In the matter of II [2017] JRC 001 (04 January 2017)

Estate - reasons for refusing to order a split trial or preliminary issue.

[2017]JRC001

4 January 2017

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

The First Plaintiff appeared in person.

The Second Plaintiff appeared in person.

The Third Plaintiff did not appear.

Advocate O. A. Blakeley for the First Defendant.

Advocate D. R. Wilson for the Second Defendant.

Advocate D. S. Steenson appointed as Amicus Curiae for the Plaintiffs.

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1-12
2.	Submissions	13-18
3.	Decision	19-29

judgment

the master:

Introduction

1. This judgment contains my detailed written reasons for refusing to order a split trial or a preliminary issue in relation to this matter.

2. This judgment is the latest in series of judgments I have issued in relation to this dispute. The background to this dispute remains as set out in my earlier decision in this matter reported at In the matter of II [2016] JRC 106 at paragraphs 3 to 21. In that judgment I struck out the claims of the second and third plaintiffs save in respect of their claim against the first defendant for a return of personal possessions. I also gave directions to the second and third plaintiffs and the first defendant to particularise the possessions the second and third plaintiffs claimed had not been returned to them by the first defendant and what personal effects they claimed their grandmother had intended to leave them.

3. On 7^th July, 2016, in the judgment reported at In the matter of II [2016] JRC 116, l struck out in summary the first plaintiff's claims in fraud against both defendants.

4. Subsequent to this decision I stayed the action pursuant to the powers vested in me by Rule 6/28 of the Royal Court Rules 2004, ("the Rules") as amended to enable the parties to look to resolve their differences by mediation. By agreement that stay was extended to the 7^th October, 2016, and then to the 21^st October, 2016.

5. Regrettably the matter has not resolved during the period of the stay granted. It was also clear to me from correspondence received from the parties after expiry of the stay that the matter was not going to be resolved by mediation.

6. I therefore ordered the parties to attend before me so that I could give directions including dealing with whether or not a split trial should be awarded. I had previously indicated at paragraph 91 of the judgment reported at In the matter of II [2016] JRC 116 that I intended to give such directions when the judgment was handed down. In the event I did not do so because I granted the stay pursuant to Rule 6/28.

7. The application for a split trial was first issued by the plaintiffs in February 2015 and was due to be heard by me on 17^th June, 2015, (see paragraph 27 of the judgment in this matter reported at In the matter of II [2015] JRC 194). However, the application for a split trial was not heard because of certain matters that lead to the appointment of an Amicus as set out at paragraphs 28 to 30 of the judgment reported at [2015] JRC 194.

8. The papers submitted by the plaintiffs in support of an application for a split trial put the application on two bases:-

(i) That the issue of the capacity of the first plaintiff's and the first defendant's mother was determined in advance of any other issues; and

(ii) Alternatively issues on liability were heard in advance of issues on quantum.

9. The principles on an application for a preliminary issue are well-known and have been considered by the Royal Court on a number of occasions. The same observation applies in respect of applications for a split trial. I also observe there is a degree of overlap between the approach the Court should take on an application for a preliminary issue and for ordering a split trial and many of the same factors are required to be considered.

10. In relation to an application for a split trial, I refer to paragraphs 13 to 17 of Le Clare v Brown [2014] JRC 187A. On the facts of that case I was prepared to order a split trial. Paragraphs 13-17 state:-

"13. Advocate Benest again relied on the Barreto case and cited the following:-

"There was no dispute between the advocates as to the legal principles involved and these are clearly set out in section 33/4/7 on page 539 of volume 1 of "the White book 1988". I quote from the third paragraph of that section -

"while the normal procedure should still be that liability and damages should be tried together, the Court should be ready to order separate trials of the issues of liability and damages whenever it is just and convenient to do so". The criteria for determining when it is just and convenient to do so are set out in the same paragraph and include the following principles which I quote from section 33/4/7:-

(a) an order for the separate trials of the issues of liability and damages will only be made if there is a clear line of demarcation between these issues on the pleadings, and not where they interact upon each other;

(b) where the issue of liability is separate and distinct for the issue of damages, litigants should take advantage of the facilities which are afforded of having the question of liability decided as a preliminary issue before the issue of damages;

(d) in actions for damages for personal damages, the issue of liability may be ordered to be tried before the issue of damages where there is an element of uncertainty about the plaintiff's future or where no firm prognosis is possible until some years after the accident;

(e) in considering whether to order the separate trial of the issue of liability before damages, regard will be had to the benefits that will thereby accrue to the parties, e.g. an earlier determination on the liability while the facts were fresher in everyone's memory, as against the hardship or prejudice that might thereby be occasioned to them.

In this case it is clear that there is a clear line of demarcation between the issues of liability and damages in the pleadings and that they do not interact upon each other. It is clear that the issue of liability is separate and distinct from the issue of damages. It is clear that the issue of damages will be detailed and complicated.

Advocate White argued that there was no evidence before me as to whether there was an element of uncertainty about the plaintiff's future or as to whether no firm prognosis was possible until some years after the accident. I considered adjourning the hearing in order to obtain medical evidence thereon but decided that the nature of the case and the seriousness of the injuries was evident from the plaintiff's pleadings. The defendant had not denied these pleadings but simply indicated that they were not admitted. I was satisfied that with injuries as serious as those alleged there would certainly remain a great deal of uncertainty about the plaintiff's future and that a firm prognosis would be difficult for some time to come. It appeared to me to be in the interests of justice that the trial of the issue of liability should precede as soon as possible whilst the facts were as fresh as possible in the memory of the witnesses."

14. Advocate Benest also cited examples where the Royal Court had proceeded on the basis of split trials (e.g. McCann v Bateman & Ors [2005] JRC 027A and Morley v Reed [2012] JRC 127A. There are a number of other cases where this has occurred, which it is not necessary to cite.

15. Advocate Ingram drew to my attention to the well-known case of Maynard v Public Services Committee [1996] JLR 343, where Southwell JA indicated the normal procedure in personal injury cases should be to fix as early a date as possible for a single trial of all issues. Maynard was followed in X v Minister for Health & Social Services [2011] JLR 772. He also drew to my attention the current approach in England where, as part of the English court's general powers of case management, I was informed it was common place to consider whether a case should proceed by way of a single or split trial.

16. I agree, the starting point is that there should be a single trial. Indeed, this was the position taken by Judicial Greffier Le Marquand in Barreto. This starting point does not mean however there cannot be a split trial. I also considered it important to bear in mind that in Maynard the Court of Appeal was criticizing the reference of a single point of law to the Royal Court and the Court of Appeal. At page 359 of the judgment lines 5-19, Southwell J A stated as follows:-

"The decision of this court is purely interlocutory, since it involves no final decision and the facts relevant to the suspension of prescription (as well as all the other issues of fact arising on the pleading) have yet to be decided.

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 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 together."

17. The X Children decision was concerned with whether the court should order, as a preliminary issue under Rule 7/8 of the 2004 Rules, the question of whether the Minister for Health and Services owed the children a private law duty of care. At paragraph 10 of the judgment Commissioner Clyde-Smith stated as follows:-

"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 relation to the ordering of a preliminary issue, I considered this in CMC Holdings Limited v Forster [2016] JRC 149 at paragraphs 15 to 18 as follows:-

"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 have 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):-

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.""

12. These are the principles I applied in refusing to order either a preliminary issue or a split trial.

Submissions

13. The main thrust of the first plaintiff's submissions was that a split trial should be ordered because quantum was complex. While she had yet to file a detailed schedule of loss in summary the first plaintiff explained that the losses she is claiming are as follows:-

(i) Half the value of the estate of her mother;

(ii) Interest on monies she had to borrow because the first defendant had not kept his promise;

(iii) What returns would she have achieved if half the estate been transferred to her;

(iv) Damages for her severe emotional distress; and

(v) Loss of earnings because the first plaintiff was unable to find a job while the present litigation was ongoing.

14. The first plaintiff also referred to a loss of private health insurance cover because of the refusal of the defendants to agree to an interim payment. The context of this remark was that the first plaintiff had issued two applications for an interim payment of £100,000. However, both these applications were dismissed on the basis that none of the grounds set out in Rule 8/2(1) of the Rules to order an interim payment had been established.

15. The first plaintiff fairly indicated that if a split trial was ordered and she was unsuccessful on liability that she would appeal that decision. I would have reached the same conclusion based on the appearances of the first plaintiff before me and the various applications she has made.

16. Advocate Wilson for the second defendant led the opposition to the first plaintiff's application. Although he suggested it was possible to defer consideration of an application for a split trial or preliminary issue until after discovery, his main submissions were as follows:-

(i) Unless the position went entirely in the first plaintiff's favour, she would never accept any decision of the Court and would appeal. This was illustrated by her claim for loss based on a lack of health insurance cover due to the interim payment applications being unsuccessful. Clearly this decision had not been accepted. He therefore contended that the first plaintiff would never accept any decision which went against her. This had the consequence of dragging on a dispute that was commenced in 2012 and related to events some years before that.

(ii) Her approach to appeals could also be seen by the stance she and the second and the third plaintiffs had taken in relation to the decisions referred to above given in June and July of this year. The grounds of appeal of both were procedural and both had failed to address the substance of the decision being appealed against. This approach confirmed that any decisions which the plaintiffs disagreed with were likely to be appealed. If a split trial was ordered matters could therefore go on for years.

(iii) He also contended that the evidence of the first plaintiff would not be focused. She would be unable to differentiate between matters relevant to liability and matters relevant to quantum. This was exactly the sort of case where it was therefore appropriate to have the parties giving their evidence once in respect of all issues.

(iv) Furthermore, it was impossible to neatly separate out issues of liability from evidence that went to quantum. Part of the motivation for the first plaintiff and first defendant's mother for not leaving assets to the first plaintiff was the first plaintiff's inability to manage her own money and her own affairs - see paragraph 7 of the supplemental answer of the first defendant dated 21^st July, 2016. Yet how the first plaintiff managed her money was also relevant to quantum.

17. Advocate Blakeley in supporting Advocate Wilson's submissions specifically emphasised that the question of the first plaintiff's approach to finances was not only relevant to quantum and liability but also causation. There also had to be compelling reasons to go against the normal rule not to order a split trial and this was not one of those cases. Quantum was not that complicated.

18. The first plaintiff in reply emphasised the lack of equality of arms which meant that ordering a split trial made matters more convenient for her to deal with due to her lack of representation.

Decision

19. Before setting out my decision I should record that the first plaintiff suggested that my decision to set a directions hearing on 7^th December, 2016, had disadvantaged her because it had caused a lawyer she had retained in England to cease acting for her. I do not accept this submission. The date of 7^th December, 2016, was the only date practically available before Christmas even if at relatively short notice for all parties including the Court, to enable directions to be given otherwise directions might not have been given until January 2017. I considered it was important for directions to be given as soon as possible because the age of the action, the fact that the dispute goes back to events in 2008 if not before and that the time period for the parties to resolve their differences had expired. The matter now had to progress to trial.

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. The application for a split trial was also something I had already indicated at the conclusion of my judgment in July that I would deal with when giving directions.

21. In giving directions, which it is not necessary to set out for the purpose of this decision, I did however bear in mind that the first plaintiff was a litigant in person which I reflected in the time periods I allowed for compliance with various orders.

22. In relation to a split trial, applying the factors in Baretto v Sanguy (unreported No.16A, 2nd May, 1990) referred to in Le Claire v Brown [2014] JRC 187A, I was firstly not satisfied there was a clear line of demarcation between liability, causation and quantum on the pleadings. Liability was not therefore separate and distinct from the issue of what damage the first plaintiff might have suffered if she was successful on liability.

23. Secondly, I agreed with Advocate Wilson that the first plaintiff, if a line of demarcation could be drawn between liability and causation/quantum, would not be able to maintain that distinction in her evidence. I express this conclusion based on the first plaintiff's various appearances before me where, although she makes her position clear on a particular issue, her submissions are never limited to that issue alone; instead she uses a hearing to express more general concerns or criticisms even though they are not relevant to the point in issue.

24. I was also of the view that the issue of damages was not detailed and complicated. The heads of damage identified by the first plaintiff are types of damage that the Royal Court is used to assessing. The Royal Court is also used to dealing with any legal arguments on whether the different categories of damage claimed are recoverable as a matter of law. I therefore did not consider that the types of loss claimed justified a separate hearing.

25. I also agreed it was preferable for the witnesses to give evidence once only both generally and because of my concern that the first plaintiff's evidence on any split trial or preliminary issue would lack focus.

26. Insofar as what was asked for was a preliminary issue, applying the factors in CMC v Forster, no decisive or potentially decisive issue was identified, no question of law arises in this case which would be decisive, there are quite clearly no agreed facts and the prospect of an agreed schedule of facts being produced in my judgment is remote if not impossible. What is at the heart of this case is a factual dispute. Any preliminary issue could not therefore be tried without delaying the matter further, which has already not progressed to trial for a variety of reasons.

27. When appeals are taking into account, ordering a preliminary issue (or indeed a split trial) would cause significant further delay.

28. Whether I therefore approached matters from the perspective of ordering a split trial or from the perspective of ordering a preliminary issue the factors I considered and the relevant tests all pointed strongly towards having one trial to determine the first plaintiff's claims. I was therefore not prepared to order any form of split trial or preliminary issue for all these reasons. I therefore gave directions for discovery to be completed, witness statements to be exchanged and for the provision of expert evidence. I also made it clear that if these directions were not complied with, I would be amenable to imposing sanctions for any non-compliance including the possibility of dismissing the plaintiff's claim.

29. There were two other matters which I should record as follows:-

(i) I did not give any directions in respect of the second and third plaintiffs' claim for the return of their personal effects because it was not clear to me on what basis the first defendant opposed the return of these effects or the first defendant opposed any claims to effects which the second and third plaintiffs suggested had been promised to them by their grandmother. I therefore indicated I would give directions in respect of this issue once I had seen the first defendant's response to the claims advanced by the second and third plaintiffs.

(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.

Authorities

In the matter of II [2016] JRC 106.

In the matter of II [2016] JRC 116.

Royal Court Rules 2004, as amended.

In the matter of II [2015] JRC 194.

Le Clare v Brown [2014] JRC 187A.

CMC Holdings Limited v Forster [2016] JRC 149.

Baretto v Sanguy (unreported No.16A, 2nd May, 1990).

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Jersey Unreported Judgments

Introduction

Submissions

Decision