other relief being sought.
4. We must, of course, consider firstly whether or not the Master's Order should stand.
5. Neither Advocate who appeared before the Master is available today. Advocate Martin appears where Advocate Gilbert appeared and Advocate Steenson appeared where Advocate Hoy appeared. We are very grateful to both of them for the care with which they have argued the case. We have, in carefully prepared documents, not only new submissions but all the written argument and sworn affidavits that were before the Master.
6. The appeal to this Court is technically out of time, as Notice of Appeal was not given to the Greffier under Rule 15/2. Advocate Martin raised no objection to the summons being served out of time and it is now before us.
7. One of the first points submitted by Advocate Steenson was that the original summons was "informe" It was brought under Rule 6/13 of the Royal Court Rules 1992, as amended and asked for the claim or pleading to be struck out on the grounds:
(a) that there is no reasonable cause of action;
(b) that it is scandalous, frivolous or vexatious;
(c) that it would prejudice, embarrass or delay the fair trial of the action;
(d) that it would be an abuse of process of the Court. Furthermore it was alleged that it was within the Court's inherent jurisdiction to strike out the Order of Justice pursuant to Rule 6/13.
8. Advocate Steenson argues, perfectly correctly that the form of the summons goes to the wording of the Order of Justice and not to the alleged dilatory actions of the Plaintiff and that, of course, the summons should have been brought on the grounds of want of prosecution. We agree that the summons was brought entirely under the wrong Rule of Court but the Plaintiff was clearly not taken by surprise.
9. Let me cite just three letters. On 28th January 2004, Mr Carl Ashcroft of Crill Canavan wrote to Miss Katherine Thorne of Voisin and Co., in these terms:
"I write you on the question of saving costs, to refrain from the action you are taking, pending the outcome of the Hearing of our summons to strike out your claim for want of prosecution on 20th April".
10. Miss Thorne wrote to Mr Ashcroft on the 29th January:
"I would again suggest that your client review its position in relation to the strike out application."
11. On the 19th February, 2004, Mr Ashcroft wrote to the Master (his letter is copied to Miss Thorne):
"Under protest as to the outcome of our application to strike out the Plaintiff's Order of Justice for want of prosecution due to be heard on the 20th April, 2004, and without prejudice to the application, we hereby attach the Defendant's Answer for filing."
12. The point was taken by the Master. In his Reasons he wrote:
"4. For the hearing before me each party filed written skeleton arguments. Affidavits in support of the application were sworn by Mr Bruce Halliwell on behalf of the defendant and by Mr Carl Ashcroft a Barrister employed by Crill Canavan who represent the defendants. An affidavit sworn by Miss Elizabeth Katherine Thorne an employee of Voisin & Co who represent the plaintiff was also sworn and filed. The parties were represented at the hearing before me by Advocate Hoy for the plaintiff and Advocate Dionne Gilbert for the defendant. In addition to their written submissions detailed oral submissions were also made.
5. As a preliminary point, Advocate Hoy challenged the form of the summons on the grounds that it was defective. It had become clear on the basis of the Skeleton Argument filed on behalf of the defendant that the main thrust of the defendant's claim was to strike out the action for want of prosecution. Advocate Hoy contended that the summons as framed did not make this clear and he urged that I could not rely on the inherent jurisdiction of the Court to proceed with hearing the application as it was formulated. Having heard argument from both parties I rejected Advocate Hoy's submission as I considered that I was entitled to proceed with the hearing of the summons and also that no prejudice would be caused to the plaintiff by my doing so.
6. The hearing therefore proceeded on the basis that the application of the defendant was to strike out the plaintiff's Order of Justice for want of prosecution.
13. That was a point of procedure on which the Master is well versed. We can find no fault in the Master's reasoning for the Plaintiff's Advocate was in no way taken by surprise. He had prepared for the substantial argument and he proceeded to argue it fully.
14. It is interesting that there was no dispute on the law applied by the Master. He applied the case of Birkett -v- James 1 WLR (1978) AC29. That case decided that an action will not generally be struck out for want of prosecution if the limitation period has not expired save in exceptional circumstances as where there has been estoppel or where the plaintiff has been contumacious.
15. In its judgment in McGorrin -v- Pascoe (7th June, 2002) Jersey Unreported; [2002]113 Rokison JA examined the case of Kinsella -v- Lido Bay Hotel (Jersey) Limited [2001]JLT247 and referred to Eves -v- The Tourism Committee of the States of Jersey (24th April 2002) Jersey Unreported where the Royal Court said this:
"The Master applied the test which he had set out in Kinsella -v- Lido Bay Hotel. There he asked himself three questions 1) had there been an inordinate delays; 2) was the 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.
16. We agree that Kinsella -v- Lido Bay Hotel (Jersey) Ltd set out the correct approach and accordingly we will consider the same three questions.
17. It is those three basic questions that the Master asked himself following paragraph 25/L/4 of the 1999 Edition of the White Book.
18. The Court of Appeal held that the Royal Court in Eves was right to follow Kinsella and to apply the criteria which have been developed in "strike out" cases (as this was) and "which have been consistently applied not only, in England but in Jersey also".
19. It is worth noting at this stage an entirely obiter postscript to the case of Garfield Bennet -v- Phillips (6th November 2002) Jersey Unreported;[2002]214, where Birt DB said this:
"POSTSCRIPT
30. This case was argued and decided on the basis that the principles laid down in Birkett -v- James are applicable in Jersey. However it seems to us that it may at least be open to argument as to whether these principles should continue to hold sway. For example:-
(i) The case is no longer authoritative in England since the Woolf reforms have been introduced.
(ii) Even before then, there was a body of opinion that Birkett -v- James was too lenient towards plaintiffs by generally prohibiting dismissal before expiry of the limitation period (see for example the comments of Kerr L J and other members of the Court of Appeal in Westminster City Council -v- Clifford Culpin (1987) 137 NLJ 736, referred to by Lord Griffiths in Department of Transport -v- Chris Smaller Limited (1989) 1All ER 897 at 901).
(iii) Jersey has not of course adopted the Woolf reforms. Nevertheless the whole approach towards the progress of litigation has changed in recent times. The Court of Appeal made it absolutely clear in The Esteem Settlement (2000) JLR N41 that times had changed and that it now had to be appreciated by all who are involved in civil proceedings that their objective has to be to progress the proceedings to trial in accordance with an agreed or ordered timetable at a reasonable level of cost and within a reasonably short time.
(iv) It must be open to question as to whether the principles in Birkett -v- James are consistent with those objectives. In particular it might be argued that, particularly in cases where there is a long limitation period such as ten years, it is wrong to say that the case cannot be struck out for want of prosecution during that period. Arguably, where a plaintiff has delayed inordinately so that the proceedings are struck out, it should be an abuse of process for that person to recommence the very same action albeit that, if he had not commenced the original action in the first place, he could still have brought an action within the limitation period. It is one thing to be slow in bringing an action but nevertheless bring it within a limitation period laid down by law; it is another to start an action at an earlier stage and then so disregard the requirement to progress matters expeditiously as to lead the Court to strike out the action. Why should it not be an abuse of process to try and start again in such circumstances?
(v) Rule 6/21 of the Royal Court Rules has recently been amended to encourage case management by the Royal Court. It provides that the Court may dismiss proceedings where a plaintiff does not issue a summons for directions within the timetable laid down by the Rule. It would seem illogical for the Court to have power under Rule 6/21 to dismiss an action for a failure to issue a summons for directions within the time specified by the Rules (even within any limitation period) but be unable to dismiss because of a general delay in progressing the action unless the limitation period had expired. The amendment to Rule 6/21 may therefore demand a re-think on Birkett -v- James.
(vi) Arguably it is open to the Royal Court to hold that the principles on cases of dismissal for want of prosecution may have to be changed in the light of the developments mentioned above. It would certainly seem to be open to the Court of Appeal. So far as counsel's researches show, no case on dismissal for want of prosecution has reached the Court of Appeal, so that it has not had an opportunity of considering whether the Royal Court has been right hitherto in following the Birkett -v- James principles.
20. As the learned Deputy Bailiff said: "that is for another day".
21. This is an appeal from a decision of the Master. This Court is bound to consider the matter de novo and to reach its own conclusion, but we are duty bound to take due note of the Master's decision and to note assiduously the reasons for this. In a matter such as this our function is primarily a reviewing function and we must be satisfied, if we are to reverse Master Wheeler's decision, that he has erred in principle by giving weight to something which he ought not to have taken into account or by failing to give weight to something which he ought to have taken into account.
22. We must say immediately that there is a patent error in the Master's reason. He states as a matter of fact that once the case had been placed on the Pending List "The parties subsequently agreed that the action be adjourned sine die". That is not correct. It is an error of fact. It is not in our view a fatal error of fact.
23. Let us examine the three question that were posed by the Master.
1. Had there been an inordinate delay?
24. Master Wheeler gave an extract from the White Book which reads:
"Time which has elapsed before the issue of the writ within the limitation period cannot itself come within these words. Only delay after the issue of the writ is relevant. But the later the plaintiff starts his action the higher his duty to prosecute it with diligence Birkett -v- James (1978) AC297: (1977) 2 ARE 801, H.L.; Tabata -v- Hetherington (1983)".
25. The Plaintiff suffered two accidents while working for Jersey Steel Company (1935) Limited, the defendant. The first incident occurred on the 5th August 1997.
26. The Plaintiff's claim lay in tort (for which the prescription period is 3 years) and in contract (for which the prescription period is 10 years). The second incident occurred on the 27th August 1997. Again the claim is in tort and in contract.
27. The Order of Justice is dated the 20th July, 2000, four weeks and four days before the prescription period in tort ran out.
28. The first letter that the defendants received is dated 6th October, 1997 well over a month after the second incident occurred. It sets out the details of the events (although the first incident is given in the letter as the 30th July, the Order of Justice gives it, correctly as the 5th August). Jersey Steel were given fourteen days to reply or proceedings would be issued. Eighteen days later Michael Voisin & Co informed the defendant's lawyers that "proceedings will be issued immediately". Letters passed between the defendant's insurers and Michael Voisin & Co.
29. There was some continuing correspondence and on the 9th February, 1998, the insurers wrote to say:
"However we would say at this stage that site safety was the responsibility of the main contractors, Stansells".
30. The Order of Justice was served and placed on the pending list. Crill Canavan wrote to Michael Voisin & Co. on the 28th July, 2000 to say:
"It has been placed on the Pending List on the understanding that you will give us 21 days notice of any application to apply under 6/7/5 of the Royal Court Rules 1992 as amended for judgment in Default of an Answer being filed".
31. As we have said, the Order of Justice was placed on the pending list on 28th July, 2000, and the Answer was filed on the 19th February 2004. That, on the face of it, is a long delay. What happened during that time?
32. We agree with Master Wheeler that the procedural history of the action is "equally brief and straightforward". The background is tortuous.
33. The Plaintiff suffered personal injury in August 1997, but no medical advice was taken until 16th August, 2000, almost one month after the Order of Justice was served. The Plaintiff by then had returned to Ireland and the letter asked his G.P. for orthopaedic names. There were to be continuing problems in dealing with experts in Ireland. For example, the Plaintiff's G.P. was written to on the 16th August and on the 6th September he gave two names. The first was written to on the 3rd October.
34. The reply was succinct. It was written on the 9th October.
"Mr Cogley is not interested in carrying out a medico legal examination and report on your client".
35. The second expert was written to on the 21st November. No reply was received. A Reminder was sent on the 7th December, 2000. No reply was received. A reminder was sent on 3rd January, 2001.
36. There was dispute with this expert. We do not need to detail it here. It concluded not satisfactorily on 26th September, 2001. Voisin & Co wrote to the Law Society of Ireland. They were as helpful as they could be supplying a list of experts from the Irish Law Times. Voisin & Co wrote identical letters on the 2nd January, 2002, to six of these experts.
37. Further letters were sent on the 16th January 2002. Finally on the 21st January a consultant Orthopaedic Surgeon expressed willingness to assist. Eventually on the 25th January he wrote to say he had no appointment time available until September 2002. Another orthopaedic surgeon who had been written to on the 16th January was appointed and an interview was made in Dublin for the 30th April. On the 18th July it was noted that the Plaintiff has been sent a copy of the report and on the 31st October, 2002, contact was re-established with the defendant's lawyer. We set out this brief scenario to show that matters were proceeding at a certain pace, unbeknown to the defendant's lawyers.
38. It is perhaps a little unfair for the Master to say - as he does - that once the Order of Justice has been placed on the pending list "nothing further happened until the end of October 2002".
39. On the 27th November 2002, Voisin & Co sent a "without prejudice" letter to Crill Canavan which sets out the Plaintiff's version of events and ends with these words:
"Please confirm liability is admitted by return. If you continue to contest liability, I suggest we simply refer the matter to the Royal Court for determination. Quantum can be left over."
40. A gentle reminder on the 20th February (three months later) elicited a reply that "we are considering the matter with our client".
41. Voisin & Co continued to seek information from Irish companies about quantum.
42. Crill Canavan were able to reply to Voisin & Co on the 14th March 2003 (having taken instructions from a Company based in Jersey) and the "without prejudice" letter stated that "we firmly believe that this matter may be dealt with by negotiation rather than pleadings".
43. Irish employers of the Plaintiff began to reply in April 2003. Silence reigned until 9th January 2004, when summons was served by the Defendant on the Plaintiff.
44. This clearly caused concern and on the 17th February, 2004, Voisin & Co wrote to Crill Canavan a "without prejudice" letter detailing the injuries and the claim. An Answer was filed "under protest and without prejudice to the summons to be heard on 20th April".
45. It is dated the 19th February, 2004. There was a flurry of activity from Voisin & Co and on 2nd April a summons for directions was taken out by the Plaintiff for appearance on 20th April.
46. The Master had all the facts before him and the Master having heard both sides in his usually courteous manner said: "Having considered matters very carefully I have come to the conclusion that the delays complained by the defendant are inordinate and I so find".
47. We respectfully agree.
2. Were the delays inexcusable?
48. The leisurely pace at which the correspondence was carried on and the clear warnings given by the Court of Appeal and the Master in his practice directions leaves us in no doubt but that the Master was right to hold as he did. We appreciate (as the Master did) the problems that the Plaintiff's lawyers had but there is very little sense of urgency and particularly as they knew that insurers were involved and that they had correspondence (in November 1997) from chartered loss adjusters in Southampton acting on behalf of the defendant's insurers.
49. If the delays were inordinate and inexcusable then it is necessary to move to the third question which is whether the delays were such as to give rise to a substantial risk that it is not possible to have a fair trial in the action or is such as is likely to cause or have caused serious prejudice to the defendant. In Roebuck -v- Mungovin [1994] 2 WLR 290, Lord Brown-Wilkinson gave the unanimous judgment of the House of Lords and allowed a striking out. In his judgment his Lordship said (at page 298):
"Where a plaintiff has been guilty of inordinate and inexcusable delay which has prejudiced the defendant, subsequent conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking-out order. Such conduct of the defendant is, of course, a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case. At one extreme, there will be cases like the present where the defendant's actions are minor (as compared with the inordinate delay by the plaintiff) and cannot have lulled the plaintiff into any major additional expenditure: in such a case a judge exercising his discretion will be likely to attach only slight weight to the defendant's actions. At the other extreme one can conceive of a case where, the plaintiff having been guilty of inordinate delay, the defendant has for years thereafter continued with the action thereby leading the plaintiff to incur substantial legal costs: in such a case the judge may attach considerable weight to the defendant's activities. But it is for the judge in each case in exercising his discretion to decide what weight to attach in all circumstances of the case to the defendant's actions and I trust that in the future there will be few occasions on which the Court of Appeal will be invited to review his decision on the point."
50. It is clear to us that, as was intimated very early on in this protracted matter Stansells might have to be joined as third party, but we are talking of accidents that occurred in August 1997 - seven years ago. That must make it impossible to have a fair trial in the action, although of course the ten year limitation period has not run its course and the three year limitation period had not run its course when the Order of Justice was served. The Master was correct in our view to cite, as he did, from a passage in the judgment of Skinner -v- Myles and Public Health Committee (1990) JLR88. At page 94 the Court said:
First, the difference between the limitation period of 3 years in England and our own of 10 years' prescription means that the duty of a plaintiff to act with diligence and expedition when he brings an action near the end of the prescriptive period is that much more necessary in Jersey. It follows that the prejudice to a defendant and the consequent risk of not obtaining a fair trial is increased in Jersey when, as here, the Order of Justice is served near the end of the prescriptive period and thereafter the plaintiff has been guilty of inordinate and inexcusable delay.".
51. This is, as Master Wheeler said, an exceptional case and in our discretion, and despite the very persuasive arguments of Advocate Steenson, we decline to interfere in his decision to strike out the Order of Justice.
52. Because of the decision that has been made, we need to hear argument on the question of costs.
Authorities
Kinsella -v- Lido Bay Hotel (Jersey) Limited [2001]JLR247.
Austin Securities Ltd -v- Northgate & English Stores Ltd. [1969] 1 WLR 529.
Roebuck -v- Mungovin [1994] 2 WLR 290.
Hunter -v-Skingley [1997] 1 WLR 1466.
Supreme Court Practice (1999) Vol 1: Order 18, rr.19; Order 25.
Birkett -v- James [1978] AC29.
Trill and Another -v- Sacher and Others 1 WLR [1993] 1379.
Benest -v- Kendall [1992] JLR N.2.
Skinner -v- Myles and Public Health Committee [1990]JLR88.
HM Drake -v- Gouveia [2000]JLR N.19.
McGorrin -v- Pascoe (7th June, 2002) Jersey Unreported; [2002]113.
Garfield-Bennett -v- Phillips (6th November, 2002) Jersey Unreported; [2002]214.
Royal Court Rules 1992 as amended 6/20 and 21.
Knight -v- Thackeray's Limited 1997 JLR279.
In Re Esteem Settlement 2000 JLR N-41a.
Watkins -v- Egglishaw 2002 JLR1.
Civil Procedure (2004) Vol 1, pp 86-91.
Department of Transport -v- Chris Smaller (Transport) Limited [1989] 1 AC 1197.
Arbuthnot Latham Bank Limited -v- Trafalgar Holdings Limited [1998] 2 All ER 181.
Enfield London Borough Council -v- Sivanandan [2004] EWHC 672.
Purdy -v- Cambran (17th December 1999) Unreported Judgments of Court of Appeal of England.
Eves -v- The Tourism Committee of the States of Jersey (24th April 2002) Jersey Unreported: [2002/84].