Jersey Unreported Judgments

Hearing (Civil) -  reasons re: directions.

[2021]JRC036

Royal Court

 

8 February 2021

Before     :

Advocate Matthew John Thompson, Master of the Royal Court

 

Advocate J. N. Heywood for the Plaintiff.

Advocate D. M. Cadin for the Defendant.  

CONTENTS

		Paras
1.	Introduction	1
2.	Background	2-3
3.	The defendant's contentions	4-6
4.	Discussion	7-26

judgment

the master:

Introduction

1.        This judgment contains my written reasons in respect of directions given to the parties in this matter.  While ordinarily I would not publish a judgment in respect of directions, the issues raised are of general importance in relation to the approach the court might take to the issuing of directions in personal injury claims in particular in relation to medical evidence and quantification of claims by plaintiffs. 

Background

2.        The present proceedings concerned allegations of terrible abuse suffered by the plaintiff at the hands of another for a period of around 9 years.  For a number of years, the plaintiff resided in another country before coming to live in Jersey.  In December 2010 the defendant received a referral from the Jersey Family Court Advisory Service.  The plaintiff's case is that the defendant through employees acting on the defendant's behalf failed to take appropriate steps to protect the plaintiff.  The plaintiff therefore claims damages as a result of these alleged failings against the defendant.  In the order of justice, the plaintiff's case is that the abuse since December 2010 very substantially accentuated or compounded the effects of the abuse the plaintiff had suffered.  The order of justice further describes in detail the consequences of the abuse for the plaintiff, the physical and psychological injuries the plaintiff suffered and the effect of these injuries on the plaintiff's education and ability to work. 

3.        The defendant in response to the order of justice has filed a detailed answer where liability is disputed, both as a matter of law whether the defendant owes the plaintiff a duty of care and, if a duty of care is owed, whether it was breached.  

The defendant's contentions

4.        The defendant in its skeleton argument, which was supported by the affidavit of Felicity Ward filed on behalf of the defendant's insurer, sought an order that the plaintiff should provide a particularised schedule of loss accompanied by supporting expert evidence.  Underpinning this application was a contention by the defendant that in all future cases plaintiffs in personal injury cases should file a schedule of loss and supporting medical reports as soon as practicable and before any other substantive directions were given.  The rationale for this was that the changes to the Royal Court Rules 2004, as amended, (the "Rules") introduced in 2017 had led to a position that insurers for defendants often found themselves in the dark as to the quantum of claims and the medical evidence relied upon.  This prevented such insurers from being able at an early stage to deal with claims that were properly due without having to make payments in respect of unmeritorious claims.  The matter was summarised at paragraph 2.3 to 2.8 of Ms Ward's affidavit as follows:-

"2.       The Insurance Context

2.3      The objective of the ICCI is to ensure that we meet claims that are properly due but do not make payments in relation to unmeritorious claims. The sooner we can achieve either of these aims, the better not only for the ICCI but also for:

(a)       the claimants who will receive a resolution and may receive a payment and may then start to move on with their lives;

(b)       the other parties to the claim who will know that a decision has been made and can adjust accordingly;

(c)       policyholders and those who pay the premiums, as not only is the liability fixed but legal and other costs stop accruing;

(d)       Courts and others who are required to spend no longer than is necessary to deal with these claims appropriately, fairly and in accordance with the Overriding Objective.

2.4      Similarly, there is no desire on the part of the Defendant to delay resolution of claims.

2.5      The costs of dealing with claims are clearly relevant, particularly costs which could be avoided in circumstances where:

(a)       personal injury Plaintiffs enjoy a privileged position under RCR 12A of the Royal Court Rules (pages 3 to 6);

(b)       costs in personal injury cases can readily approach or exceed the amount actually recovered by a Plaintiff (as opposed to claimed) in many cases; and

(c)       it may be unlikely that any tangible, adverse costs orders will be made against a Plaintiff in a personal injury case.

2.6      Put simply against this background, early resolution of claims, where possible, is something which I and the ICCI think is worth striving for.

2.7      However, in this case (and indeed, in many others which are brought in Jersey and involve the ICCI), notwithstanding the terms of Practice Direction 17/01 requiring pre-action correspondence, even following the exchange of pleadings, we find ourselves still in the dark as to the quantum of the claim and the medical evidence relied upon.

2.8      This lack of quantification and sight of any medical evidence prevents us from engaging properly with the claim (or indeed, reserving appropriately), dealing with it proportionately, reaching a commercial resolution and requires us to incur significant, unnecessary costs to obtain information which could, and in my view, should have been provided by the claimant/ Plaintiff earlier (hence this Summons)."

5.        Advocate Cadin emphasised in relation to this case that the position was more complicated because, firstly the psychologist's report referred to in paragraph 60 of the plaintiff's order of justice had not been disclosed despite it being requested and, secondly without a schedule of loss the defendant was not in a position to assess and enter into any negations about whether to settle the plaintiff's claim at an early stage.  A schedule of loss and supporting evidence was particularly necessary in this case because, if found liable, the defendant was only responsible for part of the abuse suffered for the plaintiff.  Without seeing the plaintiff's evidence on quantum, the defendant could not assess how far it might be responsible and could not make a decision about how far to engage in settlement discussions. 

6.        The plaintiff emphasised that this was a serious and complex case which required input from experts in order for damages to be quantified.  It was simply too simplistic to require production of a schedule of loss without accompanying expert evidence which itself required discovery of all relevant documentation from both sides. 

Discussion

7.        When the overriding objective was introduced into the Rules in 2017 requiring the court to deal with cases justly and at proportionate cost and to actively manage cases (see Rule 1/6(5)), at the same time a Practice Direction RC17/01 came into force on Pre-Action Communications.  This Practice Direction was very different from the approach taken in England in relation to Pre-Action Communications.  What it required was set out in paragraph 7 of the Practice Direction as follows:-

"7.      Where this practice direction applies prior to commencing proceedings a plaintiff or his legal adviser shall send to each proposed defendant a Claim Letter which shall contain the following information:-

i.         The plaintiff's full name and sufficient other information to enable any defendant to identify the plaintiff;

ii.        The full name of each proposed defendant and sufficient other information to enable each defendant to be identified by any defendant;

iii.       A clear summary of the facts and the legal basis upon which the claim, and if more than one, each claim is based;

iv.       The amount of money claimed.  The summary should be the best estimate a plaintiff is able to provide of the likely amount of damages claimed and should identify different types of loss sought;

v.        Any invitation to meet or other proposals to allow parties to explore settlement." (Emphasis added)

8.        In relation to the contents of any response to a pre action letter from a defendant paragraph 17 of the same practice direction requires the following:-

"17.    A defendant's response shall further provide a clear summary of the facts and legal basis set out in the Claim Letter which are agreed or not agreed, including whether or not the defendant agrees the jurisdiction of the Royal Court."

9.        Insofar as the defendant in this case criticises how far plaintiffs have adhered to the requirement in paragraph 7(iv) to set out the amount of money claimed, based on my experience of case management in personal injury cases since the changes to the Rules and the associated Practice Directions were issued in 2017, this part of the Practice Direction has not been adhered to in the way anticipated.  This does not help a defendant receiving pre-action communications to consider how to respond and whether to engage in some form of negotiation.  Nor, when it comes to directions, does the lack of any figure or idea of what is being claimed assist the court.  Too many orders of justice still contain claims for general damages only without any attempt to quantify what is being claimed.  Yet, such quantification is a relevant factor for both parties and the court at the directions stage in deciding what might be the appropriate next steps in relation to an action.

10.      The above observations about a lack of detail of the amount being claimed in pre-action correspondence or in an order of justice do not mean that a plaintiff is required to produce a fully particularised schedule of loss at the time of a letter before action or its pleading.  However, in many if not most cases, more detail can be provided about the likely parameters for claims for general damages along with an estimation of what special damages are claimed.  In straightforward cases, which are the vast majority, providing such information should not be difficult because advisers to a plaintiff are likely to have already explored in some way with their client the value of the claim they are bringing.   Such an analysis is also necessary in any event for the advisor to consider whether a costs budget is required which obligation applies in respect of all claims worth less than £500,000.  Some level of quantification should therefore be referred to in any letter before action and in any order of justice. 

11.      Advocate Heywood raised whether it would be unfair on a plaintiff to require a plaintiff to set out the amount of loss being claimed in an order of justice because this might prove problematic where proceedings need to be issued to avoid a limitation defence being raised.  In my judgment however, given what is required in pre-action correspondence that the amount of loss in straightforward cases should already have been identified, it would not therefore be difficult to refer to the same in an order of justice in the way I have identified.  As the limitation period for such claims is usually three years, this should be more than sufficient in the more straightforward cases to which I have referred to enable an order of justice to be issued with a best estimate of damages at that stage.  The position is different for cases where quantum is more complicated or where liability and quantum are in issue which is explored later in this judgment.

12.      The above observations however require a certain amount of qualification and circumspection. Firstly, the Practice Direction in respect of Pre-Action Communications does not require a plaintiff to produce all evidence relied upon in support of quantification of its claim.  Rather a simpler approach was taken, different from that applied in England and quite deliberately.  The approach in England can lead to significant upfront costs being incurred which can be disproportionate. The formalities of the Pre-Action protocol approach in England has also led to satellite litigation.  A more cautious and flexible approach was taken in Jersey to avoid these areas of concern. 

13.      As to what evidence might be produced to support a plaintiff's claim at an early stage, this depends on what is in issue between the parties.  A significant number of cases I see are disputes about the extent of the injuries because liability has been admitted (in some cases subject to issues of contributory negligence).  The main issue in such cases is therefore what damages are going to be payable to a plaintiff.  In such quantum only cases, provision of relevant medical records and the key expert evidence relied upon should be produced in early course.  This can be on a without prejudice basis if parties wish to negotiate before proceedings have commenced.  If proceedings commence, at the directions stage, a flexible approach has been taken leading to orders that require a plaintiff to provide relevant evidence to enable the parties to explore settlement.  Frequently, this is expert medical evidence. 

14.      Such expert evidence is normally disclosed on a sequential basis following Ure v The Minister for Economic Development [2015] JRC256 where I stated at paragraphs 14 to 16 as follows:-

"14.    However, the position in England past or present is not the law of Jersey at present but is only a possible guide; how far it assists depends on the degree of closeness between the relevant Royal Court Rule or practice and any rule or practice in England.  What is the present law of Jersey is that proceedings should be conducted in accordance with an agreed timetable at a reasonable level of cost and should progress to trial within a reasonably short time (see the well-known observations in Re Esteem Settlement 2000/150). 

15.      In light of this principle, I do not consider it appropriate either to rule that disclosure of reports must be simultaneous or production will always be sequential.  Rather I consider ultimately the issue is one of discretion.  However, as noted in the 1999 White Book, and based on the personal injury matters where I have given directions, it is often the case that a plaintiff will provide medical evidence either on an open basis or a without prejudice basis in order to provide details of the particular injuries a plaintiff has suffered and to encourage a defendant to explore settlement.  Merely because I have discretion to order reports to be exchanged simultaneously, should not be taken as encouraging parties to depart from this usual practice.  It is generally in a plaintiff's own interest to produce medical evidence of injuries suffered sooner rather than later to enable the parties to explore what the issues are between them and whether a settlement can be found.  Not to do so means that a plaintiff might be criticised for not running the case at a reasonable level of cost and preventing proceedings from progressing to trial in accordance with an orderly timetable. 

16.      Where a plaintiff produces its medical evidence early, this can lead to costs being saved.  The potential for such a saving does not just benefit the defendant or the defendant's insurers.  It may benefit the plaintiff too if the defendant is in a position to come to a view that a case ought to be settled rather than incur costs.  Requiring costs to be incurred unnecessarily may also hinder rather than help settlement.  Ordinarily therefore sensible practice requires a plaintiff to produce its medical evidence sooner rather than later and as soon as it is reasonably able to do so because that is likely to help identify what is at stake between a plaintiff and a defendant and whether or not a case is likely to settle."

15.      Although this judgment pre-dated the introduction of the overriding objective, the analysis still applies. 

16.      For more complex cases where quantum alone is in dispute additional directions may be necessary before the parties can arrive at a position where any settlement discussions can take place.  The expert evidence in such cases may cover a range of fields.  It may also require evidence from factual witnesses in particular if there are individuals caring for a plaintiff in a significant way.  Discovery orders about a plaintiff's medical records and other care records on an ongoing basis may also be required.  In such complex claims even though liability is admitted more evidence is required than simple disclosure by the plaintiff of losses claimed and its expert evidence in support.  Such cases therefore require more extensive case management.  The issues in a case can also become more complex because of the power of the court contained in the Damages Law 2019 to order periodical payments as an alternative to a lump sum.  Either party can elect to seek such payments, but again they require directions to ensure that appropriate evidence in support of such an argument is produced.    

17.      For more complex cases therefore, I do not consider it necessary for a party when filing an order of justice to have to provide a total figure representing its best estimate of the amount of damages claimed.  Rather I think what is required is an identification of the types of loss that are claimed such as accommodation costs, care costs, additional medical treatment and loss of earnings, even if the amount claimed for such heads of loss cannot always be calculated.  Obviously, if parts of the information are readily available then that should be provided for the head of loss concerned.  

18.      The third category of personal injury cases concerns disputes where liability and quantum are in dispute.  Sometimes in such cases where the question of damages is detailed and complicated a split trial can be ordered (see for example Corbin v Dorynek [2020] JRC031)

19.      In relation to expert evidence where liability is in dispute, in Aukland v The Minister for Health and Social Services [2017] JRC136, Advocate Heywood acting for the defendant in that case, argued that I should order sequential exchange of expert evidence in relation to issues of liability in clinical negligence cases.  I disagreed and stated at paragraphs 14 to 20 as follows:-

"14.    What approach should I take in this jurisdiction?  Ultimately, notwithstanding the introduction of the overriding objective to the Royal Court Rules in June this year, when cases come to trial, they are adjudicated by the Royal Court applying an adversarial system.  The recent changes have also taken a more cautious approach to altering Jersey's civil procedure rules than has occurred in England.  Furthermore, the changes to the Royal Court Rules introduced in June 2017 did not make any changes to the Rules concerning expert evidence, other than encouraging parties to consider whether evidence can be given by a single expert.  The focus of this was intended to be on evidence that was not central to a dispute and to encourage parties to agree issues where expert evidence was required but which were part of, but not at the heart of matters the Royal Court would have to decide at trial.  Accordingly, for issues that are key or core to a dispute on liability, the adversarial system has not been altered. 

15.      Where there is a dispute on liability, I therefore consider that in the ordinary course simultaneous exchange should take place.  I accept there may be circumstances where, as a matter of discretion, the Court might elect to make a different order.  However, there would have to be special justification for that order which does not arise in the present case (c.f. paragraph 18 of Ure). 

16.      I further consider that the importance of simultaneous exchange for issues that go to the heart of a dispute outweighs the possible saving in costs that might occur by sequential exchange.  Even then I am doubtful as to whether a saving in costs might occur because if an order of justice is properly pleaded then a defendant to a claim in clinical negligence should know the case it has to meet.  The claim should also have been set out in a pre-action communication (see practice direction 17/01).  A defendant, moreover, will normally have access to the relevant medical notes of a plaintiff.  A defendant is therefore able to form a view on whether or not to defend the claim or to engage in settlement without the need for sight of the detailed medical evidence to be relied upon by a plaintiff at trial. 

17.      I am also not persuaded that simultaneous exchange would lead to increased costs because experts might approach matters from a different perspective.  The standard directions for meetings of experts require experts to meet unless there is no point in doing so and to produce a statement explaining any differences.  Any differences in approach in the ordinary course can therefore be addressed at such a meeting.  In more complex cases supplemental reports could also be filed to address any difference in approach if the issue arises.  Even if there is some additional risk of extra cost being incurred in some cases, I am not persuaded such a possibility outweighs the general principle of evidence that goes to the heart of a case on liability being exchanged simultaneously. 

18.      Finally, I consider that for the majority of personal injury cases there is a difference between a plaintiff providing expert evidence of injuries, to enable a defendant (or any insurers of that defendant) to carry out a monetary assessment of the appropriate level of compensation for such injuries, and resolution of a contested issue of liability.  The latter generally requires resolution though the adversarial system as long as the overriding objective is adhered to; the former, in most cases, unless the calculation of damages is complex or very large, is an assessment of the range of damages that a court might order and a matter of negotiation.  I say this because most personal injury cases, where I have given directions or issued procedural judgments, have not been significant in value and have been resolved by agreement. 

19.      I do not agree, however, with the concerns expressed by Advocate Preston that sequential exchange might compromise the integrity of a defendant's expert and so simultaneous exchange should be ordered.  I dealt with this in Ure at paragraph 17 where I stated as follows in relation to sequential exchange:-

"17.    I also consider that such an approach does not compromise the integrity of a defendant's expert.  Such an expert is still an expert and still owes the same duties to the Royal Court which are paramount.  The fact that a defendant's expert produces a critique of a plaintiff's expert report rather than producing his or her report does not affect the duties that expert owes to the court to provide an independent opinion.  These duties prevail over any obligations owed by an expert to a defendant.  The critique must therefore still be an independent opinion."

20.      The combination of this decision and Ure might mean, where expert evidence is required for issues of quantum as well as liability, that simultaneous exchange is ordered for issues of liability and sequential exchange is ordered for issues of quantum.  Evidence relating to quantum may also be ordered at a later date as a matter of case management.  This is all a matter of discretion at a directions hearing.  In this case this issue does not arise because no expert evidence at present is adduced in relation to issues of quantum.  However, I have referred to this issue to provide some general guidance to those involved in clinical negligence disputes."

20.      For cases where liability is in dispute, either a split trial will be ordered where the damages claimed are particularly detailed and complicated, or there will be appropriate case management orders dealing with the progression of the case both in terms of liability and quantum.  As noted in paragraph 20 of Aukland, this could mean orders for simultaneous exchange of expert evidence on liability, but with a plaintiff being required to produce its expert evidence on quantum only.  What discovery or witness statement evidence is required will also have to be assessed on a case by case basis. 

21.      At the stage of filing an order of justice where liability is in dispute, what is pleaded about quantum will therefore depend on whether the assessment of quantum is more straightforward or whether it is complicated.  In the former category, the same approach as for quantum only in cases which should be adopted.  This could lead to a position where quantum is agreed even if liability is in dispute.  Setting out a best estimate of what is claimed in such cases should therefore assist the parties to focus on the real issues in dispute between them.  Where quantum is more complicated, the approach that should be taken is that set out in paragraph 17 above.

22.      I have set out the above because, while there is benefit in the majority of cases for a plaintiff to set out in its pre-action correspondence its best estimate of the amount of damages claimed and for an order of justice in such cases to set out in broad terms what is claimed, there are other cases which are more complex where requiring disclosure of all medical evidence up front and at an early stage is not an approach that will lead to efficient disposal of a case by negotiation or failing that at trial.

23.      There also needs to be caution to prevent new battles opening up about whether any estimate of losses claimed is adequate and whether a plaintiff should be required to provide a more detailed schedule of loss, if a case is not settled at an earlier stage.  In my judgment, while a plaintiff should set out its position as best it can sooner rather than later, adopting the approach  set out in this judgment, such a requirement should not lead to satellite litigation or attempts to restrict what a plaintiff might claim once all relevant evidence has been produced.  There is a significant difference between a party attempting to give their best estimate of losses claimed in personal injury cases at the outset of a claim and a party's final position in a schedule of loss prepared for trial, settlement discussions not having succeeded.  The former should not restrict the contents of the latter as long as directions are adhered to on the production and exchange of relevant evidence and there are no last-minute changes of approach. 

24.      Applying the above observations to this case, this case is unusual as the conduct complained of relates to part of the tragic abuse suffered by the plaintiff.  It is therefore a complex issue as to how to apportion the effect of any breach of duty by the defendant to have been found to exist from other abuse suffered by the plaintiff if a breach of duty is established on the facts.  There are also potential complexities in analysing the plaintiff's needs as a consequence of the abuse the plaintiff suffered which further makes the task of quantifying the amount of a claim against the defendant difficult.  These complexities allow me as a matter of discretion to order that clarity is provided to the defendant about what is at stake at an early stage from the perspective of damages sought by the plaintiff.  Normally where a single trial is to take place, the orders made will be for discovery, production of witness statements for factual witnesses and expert evidence both as to liability and quantum, albeit the latter is likely to be sequential.

25.      While in this case I considered that I should depart from that normal approach, I could not ignore the fact that liability was also in issue.  The orders I made were therefore to require discovery from both parties of all the relevant documents relating to liability and quantum issues prior to the plaintiff providing information about the amount of the claim and supporting expert evidence.  I made this order because while there will be a cost to discovery, documentary records are likely to be at the heart of this dispute.  Ordering such discovery allows both parties to analyse the underlying factual events that occurred as well as the extent of any damage arising from any established breach.  This permits both parties therefore to be in a position to argue the merits of liability in any settlement discussions as well as quantum.

26.      Following discovery, in this case because of the complexities I have referred to, I considered it appropriate for the plaintiff to disclose its expert evidence only in relation to quantum, followed by a schedule of loss.  I then ordered a stay for the parties to explore settlement.  I made it clear however, if the matter did not settle during the period of the stay, that the matter would return before me for further directions where directions would be issued in relation to exchange of witness statements of fact, any expert evidence relevant to issues of liability, production of the defendant's experts reports on quantum and meetings of experts and the fixing of trial dates.  I therefore stressed that, once the defendant was aware of the amount being claimed by the plaintiff, then, absent settlement, active case management required the case to progress to a trial which I hoped would take place in the course of 2022.  I regarded this approach, given the unusual nature of this case, as striking the appropriate balance between the plaintiff's concerns and wishing to progress this matter to trial and the defendant's concerns of wishing to understand what was at stake. 

27.      In reaching this conclusion I did not consider that the directions I ordered would lead to any significant delay because both parties, having provided discovery, would then be in a position to produce witness statements and expert evidence in relation to liability and to progress to trial.

28.      Finally, I wish to stress that this decision should not be seen as any radical departure or change in position from the approach adopted by the court in previous cases.  I am not therefore persuaded that the approach taken in England should be adopted for the reasons set out in this judgment.  However, plaintiffs in most cases should look to provide the best estimate of what is being claimed in overall terms for both parties to be able to evaluate and to assist the court to make appropriate directions to facilitate either settlement or a trial.  In most cases by the time a matter comes before me for directions, currently advisers to parties to personal injury actions are looking to explore settlement and are showing a flexible approach to enable such discussions to take place.  This judgment should not prevent that cooperation from continuing.

Authorities

Royal Court Rules 2004 (as amended). 

Practice Direction RC17/01

Ure v The Minister for Economic Development [2015] JRC256

Damages Law 2019

Corbin v Dorynek [2020] JRC031

Aukland v The Minister for Health and Social Services [2017] JRC136