Jersey Unreported Judgments

Negligence - reasons for allowing trial dates to be vacated.

[2014]JRC165

Royal Court

(Samedi)

1 September 2014

Before     :

Advocate Matthew John Thompson, Master of the Royal Court, sitting alone.

 

Advocate P. M. Livingstone for the Plaintiff.

Advocate L. A. Ingram for the Defendant.

Advocate R. Leeuwenburg for the Third Party Cited.

judgment

the master:

Introduction

1.        This judgment represents my reasons for allowing the plaintiff to vacate trial dates fixed for 16^th to 18^th September, 2014.  During the hearing I refused leave to the third party to intervene on issues of liability between the plaintiff and the defendant and I also set out my reasons for doing so. 

Background

2.        The plaintiff's claim arises out of an accident that occurred at his former place of work on 17^th February, 2010, when he fell off a chair manufactured by the defendant.  The third party is the former employer of the plaintiff. 

3.        On 14^th May, 2014, in this action I gave a judgment reported at Cummins-v-Howlands (Furniture) Limited [2014] JRC 113 where I refused the defendant leave to amend its order of justice to plead contributory negligence.  The procedural history of this dispute is set out in that judgment at paragraphs 2 to 14.  In particular I have noted that the accident occurred in 2010 and the order of justice was issued on 6^th February, 2013. 

4.        Following my earlier decision, I gave various directions dealing with the filing of pleadings in the third party action, and for discovery and witness and expert statements in the action between the plaintiff and the defendant.  Discovery was to be completed by 30^th May, 2014, and witness statements of fact exchanged by 27^th June, 2014.  In relation to experts each party had to identify the experts it intended to rely on by 30^th May, 2014, - experts reports were to be exchanged by 25^th July, 2014, with experts meetings taking place by 15^th August, 2014.  Schedules of loss and damage were also to be exchanged towards the end of August 2014.  The purpose of this timetable, although it was tight, was to preserve the trial dates of 16^th - 18^th September which both the plaintiff and the defendant wanted to achieve when directions were given. 

5.        Other than discovery, the remaining directions have not been adhered to by the plaintiff.  The defendant served the experts reports on which it intended to rely on in accordance with the directions I gave and facilitated discussions between the parties' orthopaedic experts. 

The third party intervention

6.        Before I heard argument from the plaintiff on its application for an adjournment, Advocate Leeuwenburg, on behalf of the third party, made an application to intervene in the proceedings between the plaintiff and the defendant.  This was because when I gave directions following my earlier decision in May, although I ordered that the trial between the plaintiff and the defendant should proceed, issues between the defendant and the third party were adjourned sine die.  As I noted at paragraph 45 of my earlier judgment, the defendant's claim against the third party was based on evidence that the managing director of the plaintiff and other employees knew of the broken chair prior to the accident although the plaintiff consistently stated he was not aware.  The question of what contribution, if any, the third party should make to any money found to be due to the plaintiff from the defendant was therefore a separate issue. 

7.        It is also right to observe that judgment on liability was not entered for the plaintiff following my decision in May.  However, as was noted in that decision, liability had not been in issue between the plaintiff and the defendant since 2011.  The thrust of the defendant's unsuccessful application to amend its answer was to plead contributory negligence only, not to challenge the admissions of liability as noted at paragraphs 3 and 11 of my earlier judgment.  When the third party made its application to intervene liability was not therefore in issue between the plaintiff and the defendant and there was no issue of contributory negligence to be determined. 

8.        As far as the status of the third party proceedings themselves are concerned, following service of the defendant's amended answer, the third party issued a strike out application returnable before me on 21^st August, 2014.  However, that application was withdrawn with the defendant being given leave to serve a re-amended answer and a third party notice, and the third party having 21 days to file an answer in response.  

9.        As part of approving the consent order resolving the third party strike out application, by an email dated 12^th August, 2014, I enquired of Advocate David Benest for the third party whether the third party proceedings would remain adjourned sine die.  Advocate Benest replied the following day, indicating that he needed to consider the appropriateness of that order, given the nature of the allegations made against the third party.  I replied later on 13^th August, 2014, informing Advocate Benest that, if the third party wished to intervene in the proceedings between the plaintiff and the defendant, he would have to apply to do so as soon as possible given that the trial was due to start on 16^th September, 2014. 

10.      I have set out the various developments in the third party action to explain why the third party made its application to intervene during the plaintiff's adjournment application.  While neither the plaintiff nor the defendant has any difficulty with the third party taking part in any hearing on quantum, a concession I accept, I wanted to understand why the third party wished to be heard on the issue of why the defendant was liable to the plaintiff.  At the hearing Advocate Leeuwenburg was not able to set out for the third party his client's case as to why he wished to argue that the defendant was not liable to the plaintiff.  In particular, he was unable to identify any evidence which would be relevant to the issue of liability between the plaintiff and the defendant.  Rather he wished to preserve his position. 

11.      In light of the fact that Benest Law had been retained by the third party for some two and half months I refused this request.  Given the position between the plaintiff and the defendant on liability and the lack of any argument on contributory negligence, I was not willing to allow the third party to intervene when the third party was not able to explain what its case was going to be.  However, so as not to be unfair to Advocate Leeuwenburg and the third party I made it clear, given the short period of time between my email exchange with Advocate Benest on 13^th August, 2014, and the hearing that I was willing to allow the third party to make a further application if it was able to produce evidence directly relevant to liability between the plaintiff and the defendant.  Subsequent to the hearing, Advocate Leeuwenburg informed me that the third party had no observations as to the entering of judgment on liability against the defendant in favour of the plaintiff.  Following this email, I therefore reached the conclusion that, as no defence was being put forward in response to the plaintiff's claim on liability, judgment could be entered for the plaintiff.  The issue whether the third party should be required to make a contribution in principle to the defendant, as was contemplated by the order made by me on 14^th May, 2014, remains a matter for another day. 

The plaintiff's application - legal principles

12.      Having rejected the third party's application to intervene on grounds of liability, which would have led to an adjournment of the trial dates in any event, I then considered the plaintiff's application for an adjournment.  The relevant factors for an application for an adjournment of a trial were considered by the Royal Court in T.S. Engineering Limited v Bisson [1996] JLR N 3b and States Greffier v Les Pas Holdings Limited [1998] JLR 3A.  The reported note of T.S. Engineering states as follows:-

"ADJOURNMENT-adjournment-factors to be considered

In considering whether to adjourn the trial or hearing of any proceedings under r.8/5 of the Royal Court Rules 1992, the following matters should be taken into account: the importance of the proceedings and their likely adverse consequences to the party seeking the adjournment; the risk that that party may be prejudiced in the conduct of the proceedings if the application to adjourn is refused; the risk of prejudice or other disadvantage to the other party if it is granted; the convenience of the court; the interests of justice generally in the efficient dispatch of court business; the desirability of not delaying future litigants by adjourning early and thus leaving the court empty; and the extent to which the party seeking the adjournment has been responsible for creating the difficulty which has led to the application (The Supreme Court Practice 1995, 4th Cum. Supp., para. 35/3/1, at 51, considered)."

13.      The note of Les Pas Holdings is as follows:-

"ADJOURNMENT-factors to be considered

In deciding whether to grant an adjournment, the court should consider the following factors: the importance and probable adverse consequences of the proceedings to the party seeking the adjournment; the risk of that party's being prejudiced in his conduct of the proceedings if the application is refused; the risk of prejudice to the other party if the application is granted; the convenience of the court; the interests of justice generally in the efficient dispatch of court business; the desirability of not delaying future litigants by adjourning early and thus leaving the court empty; and the extent to which the party seeking adjournment is responsible for creating the difficulty leading to his application. The party must be allowed adequate time to present his case; however, the potential prejudice to the parties and to the public interest must be balanced. The power to adjourn should be exercised with great care and only when there is a real risk of serious prejudice which may lead to injustice: in practice, this test is difficult to satisfy (1 The Supreme Court Practice 1997, para. 35/3/1, at 617, applied; de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th ed., para. 9-05, at 448-449 (1995), considered; R. v. Thames Magistrates' Ct., ex p. Polemis, [1974] 1 W.L.R. 1371, dicta of Lord Widgery, C.J. considered; R. v. Panel on Take-overs & Mergers, ex p. Guinness PLC, [1990] 1 Q.B. 146, dicta of Lord Donaldson, M.R. considered)."

14.      Advocate Ingram also referred me to the English Court of Appeal case of Mitchell v News Group Newspapers Limited [2014] 1 WLR 795.  In the Mitchell decision, the claimant was limited to recovering its court fees only and not costs because it failed to produce a costs budget in compliance with the appropriate rule of the civil procedural rules in force in England and Wales. 

15.      At paragraph 60 of the Mitchell decision, Lord Dyson MR stated as follows:-

"In the result, we hope that our decision will send out a clear message.  If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders.  If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the past."

16.      Advocate Ingram fairly noted in his skeleton argument, the Mitchell decision was the subject of some controversy.  In the case of Denton v T H White Limited & Ors 2014 EWCA Civ 906, the Mitchell decision was revisited and the English Court of Appeal stated:-

"For the reasons that we give later in this judgment, we think for the judgment in Mitchell has been misunderstood and is being misapplied by some courts.  It is clear that it needs to be clarified and amplified in certain respects."

17.      In light of this controversy, I consider that it is not appropriate without submissions on Denton to consider how far the approach of the English courts in the Mitchell and Denton should be followed by the courts in Jersey.  At present, I consider, on an application for an adjournment of a trial, the approach to be taken is that set out in T S Engineering Limited v Bisson and States Greffier v Les Pas Holdings Limited.  In exercising the discretion vested in me, I consider I should have regard to what the Royal Court and Court of Appeal now expect of parties when conducting litigation.  This was most recently considered by W. J. Bailhache, Deputy Bailiff in Viera v Kordas [2014] JRC 042, where he cited with approval the well-known words of the Court of Appeal in Re Esteem [2000] JLR Note 41.  In addition at paragraph 30 the Deputy Bailiff stated as follows:-

"So here we have a statement from the Court of Appeal that one must be cautious about taking the CPR as providing anything more than valuable guidance.  To the extent that the CPR reverses the responsibility for taking forward a case to trial, we do not find that valuable.  It is the plaintiff's case, and the plaintiff is obliged to take the necessary steps to bring it forward.  As part of case management, the court may well direct the parties to take steps which do in fact bring the case forward to trial and, depending upon whether there is a counterclaim or perhaps upon the factual nature of the case, it may well be incumbent on a defendant to issue a summons for directions.  This is particularly likely to be so if, as a result of the defendant's interlocutory activity both parties have invested heavily in the litigation process.  Furthermore, it is the obligation of the defendant to comply with any such case management directions timeously and to comply with the timetables which are set down in the Royal Court Rules.  A defendant is obliged not to waste the time of the parties and the court in procedural games.  Other than these features, however, it is the plaintiff's case and it is not the responsibility of the defendant, particularly in the early stages, to take it forward to trial as quickly as possible perhaps exposing himself to irrecoverable costs as a result." 

18.      In light of these observations, firstly I must be cautious about taking a CPR as providing anything more than guidance in particular where the relevant rule is not found in the Royal Court Rules; secondly, it is the plaintiff's obligation to take steps to bring its case to trial. 

Compliance of the parties with directions

19.      Since my earlier decision, the plaintiff has provided discovery in accordance with the directions I gave.  However, the plaintiff has not provided witness statements and has not complied fully with directions relating to notification and service of experts reports.  The current position is that the plaintiff has retained an orthopaedic expert, Mr Gray, who first examined the plaintiff in March 2012 and provided a report at that time which was shared with the defendant's advisers.  A further supplementary report dated 4^th June, 2014, has also been provided by Mr Gray and shared with the defendant in response to a report disclosed in January 2014 but dated 4^th January, 2012, by the defendant from a neurologist, Dr Sambrook, together with a surveillance report and video footage. The surveillance report was dated May 2012.  I comment on this in more detail later in this decision.  

20.      On 5^th August, 2014, the plaintiff disclosed a report from a consultant psychiatrist, Dr Haines, dated 2^nd April, 2013, obtained on behalf of the plaintiff by his former legal advisers.  This report had not previously been disclosed to the defendant and it was not clear why this was the case or why the report was only disclosed on 5^th August, 2014, which is over two months after the plaintiff was required to identify the experts for whom he intended to call and also after the time by a few days for disclosure of expert reports to be relied upon.  The plaintiff has also identified a neuropsychologist Mr Peter Murphy who is willing to act and to give evidence as well as wishing to call a pain expert.  No pain expert has yet been identified. 

21.      As far as the defendant is concerned, as well as the report of Dr Sambrook, it also wishes to rely on the report of a Mr Beverley in the field of orthopaedics and a pain expert Mr Munglani.  All their reports have been disclosed in accordance with my directions.  Given the order I made in May, there are obviously no reports from the third party. 

The plaintiff's difficulties

22.      What has led to the current application ultimately arises out of funding of the plaintiff's claim.  Until 7^th April, 2014, the plaintiff was represented by Bois Bois.  Advocate Livingstone formally notified the court that he was acting for the plaintiff on 13^th May, 2014.  In an affidavit sworn in support of the application for an adjournment by the plaintiff, the plaintiff explained that, while being advised by Bois Bois, he had the benefit of legal expenses insurance which paid his legal fees and disbursements.  After receipt in January 2014 of the report of Dr Sambrook and the surveillance report, the plaintiff deposed, without waiving privilege, that he was given legal advice with which he did not agree.  He also deposed that cover under his legal expenses insurers was withdrawn which he believes occurred as a result of advice given to the insurers by Bois Bois although he had not seen any such advice.  The withdrawal of the insurance cover caused the plaintiff difficulties in funding his claim because he has not worked since the date of the accident in 2010. 

23.      At present the plaintiff is seeking to have his legal expenses cover reinstated albeit this will note retrospective.  The plaintiff also deposed that he has been taking steps to sell his property where there is substantial equity to fund any litigation but this will not be available to him until his home is sold.  Based on his evidence, I am satisfied that the plaintiff is making a genuine attempt to sell his property.  The decision to do so is of course a matter for him.  The plaintiff also explained that he is not eligible for legal aid because he owns a home and also he had and may have again the benefit of legal expenses policy.  As a further alternative, if legal expenses cover is not reinstated then the plaintiff will seek a discretionary legal aid certificate to be issued.  All of these issues take time to resolve. 

24.      The plaintiff further explained that pursuant to directions, he received surveillance reports and surveillance videos on or about 12^th February, 2014, in support of the defendant's without prejudice provisional schedule of loss.  He did not receive the unedited video footage until June of this year.  The defendant in response explained that the unedited footage was provided within a few days of it being asked for.  Nevertheless, the fact that the film footage was not provided at the time the report was provided has not helped the plaintiff's position. Neither has the fact that the footage was taken in 2012 and only disclosed 18 months later. 

25.      Although the plaintiff is at present not able to pay experts, he is still being assisted by Mr Gray on the basis of an assurance given by the plaintiff that Mr Gray's fees would be settled once the plaintiff's home is sold.  Mr Gray is therefore working on a further report reviewing the unedited footage with a view to persuading insurers to reinstate cover. 

26.      The defendant's position is that this matter should proceed to trial.  The defendant emphasised that this was the second set of directions that had been given and that it had complied with the directions given while the plaintiff had not.  It stated that delay would cause prejudice to the defendant.  This is not a case where the defendant had sat on its hands and done nothing.  Rather it had responded and complied with directions given by the court.  The plaintiff had not availed himself of the liberty to apply provisions in either sets of directions, to alert his difficulties until very recently.  

Decision

27.      The starting point for  my decision is that parties should comply with court orders and if unable to do so in any material respect should return to court for further directions.  In this case the plaintiff, while trying to resolve matters without coming back to court has left it somewhat late in the day before it made the present application.  The plaintiff has further failed to provide witness statements which it could have done and no explanation was provided to explain this breach.  The plaintiff has also left it late in the day to find some of the experts it wishes to call although it has been clear for some considerable time that the plaintiff wished to claim losses as a result of the pain suffered following his fall as well as for physical injury. 

28.      If these were the only grounds for the adjournment then the plaintiff would have faced considerable difficulty in persuading the court to exercise its discretion in his favour. 

29.      However, what is at the heart of the plaintiff's application is the loss of his expenses cover and at present the lack of any alternative funding until either cover is reinstated, discretionary legal aid is awarded or his property is sold to fund the litigation.  These are matters outside his control.  In addition while he did not ask for, a full copy of the video surveillance taken until the end of May 2014 and once asked for it was provided promptly, the entire surveillance report should have been provided earlier.  That extra material, on the information placed before me, may lead to the plaintiff's orthopaedic expert persuading insurers to restore cover.  Had it been provided earlier, given that the insurers appear to be willing to restore cover if certain criteria are met, it may be that the current funding issues would not have arisen.  In addition, the defendant has not helped the position by only disclosing Mr Sambrook's report and edited surveillance long after they were produced. 

30.      By the time of the adjournment application, a refusal of the application would have meant that the plaintiff would not have the evidence he needed to pursue his claim to trial.  In effect I would be striking out his claim.  While therefore there is prejudice to the defendant by virtue of delay because the defendant does not know how much it might have to pay the plaintiff, and will not know the amount of any liability until next year, in my judgment that prejudice is outweighed by the prejudice the plaintiff would suffer if I were effectively to deprive the plaintiff of his ability to pursue his claim when the main cause of his current difficulties are not of his own making.  The plaintiff must be allowed time to present his case and, although he has not adhered to all the directions, as he should have done, his failings are not what is at the heart of the adjournment application. 

31.      There is also a further benefit in allowing an adjournment in that it permits the third party to consider its position in relation to the quantum of the claim.  While this is not a factor to grant an adjournment at this stage, because the application is in respect of a trial between the plaintiff and the defendant only, allowing an adjournment means the third party has more time to consider the relevant medical evidence and what role it wishes to play in relation to this dispute.  The defendant and the third party can also consider how to resolve issues of the defendant's claim for a contribution.  This may assist an overall resolution of the dispute or at least parts of it. 

32.      In exercising my discretion vested in me and applying the approach set out in T S Engineering v Bisson and States Greffier v Les Pas Holdings Limited for the reasons set out I therefore adjourned the trial dates and required the parties to re-fix a summons for directions for me in the week commencing 3^rd November, 2014.  By that time the plaintiff should have taken steps to clarify the position with the insurers.  If there is no insurance, the time period allowed should also enable the plaintiff to have applied for legal aid on a discretionary basis or to progress with a sale of the plaintiff's property, if necessary.  I also expect the plaintiff to identify which experts he wishes to call and by reference to what area of expertise and to have obtained confirmation that such experts are willing to act.  Also by this time, the third party should have considered what role it wishes to play in relation to a trial on quantum and whether it wishes to call its own experts or rely on the defendant's experts on quantum.  I further expect the third party to explore these issues with the defendant. 

33.      I also expect the third party to explore with the defendant how the issue of whether the third party should make a contribution as a matter of principle to the defendant should be resolved and when any such argument should take place. 

34.      Finally, in respect of costs the plaintiff was ordered to pay the defendant's costs of and occasioned by the application for an adjournment on the standard basis, such costs to be taxed if not agreed.  The assessment of these costs was stayed until after the trial on quantum or further order.  The costs of the third party were costs in the cause. 

Authorities

Cummins-v-Howlands (Furniture) Limited [2014] JRC 113.

T S Engineering Limited v Bisson [1996] JLR N 3b.

States Greffier v Les Pas Holdings Limited [1998] JLR 3a.

Re-Esteem [2000] JLR N 41.

Viera v Kordas [2014] JRC 042.

Mitchell v News Group Newspapers Limited [2014] 1 WLR 795.

Denton v T H White Limited & Ors [2014] EWCA Civ 906.