Jersey Unreported Judgments

[2008]JRC065A

royal court

(Samedi Division)

24^th April 2008

Before     :

F.C. Hamon, Esq., O.B.E., Commissioner, and Jurats Tibbo and King.

 

 

Advocate D. F. Le Quesne for the Appellant.

Advocate D. J. Benest for the Respondents.

judgment

the commissioner:

1.        This is an appeal from a decision of the Deputy Greffier given on 12^th March 2008 which was a decision relating to an application by the defendants to strike out the plaintiff's Order of Justice dated 26^th January 2005.  The learned Deputy Greffier gave very detailed reasons for his decision and ended with these words:-

"Viewing the proceedings as a whole, I find, prima facie, that the delay is inordinate but that such delay is excusable (just) when taking into account the plaintiff's desire to be represented by his advocate of choice and the unfortunate indisposition of that advocate.  I accordingly dismissed the defendant's strike out application".

2.        Both counsel agreed with us that the test expressed by the learned Bailiff in Ybanez and Mompo v BBVA Privanza Bank (Jersey) Ltd [2007] JRC 131 is the correct one:

"The Court must exercise its discretion de novo, while paying, of course, due regard to the decision of the Master".

3.        Further, the legal argument as set out in Kinsella v Lido Bay Hotel (Jersey) Ltd [2001] JLR 247 and Garfield Bennett v Phillips [2002] JLR N 42 is clear.  In the first of those cases, the Master said:-

"In considering whether the action should be dismissed under r6/20(1) the questions that I have asked myself are as follows:-   

(a)       Has there been an inordinate delay;

(b)       Is that delay excusable;

(c)       If so, will such delay give rise to a substantial risk that it is not possible to have a fair trial of the issues in this action or is it such as is likely to cause or to have caused serious prejudice to the defendant?"

Again, in Garfield Bennett v Phillips, the Court gave some helpful guidance about allowances being made for pressure of trial work.  The Court said:-

"Whilst we agree that the Court must have regard to the size of the legal profession in Jersey, this does not assist in this case.  If an advocate is too busy to progress a case at the required speed, he must do one of three things.  He may relinquish other work so that he can deal with the case in question within the necessary timescale;  he can transfer the case in question to another advocate in his firm, or, if that is not possible, he can release the case in question to another firm of advocates.  Ultimately an advocate must only take on such amount of work as he can reasonably deal with.  Again, the staleness of the claim in this case required particular despatch.  We are in no doubt therefore that Advocate Young's busy timetable did not excuse the inordinate delay in this case".

4.        We also have to note the landmark judgment of Re Esteem [2003] JLR 188.  What the Court said in Citco Jersey Ltd & Bowden v Bank of Ireland (Jersey) Ltd [2005] JRC 097 is apposite:-

"We reject the submission of counsel for the plaintiffs that mere delay can, by itself, never amount to an abuse of process.  While that might have been arguable prior to In re Esteem in 2000, it is no longer a tenable argument.  Of course not every case involving an inordinate and inexcusable delay will give rise to an abuse of process.  Much will depend upon the circumstances of the case".

5.        Much the same was said in Arbuthnot Bank and others v Trafalgar Holdings Ltd and others [1997] 2 All ER 181 where the Court applied Birkett v James and said:-

"1.      An action should only be dismissed for want of prosecution where a) the plaintiff's default has been intentional and contumelious or b) where there has been inordinate and inexcusable delay giving rise to a substantial risk that a fair trial would not be possible or to serious prejudice to the defendant".

Advocate Benest went on to read further from the judgment which said:-

"The more ready recognition that wholesale failure, as such, to comply with the rules justifies an action being struck out, as long as it is just to do so, will avoid much time and expense being incurred in investigating questions of prejudice, and allow the striking out of actions whether or not the limitation period has expired".

6.        Let us for a moment examine closely the facts of this case.  We have a schedule of events - or non-events, as the case may be.

The first action

7.        Mr "Dick" Baal had worked at Voisin & Co as a conveyancing clerk for most of his working life.  He owned a property, 75 Colomberie, St Helier.  There was development by the Housing Committee on the adjoining property, No. 73 Colomberie, which, apparently, caused damage to Mr Baal's property.  The key area of dispute is whether there was a contract of any kind between Mr Baal and his old firm.  Of course, there was no written contract but we are certain that the relationship between Voisin & Co and Mr Baal was the relationship of solicitor and client.  Mr Baal (as cautious in retirement as he had been during his working life) drafted some of the letters himself but this is, in our view, totally irrelevant.  Mr Kendall, a partner in Voisin & Co, sets out in his affidavit, perhaps infelicitously, that "Mr Baal issued proceedings by Order of Justice before the Royal Court on 19th July, 1996".  Mr Baal, of course, did not draft the Order of Justice and Mr Kendall's letters refer consistently to "my client".  Whether or not Mr Baal drafted the letters, the signature of a partner of Voisin & Co is sufficient, in our view, to establish the relationship of lawyer and client.  Let us take one example.  On 29^th April 1996, in a letter marked "Without Prejudice", the partner at Michael Voisin & Co wrote to the Insurance Services Department of the States of Jersey in these terms:-

"I refer to your undated letter received by this office on the 12^th April, 1996 during my absence from the Island on holiday.

My client is extremely annoyed at the request made in your letter for further information.  The matter was referred to your loss adjusters more than two years ago.  The loss adjusters actually attended on site with my client on a couple of occasions when the damage to his property was inspected.

Further damage has now come to light in the first floor room in respect of which I enclose a copy letter from Regal Construction (Jersey) Limited setting out their quotation for the works required to repair the damage and which my client of course will also be claiming for.

In all the circumstances and due to the continuing delay in settling the matter on the part of the States of Jersey my client has no alternative but to issue an Order of Justice forthwith".

The letter was copied to "R A Baal Esq".

8.        When the action had been struck out, the present Order of Justice was served on the 27^th January 2005.  The action was placed on the pending list on 4^th February 2005 and the Answer was eventually filed on 11^th March 2005.  The Reply was filed on 6^th October 2006, some seventeen months later and eventually, on 12^th March 2008, the Deputy Judicial Greffier met with the parties on a striking-out application and at the end of a closely reasoned argument he concludes with these words, (having found that the delay was inordinate);-

"On 8^th March 2005, and within 5 or 6 weeks of the action having commenced, the Plaintiff's lawyer wrote to the Defendants' lawyers proposing that Mr John Wright be appointed as a joint expert.  No response was received to that proposal.

The Defendants' Answer was filed on 11^th March 2005. The Plaintiff's advocate fell ill during the summer of 2005 and subsequently left the employment of Viberts.  The Plaintiff contacted the advocate and requested him to continue with the action.  The Plaintiff was informed in February 2006 (the Plaintiff's affidavit does not state by whom) that the advocate had no office and the Plaintiff then contacted Viberts to request that firm to continue the action.  This does not appear to be a case where the delay was caused by the failure of Viberts in allocating work to another lawyer in the practice.  I am mindful that the Plaintiff is not a lawyer and would not be aware of the provisions of the Circular Letter and the attitude of the Court to the progression of litigation.  Even allowing for the period when the case did not progress on account of the actions of the Plaintiff there are still considerable (but not inordinate) delays, for example in filing the Reply.  I am mindful however of the problems facing the Plaintiff's lawyers in obtaining the services of an expert in relation to matters dating back to 1992/3.  A further attempt to agree Mr Wright as a joint expert by letter dated 2^nd April, 2007 did not meet with a favourable (or any) response.  The Plaintiff has now secured the services of an expert.

Viewing the proceedings as a whole I find, prima facie, that the delay is inordinate but that such delay is excusable (just) when taking into account the Plaintiff's desire to be represented by his advocate of choice and the unfortunate indisposition of that advocate.  I accordingly dismissed the Defendants' strike out application".

9.        In Arbuthnot Latham Bank Ltd and others v Trafalgar Holdings Ltd and others, the English Court of Appeal said this (talking of contumelious conduct):-

"For this purpose delay alone even delay of 11 years does not amount to an abuse of process.  This was made clear in the recent case of Barclays Bank plc v Maling [1997] CA Transcript 849, a copy of which was placed before us.  In that case there was delay of this order but for a substantial proportion of the period of delay the court had made an order that the action against the relevant defendant was to be adjourned generally with liberty to restore pending proceedings against his wife which in fact were never pursued.  With that background Aldous LJ following Teale v McKay [1994] PIQR p508 said:

'That case is a clear indication that mere delay, whether or not caused by incompetence, cannot amount to an abuse of process which will enable an action to be struck out.  What is needed is disregard of the court's orders.  It may be that deliberate as opposed to negligent disregard may not be required (see Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666)'

The court distinguished Culbert v Stephen Westwell & Co Ltd [1993] PIQR P 54.  It did so because in Culbert's case the defendants 'had come to court to progress the action with the result that an unless order had to be made' on four occasions.  In that situation Parker LJ said in Culbert's case [1993] PIQR P54 at P65-P66:

'There is however in my view another aspect of this matter.  An action may also be struck out for contumelious conduct, or abuse of the process of the court or because a fair trial of the action is no longer possible.  Conduct is in the ordinary way only regarded as contumelious where there is a deliberate failure to comply with a specific order of the court.  In my view however a series of separate inordinate and inexcusable delays in complete disregard of the rules of the court and with full awareness of the consequences can also properly be regarded as contumelious conduct or, if not that, to an abuse of the process of the court.  Both this and the question of fair trial are matters in which the court itself is concerned and do not depend on the defendant raising the question of prejudice.  In my judgment the way in which the action has been conducted does amount to an abuse of the process of the court and it would be a further abuse of process if the action were allowed to proceed.  In my judgment also, a fair trial is no longer possible. I am aware that liability is not seriously in doubt, indeed it may already have been decided in the plaintiff's favour but I can see no real possibility of a fair trial on quantum when even now the plaintiff's claim is still far from clear'.

These comments of Parker LJ are highly relevant in relation to the accountants' case.

In Grant v Doctor [1997] 2 All ER 417 at 423, [1997] 1 WLR 640 at 646, in a speech with which the other members of the House agreed, I referred to the decision of the House in Dept of Transport v Chris Smaller (Transport) Ltd [1989] 1 All ER 897, [1989] AC 1197.  In his speech in that case Lord Griffiths emphasised that 'a far more radical approach is required to tackle the problems of delay in the litigation process than driving an individual plaintiff away from the courts when his culpable delay has caused no injustice to his opponent' (see [1989] 1 All ER 897 at 903, [1989] AC 1197 at 1207.  He suggested that the remedy lay in the introduction of court controlled case management techniques.  I pointed out in my speech that the position had not improved since the decision in the Chris Smaller case.  I went on to indicate that it was at least open to question whether it is not preferable to await the outcome of the implementation of the new rules (which at the present time are being drafted) before making a substantial inroad on the principles established in Birkett v James".

10.      In Kinsella v Lido Bay Hotel (Jersey) Ltd, the Master of the Royal Court said at paragraph 6:-

"in the absence of any authority directly in point on how r.6/20(1) should be applied, I think that the proper approach for me is to follow the principles which the Royal Court has adopted in considering whether to strike out an action for want of prosecution.  This requires consideration of English cases such as Birkett v James (3) and subsequent decisions of relevance.  For examples of their application in Jersey, see the decisions in Beasant v Pavan (1) and Skinner (née Ball) v Myles (6)".

11.      There are clearly enormous delays by both parties.  It is, after all, now some sixteen years since the alleged damage occurred at the property but much water has passed under the bridge since that time.

12.      Mr Baal died on 9^th May 2001 and the property was inherited under the will of her late husband by Mrs Valerie Baal, but a curator had to be appointed for her on 28^th September 2001.  This was Mr Kurt Kerschbaumer, her son.  But on 9^th August 2003, he too sadly, died.  It was left to his daughter, Miss Romy Kerschbaumer, to take up the matter and she was appointed curator of Mrs Baal on 9^th September 2003.

13.      The action against the Housing Committee was actually struck out under Rule 6/20 of the Royal Court Rules in 2001.So we have the situation where Miss Romy Kerschbaumer has suffered the loss of her grandfather and her father and having seen the Order of Justice struck out, had to have regard to the property and the parlous state that it was in.   She says in her affidavit:-

"As a result of the property being uninhabitable, I eventually agreed to sell the property as I was concerned that I would not be able to settle my mother's carer bills.  This was a difficult decision, as I would have preferred to have kept it, restored it to good condition and rent it out, to provide income for my mother's care.  Also, I understood that it would be better for the action if we were to retain the property and be able to have a report on the repairs and their cost.  However, I came to the conclusion that this was not feasible, so the property was sold in 2004".

14.      75 Colomberie was sold on 12^th November 2004 for £232,000.  There is apparently a report from Regal Construction (Jersey) Ltd dated 17^th April 2001 giving a quotation of £40,787.38 for the necessary repairs.  Despite that the original Order of Justice continued to claim £8,002.19.

15.      In any event, the action for negligence (2005/067) first came to Court on 4^th February 2005.  The Answer was filed on 11^th February but the Reply was only filed on 6^th September 2006.  That is a delay of some 17 months and if the case comes to Court it will probably be over three years since it was first begun.  That was found by the learned Assistant Greffier to be an inordinate delay and we agree.

16.      There were however exceptional circumstances concerning the delay.  Between the filing of the Answer and the inordinately late filing of the Reply, the advocate fell ill and left the firm.  The curator had a good relationship with the advocate but when he returned in February 2006 he had apparently no office from which to work and the curator had then to write to the firm and ask them to continue to act for the curatorship.

17.      The action will not be easy but it appears that there is now an expert prepared to assist the plaintiff.  When in his detailed judgment the learned Deputy Greffier says that "such delay is excusable (just)" we agree with him despite the very able arguments to the contrary.  We will say this to Advocate Le Quesne.  Time is now very much of the essence and any further delay will be dealt with firmly by this Court.

Authorities

Ybanez and Mompo v BBVA Privanza Bank (Jersey) Ltd [2007] JRC 131.

Kinsella v Lido Bay Hotel (Jersey) Ltd [2001] JLR 247.

Garfield Bennett v Phillips [2002] JLR N 42.

Re Esteem [2003] JLR 188. 

Citco Jersey Ltd & Bowden v Bank of Ireland (Jersey) Ltd [2005] JRC 097.

Arbuthnot Bank v Trafalgar Holdings Ltd [1997] 2 All ER 181.

Birkett v James [1978] AC 297.