[2005]JRC105
royal court
(Samedi Division)
3rd August, 2005
Before: |
Commissioner F. C. Hamon, Esq., O.B.E., |
Between |
Martin Gale |
Plaintiffs |
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Anthony Gabriel Webber Clarke |
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And |
Rockhampton Apartments Limited |
Defendants |
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Antler Property C.I. Limited |
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And |
A.C. Mauger & Son (Sunwin) Limited. |
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Application to set aside default judgment.
Advocate D. Gilbert for the plaintiffs.
Advocate R. J. Michel for the defendants.
judgment
Commissioner:
1. This is an application to have a default judgment obtained in the Samedi Division on 22nd April 2005 set aside on the grounds that the Order of Justice is invalid.
2. The plaintiffs have entered a cross summons which asks that the Court should order the matter to be placed on the Pending List "despite the irregularities in service" and this pursuant to Rule 10/6 of the Royal Court Rules and/or in pursuance of its inherent jurisdiction.
3. Mr. Kevin Manning is a Jersey solicitor. He received instructions to act from the first plaintiff "on or about" the 20th November 2004" and from the second plaintiff "on or about" the 15th February 2005.
4. According to the Order of Justice the plaintiffs each own property adjacent to a large development and their properties have suffered cracking and subsidence allegedly caused by the defendants' constructions works. It appears that the development was carried out "between about February 2002 and early 2004". There is no better date as to when either or both the plaintiffs became aware of the damage.
5. Apparently, insurers and loss adjusters were negotiating the allegations and Crills were appointed in March 2005. They received detailed instructions by letter on 7th April 2005.
6. Mr. Manning was concerned that prescription would be running although (as he states in his affidavit):
"he did not necessarily (without further research) accept that the prescription period was necessarily that of three years from the date upon which the damage first arose".
7. In a letter dated 7th April Advocate Michel wrote -
"I am pleased to be able to advise you that we are now instructed in this matter, and I have received a file of papers.
From those papers, I understand that you are seeking confirmation that the prescription period in relation to the commencement of an action by your clients, which is due to expire three years from the date upon which the damage first arose, be extended by twenty-four months. If that is your request, then I am instructed to grant it.
In agreeing to the extension of the limitation period, no admission as to liability is thereby made.
I further understand that you are seeking an undertaking from this firm that it is instructed to accept service of any proceedings which you may see fit to institute. Again, I am instructed to give that undertaking, and therefore this firm is instructed to accept service of any such proceedings. I should further state that in agreeing to accept service of such proceedings, no admission of liability whatsoever is thereby made".
8. There then occurred an extraordinary sequence of events.
9. Mr. Manning (presumably unaware of the Rules of Court) personally served the copy of the Order of Justice that he had drafted by taking a copy of it on 18th April to Crills in an envelope marked "Urgent - For the attention of Advocate Michel". He handed it in to Crills' receptionist. He heard nothing and so he "tabled" the proceedings "prior to 12 p.m. on 21st April 2005".
10. Surprised that he had no reaction from Crills, he telephoned but to no effect. When the case came before Court the plaintiffs obtained judgment. General damages were, of course, referred for an assessment of quantum to the Master.
11. Mr. Manning says in his affidavit that the Deputy Bailiff when shown the record of service stated that "he fully expected to receive a (sic) application to set aside a judgment very quickly".
12. The summons to set aside was served some six weeks later.
13. On 21st June 2005, Advocate Michel wrote to say (having referred to the extension to the limitation period on 7th April) -
"In the light of subsequent events, in particular, the purported service of an Order of justice and the purported obtaining of a default judgment, I am now instructed to withdraw the concession that the prescription/limitation period be extended beyond the three years from the date upon which the damage first arose.
Under the circumstances, therefore, I make it abundantly clear that the undertaking given by me on behalf of the defendants is no longer binding and of no effect".
14. Let me deal with that last point first. It is argued, as a matter of law, that there must be an intervening act or event that would entitle the defendants' lawyer to withdraw his concession or (as the plaintiffs' lawyer puts it) "to renege upon his previously given undertaking". It is also submitted that the interests of justice demand that the defendants should not be in a better position than they would have been had the Order of Justice not been served.
15. Advocate Michel relied on the case of Racz v Perrier & Labesse (1994) JLR 75. In that case, prescription would have applied on 31st May 1978 but counsel had agreed not to plead prescription until 30th September 1978 (four months later). When negotiations broke down the defendants revoked their undertaking within the original prescription period. The Order of justice was served a day before prescription ran out but the lawyers omitted to table it. It was properly served but only on 26th June and tabled. It was held that the plaintiffs had, by their actions, ceased to rely on the undertaking. It was their omission to "table" that had caused the problem. I can see similarity between the facts of that case and this. As Sir Frank Ereaut said (on page 163) "In our view, the question of estoppel does not apply in this case".
16. In early March 2005, Mr. Manning was dealing directly with a loss adjuster in London, who suggested an extension of time. It was on 7th April that Advocate Michel, on instructions, extended the period of limitation. It was in early March, after his discussions with the loss adjuster, that Mr. Manning said (in his affidavit at paragraph 5) -
"That considering matters further at this time, I decided it would be much 'safer' to issue formal proceedings".
He went on to say, (having dealt with the prescription point that I have already cited) -
"I also decided at this stage to approach Counsel for additional advice bearing in mind that I am a general practitioner and not a specialist litigator but could not at that time obtain the services of another firm and therefore decided that I had no choice but to institute proceedings as soon as possible".
So Mr. Manning, even before Crills had been appointed, decided to institute proceedings. The issuing of the Order of Justice and the question of the prescription period are not related. The purpose of the Order of Justice was to interrupt prescription. I cannot see that Advocate Michel was not fully entitled to act as he did. It would have been quite different if he had purported to withdraw his offer after the prescription period had ended and where Mr. Manning had relied on the extension of time not to bring proceedings within the three year period.
17. What then is the legal effect of what has happened?
18. There has been a comprehensive breach of the Rules of Court.
Rule 5/4 states: "that personal service is required to witness the confirmation of an Order of Justice".
Rule 5/5 states: "that, where personal service is required service must be through the intermediary of the Viscount's Department."
Rule 5/3 states "that every summons must specify the date on which appearance before the Court is required."
Rule 5/7 states "that personal service is effected (in the case of an Order of Justice) by leaving it with the person to be served."
Rule 5/13 states "that the Record of Service of a document must state the person by whom, the means by which, the place at which and the date on which service was effected. "
Rule 5/14 sets out the appropriate form of the summons and the record of service.
19. The plaintiffs do not take issue (it would be difficult to see how they could) with the request the the judgment be set aside.
20. The question is whether I should have regard to Rule 10/6 or exercise the Court's "inherent jurisdiction". Rule 10/6 reads -
"Subject to Rule 10/7, non compliance with Rules of Court, or with any rule of practice for the time being in force shall not render any proceeding void unless the Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended or otherwise dealt with, in such manner and on such terms as the Court thinks fit.
21. Rule 10/7 states that -
"No proceedings shall be void, or be rendered void or wholly set aside under Rule 10/6 or otherwise by reason only of the fact that the proceedings were begun by a means other than that required in the case of the proceedings in question".
22. Various cases are cited in support of the plaintiffs' contention. Vezier v Bellago (1994) JLR 75, was brought under the provisions of Rule 8/6 of the Royal Court Rules 1992 which is in identical terms to Rule 10/6. The judgment in that case turned upon the provisions of the Fatal Accident (Jersey) Law 1962. Two actions were brought whereas only one could be brought under Article 3 of the Law. The two actions were properly brought and the Court, in its discretion, struck out one but allowed the other to continue, and allowed a plaintiff to be added from the discontinued action. Those facts are quite different from the facts of this case.
23. The plaintiffs have referred me to English cases as Order 2 of the Supreme Court Practice is apparently the basis of Rule 10/6.
24. I have to consider the fact that procedures in the Supreme Court are not the same as procedures in the Royal Court.
25. For example, the plaintiffs' rely on Boocock v Hilton International Co. (1993) 1 WLR 1095. In that case the writ was served to an overseas company but was not addressed to the authorised person. The appeal was allowed because although the writ was invalid by statute and the judge below declined to extend the validity of the writ, the Court of Appeal "in the interests of justice" exercised its discretion under Order 2 Rule 1 and allowed the writ to be served by posting it to the United Kingdom office of the defendant company. But that was an argument about a statutory requirement and not a question of liability.
26. This is not a question of the wrong procedure being adopted. It is, in my view, much more. It is a fundamental failure to bring an action before the Court at all.
27. It is important (I would say vitally important) to note the wording of Rule 10/6. The rule talks of "non-compliance with Rules of Court or with any rule of practice for the time being in force".
28. I have to have regard to Rule 5/17 which states that -
"The Court shall not give judgment by default in any action unless satisfied that:
The summons was validly served in due time and
The billet was tabled in due time".
29. Jackson v Jackson was decided in 1966. At that time an action to annul a will of realty had to be brought within a year and a day. The action could only be instituted by a billet de prévôt and brought by simple action during term. Term had finished and the appellant brought the action by the only means then available - an ordre de justice. The action failed on appeal and the Court considered that to allow the variation which the appellant sought would deprive the respondent of the right to plead that the action was time-barred. I am firmly of the view that the new rule was inserted to allow the Court to exercise a discretion if the proceedings were served incorrectly.
30. It was held in Gallagher v Dauny (2001) JLR 302 that even the acknowledgement by the defendant of full liability for the plaintiff's injuries was not in itself a waiver of the prescription period.
31. I regret that I cannot see that the procedures under English law help at all. They are so different.
32. As I recall, in the Queen's Bench Division where actions are started by writ, the plaintiff endorses the writ with his claim either in general terms or with his full statement of claim. The writ is taken to the central office or the district registry where it is marked and the number is sealed. That puts the cause on the record and for the purposes of the Statute of Limitations the action has commenced. The writ remains valid for the purposes of service for twelve months but before it expires it can, on application, be renewed.
33. In my view, the cases of Racz v Perrier & Labesse (cited above) and Virani v Virani (2000) JLR 203 are not and cannot be on all fours with the cases of Boocock v Hilton (cited above) and Leal v Dunlop Bio Processors Ltd. (1984) 2 All ER 207. They merely show how the different procedural regimes contrast.
34. This is not a question of serving in the wrong format. It is a question of not serving at all. The plaintiffs have failed to serve the proceedings through the medium of the Viscount, failed to specify a return date on which appearance before the Court is required and failed to serve the summons and failed to provide a Record of Service.
35. Advocate Gilbert suggests that there is an overriding inherent jurisdiction which is in the Court's power. I realise, of course, that the Court possesses an inherent jurisdiction and I have carefully studied the helpful case of Eves v Hambros Bank (2000) JLR 221, but in this case, if I were to exercise the inherent jurisdiction of the Court, it would put at nought all the rules that have been transgressed and particularly Rule 5/2 which stipulates how proceedings in Court must be instituted. To rule otherwise would jeopardise the defendants who have, after all, not admitted liability.
36. As I have already said, Mr. Manning, in his affidavit, did not accept "that the prescription period was necessarily that of three years upon which the damage first arose".
37. It may well be that Mr. Manning's researches will reveal that prescription starts to run when the plaintiffs become aware of the matters that give rise to the alleged negligence. All that the abortive Order of Justice says is that development was carried out "between about February 2002 and early 2004", and that "during the construction of the development 'cracking' occurred to the properties which became evident to the plaintiffs, causing 'voids' to form beneath the plaintiff's (sic) properties in turn causing damage". It is not possible to see when the prescription period started to run.
38. We are now three months on from 22nd April. That delay may be crucial. I do not know. In the event, I set aside the judgment granted by the Royal court pursuant to the provisions of Rule 5/16 and 5/17 and I declare that no summons was validly served pursuant to Rules 5/3 and 5/4. The plaintiffs' cross summons, apart from the abridging of time, is refused.
Authorities
Racz v Perrier & Labesse (1994) JLR 75.
Vezier v Bellago (1994) JLR 75.
Fatal Accident (Jersey) Law 1962.
Boocock v Hilton International Co. (1993) 1 WLR 1095.
Jackson v Jackson
Gallagher v Dauny (2001) JLR 302.
Virani v Virani (2000) JLR 203.
Leal v Dunlop Bio Processors Ltd. (1984) 2 All ER 207.