Jersey Unreported Judgments

Costs hearing - application to recover costs not recovered incurred in relation to eviction proceedings in the Petty Debts Court.

[2014]JRC208A

PETTY DEBTS COURT IN THE ISLAND OF JERSEY

(Civil Claims Division)

29 October 2014

Before     :		Advocate Matthew John Thompson, Relief Magistrate
Between	Optical Services (Jersey) Limited		First Plaintiff
	Ian Kenny		Second Plaintiff
	Julie Kenny		Third Plaintiff
And	Carey Olsen		First Defendant
	Christopher Duncan Philipott		Second Defendant
	Robin Leeuwenburg		Third Defendant

The Second and Third Plaintiffs appeared in person and on behalf of the First Plaintiff.

Advocate I. C. Jones for the Defendants.

 

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1
2.	Background	2-9
3.	The present proceedings	10-13
4.	The arguments	14-16
5.	Decision
	A lacuna	17-28
	A duty of care	30-44
6.	Conclusion	45-46

judgment

the relief magistrate:

Introduction

1.        This judgment represents my detailed reasons for ruling, firstly, that no duty of care is owed by a lawyer to his client's opponent in litigation, and secondly, that an opponent of a law firm's client in adversarial litigation may not bring a claim against that law firm on the basis of a breach of the Jersey Law Society Code of Conduct. 

Background

2.        The current proceedings follow on from eviction proceedings that were brought against the present plaintiffs in the Petty Debts Court in September 2013 ("the eviction proceedings").  The eviction proceedings were brought by a Mr and Mrs Allenet (the "landords"), who were represented by the first defendant acting through the second and third defendant. 

3.        The eviction proceedings related to a lease granted by the landlords to the first plaintiff, guaranteed by the second plaintiff.  The property was occupied by the second and third plaintiff and their children.  The annual rental payable under the lease was £30,000. 

4.        On 5^th August, 2013, the landlords served a notice to quit on the present plaintiffs.  The notice to quit was served through the Viscount's Department.  No challenge was made to the validity of the notice to quit under Article 2 of the Loi (1946) Concernant L'Expulsion des Locataires Refractaires (as amended). 

5.        The plaintiffs did not vacate the premises and therefore the landlords commenced eviction proceedings against the plaintiffs by summons.  The summons firstly sought a declaration that the lease had been validly and effectively terminated by the notice given by the landlords on 5^th August, 2013, and secondly sought eviction of the present plaintiffs.  Relief was also sought in respect of costs of repair and redecoration as well as the costs of the action. 

6.        Two hearings took place in relation to the eviction proceedings.  The first hearing took place on 13^th September, 2013, when the Assistant Magistrate made an order permitting the landlords to have access to the property to inspect the state of repair of the property in various respects and otherwise adjourned the matter to 2^nd October, 2013.  On 2^nd October, the Assistant Magistrate declined jurisdiction by order "on the basis that the lease had not been cancelled formally by any judicial act and it had no power to do so as the rental payable pursuant to the lease was £30,000 per annum, this in excess of the limits set out in Article 1(2) of the Petty Debts Court (Miscellaneous) (Provisions)(Jersey) Law 2000."

7.        The order is silent to the costs of the eviction proceedings.  On 5^th October, 2013, the first plaintiff acting through second plaintiff wrote to Mr David Mallet, a Greffier at the Petty Debts Court.  The first three paragraphs of the letter state as follows:-

"An interesting procedural bottleneck has arisen in respect of my stated intention to seek a wasted costs order against Advocate Leeuwenburg in respect of the doomed proceedings.

The power of the Petty Debts Court to award costs flows from Article 3 of the Civil Proceedings (Jersey) Law 1956 ("the law").  Copies attached for your convenience.

The Court's discretion is quite limited.  The conditions to award costs to either the Plaintiffs or the Defendants in this action in accordance with either Article 3(1)(a) or Article 3(1)(b) of the law cannot be fulfilled when the court declines jurisdiction, since neither the Plaintiff wins nor is the Defendant discharged.  And the court has no power to award costs against anyone other than the Plaintiff or the Defendant, which means its discretion to grant the wasted costs order I seek is frustrated."

8.        Mr Mallet replied on 7^th October, 2013, by email.  The second paragraph of his reply stated as follows:-

"Having considered your letter I concur with your observations in respect of your dilemma with regards to costs - particularly so in light to the fact that the Petty Debts Court declined jurisdiction."

9.        The present position in relation to the eviction proceeding is therefore that no order for costs was made on 2^nd October, no appeal has been made to the Royal Court in respect of costs and the court file has been closed. 

The present proceedings

10.      The plaintiffs have issued the present proceedings to recover the costs they did not recover in the eviction proceedings as a result of the Assistant Magistrate declining jurisdiction.  They seek to recover those costs from the defendants as legal advisers to the landlords.  The first defendant was the entity retained by the landlords.  The second defendant was the partner responsible and the third defendant was the advocate with day to day responsibility for the proceedings brought on behalf of the landlords. 

11.      Following an unsuccessful referral to mediation, on 30^th April, 2014, the defendants requested that the court exercised its jurisdiction, pursuant to Article 2(1) of the Petty Debts Court (Miscellaneous)(Provisions)(Jersey) Law 2000 to transfer the proceedings to the Royal Court on the grounds that the claim involved an important and complex question of law.  On 30^th April, 2013, it was also noted that neither the Magistrate nor the Assistant Magistrate would be able to sit and hear the subsequent trial of the proceedings commenced by the plaintiffs given their prior involvement with the eviction proceedings.  However, the request to transfer the matter to the Royal Court was refused. 

12.      On 7^th May, 2014, the Assistant Magistrate ordered the plaintiffs to fully particularise their claims against the second and third defendants and adjourned matters until 21^st May, 2014.  As I had by that time been appointed as a Relief Magistrate to conduct mediations in the Petty Debts Court, I was asked to take on the future conduct of the case. 

13.      Accordingly, on 21^st May, 2014, I ordered a preliminary issue as follows:-

"1) THAT having regard to paragraphs 29 and 30 of the Plaintiff's amended Statement of Claim, based upon the assumption that the matters detailed with paragraphs 1 to 28 are true, the matter as to whether or not:-

The duty of care owed by a lawyer to his client can be extended to a third party, or

The duties as enshrined in the Law Society Code of Conduct are "duties of Care" as contended for by the Plaintiffs and if they are (i) whether they are actionable by the Plaintiffs and (ii) whether that duty of care can be extended to apply to a third party.

should be determined as a preliminary issue."

The arguments

14.      The plaintiffs' principal complaint was that there is a lacuna in the law which needs to be filled by allowing the plaintiffs to sue the defendants.  The lacuna is that, having been wrongly sued in the Petty Debts Court, the plaintiffs were unable to recover their costs either from the plaintiffs in the eviction proceedings or from the defendants personally on a wasted costs basis.  In light of this gap in the law, the law should be extended to enable the plaintiffs to pursue the defendants either in negligence or by reference to the Law Society Code of Conduct.  The breach of the code of conduct complained about is that the defendants failed to uphold the high technical standards required of lawyers because the plaintiffs were pursued in a court that lacked jurisdiction and this was known to the defendants. 

15.      The defendants argued as follows:-

(i)        There is no lacuna.  The Petty Debts Courts could have made a costs order either against the plaintiffs in the eviction proceedings or against the plaintiffs' advocate on a wasted costs order basis. 

(ii)       Generally a Jersey lawyer does not owe a duty of care to his client's opponents in hostile litigation save in exceptional circumstances. 

(iii)      No such circumstances arise in the present case. 

(iv)      There are sound policy reasons for the general rule that no duty of care is owed to an opposing litigant, which should be followed in Jersey. 

(v)       To impose a duty of care would render the litigation system in Jersey unworkable. 

(vi)      The duties set out in the Law Society Code of Conduct do not give rise to obligations or duties owed by Jersey lawyers to the world at large. 

(vii)     To find any such duty is inconsistent with the express provisions of the Code. 

(viii)    A breach of conduct does not of itself give rise to any form of civil liability; at best it is only evidence of a potential liability, if a duty of care exists. 

16.      The defendants also reserved their position as to whether the Assistant Magistrate was right to decline jurisdiction but no argument was heard on this point. 

Decision

A lacuna

17.      The plaintiffs' principal complaint, that there is a lacuna in the law which needs to be filled by allowing the plaintiffs to sue the defendants, requires me to consider Article 3 of the Civil Proceedings (Jersey) Law 1956.  Article 3 contains the power for the Petty Debts Court to award costs and provides as follows:-

"Power of Petty Debts Court to award costs

(1) On the hearing of an action in the Petty Debts Court, the Court shall have power in its discretion to make such order as to costs -

(a) where judgment is given for the plaintiff, to be paid by the defendant to the plaintiff;

(b) where the defendant is discharged (déchargé or renvoyé) from the action, to be paid by the plaintiff to the defendant,

as it thinks just and reasonable:

Provided that, on any application for an order for the periodical payment of money, or for the revocation, revival, alteration or variation of such an order, or for the enforcement of such an order, the Court may, whatever adjudication it makes, order either party to pay the whole or any part of the other's costs.

(2) Where costs are ordered to be paid under this Article they shall be taxed by the Judicial Greffier unless the amount of such costs has been specified by the Court or agreed between the parties."

18.      In my judgment, Article 3 allows the Petty Debts Court to make an order for costs where it declines jurisdiction.  I have reached this view for the following reasons. 

19.      Firstly, I interpret "the hearing of an action" in paragraph 1 of Article 3 to mean any hearing of an action at any stage of proceedings.  This could be when a claim first comes before the Petty Debts Court, when judgment is given on liability only, or on an application to bring the matters in dispute to early resolution (see Petty Debts Court Rule 27(f)).  Therefore a hearing of the action does not mean in my view only when a trial occurs. 

20.      Secondly, in relation to paragraph 1(b) of Rule 3, I consider that a defendant can be discharged from the action in a number of different circumstances.  This could be when a claim is struck out, or withdrawn, where an early determination has occurred in the defendant's' favour, as well as after a trial.  When the Petty Debt Court reaches the view that it does not have jurisdiction then in declining jurisdiction it is still discharging a defendant from the action.  The fact that it is doing so on jurisdictional grounds does not affect the conclusion that the defendant is discharged from the proceedings.  All it means is that the defendant might still be sued in a different court.  A costs order in a defendant's favour is therefore a consequential order and in that sense is part of the court's decision in declining jurisdiction, namely that because the defendant has been discharged, having been sued in the wrong court, the defendant should also be entitled to such costs as the court considers to be just and reasonable. 

21.      If I had to construe paragraph 1(b) otherwise, as the plaintiffs contend, then the Petty Debts Court could never make a costs order against a party who had wrongly invoked the court's jurisdiction.  That is a construction that produces an unfair result for a defendant wrongly convened to proceedings and is not a construction I am prepared to uphold. 

22.      What costs order the Petty Debts Court might make in a matter where a defendant is discharged is for the individual judge presiding.  While Article 3 makes it clear that a costs order must be made, the amount is a matter for the individual judge.  The judge might order a plaintiff to pay all the defendant's costs.  There may also be circumstances where only the wasted costs of the defendant are ordered to be paid.  The judge on a case by case basis has to decide what is just and reasonable, which is a matter of judicial discretion. 

23.      I also consider that the power to make a costs order that is just and reasonable extends to requiring a party's legal adviser to pay those costs on behalf of a party if the circumstances justifying a wasted costs order are established.  I should make it clear that I am not expressing any view whether or not there are such grounds.  Rather I am simply concluding, as a matter of construction, that Article 3 of the Civil Proceedings (Jersey) Law 1956, permits the Petty Debts Court to require a Jersey Advocate or Ecrivain to pay costs personally on behalf of a plaintiff or defendant, if the judge considers that such an order is just and reasonable and if there are circumstances that justify such an order. 

24.      If I am wrong on this interpretation, because the Petty Debts Court can only order one party to pay the costs of the other, rather than that party's adviser on behalf of that party, this narrower construction does not assist the plaintiff in the present proceedings.  The Petty Debts Court clearly possessed jurisdiction, in the sense of power, in the eviction proceedings to make a costs order in the plaintiff's favour payable by the landlords.  If such an order had been made, but not made against the present defendants as the landlords' advisers because the court had no power to do so, the plaintiffs would still have recovered their costs.  The potential lack of any ability to recover costs from the landlords' advisers on a wasted costs basis does not mean that that there is a lacuna to be filled in the law of negligence because the plaintiffs would have recovered their costs from the landlords if an order had been made in the plaintiffs' favour.  Secondly, a wasted costs order is ultimately a court expressing its displeasure with a legal adviser of one party.  Even if the Petty Debts Court does not have power to make a wasted costs order against a Jersey Advocate or Solicitor, it could in its judgment, if it thought it was appropriate to do so, suggest that such costs had been incurred as a result of the actions of a party's legal adviser.  It would then be for the party and the adviser to resolve who would pay the costs order made against the party.  In serious cases it could also refer the question of any misconduct by a Jersey lawyer to the Royal Court.  Both these alternatives mean that there is no need to extend the law of negligence as the plaintiffs contend. 

25.      I accept the difficulty the plaintiffs now face is that the view the second plaintiff expressed to a Greffier of the Petty Debts Court and the Greffier's reply is different to the interpretation I consider (and Advocate Jones accepts for the defendants) should be placed on Article 3 as a matter of construction.  The plaintiffs therefore complain they are still left without a remedy. 

26.      In my judgment they were not without a remedy when the Petty Debt's Court declined jurisdiction.  At the time of the Court's decision declining jurisdiction or shortly thereafter, they could have asked for a ruling on costs from the Assistant Magistrate following the exchange of correspondence between the second plaintiff and the Greffier.  To the extent that the Assistant Magistrate made an express order that no party was entitled to their costs because jurisdiction had been declined, the plaintiffs could have appealed that order to the Royal Court.  Neither of these options was pursued. 

27.      However, the plaintiffs still have a remedy in my judgment.  As matters stand, I do not think it possible to now ask the Assistant Magistrate to consider the position in the eviction proceedings.  This is because, firstly, I have expressed a potentially different view in this judgment to any views he may hold (assuming that the Greffier's email reflected his views).  Secondly, the Assistant Magistrate has decided that it is not appropriate for him to sit any further in relation to issues involving the plaintiffs, (as has the Magistrate).  However it is still open to the plaintiffs to apply as defendants in the eviction proceedings to the Royal Court to ask the Royal Court to make a costs order in their favour by way of appeal against the lack of any order made by the Petty Debts Court.  It is a matter for the plaintiffs whether they would wish to pursue such a course because any appeal is out of time and they would therefore need the Royal Court's permission to make such an application.  It is also a matter for the Royal Court as to whether it would allow an application out of time at this stage.  On any such application it would want to hear from the landlords and the defendants as well as the plaintiffs.  Nevertheless, it is still an option available to the plaintiffs to pursue. 

28.      I have set out the above because, in light of my view that the Petty Debts Court has jurisdiction to make a costs order and that the plaintiffs had remedies and still possess a possible avenue to obtain a costs order in their favour, there is no lacuna to be filled. 

29.      However, out of deference to the submissions of both parties, I will also consider whether or not a Jersey lawyer owes a duty of care to the opponent of a lawyer's client in litigation and alternatively whether or not a complaint can be brought on the basis of a breach of the Jersey Law Society Code of Conduct. 

A duty of care

30.      In relation to this part of the argument I was referred by Advocate Jones to Al-Kandari v J R Brown & Co (C.A.) [1988] QB 665.  At page 52 lines A to F, Lord Donaldson M.R. stated as follows:-

"A solicitor acting for a party who is engaged in "hostile" litigation owes a duty to his client and to the court, but he does not normally owe any duty to his client's opponent: Business Computers International Ltd. v. Registrar of Companies [1987] 3 W.L.R. 1134.  This is not to say that, if the solicitor is guilty of professional misconduct and someone other than his client is damnified thereby, that person is without a remedy, for the court exercises a supervisory jurisdiction over solicitors as officers of the court and, in an appropriate case, will order the solicitor to pay compensation: Myers v. Elman [1940] A.C. 282.  That said, it should be emphasised that in the present case, there is no allegation and no suspicion of any misconduct upon the part of the defendant solicitors.  

I would go rather further and say that, in the context of "hostile" litigation, public policy will usually require that a solicitor be protected from a claim in negligence by his client's opponent, since such claims could be used as a basis for endless re-litigation of disputes: Rondel v. Worsley [1969] 1 AC 191. 

This case is however different, because the passport was not only that of the husband, the defendants' client.  It was also the passport of the two children who were in the custody, care and control of the plaintiff.  In voluntarily agreeing to hold the passport to the order of the court, the solicitors had stepped outside their role as solicitors for their client and accepted responsibilities towards both their client and the plaintiff and the children.  One such responsibility was quite clearly a duty not to hand the passport to the husband upon his request and, of course, there was no breach of this duty.  The issue is whether there was a wider responsibility. 

For my part I regard the plaintiff as falling squarely (if she will forgive the term) within Lord Atkin's concept of the defendants' "neighbours" (Donoghue v. Stevenson [1932] AC 562 , 580), and accordingly, in the absence of contra-indications, of which there are none, the law required the defendants to take reasonable care to avoid acts or omissions which they could reasonably foresee would be likely to injure the plaintiff.  Thus I am in complete agreement with the judge that the defendants owed the plaintiff a duty in tort.  Quite what was the relevant scope of that duty is, I think, more conveniently considered under the head of breach."

31.      It is to be noted that the reasons why Lord Donaldson found there not to be a duty of care were public policy reasons.  Bingham L.J. expressed similar views at page 675 lines E to  676 line A and stated as follows:-

"A solicitor owes a duty of care to his client. If the client intends to confer a benefit on a third party, the solicitor may owe a duty to the third party to take reasonable care to see that effect is given to the client's intentions.  The solicitor is subject to an enforceable obligation to observe the professional standards binding upon him as a solicitor and an officer of the court.  He is liable in contempt if he breaks an undertaking given by him to the court or knowingly procures or connives at a breach by his client of an undertaking given by the client. 

In the ordinary course of adversarial litigation a solicitor does not owe a duty of care to his client's adversary.  The theory underlying such litigation is that justice is best done if each party, separately and independently advised, attempts within the limits of the law and propriety and good practice to achieve the best result for himself that he reasonably can without regard to the interests of the other party.  The duty of the solicitor, within the same limits, is to assist his client in that endeavour, although the wise solicitor may often advise that the best result will involve an element of compromise or give and take or horse trading.  Ordinarily, however, in contested civil litigation a solicitor's proper concern is to do what is best for his client without regard to the interests of his opponent. 

It may nevertheless happen, even in the course of contested civil litigation, that a solicitor for a limited purpose steps aside from his role as solicitor and agent of one party and assumes a different role, either *676 independent of both parties or as agent of both.  The most common example is where he is deputed to hold a fund pending a decision on its ownership or application.  The solicitor is selected for such a role, not because he is one party's solicitor, but despite that fact; he is selected because the parties know they can rely on him as a solicitor to act with probity and in accordance with the terms of the trust he has undertaken."

32.      It can also be seen from the extracts cited above, that the reason why the defendants were found to be liable in Al-Kandari related to a voluntary assumption of responsibility of a duty by the defendants (who were solicitors) to their client's opponent.  The solicitors had agreed to take care and control of their client's passport but then released it to him in breach of an obligation not to, allowing their client to remove his children outside the jurisdiction.  The solicitors therefore, as Lord Donaldson put it, stepped outside their role as solicitors for their client and accepted responsibilities towards their client, the plaintiff and the children, which they breached. 

33.      In White v Jones [1995] 1 All EW 691 at 699 line B, Lord Goff, in summarising the conceptual difficulties in relation to whether a solicitor owed a duty of care to anyone other than a solicitor's client, stated:-

"Nor as general rule does a solicitor acting for a party in adversarial litigation owe a duty of care to that party's opponent (see Al-Kanari v J. R. Brown & Co)."

34.      Nowhere in White v Jones was this view disagreed with by any other members of the House of Lords. 

35.      In Connolly-Martin v Davis Polk [1999] P.N.L.R. 826, Brooke L.J. stated as follows striking-out a claim for negligence against a barrister:-

"As a matter of principle counsel on one side of the litigation is not in the absence of any special assumption and responsibility sufficiently proximate to the opposing party in the litigation for any question of legal enforceable duty of care to arise."

36.      I observe that in the case of in Al-Kandari, the lack of a duty of care is said to arise on the public policy grounds; therefore Lord Donaldson and Bingham L.J. implicitly accepted there was sufficient proximity between a lawyer and a client's opponent whereas in Connolly-Martin v Davis Brooke L. J. held that there was insufficient proximity for a duty of care to arise.  It is not necessary to resolve this difference because both reached the same conclusion namely that no duty of care is owed absent a specific assumption of responsibility.  The rationale for this approach is set out most clearly the remarks of Bingham LJ in Al Kandari in the second paragraph set out above. 

37.      Advocate Jones tested the position argued for by the plaintiffs by considering the obligations on cross-examination.  Other than the duty not to mislead the court by making assertions an advocate knows to be untrue, an advocate's duty on cross-examination is to advance his client's interest as best he or she is able to do so.  Such a duty does not sit with the notion of owing a duty of care to the client's opponent, who may be the very person the advocate is cross-examining.  If it were otherwise, disputes could be endlessly re-litigated because the party who was dissatisfied with the outcome of the litigation might not just pursue its own adviser but also the opponents' adviser.  As Advocate Jones observed in his skeleton, this would render the adversarial legal system unworkable. 

38.      The view I have reached is also consistent with remarks of Scott J. in Business Computers v Company Registrar [1987] 1 Ch. 229.  At page 239 Scott J. stated as follows:-

"Is it just and reasonable that a plaintiff should owe a duty of care to a defendant in regard to service of the originating process? I do not think that it is. The plaintiff and the defendant, the petitioner and the respondent, are antagonists. The plaintiff, or the petitioner, is seeking a legal remedy in an adversarial system. The system stipulates the rules and requirements that must be observed by the two parties. The plaintiff must issue his process and must serve it on the defendant. If there is default in service the process may be struck out. If an order is obtained without the prescribed rules or regulations having been observed, the order may be discharged or set aside, sometimes by an application at first instance, sometimes on appeal. The prosecution of the action or of the petition is subject throughout its career from institution to final judgment to judicial control. Service of process is a step, and usually an essential step, in the prosecution. It must usually be proved before an order can be obtained against an absent defendant. The proposition that a duty of care is owed by one litigant to another and can be superimposed on the checks and safeguards that the legal system itself provides is, to my mind, conceptually odd. The safeguards against ineffective service of process ought to be, and I think must be, found in the rules and procedures that govern litigation. The rules and procedures *240 require that, save on ex parte applications, proof of service be shown before an order is made against an absent party. If the proof of service is false, be it through negligence or design, an order may be made that should not have been made. The injured party's remedy is to have the order set aside. An action for damages cannot be based on the falsity of the proof of service. Nor, in my judgment, can the adequacy of the efforts made to effect service be subjected to a tortious duty of care."

39.      If a party through their legal adviser fails to adhere to the procedural rules of a court the appropriate remedy is under the rules, which could include an adverse costs order.  That might be, as I have set out above, against a party's legal adviser if grounds for a wasted costs can be established.  A failure to adhere to procedural rules therefore has its own remedies and does not require the notion of a duty of care to be extended to an opponent in adversarial litigation.  Indeed suing in the wrong court which does not possess jurisdiction is itself an example of a failure to follow the correct procedural rules.  Costs are a part of the mechanism by which such procedural defects are corrected. 

40.      I see no difference between the law of Jersey and the law of England in respect of the plaintiffs' arguments and the responsibilities of Jersey lawyers in what is also for civil disputes, an adversarial system.  I therefore consider the extracts I have set out above also represent the law of Jersey.  Accordingly, I rule against the plaintiffs that any duty of care is owed to them by the defendants as advisers to the plaintiffs' opponents in the eviction proceedings. 

A claim for breach of the Law Society Code of Conduct

41.      In the alternative the plaintiffs claim damages from the defendants for breach of the Law Society Code of Conduct ("the Code") in particular the second paragraph of the Code because the defendants failed to uphold the high technical standards required of lawyers by pursuing the plaintiffs in a court that lacked jurisdiction when this was known to the defendants. 

42.      In short, I find against the plaintiffs in respect of this alternative argument also and agree with Advocate Jones that the Code does not give rise to obligations or duties owed by members of the Society to the world at large.  This is so even if the defendants have breached the Code which I have assumed in the plaintiffs' favour without deciding the point.  The Code is not a code of general responsibility.  Rather the Code governs how Jersey Advocates and Solicitors behave.  It also reminds Advocates and Solicitors that they are officers of the Royal Court and owe duties to all the courts in Jersey which prevail over all other duties.  There is no reference in the Code to any duty being owed to a client's opponent in adversarial litigation.  Indeed paragraph 2(3) of the Code warns that a member should not act contrary to the interests of his client.  This provision is inconsistent with a notion of a duty of care being owed to the client's opponent. 

43.      A breach of the Code also gives rise to disciplinary proceedings under the Law Society of Jersey.  Under English law a breach of a disciplinary code does not give rise to any form of civil liability.  In Johnson v Bingley Dyson & Finney [1997] P.N.L.R. 392 at page 404 A to E, Benet Hyttner Q.C. sitting as a Deputy High Court Judge considered the code of conduct applicable to English Solicitors and stated as follows:-

"It is, I think, first of all necessary to consider the true status of the Guide. I have had the opportunity-although it was not in evidence at the beginning of counsel's closing speeches-of reading the whole of the Guide current in 1987/88. It is clear that it is a comprehensive Code of Conduct for solicitors. It embraces the conduct expected of a normally careful and skilful solicitor by his or her governing body. I have, however, come to the conclusion that a breach of the Guide cannot ipso facto and of necessity be negligence. Negligence is a legal concept embracing duty situation, nature of duty and breach of duty. The basic approach is enshrined in the well-known speech of Lord Atkin in Donoghue v. Stevenson [1932] AC 562 , as developed in voluminous subsequent case law.

In my view, neither the Law Society nor any other body can, by rules or edicts, alter the law of the land. I am fortified in this view by the decision of the Privy Council in Edward Wong Financial Co. Ltd v. Johnson Stokes & Masters [1984] A.C. 1296 . In that case the defendant solicitors, a very well-known and respected Hong Kong firm, had followed the Hong Kong practice, sanctioned by the local Law Society. That practice, however, was held to import a risk to the client and, in the Wong case, that risk had materialised. The Privy Council eschewed any criticism of the practice. If solicitors in Hong Kong decided that the risk was worth running, that was a matter for them, but if the risk materialised, the loss fell on them and not on the client.

If that be right, then conversely, an act or omission which cannot reasonably be foreseen as likely to harm one's neighbour, but is foreseeable, cannot be made reasonably foreseeable because a third party draws attention to the risks, nor can steps to avoid the risk, which are otherwise too onerous to be regarded as reasonable, be rendered reasonable because a professional body insists that they be taken."

44.      I of course accept that the Code may be relevant to the standards by which Advocates and Solicitors are judged when pursued for breach of contract or breach of duty.  Thus in Mortgage Express Limited v Bowel [1996] 1 P.N.L.R. 62 the Court of Appeal relied on codes of conduct as evidence as to how a reasonably competent a solicitor might act.  However, the courts have not relied upon codes of conduct as giving rise to a civil liability where, absent a code, no duty was present.  In other words, in Jersey, the Code may be evidence of a breach of duty.  It is not sufficient to give rise to a duty or otherwise to create a stand-alone liability.  Accordingly, I have reached the view that the plaintiffs cannot pursue the defendants for breach of the Code in order to claim damages.  In reaching this view I make it clear that I express no view as to whether not a breach of any professional obligation has occurred.  Rather, on the assumption that a breach has occurred, the existence of such a breach does not give rise to a claim the plaintiffs may bring against the defendants, without there being a duty of care owed to the plaintiffs.  In this case I have found, as a matter of law, that no such duty of care exists. 

Conclusion

45.      In conclusion I therefore find as follows:-

(i)        There is no lacuna to be filled because the plaintiffs either had and may still have a remedy in respect of the costs of the eviction proceedings;

(ii)       I am not prepared to extend the duty of care owed by Jersey Advocates or Solicitors to opponents of their clients in litigation, absent a specific assumption of responsibility;

(iii)      Any breach of the Law Society Code of Conduct does not create a cause of action or a potential civil liability in favour of the opponents of a lawyer's client in litigation. 

46.      In light of these conclusions I dismissed the plaintiffs claim against the defendants. 

Authorities

Loi (1946) Concernant L'Expulsion des Locataires Refractaires (as amended).

Petty Debts Court (Miscellaneous)(Provisions)(Jersey) Law 2000.

Civil Proceedings (Jersey) Law 1956.

Al-Kandari v J. R. Brown & Co. (C.A.) [1988] QB 665.

White v Jones [1995] 1 All ER 691.

Connolly-Martin v Davis Polk [1999] P.N.L.R. 826.

Business Computers v Company Registrar [1987] 1 Ch. 229.

Johnson v Bingley Dyson & Finney [1997] P.N.L.R. 392.

Mortgage Express Limited v Bowel [1996] 1 P.N.L.R. 62.