Jersey Unreported Judgments

[2005]JRC138

royal court

(Samedi Division)

 

4^th October 2005

 

 

 

 

 

 

Application by the Defendant to dismiss the Plaintiff's claim for want of prosecution and/or abuse of the process of the Court.

 

Advocate D. D. Steenson for the Plaintiff.

Advocate D.M. Cadin for the Defendant.

 

judgment

commissioner:

1.        On 15^th January 1990, Sub-Officer Kenneth du Feu, a fireman employed by the States of Jersey Fire Service, suffered an accident while attending a fire at the Hotel de France.  There was an explosion and he was blown several yards down two concrete steps.  He landed on part of his breathing apparatus and sustained injuries.  There was alleged a breach of statutory duty in that the company owning the hotel had stored highly flammable liquids inappropriately.  It was these that had caused the explosion. Now, fifteen years and nine months after the matter has not been resolved.  The matter has proceeded over the years in fits and starts.  There have been changes of lawyers.  Mr. du Feu originally employed Olsen Backhurst & Dorey (which became Backhurst, Dorey & Crane), then Jenners and finally Crills (for whom Advocate Steenson appears) in November 2003. 

2.        The defendant company was originally acted for by Mourant du Feu & Jeune but it has moved with Advocate Cadin to Bedell Cristin, who now act for it.  On 16^th June 2005, both Advocate Steenson and Advocate Cadin appeared before the Bailiff's Judicial Secretary, each with a summons.

3.        Advocate Cadin's summons was for the plaintiff to appear before the "Master of the Royal Court" - (this was explained as a typographical error) for the proceedings to be struck out either as an abuse of process and/or for inordinate and inexcusable delay.  That summons was duly served and the Judicial Greffier had notice of it.  Advocate Steenson put in a summons for directions.  It contains many an anomaly.  It asks that the "action be set down on the hearing list".  That apparently should have asked for an assessment of damages.   There is a request for a date to be fixed "for the trial of the action" and a mention of "any pre-trial review" taking place at least "six weeks before the date fixed for the trial of the action".  The two summonses were set for 29^th September, some three months ahead so as not to interfere with the holiday arrangements of counsel.  Sadly, Advocate Steenson omitted to file a copy of his summons with the Judicial Greffier, who had no knowledge of its existence.  Be that as it may, Advocate Cadin accepted the summons and if we were to find that we were unable to strike out the proceedings, we would move on to consider that summons.

4.        An Order of Justice was served on 30^th November 1992, two months before the limitation period fell in.  On 18^th December 1992, the proceedings were adjourned sine die upon undertakings to re-appear.

5.        The Order of Justice claimed special damages of £32,813.42.  There was left unquantified the headings under "medical expenses" and "other necessary expenditure".  It also claimed general damages, interest on any sum found to be due, and costs.

6.        On 23^rd August 1996 (almost four years later), the Royal Court, in the presence of the defendant, pronounced interlocutory judgment against the defendant for damages to be assessed and interest and costs and referred the assessment of such damages, interest and costs to the Judicial Greffier for his determination. So there we had judgment on liability with damages to be assessed.

7.        No approach was made to the Judicial Greffier but on 2nd June 1998, there occurred an extraordinary procedural event.  By consent, an amended Order of Justice (almost two years after the judgment of the Royal Court) was filed.

8.        We have at this point deliberately not chronicled the comings and goings that took place during the course of negotiation but we will say that £30,000 was paid to Mr. du Feu in January 1993 and in November 1994 a payment into Court of £41,000 was made.  There had been a without prejudice offer of £60,000 (less the £30,000 already paid) on 1^st September 1993.  A final without prejudice net offer of £100,000 was made on 2^nd March 1996.  A further payment in of £29,000 was made on 16^th September 1997.  That would give the plaintiff a total recompense of £100,000. 

9.        On the case for the defendant (and if the proceedings were struck out) the plaintiff "should be given the opportunity to take all the monies currently in court in full and final satisfaction of his claim".  

10.      The "amended Order of Justice" essentially took from 30^th April 1997 until 2^nd June 1998 to reach the Greffier, who issued an Acte of Court (by consent) to say that the plaintiff should have leave to file the amended Order of Justice but would have to pay the costs of the amendment.   The amended Order of Justice (judgment on liability having been ordered by consent on 23^rd August 1996) now claimed that the plaintiff suffered from depression and had been advised on the type of work that he could now undertake.  The loss of earnings from 1st September 1991 to 31^st March 1997 amounted in total to £142,048.65.  The doctor's fees were £65 and prescriptions amounted to £3.60.  In all, the special damages amounted to £153,361.98, the general damages were calculated at £198,460.20p and the total sum claimed was £493,870.83p.  The Answer was not long in coming.  It is dated 8^th July 1998.

11.      Of course there has been much water under the bridge during the 15 years and 9 months since the accident took place.  Medical reports have been obtained.  One is so extraordinary that it calls for attention.  On 22^nd July 1993, a Harley Street specialist comments on a psychological report made in 1992 in this way - (we have not identified the clinical psychologist by name) -

"This psychological report is all nonsense".

12.      There have been investigations by many General Practitioners some of whom have retired and one is now living in New Zealand.  A private investigator has investigated the plaintiff's life style.  The plaintiff has been appointed for a time as an honorary policeman.  There are whole areas of confusion which is understandable due to the time that has elapsed.  That is, for the moment, all beside the point.

13.      Article 7 of the Law Reform (Miscellaneous Provisions) (Jersey) Law 1967 says that -

"No action shall lie on any judgment of the Royal Court, or the Petty Debts Court after the expiration of 10 years from the date on which the judgment became enforceable".

14.      Advocate Steenson put it bluntly.  The life of the judgment obtained on 23^rd August 1996 is ten years.  Just as the plaintiff has three years to bring his action in tort, so he has every day up to 23^rd August 2006 to enforce his action for damages.

15.      In Paxton v Allsopp (1971) 3 All ER 370 at 375 Davies LJ said -

"It is said with truth that it is very rare to dismiss an action for want of prosecution when liability is admitted".

16.      We looked at cases where actions had been struck out for want of prosecution.  In Gloria v Sokoloff (1969) 1 All ER 204 at 205 Denning MR said this -

"In those circumstances the matter came before the Master.  He thought the delay was so prolonged and inexcusable that he struck the action out for want of prosecution.  The judge in chambers (Cooke) did the same:  He affirmed the decision.  Now an appeal has come to us from the judge in chambers.

Counsel for the plaintiff presented a forceful argument to us.  He pointed out that in this case, unlike the others we have had, liability is admitted.  The only issue is damages.  He said that in such a case it would be a most drastic course to strike out the action altogether - thus relieving the defendants of an admitted liability.  I appreciate the force of that argument, but still the principles stated in Allen v Sir Alfred McAlpine & Sons Ltd.  (1968) 1 All ER 543 apply just the same.  If the plaintiff by her advisers has been guilty of prolonged and inexcusable delay which has seriously prejudiced the defendants on the issue of damages, so that there is a substantial risk that a fair trial of the issue cannot be had, then the action may be struck out for want of prosecution, leaving the plaintiff to her remedy against her own solicitor".

17.      Of course in this case, despite the amended Order of Justice, which was in effect a ham-fisted attempt to ascertain the damages, we have a judgment, interlocutory only as to amount.  It will give the plaintiff the absolute right to recover the damages general and special and the costs when the amount of these has been formally ascertained.

18.      The particulars of injury as set out in the original Order of Justice are accepted by both parties.  The Acte of Court says as much -

"And this day the defendant having appeared, the Court pronounced interlocutory judgment against the defendant for damages to be assessed and interest and costs".

19.      Of course there have been delays.  They are as bad as any we have ever come across.  They cannot all be laid at the door of the plaintiff (or perhaps we should say the plaintiff's advisers).  Advocate Steenson says that this case is unique.  Firstly, there is a ten year statutory period.  Secondly there is a consent judgment in force.  After ten years have elapsed in our view, the action will be struck out by effluxion of time.

20.      Of course actions can always be dismissed for want of prosecution.  The Court said precisely that in Skinner v Myles (1990) JLR 9 at page 93 -

"These cases show that there are two distinct, although related, circumstances in which an action may be dismissed for want of prosecution.  They are: (a) where a party has been guilty of intentional and contumelious default (this head is not relied upon by the first defendant); and (b) where there has been inordinate and inexcusable delay in the prosecution of the action.  It is under this head that the first defendant, supported by the second defendant, has asked this court to strike out the plaintiff's claim.  To the requirement that there has been inordinate and inexcusable delay on the part of the plaintiff there must be added one of two additional grounds for striking out.  These are: (a) that such delay will give rise to a substantial risk so that it is not possible to have a fair trial of the issues in the action;  or (b) is such as is likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiff, or between each other, or between them and a third party.  Whilst Mr. White for the plaintiff drew our attention to the second head we have first mentioned, he based his main submissions on the first requirement (as claimed by the defendant), namely, that the delay in this case has given rise to a substantial risk that it would not be possible to have a fair trial. "

21.      The defendant company argues strongly that there is more beneath the surface than is apparent even on the "amended" Order of Justice.  There is (for example) involvement in the Battle of Flowers for 1991, the question of Mr. du Feu falling from a ladder, the evidence of a private investigator, his two terms in the Honorary Police and transcript of evidence of a tragic case in which he was involved as an Honorary Officer.

22.      We have, of course, had very careful regard to the case of Garfield-Bennett v Phillips (2002) JLR.  The learned Deputy Bailiff said -

"The whole approach towards the progress of litigation has changed in recent times. The Court of Appeal made it absolutely clear in The Esteem Settlement (2000) JLR N41 that times had changed and that it now had to be appreciated by all who are involved in civil proceedings that their objective has to be to progress the proceedings to trial in accordance with an agreed or ordered timetable at a reasonable level of cost and within a reasonably short time".

23.      The Court went on to question the decision in Birkett v James (1978) AC 297 in the particular light of the limitation periods (and particularly in the ten year period) that still prevail in this jurisdiction. As the Court said in conclusion -

"However, all that is for another day".

24.      The delay has not been one sided.  This Court finds it impossible to apportion blame with any certainty.  We have carefully considered, in that light, the inordinate delay, the possibility of inexcusable delay and the inability to have a fair trial.

25.      We feel that the plaintiff has been badly let down by those purporting to advise him (we do not include Advocate Steenson in this picture), but because judgment on liability has been given, we feel that we can set a rigorous timetable for the hearing before the Master and after hearing counsel, we proceed to do so.

Authorities

Law Reform (Miscellaneous Provisions) (Jersey) Law 1967.

In Paxton v Allsopp (1971) 3 All ER 370 at 375.

Gloria v Sokoloff (1969) 1 All ER 204 at 205.

Skinner v Myles (1990) JLR 9 at page 93.

Garfield-Bennett v Phillips (2002) JLR.

Birkett v James (1978) AC 297.