Jersey Unreported Judgments

Striking out - reasons relating to a strike out application and the issuing of directions with sanctions in view of non-compliance with court orders.

[2018]JRC024

Royal Court

(Samedi)

26 January 2018

Before     :		Advocate Matthew John Thompson, Master of the Royal Court.
Between	A		First Plaintiff
	K		Second Plaintiff
	L		Third Plaintiff
And	H		First Defendant
	John Bisson and Others		Second Defendant
	(practising under the name and style of Appleby)

The First Plaintiff did not appear.

Advocate O. A. Blakeley for the First Defendant.

Advocate D. R. Wilson for the Second Defendant.

 

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1
2.	Background	2-18
3.	Events of 9th January, 2018	19-23
4.	The parties submissions	24-34
5.	Decision	35-62

judgment

the MASTER:

Introduction

1.        This judgment represents my detailed written reasons for not adjourning the second defendant's application to strike out the first plaintiff's claim and for issuing certain directions with sanctions in view of the first plaintiff's non-compliance with previous court orders.

Background

2.        There are four previous judgments issued in relation to these proceedings relevant to the matters I had to consider as follows:-

(a)       A judgment dated 23^rd September, 2015, reported at In the matter of II [2015] JRC 194 dealing with the decision to appoint an Amicus ("Amicus judgment");

(b)       A judgment dated 15^th June, 2016, reported at In the matter of II [2016] JRC 106 striking out the claims brought by the second and third plaintiffs ("the first strike out judgment");

(c)       A judgment dated 7^th July, 2016, reported at In the matter of II [2016] JRC 116 striking out the first plaintiff's claims in fraud ("the second strike out judgment");

(d)       A judgment dated 4^th January, 2017, reported at In the matter of II [2017] JRC 001 refusing to order a split trial or a preliminary issue ("the split trial judgment").

3.        The general background to the dispute between the first plaintiff and the defendants is set out in the first strike out judgment at paragraphs 3 to 21.

4.        When refusing to order a split trial, I also issued directions in relation to the first plaintiff providing certain specific discovery and a schedule of loss as set out in paragraphs 1 to 4 of the Act of Court dated 7^th December, 2016 as follows:-

"1.       the First Plaintiff's application for a split trial and/or a preliminary issue is refused for reasons to be given at a later date;

2.        the First Plaintiff shall provide discovery in accordance with paragraph 5 of the Schedule to the Act of Court dated 11th June, 2014 by 5.00 p.m. Friday, 27th January, 2017;

3.        the First Plaintiff shall file a schedule of loss in accordance with paragraph 22 of the schedule to the Act of Court dated 11th June, 2014 by 5.00 p.m. Friday, 24th February, 2017;

4.        the first Plaintiff and the First and Second Defendants shall exchange witness statements by 5.00 p.m. Friday, 5th May, 2017."

5.        The specific discovery related to certain medical records of the first plaintiff, bank statements of the first plaintiff since 1^st April, 2011, correspondence between the first plaintiff and any creditor of or lender to the plaintiffs since 1^st April, 2011, and correspondence or documents showing any sums received by any of the plaintiffs from the first plaintiff's late father.

6.        At paragraph 10 of the said Act of Court I also ordered as follows:-

"10.     Upon the First Plaintiff indicated that an Amicus was no longer required, the appointment of an Amicus for the present proceedings is set aside and Advocate Steenson is discharged from acting as Amicus."

7.        I observed in the split trial judgment at paragraph 29(ii) as follows:-

"(ii)     During the course of argument the first plaintiff indicated that she did not wish to take advantage of the appointment of the amicus and the assistance an amicus could offer as set out in the judgment reported at [2015] JRC 194.  The first plaintiff made clear that the existence of an amicus did not make any difference to her concerns that she had about the lack of representation.  In other words if I set aside the appointment of an amicus and the appointment of Advocate Steenson the lack of an amicus would not be used as a basis to attack any future decision of the Royal Court.  The first plaintiff's concern was the lack of legal representation being made available to her.  Whether or not there was an amicus made no difference to that concern.  On this basis I set aside the appointment of an amicus and discharged Advocate Steenson from that role.  In doing so I wish to express my thanks to Advocate Steenson for the assistance he has provided to the Court and endeavoured to provide to the plaintiffs."

8.        The plaintiff provided a list of documents containing the specific discovery ordered by an affidavit sworn on 27^th January, 2017, and provided a schedule of loss on 24^th February, 2017.  This schedule of loss did not however identify which losses were claimed against the first defendant and which losses were claimed against the second defendant as was required by the Act of Court of 11^th June, 2014.

9.        In December 2016 I also issued directions for witness statements to be exchanged.  This was on the assumption that the plaintiffs' appeals against the first strike out judgment and the second strike out judgment would be determined relatively quickly.  In fact for reasons it is not necessary to go into, while argument has now been heard in respect of these appeals, judgment is awaited.

10.      The obligation to exchange witness statements has therefore been deferred until the outcome of these appeals is known.

11.      On 7^th September, 2017, however, a hearing took place where further directions were given in relation to various discovery and pleading issues including whether or not the first plaintiff had complied with previous orders made because the outcome of the above appeals did not affect these issues.

12.      The relevant paragraphs of the orders made on 7^th September, 2017 were paragraphs 1 to 5, 9 to 10 and 12 which provide as follows:-

"1.       by 5.00 p.m. Friday, 22nd September, 2017 the First Plaintiff will deliver the documents listed at Item 8 of Schedule 1 Part 1 of her first affidavit of discovery sworn on 10th January, 2014 and Items 1 to 4 of her Supplemental Affidavit of Discovery on 27th January, 2017 for inspection and copying by the First Defendant's advocate;

5.        if the First Plaintiff fails to provide the documents required by paragraph 1 of this order the Defendants may apply for an order striking out the entirety of the First Plaintiff's claim;

9.        by 5.00 p.m. 13th October, 2017 the First Plaintiff shall, in relation to her schedule of loss dated 24th February, 2017, identify which of the losses are claimed against the First Defendant and which of the losses are claimed against the Second Defendant;

10.      if the First Plaintiff fails to identify which losses are claimable against each of the Defendants as required by the preceding paragraph of this order either Defendant may apply for the First Plaintiff's claim to be struck out;

12.      by 5.00 p.m. Friday, 10th November, 2017 the First Plaintiff shall provide a further list of documents to the Defendants setting out all documents in her possession, custody or power relevant to the losses claimed by the Plaintiff based on how she would have applied monies from her mother's estate set out at paragraphs (i) - (viii) of the First Plaintiff's Schedule of Loss dated 24th February, 2017."

13.      The rationale for the orders at paragraphs 1 to 5 was that the first plaintiff was struggling to provide copies of documents listed by her the previous January to the defendants to enable the defendants to analize these documents and to progress their defence of the case.  The mechanism contemplated by the Act of Court of 7^th September, 2017 was that these documents would be provided to Advocate Blakeley's office who would then copy or scan the same.  This was intended to attempt to assist the first plaintiff to discharge her obligation to provide copies of the documents to the defendants.

14.      In view of how long it had taken the first plaintiff to provide a list of documents and that copies of the documents referred to had not been provided, notwithstanding documents being listed in January 2017, it was also made clear that, if the first plaintiff did not comply with the orders made, then it was open to the defendants to apply to strike out the entirety of the plaintiffs' claim.

15.      The same approach was taken in relation to the schedule of loss filed because the first plaintiff had failed to identify which of the losses claimed were sought from the first defendant and which were sought from the second defendant.

16.      The rationale for paragraph 12 was that no discovery had been provided in relation to the consequential losses claimed by the first plaintiff and accordingly it was appropriate to make such a discovery order.

17.      In relation to compliance with paragraphs 1 to 5 of the Act of Court of 7^th September, 2017, by reference to an unsworn affidavit filed by the first plaintiff it appears that a friend of the first plaintiff attempted to deliver documents for copying on the last date for compliance, but did not manage to do so because the office of Blakeley Legal was shut before 5.00 p.m. on that day.  This was unfortunate.  Subsequently, despite requests from Advocate Blakeley on behalf of the first defendant for the first plaintiff to contact him to make fresh arrangements to drop off the relevant documents for coping, this did not occur.  It appears this was primarily because the first plaintiff was concerned about releasing original documents into the care of the first defendant for copying.  The first plaintiff also raised other concerns about whether the first defendant had complied with an order to provide certain medical records.  I refer to this for the sake of completeness but it was not a matter that led to the first plaintiff issuing an application before me suggesting that the first defendant had not complied with the order I made in relation to medical records. 

18.      The first plaintiff also wanted a meeting to discuss discovery.  The first defendant's response was simply to repeat its request for the documents to be delivered so they could be copied in accordance with the orders made.

Events of 9^th January, 2018

19.      The second defendant's summons seeking to strike out the first plaintiff's claim for non-compliance with the Act of Court of 7^th September, 2017, was fixed for hearing on 9^th January, 2018.  The second defendant had issued its summons and provided a bundle in accordance with directions given by an email dated 4^th December, 2017, where I required the first defendant to file any evidence it wished to rely on by 12^th December, 2017, for the first plaintiff to respond by 22^nd December, 2017, and skeleton arguments to be filed and exchanged by 4^th January, 2018.  Both the first plaintiff and the defendants complied with these directions.

20.      However, on the morning of 9^th January, 2018, I received a letter delivered from the first plaintiff's general practitioner stating that he had seen the first plaintiff on 27^th December, 2017, and that day.  The general practitioner stated:-

"In my opinion she is unfit today to attend court.  She is due to see a consultant psychiatrist Dr Cosmo Hallstrom in the UK as a result".

21.      In light of this letter received just before the hearing I called the general practitioner who informed me that the first plaintiff was seeing Dr Hallstrom the following week and that the consultant's normal practice was to provide a report within 2 weeks of seeing an individual.  Quite properly the general practitioner did not provide me with any other information about the prognosis on the grounds of patient confidentiality. 

22.      A copy of the letter to the court was also delivered by the first plaintiff to Advocates Blakeley and Wilson's offices on the morning of the hearing.  The first plaintiff did not appear at the hearing.  No application was issued by the first plaintiff for an adjournment and there was no covering letter accompanying the letter from the first plaintiff's general practitioner asking for an adjournment.  It is appropriate however to record that paragraph 7 of the first plaintiff's skeleton argument did state:-

"The first plaintiff by virtue of her incapacity and inability to track proceedings with the access to court records or correspondence with the defendants is currently being denied a fair trial and would urge the Master to use the hearing on 9^th January, 2018 to make directions to remedy this, as the fear engendered by the lack of equality before the courts is having a severe and detrimental effect on the first plaintiff."

23.      Notwithstanding this extract, there was no intimation before the day of the hearing that the first plaintiff could not present her arguments in court in respect of the second defendant's summons returnable on 9^th January, 2018, or that she would be seeking an adjournment.

The parties' submissions

24.      Advocate Wilson for the second defendant argued, notwithstanding the letter from the first plaintiff's general practitioner, that I should still strike out the first plaintiff's claims because she was in breach of various court orders.  Whether the first plaintiff was present either in person or through a representative, he contended that there was nothing that could be said on her behalf to justify the breaches of the court orders made.  The plaintiff had some 4 months to comply and had not done so.

25.      Furthermore two of the orders were final orders namely to deliver documents and to provide a breakdown of losses between the first and second defendants.

26.      In relation the delivery of non-documents, even if non-delivery on the last day contemplated by the order was excusable, there had been no subsequent attempt to deliver documents after that date, complying with the court order.

27.      Both the obligation to deliver documents and the obligation to clarify what losses were claimed against the first defendant and what losses were claimed against the second defendant were also orders originally made in 2014.  A strike out was therefore more than justified.

28.      It was prejudicial to the defendants to be involved in litigation where the first plaintiff would not comply with orders made.  Unless the claim was struck out the first plaintiff would consider that she could breach orders with impunity.

29.      The first plaintiff had demonstrated through previous applications that she was able to represent herself.  She also could have attended on 9^th January, 2018, to at least ask for an adjournment because she had been able to deliver the general practitioner's letter to the Court and the offices of the first and second defendant's advisers. 

30.      Advocate Blakeley supported Advocate Wilson's argument.  In addition, he pointed out given that the first plaintiff saw her general practitioner on 27^th December, 2017, the first plaintiff could have alerted the court and the parties in advance that she had a capacity issue and that she was seeking an adjournment accordingly.  Her failure to warn the court and the other parties was unacceptable.

31.      The letter from the general practitioner was also inconsistent with the first plaintiff being able to prepare her affidavit in support and her skeleton, which was dated 4^th January, 2018.

32.      There was also a pattern to the first plaintiff's approach of raising capacity issues at the last minute which could be seen from previous judgments.

33.      The first plaintiff had simply breached clear orders.  She also knew, because of the terms of the orders on their face that if there was a breach, a strike out application could follow.  Despite this she had done nothing.  There was no defence to the failure to supply documents for copying. 

34.      I also record for the sake of completeness the following summary of the plaintiff's written submissions:-

(i)        The first plaintiff reminded me of the high burden for striking out cases;

(ii)       The first plaintiff expressed concern of the effect of strike out on the second and third plaintiffs;

(iii)      The first plaintiff did not understand the effect of the order dated 7^th September, 2017;

(iv)      The first plaintiff felt intimidated by comments I am said to have made at the hearing on 7^th September, 2017;

(v)       The first plaintiff complained she had no access to court records or correspondence from the defendants to the court;

(vi)      The defendants were also in breach of court orders;

(vii)     The defendants had not given confirmation about the safety of documents;

(viii)    The second defendant had used confidential and privileged information in relation to the plaintiffs.  No detail was provided in respect of this allegation. 

(ix)      The plaintiffs' rights to privacy and a family life under the Human Rights (Jersey) Law 2006 had been breached;

(x)       The second defendant faced a conflict of interests and had acted for themselves and the first defendant;

(xi)      These proceedings had caused psychological damage to the plaintiffs.

Decision

35.      In relation to the letter received from the first plaintiff's general practitioner, I start by reference to the previous occasions upon which the plaintiff has raised the issue of her lack of capacity.

36.      Firstly, I refer to the Amicus judgment.  The reason for appointing an amicus arose out of the matters described at paragraphs 28 to 30 of that judgment.  I also note that while initially as recorded at paragraph 30 the first plaintiff welcomed the appointment of an Amicus she subsequently changed her mind at paragraphs 31 to 32.  My reasons for appointing an Amicus were then recorded at paragraphs 33 to 39.

37.      In the first strike out judgment, I also recorded at paragraphs 13 to 18 the issue of each of the plaintiffs not being able to conduct litigation on their own behalf which was raised at a hearing on 17th December, 2015, and summarised at paragraph 13 of the first strike out judgment.  At paragraphs 14 to 18 of that same judgment I recorded the steps I took to enable this issue to be addressed.  This included further adjournments and exploring with the Bâtonnier whether or not a lawyer could be appointed on legal aid.

38.      At paragraph 18 of the first strike out judgment I stated as follows:-

"18.    I also made it clear that enough delay had occurred.  I explained that the court had bent over backwards to try to help the plaintiffs by appointing an Amicus, which assistance had not been accepted for the reasons set out in the Amicus judgment.  The court had further adjourned matters in October 2015 to enable legal aid to be sought and legal advice obtained, had adjourned matters in December 2015 to enable an opinion to be obtained from an expert psychiatrist and had further adjourned matters in March 2016 to enable further legal advice to be obtained.  I therefore made it clear that the summonses absent extraordinary circumstances had to proceed."

39.      I further adjourned the application which ultimately led to the second strike out judgment to enable the first plaintiff to obtain a second opinion from legal aid.

40.      In the second strike out judgment I faced a further application for an adjournment from the first plaintiff in respect of which I stated at paragraph 17 as follows:-

"17.    I also concluded that the central issue upon which I wished to hear from the first plaintiff is why she states that the first and second defendants acted dishonestly and/or fraudulently.  I have had sufficient hearings involving the first plaintiff to be satisfied that she is able to explain her position and set out her arguments.  This dispute is ultimately between two siblings where one sibling makes serious allegations of misconduct against the other.  The first plaintiff, having set out her allegations and having seen the criticisms of those allegations in my judgment possesses the ability to explain her case."

41.      At paragraph 22 I stated as follows:-

"22.    I was also not persuaded by reference to the letter from the first plaintiff's general practitioner, that this letter was sufficient to grant an adjournment.  It did not say that the first plaintiff could not make the application and the effects of stress are no more than a repetition of what the first plaintiff told her doctor."

42.      The letter from the general practitioner (as recorded at paragraph 6 (vi) of the same judgment) stated the first plaintiff was suffering from acute migraines caused in part by the stress that the first plaintiff was currently undergoing due to the present litigation.

43.      In relation to the split trial judgment I stated at paragraph 20 as follows:-

"20.    I have also observed the first plaintiff sufficiently in Court to be satisfied that she would be able to make her position clear in terms of directions and what was required including the application for a split trial."

44.      I have set out the above because firstly the issue of capacity now raised is not a new issue.  It was first raised in June 2015.  Secondly, the court has endeavoured to assist the first plaintiff to adduce detailed evidence about her inability to represent herself and has also adjourned matters to enable the granting of legal aid to be considered.  The court further tried to assist by appointing an Amicus.  The first plaintiff ultimately rejected that assistance. 

45.      The court has also, based on the first plaintiff's numerous appearances, had to decide whether or not previous hearings could continue which in turn required the court to form an assessment of how the first plaintiff appeared and her ability to understand any particular issue before it and present arguments in response.

46.      This previous consideration as set out above of the first plaintiff's ability to understand particular issues before the court and her ability to present arguments are matters that, notwithstanding the absence of the first plaintiff and the letter received from her general practitioner on the morning of the hearing, are still matters that I considered I was entitled to take into account in deciding to issue directions. 

47.      In light of my previous assessments I was therefore of the view that the first plaintiff was well aware of the necessary steps to apply for an adjournment which required a summons and an affidavit to be produced.  Yet the first plaintiff did not do so.  The first plaintiff must also have been aware that she was going to see her general practitioner because of concerns about her lack of capacity before the date of the hearing.  Yet she did not make any mention either to the Court or the other parties that she might be asking for an adjournment.  Furthermore, at the very least, if the first plaintiff was able to attend her general practitioner and deliver letters to the parties she would have been able to at least attend to ask for an adjournment.  Instead, however I was simply presented with a letter and a non-appearance.  I concluded this stance taken was not an accidental oversight but was rather deliberate in the hope that the hearing would not proceed and would be adjourned without any orders being made.

48.      In making the orders I did, I also had regard to the position of the defendants who continue to face claims first brought in 2012 and which have not progressed beyond the discovery stage.  While some periods of delay in this case have been justified, I considered that I was entitled to look at the overall effect of delay in the round in deciding what orders to make.

49.      However, I did take into account the latest letter from the first plaintiff's general practitioner in issuing directions. 

50.      Firstly, I concluded it was not appropriate to automatically strike out the first plaintiff's claim in its entirety as asked for by both defendants.  That was because the effect of such an order would have meant that the first plaintiff could not pursue her claim, without her being present and where an issue had been raised about her ability to represent herself (albeit not for the first time). 

51.      Secondly, the timetable I set did not require the first plaintiff to take any steps until the anticipated time for production of the psychiatrist's report had passed. 

52.      Thirdly, the first plaintiff was given express liberty to apply to vary directions I gave, depending on the contents of the psychiatrist's report and his conclusions about first plaintiff's lack of capacity to represent herself.

53.      Fourthly, I took into account the fact that the steps the first plaintiff was required to take did not require complex legal analysis. 

54.      The first step was simply to provide copies of documents she had already to the first and second defendants.

55.      The second step was simply to identify which losses were claimed against the first defendant and which losses were claimed against the second defendant.  This was by reference to a schedule of loss produced by the first plaintiff.  Given she had the produced this schedule without legal advice, or the help of the Amicus again based on my observations of the first plaintiff, I was satisfied she understood the claims she had pleaded against the first plaintiff and her (different) case against the second defendant to carry out the exercise of setting out what losses she was claiming against each defendant.

56.      The third step I required the first plaintiff to carry out was the provision of a list of all documents relevant to her claim for consequential loss.  Again she has already put together a list of documents.  She also produced a schedule of loss which specified in detail the consequential losses which she claimed.  I did not regard it as inappropriate or beyond her ability to require her to list all documents relied upon and to provide copies for the other parties.

57.      In setting out the obligations on the first plaintiff, the first direction I issued to copy documents did not take effect until two weeks after the time limit for the provision of the psychiatrist's report.  Furthermore, I also built-in a two week interval between each of the steps required.  I regarded these intervals as sufficient time for the first plaintiff to carry out each of the relevant tasks required.  I deliberately did not require the first plaintiff to carry out more than one task at a time in light of the letter from her general practitioner.

58.      The directions issued also contained sanctions.  This was because I was satisfied that, without sanctions, the first plaintiff would not comply with orders made.  This was clear to me both from the history of this matter and the first plaintiff's response to the directions contained in the Act of Court 7^th September, 2017.  Accordingly, in respect of the obligation to provide copies of documents, I ruled that, if the copies were not provided by the dates specified in the Act of Court, then the first plaintiff's claim would be struck out in its entirety without out further order.  I regarded this order an appropriate sanction to a failure to provide discovery.  Discovery is a key part of any dispute.  If a party is not willing to provide copies of documents it has listed without justification, then that party must be compelled to do so.  If they do not, I do not see how generally a party should be permitted to continue with a claim if it fails to comply with the key obligation of the adversarial process namely providing documents.  This is the position that applies to the first plaintiff.

59.      In relation to the obligation to identify which consequential losses were claimed against the first defendant and which were claimed against the second defendant, the potential sanction I imposed for non-compliance was more limited in scope.  Rather than striking out the entirety of the claim, I indicated that the claim for consequential loss would be struck out.  I reached the same view in relation to the obligation to provide discovery in respect of the claim for consequential loss.  To strike out the whole claim for non-compliance with orders affecting a discrete part only would have been a step too far and a disproportionate sanction.

60.      I considered that these orders struck the appropriate balance between not depriving the first plaintiff of her ability to bring a claim and a trial either generally or on a particular issue with the concerns of the defendants who wanted to be able to defend the claims and for this matter to be brought to a conclusion.

61.      I also regarded the above orders as consistent with the overriding objective introduced by Royal Court (Amendment No.20) Rules 2017 which came into force on the 1^st June 2017.  This overriding objective applies to cases issued before as well as after the introduction of Amendment No.20. Rule 1/6(2)(f) and in particular requires the Court, in dealing with cases justly and at a proportionate cost, to enforce compliance with rules, practice directions and orders.  Rule 1/6(5) also requires the court to further the overriding objective by actively managing cases.  The orders I made were intended to discharge these obligations.

62.      Finally, I ordered indemnity costs against the first plaintiff because firstly she had not applied for an adjournment and had simply not appeared albeit a letter from her general practitioner had been provided on the morning of the hearing.  Secondly, the first plaintiff had not brought forward any justification for non-compliance with the court orders.  While I have set out above the matters raised by the first plaintiff's written skeleton argument, the skeleton argument does not offer any justification for not complying with the orders made on 7^th September, 2017.  I accept it was unfortunate the offices of Blakeley Legal were closed towards the end of the last day by which the first plaintiff was to have provided documents.  However, no arrangements were made in advance to drop off documents before the date expired.  Furthermore, arrangements could have been made after that date.  The correspondence subsequent to the attempt to deliver documents indicates that the first plaintiff had objections to the orders made.  Yet she had an understanding of the orders but was not willing to comply with them rather than not understanding what she had to do.  Despite these objections there was also no appeal against the orders made and the time to do so has long since passed.  Nor was a variation of the orders sought.  Finally, the matters raised did not justify non-compliance with orders previously made.

63.      In conclusion, while it was inappropriate to strike out immediately the first plaintiff's claims for non-compliance, and it was appropriate to allow the first plaintiff time to produce a report from her psychiatrist in England, for the reasons set out in this judgment, unless the orders made are varied based on the psychiatrist's report issued it was appropriate to issue further directions each with an appropriate sanction attached, to ensure compliance with orders previously made to enable this case to move forward. 

Authorities

In the matter of II [2015] JRC 194. 

In the matter of II [2016] JRC 106. 

In the matter of II [2016] JRC 116. 

In the matter of II [2017] JRC 001. 

Human Rights (Jersey) Law 2006. 

Royal Court (Amendment No.20) Rules 2017.