Jersey Unreported Judgments

Injunction- appeal against the decision of the Master dated October 2016.

[2017]JRC012

Royal Court

(Samedi)

16 January 2017

Before     :		T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Liston and Grime
Between	Harry James Lingard HJL Holdings Limited Angel Fish Limited		Appellants
And	Shane Michael Holmes		Respondent

Mr Lingard appeared for himself and for the other two Appellants.

Mr Holmes appeared in person.

judgment

the deputy bailiff:

1.        This is an appeal brought by Harry James Lingard, HJL Holdings Limited and Angel Fish Limited ("the Appellants") from a decision of the Master of the Royal Court encapsulated in the Act of Court of 17^th October, 2016, ("the Act of Court") and the Master's reasons handed down on 31^st October, 2016, ("the reasons"). 

2.        The Act of Court contains a number of procedural orders but this appeal is really only concerned with paragraph 4 of the Act of Court in which it was ordered that:

"The issue of whether or not the Plaintiff has settled matters with the Defendant shall be determined at trial and not by way of a preliminary issue."

3.        This particular aspect has some short procedural background which can be stated as follows:

(i)        On the 11^th November, 2015, the Master struck out the entirety of the Respondent's claim against the Appellant for the reasons set out in his judgment of the same date. 

(ii)       That judgment was appealed and in its judgment of 23^rd September, 2016, this Court allowed that appeal for the reasons set out therein.  As part of its reasons this Court said, at paragraph 19, the following:

"It is clear that the Master took the view that in the event it could be concluded that a binding settlement had been reached between the parties but to allow such proceedings to continue would be both vexatious and an abuse of the process of the Court because the Court would be asked to adjudicate on the matter that had been resolved by agreement.  We agree that if it is completely clear that such an agreement has been reached then it would be appropriate to strike out the claim.  If, however, that question turned on disputed fact then in our view the more appropriate course was for the agreement to be pleaded and perhaps dealt with as a preliminary issue."

(iii)      The matter then returned before the Master for procedural directions, which included the suggestion that the question of whether or not the proceedings had been compromised should be dealt with by way of a preliminary issue.  The Master declined to do so. 

4.        In considering this appeal we apply the test in the case of Murphy v Collins [2000] JLR 276 which is to the effect that on an appeal from the Master (where he is acting as a Greffier Substitute operating a delegated jurisdiction from the Royal Court) the Court should exercise its own discretion and give such weight as it thought fit to the discretion exercised by the Master. 

5.        Of course not only is the Master a senior Jersey lawyer but he has a very significant practical experience of litigation both as a practitioner and as a procedural judge of this Court.  Accordingly, in matters of case management, we would normally be minded to give very considerable weight to his exercise of discretion. 

6.        It was not argued before us that the Master had applied any incorrect principles when he considered the possibility of a preliminary issue.  At paragraph 16 of the reasons he sets out the applicable law in the following terms:

"14.    There was no disagreement between the parties on the applicable legal principles as to when a preliminary issue should be ordered. 

15.      I explored these principles in Stock v Pantrust [2015] JRC 268 at paragraphs 13 and 14 as follows:-

"13.    I was also reminded of the words of Southwell J.A. in Public Services Committee v Maynard [1996] JLR 343 at page 360 lines 11 to 19 as follows:-

"However, in our judgment, the Royal Court should consider its current practice.  To single out bare points of law in this way (which might, when the facts are found, prove to be hypothetical) is likely to increase costs and to extend the time before the plaintiff knows whether he or she is to receive damages for his or her injury and receives the damages awarded.  Justice delayed is usually justice denied, particularly in personal injury cases, in which the normal approach should be to fix as early a date as possible for the trial of all issues."

14.      He also referred me to a decision of the English Court of Appeal reported at McLoughlin v Grovers [2001] EWCA Civ 1743.  In setting aside a first instance judgment where a preliminary issue had been ordered and had taken place, the English Court of Appeal were critical of a trial on the issue of foreseeability of damage only.  Mr Justice David Steel at paragraph 65 of the decision stated:-

"No attempt was made to distinguish between the factual investigation required for the purposes of the limitation plea as opposed to the issue of foreseeability.  It was wholly impracticable for there to be a full trial of the factual issues pertinent to foreseeability.  It was an issue that should have presented on agreed or assumed facts.  If this was not a practical proposition, the issue of foreseeability should never have been taken separately.

In my judgment, the right approach to preliminary issues should be as follows:-

a.        Only issues which are decisive or potentially decisive should be identified;

b.        The questions should usually be questions of law;

c.        They should be decided on the basis of a schedule of agreed or assumed facts;

d.        They should be triable without significant delay, making full allowance for the implications of a possible appeal;

e.        Any order should be made by the court following a case management conference.""

16.      While Advocate Speck warned me against treating the decision in McLoughlin as creating some form of code or binding legal principle, he did not dispute that the factors listed were useful guidance as to whether or not a preliminary issue should be ordered. I took these factors into account as set out below in reaching my decision.

17.      Prior to the hearing I had also referred the parties to X Children v Minister for Health and Social Services [2011] JLR 772.  Paragraphs 10 to 12 are pertinent and state as follows:-

'10      The possibility of taking a discrete issue which might determine the whole case, thus avoiding the costs which the parties would incur in taking the matter further, is attractive at first blush. An appeal against the decision to the Court of Appeal and potentially to the Privy Council, however, can without exaggeration add years to the process. A number of English and Jersey cases have warned against the practice. In the case of Southwark L.B. v. O'Sullivan (6), a case in which the construction of a statute was taken as a preliminary issue, Lewison, J. said this ([2006] EWCA Civ 124, at para. 14):-

"As Lord Scarman observed in Tilling v. Whiteman [1980] AC 1, preliminary points of law are too often treacherous shortcuts, their price can be, as here, delay, anxiety and expense. As so often, the decision to try preliminary issues on assumed facts has lead [sic] to an over-complication of the case and puts the court into a position of having to decide questions, without a full picture of the factual background on which the case depends. In this case, as in many others, the decision to have a trial of preliminary issues has turned out to be a false economy. I have therefore reached the conclusion that this court should not embark upon a consideration of the questions of construction in advance of the fact-finding exercise."

11       In Public Servs. Cttee. v. Maynard (5), our Court of Appeal (Southwell, J.A. presiding) gave a similar warning in the context of a personal injuries case (1996 JLR at 360):

"It appears from the order of the Judicial Greffier of September 30th, 1994 that the issue he ordered to be heard as a preliminary issue, 'whether the plaintiff's right of action is prescribed,' was an issue of both fact and law. In the event, it was argued before the Lieutenant Bailiff and before this court simply as involving points of law. To choose points of law such as these for initial decision seems to us to be within the current practice of the Royal Court of Jersey. However, in our judgment, the Royal Court should reconsider its current practice. To single out bare points of law in this way (which might, when the facts are found, prove to be hypothetical) is likely to increase costs and to extend the time before the plaintiff knows whether he or she is to receive damages for his or her injury and receives the damages awarded. Justice delayed is usually justice denied, particularly in personal injury cases, in which the normal approach should be to fix as early a date as possible for the trial of all issues together."

12       In addition to the delays and costs that can be incurred through the appeal process, there is a further danger, in my view, in taking a preliminary point in a factual vacuum, particularly where, as here, Convention rights must be taken into account."

18.      The court's reasoning in X Children in refusing to order a preliminary issue is found in paragraph 15 as follows:-

"15.    Taking into account the warnings given in particular by our Court of Appeal in Maynard that in personal injuries cases all issues should be tried together; the risk of substantial delays and costs being incurred through the appeal process; my concern about the court dealing with this issue in advance of the fact-finding exercise; and the relative merits of the arguments that would be presented to the court, I decline to order the trial of this preliminary issue."

19.      I also took this guidance into account in reaching my decision."

7.        The trial of a preliminary issue is a mechanism available to the Court to be ordered, generally, in circumstances where to do so would either determine the action or alternatively significantly shorten the overall length or expense of the litigation.  There are risks in doing so.  It is open to the unsuccessful party to the outcome of the preliminary issue to appeal and this could add very considerably to the delay.  This is particularly the case where the outcome of that preliminary issue would, as here, depend upon factual determinations by the Court on evidence before it. 

8.        In his reasons the Master sets out, from paragraph 17, why he thought that it was inappropriate to order the trial of a preliminary issue:

"In this case I was concerned that there would be an overlap between any preliminary issue and a trial.  The plaintiff argued, and I accepted his submission, that in relation to any argument about whether or not he had reached a settlement agreement, he would wish to adduce evidence on the financial benefit he claimed he was entitled to and to challenge witnesses as to why he would settle on a drop hands basis given the significant value of his claim.  This approach means that there would be an overlap between matters considered at any trial and on a preliminary issue."

18.      I was also concerned about the effect of any appeal.  If the preliminary issue failed, there could well be an appeal by the plaintiff which would delay the hearing of any trial.  The risk of an appeal is not just a theoretical possibility because the plaintiff in a number of different matters has exercised his right to appeal where he is not satisfied with the decision of a particular Court.

19.      This is also a dispute that has already gone on since 2014 and relates to events from 2011 onwards.  If a preliminary issue is ordered and is unsuccessful, any trial will be put off further, with the result that the Royal Court would be examining evidence and the recollection of parties some years after the events that have led to the present dispute.  This factor also pointed towards a single trial of all issues taking place sooner rather than later.

20.      Accordingly, I was not persuaded to order a preliminary issue."

9.        There is, of course, an attraction to the trial of a preliminary issue where that issue is whether or not the entire proceedings have been compromised.  If successful, the proceedings are at an end and the parties do not need, it may be supposed, to prepare as extensively for the preliminary issue as they may have needed to do for the substantive trial. 

10.      It is understandable that the Appellants should argue forcibly for such a preliminary issue.  They wish the opportunity of drawing the proceedings to a close sooner rather than later.  They fear that if a preliminary issue is not ordered they would be robbed of an early disposal of the matter. 

11.      That might very well be the case if the Appellants were to succeed on their preliminary issue.  Even if successful at first instance, of course, they may well face a journey to the appellate courts.  If they do not succeed, however, then those costs and efforts will be wasted, and there will still, significantly further down the line, need to be a trial on the main issues. 

12.      It also appears to us that there is a very real likelihood that the evidentiary ambit of any preliminary issue will widen into those areas which would also be explored on the trial of the main issue. 

13.      This is not to our mind a clear cut decision and there were arguments of some force going in either direction.  Given the longstanding nature of this case, however, we fully understand why the Master took the view that it was in the interests of justice and, ultimately of the parties, to move towards one final hearing where the substantive case can be determined. 

14.      Brief as his reasons may have been we do not fault his analysis and we dismiss this appeal. 

Authorities

Murphy v Collins [2000] JLR 276.