Accident claim - application by the first defendant to strike out the plaintiff's claim.

[2013]JRC251

Royal Court

(Samedi)

11 December 2013

Before     :

Advocate Matthew John Thompson, Master of the Royal Court

 

Advocate E. L. Burns for the Plaintiff.

Advocate C. Hall for the First Defendant.

Advocate P. M. Livingstone for the Second Defendant.

judgment

the master:

Introduction

1.        This judgment represents my reasons for striking out the plaintiff's claim against the first defendant.  At the conclusion of the application I gave a short oral judgment granting the first defendant's application.  The plaintiff asked that I give full written reasons for my decision. 

Factual background

2.        The plaintiff's claim arises out of a road traffic accident between the plaintiff and the first defendant on 4^th October, 2007.  The plaintiff alleges that the first defendant, while riding his motorbike, negligently collided with the plaintiff's van.  The plaintiff claims damages for pain and suffering and loss of earnings. 

3.        The Motor Insurers Bureau was named as second defendant to the proceedings because the first defendant, on 8^th January, 2008, was convicted of driving without valid motor insurance. 

4.        The order of justice was served in September 2010 to avoid limitation issues arising.  When the matter first came before the Royal Court on Friday, 1^st October, 2010, it was adjourned sine die with reciprocal undertakings to reappear upon 48 hours' notice.  No further steps have occurred in the proceedings since that date and no pleadings have been filed. 

5.        In argument before me the first defendant's position is that liability is denied.  As far as the second defendant is concerned, in a letter dated 17^th February, 2010, the second defendant wrote to Forumlaw, a firm of English solicitors then representing the plaintiff, stating "we can advise that liability is not in dispute".  It was not clear to me whether this was an admission of liability purportedly made on behalf of the first defendant or whether it was no more than the second defendant accepting that, if the first defendant was found liable but was unable to pay due to being uninsured, then the second defendant accepted that it was then liable to meet any all damages the first defendant was required to pay.  Advocate Livingstone was unable to clarify the position, despite having sought instructions.  

6.        As to what has happened since the matter was adjourned sine die the following has occurred:-

(i)        In the autumn of 2010 there was correspondence between Le Gallais & Luce, acting for the plaintiff, and Viberts, acting for the first defendant, where the first defendant sought information to understand the basis of the claim.  No substantive information was provided apart from contact details for the second defendant.  After 2010 there was no further communication between the plaintiff and the first defendant's advisers until the first defendant issued the application now before me. 

(ii)       In 2010 the plaintiff did obtain letters from various individuals confirming that they had employed the plaintiff in 2007 prior to accident.  The letters obtained in 2010 were provided to the second defendant's advisers but not the first defendant's advisers.  They were only provided to the first defendant as part of the documentation filed in relation to the present application. 

(iii)      The plaintiff obtained a medical report from a Dr Pring dated 3^rd May, 2011, and an updated report dated 26^th August, 2012.  It was accepted that the medial report was provided to the second defendant but not the first defendant (I was told due to an oversight) in 2012 and the updated report was provided in August 2013. 

(iv)      There was correspondence between Advocate Livingstone on behalf of the second defendant and Le Gallais & Luce in 2012.  The broad thrust of this correspondence is that Advocate Livingstone was chasing for an update. 

(v)       In the papers filed by and on behalf of the plaintiff for this application a notice of assessment of the plaintiff's earnings for 2011 was attached.  Neither defendants' legal advisers had seen this document previously although it is dated 10^th October, 2012. 

(vi)      Finally, I was provided with a schedule by the plaintiff showing the steps taken by the plaintiff's English solicitors from September 2012 until the date of this application.  The schedule in summary shows communications between the plaintiff's English solicitors and the plaintiff chasing for information.  There were no communications between the plaintiff's English solicitors and the advisers to the first or second defendant based on the chronology produced to me until the present application was issued. 

7.        One of the difficulties alluded to in relation to communications between the plaintiff's English Solicitors and the plaintiff was that the plaintiff could not speak much English and therefore communications had to be through a translator.  I was told that this had contributed to the delays.  I deal with this later in this decision. 

Jurisdiction

8.        The first defendant's summons was brought pursuant to Rule 6/13(1)(c) and (d) and Rule 6/26(12) of the Royal Court Rules 2004, as amended (the "Rules").  In advance of the application being heard I invited the parties to address me on the various differing bases pursuant to which I had jurisdiction to strike out the plaintiff's action. 

9.        At the hearing Advocate Hall accepted that the application could not be brought under Rule 6/26(12) because the matter had not been placed on the pending list and no directions had been given.  The first defendant's application was therefore put solely on the basis of the powers vested in me pursuant to Rules 6/13(1)(c) and (d). 

10.      I also posed the question whether I could strike out a claim pursuant to any inherent jurisdiction.  I raised this question because while the Royal Court clearly has an inherent jurisdiction (see Croxford v Le Clair [1994] JLR 304), it was not clear whether I possessed such a jurisdiction. 

11.      In Kinsella v Lido Bay Hotel (Jersey) Limited [2001] JLR 247, Master Wheeler applied the principles applicable when considering whether to strike out an action for want of prosecution under the Court's inherent jurisdiction.  However the application was brought in response to a notice issued by the Court under Rule 6/20(1) of the Rules 1992.  Rule 6/20 has now been superseded by Rule 6/25 of the Royal Court Rules 2004.  Nevertheless in Kinsella the matter was dismissed because of a breach of a Royal Court Rule applying the same test that had been applied to applications to strike out for want of prosecution.  Since Kinsella for breaches of Royal Court Rules, where there is a positive obligation on a party to take a step, a stricter test is now applied (See Lescroel v Le Vesconte [2007] JLR 273 and B v M-R [2007] JLR N48 and N55). 

12.      In the second of the two B v MR decisions [2007] JRC 199, Deputy Registrar O'Sullivan of the Family Division had dismissed the plaintiff's claim under the inherent jurisdiction of the Court for want of prosecution.  On appeal, as the Royal Court clearly has such an inherent jurisdiction, the Court was not asked to consider whether or not the Deputy Registrar enjoyed an inherent jurisdiction. 

13.      In Irish Nationwide Building Society v Volaw Corporate Trustee Limited [2013] JRC 099 Commissioner Clyde-Smith at paragraph 17 noted:-"The Master is a delegate of the Judicial Greffier (pursuant to Article 9 of the Departments of the Judiciary and the Legislature (Jersey) Law 1965).  The Judicial Greffier is not a court exercising an inherent jurisdiction; his judicial functions are limited to those which are delegated to him by the Royal Court.  That delegation is made principally under the Rules."  Although strictly speaking the point does not arise for decision today, in my view I do not possess an inherent jurisdiction to strike out a case for want of prosecution.  In considering previous decisions other than B v M-R no 2 it appears that a breach of a Royal Court Rule has always occurred and cases have been decided without analysing whether the decision is on the basis of a breach of a rule or the Court's inherent jurisdiction.  The two have usually been blurred together.  I therefore consider I can only strike out cases if there is power vested in me to do so pursuant to the Royal Court Rules. 

14.      The two Rules I was asked to consider were Rules 6/13(1)(c) & (d) which provide as follows:-

6/13 Striking out

(1) The Court may at any stage of the proceedings order to be struck out or amended any claim or pleading, or anything in any claim or pleading, on the ground that -

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the Court,

and may make such consequential order as the justice of the case may require."

15.      Rule 6/13(1), as is well known, is based on an equivalent Rule contained at Order 18 Rule 19 of the former Supreme Court Rules prior to development of the current civil procedure Rules in force in England.  It has formed part of Jersey's procedural rules since at least 1982.  The commentary contained in the Supreme Court Practice 1999 Edition (the "White Book") White Book therefore remains useful in understanding when a power to strike out may arise under Rule 6/13(1)(c) or (d) of the Rules. 

16.      I was referred by Advocate Hall to the decision of Master Wheeler in De Moulipied v Sturdy [2003] JRC 025.  That decision concerned a strike out application brought under Rule 6/13 of the Royal Court Rules 1992 and sought dismissal of the proceedings pursuant to Rule 6/13(1)(c) & (d) alternatively pursuant to the Court's inherent jurisdiction.  The judgment in De Moulipied does not state expressly whether the Court was striking out the claim on the basis of Rule 6/13(1)(c) or (d) or under its inherent jurisdiction.  However, the decision at paragraph 3 expressly followed the authority of Skinner v Miles and Public Health Committee [1990] JLR 88.  In Skinner the Royal Court struck out proceedings under Rule 6/13(1)(c)&(d) applying what is now described as the Kinsella test namely:-

(i)        Has there been an inordinate delay;

(ii)       Is that delay an excusable;

(iii)      Does such delay give rise to substantial risks it not possible to have a fair trial of the issues in the action or is it such as is likely to cause to have caused serious prejudice to the defendant?

17.      It is therefore not clear from De Moulipied and Skinner whether the actions were struck out for a breach of Rule 6/13(1)(c) or (d). 

18.      In my view, if there is delay which fails the Kinsella test, an action can then be struck out as an abuse of process under Rule 6/13(1)(d) ( See paragraph 18/19/25 of the White Book).  I was also referred to Culbert v Stephen G Westwell & Anor [1993] P.I.Q.R., P54 (CA) a decision of the English Court of Appeal cited at paragraph 18/19/25.  At page 65 of the judgment the English Court of Appeal stated:-

"An action may be also be struck out for contumelious conduct or abuse of 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 court and the full awareness of the consequences can also properly regarded as contumelious conduct or, if not that, to an abuse of process of the Court."

19.      The Court at page 66 continued:-

"The Court is concerned to see that its process is not abused and that justice is done.  If it is abused by the plaintiff's action, or if justice cannot be done if the trial goes forward, it matters not whether it is the plaintiff himself or his advisers who are to blame.  The action cannot be allowed to proceed.  To the extent that the blame is that of his advisers he will no doubt have his remedy against them."

20.      I consider however there is a distinction between Rule 6/13(1)(c) & (d).  The commentary in the White Book at paragraph 18/19/17 on the equivalent to rule (c) as with rules (a) & (b) focuses on how a party has pleaded its case and gives the Court power to strike out the pleaded case if any of grounds in Rule 6/13(1) are made out.  By contrast, the abuse of process ground is the one that focuses much more on the conduct of the litigation as the above passages in Culbert illustrate. 

21.      I am therefore satisfied that I have power to strike out the plaintiff's claim pursuant to Rule 6/13(1)(d) on the basis of the Kinsella test. 

Application of the Kinsella test

22.      I now turn to deal with whether the defendant has made out a positive answer to the three limbs of the Kinsella test. 

Inordinate Delay

23.      This is an action that commenced at the end of the limitation period.  In the case of Skinner the Royal Court noted there was a particular onus on a plaintiff to act with diligence and expedition when he brings an action near the end of the prescriptive period.  That remains the position even though cases can now be struck out prior to a limitation period having expired. 

24.      In Ybanez & Mompo v BBVA Privanza Bank (Jersey) Limited [2007] JLR N 45 the Royal Court noted that actions should generally be concluded within 12 months.  It also was expected that even a complex case should be concluded within 24 months, if the delay exceeded 24 months was likely to be inordinate.  The note of the case in the Jersey Law Reports expressly states:-

"When the delay exceeds 36 months it will only be in wholly exceptional cases involving highly complex issues of law or fact or other difficult circumstances that the delay will not be regarded as inordinate."

25.      In this case the delay has now exceeded 36 months.  This claim, while important for the plaintiff, is an action that follows a relatively minor road traffic accident and where the injuries suffered are not that significant compared to some the claims made before this court.  It is certainly not a case that involves highly complex issues of law or fact. 

26.      I am therefore satisfied that the delay was inordinate. 

Is the delay excusable?

27.      I have noted that once the order of justice was served and tabled, the action was then adjourned sine die rather than pleadings being filed and directions for trial being given.  Such an adjournment can occur for very good reasons because the parties as far as possible wish to resolve matters themselves but they have to issue proceedings in order to prevent a claim from becoming time barred.  If a party, having commenced proceedings is then actively looking to resolve the case by formulating and providing evidence on liability or for losses claimed ( because liability is not in issue), obtaining for example medical evidence and entering into dialogue or mediation, as long as such steps are occurring with reasonable expedition and steps are being taken on both sides, it would be a draconian step to strike out a claim.  Indeed, it is right to recognise that the Rules only provide for adjourned actions to be dismissed automatically after a period of 5 years.  The Rules therefore contemplate parties to an action from dealing with a claim in the manner I have described. 

28.      That does not mean, however, that a plaintiff, having commenced proceedings which are then adjourned, can either sit on its hands or do nothing, or progress litigation at a leisurely pace.  In my judgment if a plaintiff conducts litigation in such a manner there will come a point where, even if the automatic strike out provision contained in Rule 6/25(1) has not arisen, the Court can still strike out a case as being an abuse of process under Rule 6/13(1). 

29.      I am satisfied that this is such a case and that the delays in this case are not excusable for the following reasons:-

(i)        No affidavit in support of the application to continue the action explaining what steps had been taken by the plaintiff advisers was produced to me;

(ii)       The plaintiff's own witness statements simply focus on loss of earnings.  It does not address and I have not seen any evidence that the plaintiff has addressed whether or not the defendant was negligent;

(iii)      There are no factual witness statements addressing liability;

(iv)      There has been no discussion between the plaintiff and the first defendant to try to resolve this matter at all.  Indeed, any communications seem to have ceased at the end of 2010 until the first defendant issued its strike out application last month.  I was told that an offer of settlement on a without prejudice basis had been made by the plaintiff the night before the application was brought before me, but that is far too late in the day to save the position. 

(v)       Other than obtaining letters from individuals who used the plaintiff's service in 2010 very little seems to have been done to assess quantum.  One tax return for 2011 i.e. after the accident was obtained, but not disclosed, towards the end of 2012.  Copies of tax returns showing earnings around the time of the accident in 2007 could have been sought much earlier.  They still do not appear to have been sought.  The evidence on quantum is therefore far from complete;

(vi)      A medical report was obtained in 2011 but it was not released for a year to the second defendant and was never provided to the first defendant;

(vii)     The supplementary report was also not released for a year; and

(viii)    I was told that evidence from a dental expert was required.  That has still not been obtained because an individual who did produce a report in fact turned out not to be qualified to do so. 

30.      It was contended by the plaintiff that there were difficulties in communication between the plaintiff's English solicitors and that translators were need to communicate with the plaintiff.  It is right to observe however that the Portuguese community in Jersey has been established as part of Jersey for many years.  Law firms in the Island whether under legal aid obligations or on a fee paying basis are familiar with ensuring that those Portuguese clients whose English is limited understand the advice being received and the steps that need to be taken.  Merely because this claim was being dealt with on a day to day basis by English solicitors which contributed to the delay due to communication difficulties does not make the lengthy delay in this case excusable.  I can only observe that if conduct of the action had been with the plaintiff's Jersey based lawyers it is likely that issues of communication could have been addressed and the claim might have proceeded at an appropriate pace. 

31.      It is right that I comment on the letter from the second defendant indicating that liability was not in dispute.  Although the first defendant is uninsured, the plaintiff's claim is still primarily against the first defendant.  The first defendant is entitled to defend the claim and to deny liability.  Liability of the second defendant as pleaded in the order of justice only arises if the first defendant cannot satisfy the claim due to the first defendant being uninsured.  In this case there is no evidence that the first defendant has accepted liability.  The first defendant at the end of 2010, as he was entitled to, asked for evidence to support the plaintiff's assertion that the first defendant had been negligent.  Nothing was ever provided to the first defendant on the issue of liability in response to the request received in 2010.  Thereafter the only steps that were taken by the plaintiff were focusing on the issue of quantum and discussions with the second defendant. 

Can there be a fair trial of the action or is there prejudice to the defendant?

32.      This is an accident that occurred in 2007.  No evidence has been produced by the plaintiff to show what happened, and why it is said the first defendant was negligent.  If there are any witnesses to the accident (and this was a matter of dispute) such witnesses would inevitably suffer from impairment of recollection in respect of an accident which by the time the trial will have occurred some 7 years earlier and where such evidence is entirely dependent on memory.  

33.      In relation to quantum, the medical report produced shows that the plaintiff suffered a further accident in 2008.  There is therefore a real issue as to whether the plaintiff's injuries were caused by the first accident or the second accident and how to apportion the extent of those injuries between the two accidents.  The medical report was first obtained some 4 years after the accident, the subject matter of the proceedings, and 3 years after the second accident.  Full medical records have not been produced.  Neither has evidence relating to the circumstances of the second accident been produced. 

34.      I am therefore satisfied both because of difficulties in ascertaining liability due to the impairment of witness recollection and the difficulties on quantum in relation to the extent of the injuries suffered by the plaintiff in 2007 that it is not possible to have a fair trial of the action and that any such trial is likely to cause serious prejudice to the defendant. 

35.      In relation to proving loss of earnings, while the evidence is incomplete, I consider that a reasonable estimation of the plaintiff's loss of earnings could have been prepared for trial.  However, that is not enough to address the other difficulties in relation to liability and quantum that I have referred to and to save this action. 

Conclusion

36.      In conclusion I am satisfied that I have jurisdiction to strike out the plaintiff's claim under Rule 6/13(1)(d) as an abuse of process.  I am further satisfied that the defendant has made out the three limbs of the Kinsella test such as to amount to an abuse of process.  This is not an action that has been conducted in a manner that meets the Court's expectations.  I therefore ordered that the plaintiff's claim against the first defendant be struck out.  The plaintiff is also to pay the first defendant's costs of the application and the action. 

37.      In relation to the second defendant's summons for directions, I adjourned that summons to enable the second defendant to consider what steps it wished to take in light of my decision to strike out the claim against the first defendant. 

Authorities

Royal Court Rules 2004.

Croxford v Le Clair [1994] JLR 304.

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

Lescroel v Le Vesconte [2007] JLR 273.

B v M-R [2007] JLR N 48.

B v M-R [2007] JLR N 55.

B v MR [2007] JRC 199.

Irish Nationwide Building Society v Volaw Corporate Trustee Limited [2013] JRC 099.

Supreme Court Practice 1999 Edition.

De Moulipied v Sturdy [2003] JRC 025.

Royal Court Rules 1992.

Skinner v Miles and Public Health Committee [1990] JLR 88.

Culbert v Stephen G Westwell & Anor [1993] P.I.Q.R., P54 (CA).

Ybanez & Mompo v BBVA Privanza Bank (Jersey) Limited [2007] JLR N 45.