Jersey Unreported Judgments

Negligence - application by the third party to issue second party notice against the plaintiff.

[2014]JRC242

Royal Court

(Samedi)

4 December 2014

Before     :		Advocate Matthew John Thompson, Master of the Royal Court, sitting alone.
Between	Steve Charles Cummins		Plaintiff
And	Howlands (Furniture) Limited		Defendant
And	Professional Business Systems (C.I.) Limited		Third Party

Miss M. L. Palmer, Ecrivain, for the Plaintiff.

Advocate L. A. Ingram for the Defendant.

Advocate J. N. Heywood for the Third Party.

 

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1
2.	Background	2-8
3.	The issue	9-13
4.	Decision	14-24

judgment

the master:

1.        This judgment represents my reasons for refusing an application by Professional Business Systems (C.I.) Limited ("the third party") to issue a second third party notice against the plaintiff. 

Background

2.        The present application follows on from my judgment in this matter dated 14^th May, 2014, reported at Cummins-v-Howlands (Furniture) Limited [2014] JRC 113.  I adopted paragraphs 2-15 of that judgment in respect of the procedural history of this matter up to the date of that judgment. 

3.        In the judgment itself I refused the defendant's application to plead contributory negligence.  At paragraphs 37 and 38 I stated as follows:-

"37.    In relation to the proposed amendments that the plaintiff failed to notice or observe any defect, Dr Jones is unable to conclude what caused the actual chair to collapse because the chair was no longer available and because of the lack of any photographs or other documentary records of the incident.  He also cannot explain why the brackets failed and sets out a number of different possibilities.  All he can conclude is a hypothesis that the plaintiff could have identified that one bracket had failed and the chair required repairs and that a detached or fractured bracket would have been relatively obvious.  While Dr Jones in his report has been very fair as to what he has seen and not seen, and has clearly had regard to the duties owed by an expert, his conclusion is only one of a number of possibilities based on examination of a bracket used on a similar type of chair.  In my view the case by reference to this evidence is not compelling and is not strong. 

38.      In relation to proposed amendments (ii) and (iii), namely that the plaintiff should have known about the defects given the knowledge of others and should have repaired the chair given their knowledge, I regard these particulars as weak.  As I have noted above, the plaintiff has consistently said that he only knew that others were aware of a defect in the chair after the incident had occurred.  No evidence has been produced to show otherwise.  The proposed amendments do not plead that the plaintiff actually knew of the defect in advance of the incident, only that he ought to have known.  There is no evidence that others had taken any steps or made any form of report so that the defect should or would have come to the plaintiff's attention.  An allegation that someone ought to have known something also ought to be particularised (see paragraph 18/12/23 of the White Book).  Yet no such particulars as to why the plaintiff ought to have known or should have known are set out in the proposed amendments.  The report of Dr Jones also does not help in relation to these proposed amendments because they rely on the knowledge of other employees."

4.        At the same time as refusing to allow the defendant to plead contributory negligence, I did allow the defendant to issue a third party notice against the third party seeking an indemnity or contribution.  Initially the third party sought to strike out the third party notice against it.  However, the application was resolved by consent recorded in an act issued by me on 13^th August, 2014, which gave the third party 21 days to file its answer. 

5.        On 4^th September, 2014, I heard an application by the plaintiff to adjourn the trial dates which had been listed for 16^th to 18^th September, 2014.  This decision is reported at Cummins-v-Howlands [2014] JRC 165.  The relevant part of the judgment is the section at paragraphs 6-11 when the third party applied to intervene in the proceedings between the plaintiff and the defendant.  This was because when I gave directions following my decision in May, while I ordered that the trial between the plaintiff and the defendant should proceed, any issues between the defendant and the third party were adjourned sine die.  This is because the question of what contribution if any the third party should make was a separate issue from assessment of damages between the plaintiff and the defendant. 

6.        At the time of the September hearing, I recorded that the third party was not able to set out his client's case as to why he wished to argue the defendant was not liable to the plaintiff and in particular the third party was unable to identify any evidence relevant to the issue of liability between the plaintiff and the defendant.  At paragraph 11 of the judgment I stated as follows:-

"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 14th May, 2014, remains a matter for another day."

7.        I then went on to deal with the plaintiff's application to adjourn the trial which was granted for reasons entirely unconnected with the third party proceedings. 

8.        On 11^th September, 2014, the third party filed its answer, including a second third party notice against the plaintiff and then issued its application for leave to do so.  Paragraphs 19 and 20 of third party notice are as follows:-

"19. At all material times, Mr. Cummins was an employee of PBS, employed both as Manager of the Service Department and as Health and Safety Officer.  As an employee of PBS, Mr, Cummins was under a duty to PBS to take reasonable care for his own health and safety and that of other employees of PBS. 

Particulars

20. Mr Cummins acted in beach of his duties to PBS as follows:-

a. Failed to assess the chair, either adequately or at all, before sitting in it;

b. Failed to sit in the chair, in an appropriate manner but, rather, sat in the chair and proceeded to rock back and forth in the chair in an inappropriate manner thereby putting undue strain onto the chair and, in particular, the arm rest brackets of the chair; and

c. Failed, in all the circumstances, to take reasonable care of his own health and safety."

The issue

9.        It is not in dispute that if a defendant wishes to join a third party (or a third party join a plaintiff as a third party or a fourth party) leave is required under Rule 6/10(8) of the Royal Court Rules 2004, as amended ("the Rules"); it is also not in dispute that the court has a discretion whether or not to grant leave. 

10.      The third party's argument was that the issue of leave was a matter of pleading only and as long as the relevant pleading disclosed a prima facie case then leave should be granted.  Advocate Heywood relied on paragraphs 13 to 15 of Blenheim Trust v Morgan & Ors 1999/51, as follows:-

"13.    Rule 6/13 follows the Rules of the Supreme Court Order 18 Rule 19.  In Wenlock v. Moloney & Others (1965) 1 WLR 1238, in the Court of Appeal in England, the Defendants applied under RSC Ord.18 r.19, and under the inherent jurisdiction of the court, on the grounds that the pleadings disclosed no reasonable cause of action, and were vexatious and an abuse of process.  Extensive affidavit evidence was filed on either side, a hearing took place before the Master for over two days, and the Master delivered a full Judgment striking out the Plaintiff's pleadings.  On appeal the Court of Appeal held that the appeal must be allowed, because the course taken by the Master amounted to a trial of the case in Chambers, without discovery, oral evidence or cross-examination, and so was neither authorised by the Rules nor a proper exercise of the inherent jurisdiction of the Court.  Danckwerts L.J. said:-

"The practice under the former rule, ... and under the inherent jurisdiction of the court, was well settled.  Under the rule it had to appear on the face of the plaintiff's pleading that the action could not succeed or was objectionable for some other reason.  No evidence could be filed.  In the case of the inherent power of the court to prevent abuse of its procedure by frivolous or vexatious proceedings or proceedings which were shown to be an abuse of the procedure of the court, an affidavit could be filed to show why the action was objectionable.  The commonest case was where a plaintiff was seeking to bring an action on a point which had already been decided or was obviously wholly imaginary.  An example of that is Willis v. Earl Howe; but, as the procedure was of a summary nature, the party was not to be deprived of his right to have his case tried by a proper trial, unless the matter was clear.  The position is very clearly expressed by Lord Herschell in Lawrance v. Lord Norreys.  He said: 'It cannot be doubted that the court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the court.  It is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases.  I do not think its exercise would be justified merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved'.  In that case the application succeeded in the Court of Appeal and the House of Lords because those courts concluded that the story told in the proceedings was a myth, and so the action was an abuse of the process of the court.  It was a plain and obvious case.  The position under two former rules has been incorporated in the present RSC Ord.18 r.19 of the new rules.  There is no doubt that the inherent power of the court remains; but this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action.  To do that, is to usurp the position of the trial judge, and to produce a trial of the case in chambers, on affidavits only, without discovery and without oral evidence tested by cross-examination in the ordinary way.  This seems to me to be an abuse of the inherent power of the court and not a proper exercise of that power.  The learned master stated the relevant principles and practice correctly enough and then, I am afraid, failed to apply them to the case.  In my view, the way in which this case has been dealt with is quite contrary to the practice of the court, and is thoroughly undesirable."

14.      Wenlock v. Moloney & Others has been applied in Jersey: see Cooper v. Resch (formerly Cooper) (1985-86) JLR N-6; (1987-88) JLR 428; and see also Lazard Brothers v. Bois & Bois (1987-88) JLR 639.

15.      Counsel appearing before us did not seek to suggest that the principles set out in Wenlock v. Moloney & Others should not apply in Jersey.  In my judgment these principles should be followed and applied.""

11.      I was also referred to paragraph 16/2/5 of the 1999 Supreme Court Practice ("the White Book") which provides as follows:-

"Discretionary power to grant leave - The court has under r.2 a general discretion in all cases whether or not to allow a third party notice to issue.  The practice is that if a prima facie case is made out which would bring the matter within any paragraph of rule 1(1) leave will be granted to issue the notice.  And the court will not, in granting leave, consider the merits of the claim but will leave these matters and objections by the plaintiff to be dealt with upon the application for directions under r.4.

The procedure will not be allowed where the result will be to embarrass or delay the plaintiff, nor where the question at issue cannot be completely disposed of in the action.  Unless the prejudice to the plaintiff is obviously great, when issue of a summons will be ordered these matters will be considered on the application for directions under r.4, not on the application for leave to issue."

12.      Rule 6/10 is based on the former Order 16 of the Rules of the Supreme Court save that there is no requirement for an affidavit under the Jersey Rules.  It should also be noted that formerly in England applications for leave were made ex parte to a High Court Master on affidavit.  By contrast the present application before me is an application made by summons convening the plaintiff and the defendant.  In this case therefore I consider it is right for me to deal with the plaintiff's objections to the granting of leave. 

Decision

13.      Ordinarily I agree with the third party that where a prima facie case is shown on a pleading then leave ought to be granted and that evidence is not required.  The sort of case I have in mind is one where a plaintiff has issued proceedings against the defendant, an answer is filed within the relevant time limit permitted by the Rules and at that time or shortly thereafter the defendant seeks to issue a third party notice.  At that stage the entire case of all the parties is set out in pleadings only and no discovery or exchange of witness statements has taken place.  The whole matter is at an early stage. 

14.      The present case however is very different.  Liability was first admitted in 2011 and when proceedings were commenced in 2013 the answer filed did not challenge to admission of liability.  As I found in the May judgment the answer possibly raised issues of contributory negligence without any particulars.  In the May judgment, I also ruled that, insofar as the defendant was alleging that the plaintiff failed to observe any defect, the evidence of the expert retained by the defendant  was not compelling and was not strong.  Insofar as the defendant sought to allege that the plaintiff should have known about the defect or failed to replace the chair, I concluded that the assertions did not plead that the plaintiff actually knew of the defect in advance of the incident, only that he ought to have known and that there was no evidence that others had taken any steps or made any form of report so that the defect should or would have come to the plaintiff's attention.  I also observed that an allegation that someone ought to have known something had to be particularised by reference to paragraph 18/12/23 of the 1999 White Book. 

15.      If I were to allow the third party to join the plaintiff as a second third party, I would be in reality permitting the third party to pursue allegations that I had not permitted the defendant to raise some six months earlier.  The effect of this is that firstly the Royal Court would have to consider matters of liability but involving the plaintiff and the third party only not the defendant and secondly a trial on quantum could well be delayed. 

16.      Furthermore it is implicit in paragraph 20a of the answer to the defendant's third party notice that the allegation that the plaintiff acted in breach of duty by failing to assess the chair could only be based on an allegation that any defect in the chair should have been apparent to the plaintiff.  Yet in paragraphs 12 and 13 of the same answer; the third party pleads that the defect in the chair was an inherent defect known to the defendant.  At paragraph 14 the answer pleads "no defect was apparent upon reasonable inspection". 

17.      The third party's case to issue a second third party notice against the plaintiff is therefore contrary to its answer to the defendant's claim against the third party.  Advocate Heywood contended this did not matter; his client was entitled to plead his case in the alternative.  He also contended that his client was entitled to issue an order of justice against the plaintiff to claim that the plaintiff acted in breach of duties to the third party under the Health and Safety (Jersey) Law 1989. 

18.      I accept that the third party could issue separate proceedings against the plaintiff and if those proceedings arose out of the same facts as a claim between the plaintiff, the defendant and the third party that such proceedings could be consolidated.  This does not however justify allowing the proposed third party notice to stand as set out in paragraph 20a.  This is because, if a separate order of justice were issued pleading that the plaintiff failed to assess the chair, the order of justice would have to plead why a defect in the chair was apparent upon reasonable inspection.  The pleading to-date does not do so.  Moreover as Advocate Heywood accepted the chair no longer exists.  The third party to date also does not have any expert evidence to contend that the defect was apparent.  The only expert evidence that does exist was that produced by the defendant, which evidence I ruled was insufficient to allow contributory negligence to be pleaded against the plaintiff.  If such evidence was not sufficient for the defendant, where the third party has no evidence of its own of an apparent defect and has not pleaded the same, I conclude there is no prima facie case to permit the third party to allege that the plaintiff failed to assess the chair.  Accordingly, I do not give permission to issue a third party notice by reference to paragraph 20a of the answer to the third party notice. 

19.      In respect of paragraph 20c, this is an allegation that the plaintiff "failed in all circumstances, to take reasonable care of his own health and safety".  This paragraph is said to be particulars of paragraph 19 that the plaintiff was under a duty to take reasonable care for his own health and safety.  Paragraph 20c is therefore no more than a repetition of paragraph 19 which alleges a breach of duty.  It is not particulars of a breach of duty.  Again therefore I conclude that no prima facie case exists in respect of paragraph 20c. 

20.      In respect of paragraph 20b, which is an allegation that the plaintiff failed to sit in the chair in an appropriate manner, ordinarily I would allow such an amendment on the face of a pleading because the pleading would give rise to a factual dispute to be determined at trial on the evidence.  However, in the May judgment, I ruled that the only evidence was that the plaintiff had stated that he only knew that others were aware of the defect in the chair after the incident had occurred.  In May, no evidence was produced to show otherwise.  In my view it is not unfair, as I intimated in the September judgment, to the third party to require the third party to produce evidence to show a prima facie case.  Enquiries were made of the third party some years ago for evidence which was not supplied.  While that was a matter for the third party, given the third party at this stage wishes to allege that the plaintiff was at fault, when it could have supplied evidence to the defendant some time ago, this is a factor I consider I am entitled to take into account in deciding that evidence is required to show a prima facie case.  An assertion in a pleading in the circumstances of this case is not enough to persuade me there is a prima facie case. 

21.      I have also taken into account the fact that to allow a third party claim to be pursued at this stage will have significant consequences for the plaintiff and the defendant.  It may delay the counter-trial on quantum.  Without such an order the plaintiff will not be in a position to know or take advice on the strength of any such claim until an exchange witness statements is ordered.  That could be some months further down the line in respect of accident that occurred nearly five years ago and when the action is not far off being ready for trial.  Such delay is unfair at this stage of the action. 

22.      Production of evidence by the third party at this stage is also important to the defendant.  This is because, if I were persuaded to allow the third party to issue a third party notice against the plaintiff on the basis of evidence in the procession of the third party, I have to allow the defendant the opportunity of making a fresh application to plead contributory negligence on the basis of such evidence.  Whether or not such an application is made is a matter for the defendant and, if it is, whether or not it will succeed is a matter for another day.  However, the content of such evidence is material, because if I allow the third party to pursue its claim, I have to consider whether the defendant should be allowed to rely on the same evidence to also plead contributory negligence.  This decision needs to be made sooner rather than later.  I cannot allow the defendant to make such an allegation without sight of evidence in support of the same when I have previously refused an application to plead contributory negligence. 

23.      I also observe that the third party has had the benefit of legal advice since May of this year.  The third party has had therefore sufficient time to gather evidence and assess its case. 

24.      The conclusion I reached therefore was that I was not prepared to allow the third party on the facts of this case to issue a third party notice without producing affidavit evidence to persuade me there was a prima facie case.  As matters stood, given the case the third party wished to advance was inconsistent with the plaintiff's evidence, albeit unchallenged, that I accepted in the May judgment, the stage at which the application was made, and the potential consequences for the plaintiff and the defendant if such application was allowed, this was one of those cases where more than a pleading was required to satisfy me that there was a prima facie case. 

25.      However, I also reached the view that it would be wrong to deny the third party one final opportunity to produce such evidence even though I suggested evidence was needed in the judgment I gave in September of this year.  I therefore gave liberty to the third party to apply to issue a third party notice by reference to the matters pleaded at paragraph 20b of the said answer and third party notice by summons.  Such summons is to be supported by an affidavit containing or exhibiting evidence to be relied upon by the third party in respect of the matters pleaded at paragraph 20b.  Without such evidence the application will be refused.  I ordered that determination of any such application would take place in the week of 12^th January, 2015.  Such an application will not cause any prejudice to the plaintiff because the plaintiff is still in the process of finalising his expert evidence on quantum which is unlikely to be completed before the hearing of any revised application issued by the third party. 

Authorities

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

16/2/5 of the 1999 Supreme Court Practice ("the White Book").

Cummins-v-Howlands [2014] JRC 165.

Royal Court Rules 2004, as amended.

Blenheim Trust v Morgan & Ors 1999/51.

Health and Safety (Jersey) Law 1989.