Jersey Unreported Judgments

Child custody - personal injury claim.

[2012]JRC176

Royal Court

(Samedi)

5 October 2012

Advocate T. V. R. Hanson for the Plaintiffs.

Advocate C. R. Davies for the Defendant.

judgment

the commissioner:

1.        This is an application by the defendant under Royal Court Rule 6/12(1) to amend her answer under which certain admissions are proposed to be made.  The plaintiffs agree that leave should be granted but on terms that the plaintiffs be given judgment on those admissions and costs.

2.        The substantive case involves a personal injuries claim brought by three children against the Minister for alleged negligence and/or breach of duty over a period of some ten years.  The children are now in care.  It is their case that they should have been permanently removed from their family and successfully placed for adoption in 1997 in the case of one of the children and immediately following their births in the case of the others.  Having failed to do so the defendant should permanently have removed the plaintiffs and successfully placed them for adoption at the earliest opportunity thereafter. 

3.        The Minister in her answer while admitting that the children suffered harm, including sexual abuse, physical abuse, emotional abuse and the results of neglect, denied negligence and/or breach of duty.  In the amended answer, the Minister makes these admissions:-

"12.     The Defendant admits that, after the end of the year 2000, there were failures amounting to negligence for which the Defendant accepts responsibility and that, without such failures, it is probable that steps would have been taken to abandon attempts at rehabilitation.

13.      Further it is admitted that without such negligence the Plaintiffs would not have suffered the abuse and neglect referred to in sub-paras aa) to jjj) of para 6 of the Order of Justice.

14.      The Defendant admits that, in the light of the negligence admitted above, the Plaintiffs and each of them suffered further harm beyond that already suffered in the form of neglect and abuse of the type summarised in sub-paragraphs c) to y) of paragraph 6 of the Order of Justice.  The Defendant makes no admission as to the extent of that further harm and avers that the abuse and neglect now revealed prior to the date of the admitted negligence, which in itself constituted significant harm, would in any event have led to permanent emotional and adjustment problems requiring careful continued therapeutic intervention.  The Defendant thus admits some damage caused by virtue of the negligence admitted above in relation to each Plaintiff but reserves her position as to the extent thereof in respect of which medical evidence remains incomplete."

4.        Royal Court Rule 6/12(1) is in the following terms:-

"6/12   Amendment of claim or pleading

(1) The Court may at any stage of the proceedings allow a plaintiff to amend his or her claim, or any party to amend his or her pleading, on such terms as to costs or otherwise as may be just."

5.        Mr Hanson's starting position was that judgment should be granted on the admissions as a term of granting leave under this rule.  He referred me to the Supreme Court Practice 1999 at 27/3/7 where it provides :-

"In Blundell v. Rimmer [1971] 1 WLR 123; [1971] 1 All ER 1072, approved in Rankine v. Garton Sons & Co. Ltd (1979) 123 SJ 305; [1979] 2 All ER 1185, leave to enter interlocutory judgment in an action for personal injuries for damages to be assessed was refused notwithstanding an admission of negligence.  The reason is that an admission of negligence without an admission that the plaintiff suffered injury thereby is not an admission of liability."

6.        In Strecker v Jersey Electricity Co Ltd [1994] JLR Note 4A, it was held that an admission of liability in an action in negligence is only made when there has been made both an admission of negligence and an admission that some damage has occurred.  As in this case there was now both an admission of negligence and that some damage had occurred Mr Hanson sought judgment for the plaintiffs to the extent of that admission. It was important he said for them to obtain judgment for two reasons, firstly to consolidate that part of the case for their benefit and secondly to enable costs orders to be made and in particular, disbursements for experts' fees recovered, at least in part.  Those fees had been paid out of the Legal Aid fund and the purpose of seeking costs was primarily to enable that fund to be repaid as soon as possible. 

7.        Mr Hanson also drew my attention to Royal Court Rule 6/19:-

"6/19(4)           When admissions of fact are made by a party to the proceedings either by that party's pleadings or otherwise, any other party to the proceedings may apply to the Court for such judgment or order as on those admissions that other party may be entitled to, without waiting for the determination of any other question between the parties, and the Court may give such judgment or make such order on the application as it thinks just."

He submitted that in the alternative judgment could be issued under that rule.

8.        Miss Davies, for the Minister, pointed out that Royal Court Rule 6/19 expressly requires an application for judgment to be made and that there had been no application in this case.  There was no precedent for the use of Royal Court Rule 6/12 for granting judgment as a term of giving leave for the amendment of a pleading.  She also referred me to the Supreme Court Practice 1999 at 27/3/7 where it states "The jurisdiction of the court is discretionary, but in the absence of reason to the contrary the order is made so as to save time and costs".  She submitted that judgment here would save neither. 

9.        Whilst there had been an admission of negligence after the end of 2000, the issue of liability remained wholly unresolved.  The admissions that had been made were not accepted by the plaintiffs and were not, in her view, conclusive of liability.  Liability in this case should not be resolved piecemeal.  If judgment were to be entered at this stage by a single judge, there would be factual issues remaining between the parties on the very issue of liability when judgment has been granted.  If judgment were to be entered on the basis of the admission now, she asked, how could that judgment then be fundamentally altered by the Court sitting with Jurats at a later date and based on the Jurats' assessment of the facts?

Decision

10.      Taking the Minister's application as set out in the summons, I grant leave under Royal Court Rule 6/12(1) for the Minister to file her amended answer on the usual terms as to costs, namely that the Minister shall pay the costs of the plaintiffs incurred and thrown away by the amendment and the costs of any consequent pleading, to be taxed on the standard basis if not agreed. 

11.      I am not prepared to make it a term of giving such leave that judgment be given on the admission.  It seems to me that that is an inappropriate use of Royal Court Rule 6/12.  The power to impose terms on giving consent to an amendment is to ensure that there is no prejudice to the other parties and that if there is a prejudice terms are imposed to address the same.  That would normally be by way of an order for costs, but it might be necessary to impose other terms to ensure fairness in the conduct of proceedings.  The admission contained within the amended answer does not prejudice the plaintiffs; quite the contrary. Apart from costs thrown away it is to their benefit.

12.      No formal application for judgment has been made by the plaintiffs pursuant to Rule 6/19 and it should have been.  It is clear, however, that Miss Davies had not been taken by surprise by the application, as she has addressed the issue of judgment fully in her skeleton argument.  I could send Mr Hanson away to apply again by way of summons under Royal Court Rule 6/19 but I accept that this would simply increase the costs of all the parties.  As Miss Davies was not taken by surprise, I am therefore prepared to accept that an application under Rule 6/19 was made by the plaintiffs sur le champ. 

13.      Royal Court Rule 6/19(4) refers to "the Court" which is defined under Royal Court Rule 1(1) as "any division of the Royal Court, the Bailiff or, except in the provisions of these Rules mentioned in schedule 1, the Greffier."

14.      This definition has to be read in conjunction with the relevant provisions of the Royal Court (Jersey) Law 1948 which under Article 15(1) and (1)(A) provides that the Bailiff (or a Commissioner in his place) is the sole judge of matters of law, costs and procedure.

15.      The question therefore becomes whether a decision to enter judgment in this application would be purely a matter of law or procedure, in which case I would have jurisdiction to grant judgment, sitting as a single judge. 

16.      Has an admission of liability been made in this case that is susceptible of judgment being entered upon it by me sitting as a single judge?  In the Amended Answer the Minister has admitted negligence after the end of 2000 and that "some damage [was] caused by virtue of the negligence admitted .... but reserves her position as to the extent thereof".

17.      It seems to me that for the reasons put forward by Mr Hanson this is an admission made on the pleadings upon which judgement can be entered by me as a single judge; no issue of fact arises.  I do not see how, as Miss Davies has argued, there could be factual issues remaining before the Court on this part of the pleading which is admitted, namely that the Minister was negligent in the period stated and that some damage has occurred.  The only issues that would hereafter be before the Court are whether there was negligence before this period and the extent of the damage both before (if negligence is found before the end of 2000) and after 2000. 

18.      In my view, it is open to Mr Hanson, on behalf of the plaintiffs, to seek judgment on their behalf on the admission made in the pleading as it consolidates that part of the claim - it puts it "in the bag", as Mr Hanson said - and I will therefore grant the plaintiffs judgment on that admission.

19.      That then leaves Mr Hanson's application for costs on that judgment.  Here I have much more difficulty.  With a money claim, for example, where a given percentage is admitted, an order for costs is workable by reference to that percentage.  However, in awarding costs, I have to have regard to the overriding objective of doing justice between the parties and even though the starting point is to identify a winner, in many cases litigation will not lend itself to that.  (See Watkins and Connell v Egglishaw and Four Others [2002] JLR 1.) 

20.      The issue of the damage suffered by the children and the extent to which it may be attributable to the admitted negligence of the Minister is complex.  As the amended answer states at paragraph 14:-

"The Defendant makes no admission as to the extent of that further harm and avers that the abuse and neglect now revealed prior to the date of the admitted negligence, which in itself constituted significant harm, would in any event have led to permanent emotional and adjustment problems requiring careful continued therapeutic intervention."

21.      It may be that the Court will find that the damage attributable to the admitted negligence of the Minister in the face of the damage already suffered by the children is negligible and that it would not, therefore, be just to award any part of the costs in favour of the children.  Furthermore, if judgment were given, I find it difficult to see how the taxing master could decide what proportion of the costs incurred to date are properly and fairly attributable to the admission.  For that to be assessed properly, a final judgment would be required.

22.      Mr Hanson says he should at least be able to recover the costs of the experts who have advised on liability, the proportion would be a matter for the taxing master, but in my view the same issues arise.

23.      All in all, I conclude that on costs I should leave the field clear for the presiding judge at the final hearing to make an order that does justice between the parties, and I am not therefore prepared to order costs at this stage.

Authorities

Royal Court Rules 2004.

Supreme Court Practice 1999.

Strecker v Jersey Electricity Co Ltd [1994] JLR Note 4A.

Royal Court (Jersey) Law 1948.

Watkins and Connell v Egglishaw and Four Others [2002] JLR 1.