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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> de Bourbon des Deux Siciles v Strang and Ors 01-Jul-[2021] JRC 180 (01 July 2021) URL: http://www.bailii.org/je/cases/UR/2021/2021_180.html Cite as: [2021] JRC 180 |
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Before : |
T. J. Le Cocq, Esq., Bailiff, and Jurats Olsen and Thomas |
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Between |
Princess Camilla de Bourbon des Deux Siciles |
Appellant |
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And |
Ian Strang, Ashley Hoy, Nigel Pearmain, |
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And |
Jeffrey Giovannoni, Kate Anderson and Clare Nicolle |
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(practising as Voisin Advocates and Notaries Public) |
Respondents |
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Advocate H. B. Mistry for the Appellant.
Advocate A. D. Hoy for the Respondent.
Judgment
the bailiff:
1. This is an appeal by Princess Camilla de Bourbon des Deux Siciles ("the Appellant") against Ian Strang and others ("the Respondents") from the Order of the Master of 8th April 2021 Strang and Ors v de Bourbon des Deux Siciles [2021] JRC 109 ("the Order"). The Order was explained in a Judgment of that date ("the Master's Judgment").
2. The Court (Le Cocq, Bailiff sitting alone) granted a stay of the Order for the reasons set out in a judgment (de Bourbon des Deux Siciles v Strang and Ors [2021] JRC 145) until the conclusion of this appeal.
3. We do not propose to set out the background to this dispute in full as it has already been described in a number of judgments of this Court. It is in essence a claim by the Respondents for legal fees and a counterclaim by the Appellant for losses occasioned by the failure of the Respondents to represent her before the Court of Appeal during the course of a substantive hearing. The steps taken by the Court of Appeal to mitigate any prejudice caused to the Appellant by the absence of her counsel are referred to in the judgment of Le Cocq, Bailiff of 7th September 2020, reported at Strang and Ors v de Bourbon des Deux Siciles [2020] JRC 178 ("the September 2020 Judgment") and it was the summary of the background in Paragraphs 4 - 8 of that judgment which was adopted by the Master in the Master's Judgment.
4. In the September 2020 Judgment Le Cocq, Bailiff set out the procedural history of the present dispute in the following terms:
5. The Master's Judgment went on to refer to further extracts from the September 2020 Judgment which in summary had found that whereas there were significant inadequacies in the pleadings advanced by the Appellant in that case, they had not crossed the high threshold of being susceptible to an application to strike-out. The Bailiff continued in the September 2020 Judgment to say:
6. These extracts were expressly referred to by the Master in the introductory paragraphs of the Master's Judgment. That is the context of the latest episode in this litigation.
7. On 30th September 2020, an Order was made requiring the Appellant to provide further information about her Counterclaim as set out in an appendix to the Act of Court of that day. We set out that appendix in full:
8. On 11th November 2020, the Master issued an unless order requiring the Defendant to provide answers to the matters set out above failing which the Defendant's answer and counterclaim would be struck-out automatically without further order.
9. On 27th November 2020, the Defendant provided answers. It is not necessary in our judgment to set out those answers in full. They are set out in the Master's Judgment. It is these answers that fell to be considered by the Master in the Master's Judgment and the Order.
10. The Master, in the Master's Judgment took some care in setting out the arguments put before him by both the Respondents and the Appellant. We do not need to set these out in full because they are set out with great thoroughness in the Master's Judgment. The Master's decision is found in Paragraph 58 of his Judgment in which he accepted that oral advocacy is at the heart of an adversarial system, but that the Court of Appeal had taken steps to address the lack of oral advocacy by allowing the Defendant to have access to the live transcript whilst the Court of Appeal was receiving oral submissions from the other parties together with the opportunity to file written contentions after oral submissions had concluded to respond to any points raised during the oral hearing. The Court of Appeal had expressly accepted that the lack of oral advocacy was a "disadvantage" for the Appellant which they had done their best to ameliorate.
11. The Master then went on to say that the question of lost opportunity which is the basis of the Appellant's case must be set within the context taken by the Court of Appeal. The Appellant must, therefore, identify what it is she suggested had been lost given the protections afforded to her by the Court of Appeal. We do not disagree with this view. The Master observed that her pleadings had not addressed these issues. The Appellant had not availed herself of the opportunity to address the submissions made before the Court of Appeal in some detail and did not apply to file any oral evidence before that Court. The Appellant had not explained why the grounds of dispute that she relied on before the Master had not been put in the written contentions filed with the Court of Appeal. The Master agreed with the submissions of Advocate Hoy for the Respondents and said, at paragraph 65 of the Master's Judgment:
12. The Master went on to say that the Appellant's lost opportunity claim also had to be considered in the light of the Privy Council's refusal to give her leave to appeal. She did not address the effect of her children's appeal to the Privy Council, in respect of which leave had been granted, and the Master argues that if the appeal before the Privy Council is successful, then what was referred to in the Court of Appeal Judgment as "Camilla's Trust" would be restored. She will not, thereby, have lost any opportunity.
13. The Master indicated at paragraph 70 of his Judgment:
14. The Master observes, at paragraph 73:
15. The Master indicated that the Appellant had already received a number of opportunities to plead the case sufficiently and therefore was not sympathetic to the Appellant's contention that if more was required then there should be a further opportunity to provide it. The Master referred to his role underlined by the overriding objective to engage in active case management. It is right at this point to say that we also agree with the Master's position on the importance of active case management.
16. At paragraphs 78 - 79 of the Master's Judgment he says this:
17. In paragraph 80, the Master dealt with the Appellant's submission that the application for summary judgment was procedurally defective in the following terms:
18. The Master went on to determine that a trial in the way that the Appellant proposed would be vexatious and an abuse of process and should be stuck out on those grounds as well.
19. In paragraph 83 of the Master's Judgment he concludes:
20. The Unless Order required the provision of certain information as set out in the Appendix to the Act of Court of 30th September 2020 by 5:00 p.m. on 27th November 2020. Without the provision of answers the Appellant's answer and counterclaim was struck out automatically. The Unless Order is expressed as being issued pursuant to Rule 6/15 of the Royal Court Rules 2004.
21. Rule 6/15 provides the power of the Court on its own motion or on an application to order a party to clarify any matter which is dispute or give additional information. The further information filed by the Appellant was done on 27th November 2020, and accordingly, on its terms, the Unless Order had been complied with.
22. The Appellant argues that what the Master did was review the answers provided against the test of adequacy and decide that his view the inadequacy of the answers amounted to a failure to give answers. The Appellant argues, however, that there was no requirement for answers to the adequate as such merely, under the Unless Order, that they be provided. If there were any inadequacies, which the Appellant disputes, it would still be open to the Respondent to apply to strike out. The answers should not, however, have been struck out on the grounds that because they were inadequate they were not provided and in breach of the Order.
23. Mr Mistry for the Appellant accepted that if the answers had been completely inadequate in the sense that they had wholly failed to address the subject matter of the questions, then of course they would not be real answer at all. However, the answers provided by the Appellant did not fall into that category but were, rather, full and detailed.
24. On the issue of summary judgment, the Appellant refers to Rule 7/2(4) of the Royal Court Rules which is in the following terms:
25. The Appellant argues that Rule 7/2(4) is unequivocal and sets out a mandatory requirement for an affidavit in support of the summary judgment. There was no derogation within the Rule or generally from this mandatory requirement and indeed the other paragraphs in Rule 7/2 make express references to an affidavit again without any derogation from the requirement to prepare and serve one.
26. The Appellant contends that not only is the requirement in Rule 7/2 mandatory but also to proceed otherwise, as the Master did, would be to leave litigants uncertain as to whether affidavits were required in some cases but not in others.
27. The Appellant also argues that the approach set out in paragraph 79 of the Master's Judgment, set out above, was wrong. We were referred to CI Trustees and Executors Limited and others v Sinels Advocates and others [2017] (2) JLR 1 in which the Court considered applications for summary judgment. A number of principles were identified including that the Court must consider whether the claimant has a realistic, as opposed to fanciful, prospect of success, a realistic claim being one which carries some degree of conviction and is accordingly more than merely arguable. No mini trial should be conducted although the Court does not need to take at face value and accept everything a claimant says. The Court must take into account not only evidence actually before it but also evidence that might reasonably be expected to be available at trial.
28. To that admittedly incomplete gloss the Appellant also added a reference to the dicta of Lord Hobhouse in Three Rivers DC v Bank of England No 3 [2003] UK HL 16 at Paragraph 158 when his Lordship said:
29. It is argued that the Master took the view that a trial of the counterclaim in the way the Appellant suggests would be to ask this Court to go through transcripts to assess if the Court of Appeal might have reached a different conclusion, without the Appellant first identifying the different submissions which could have been put by reference to passages in the transcript. Coupled with a refusal by leave of the Privy Council this, he said, had an air of unreality about it. The Appellant submits, however, that the amended counterclaim lists the grounds of dispute with the Court of Appeal Judgment and it was not outside the bounds of reality for the Appellant to let the Royal Court assess the loss of chance based on the arguments or lack of arguments on the issues raised in it.
30. On the question of a strikeout on the grounds that the amended counterclaim disclosed no reasonable cause of action the Appellant argues that the Master failed to assess the law on strikeout in his Judgment and in particular did not asses or ignored the pleadings, the burden of proof (which is a heavy one with the parties seeking to strike out a pleading in its entirety and which the Master did not address in his Judgment); that a weak case cause of action should not be struck out unless it is doomed to fail and the fact that the Appellant was being deprived of a fair trial.
31. On that part which relates to the strikeout on the basis that the amended answer and the counterclaim was scandalous, frivolous or vexatious or an abuse of process the Appellant argues that the Master's Judgment did not set out in full or adequately the justification for that reasoning nor did it demonstrate that, on the evidence before the Court, save for a vague suggestion that the Appellant's counterclaim was an abuse of process in the face of the appeals to the Privy Council, was the matter explained.
32. The Appellant also argues that the Master's Judgment was effectively a deprivation of a right to a fair trial under Article 6 of the Human Rights (Jersey) Law 2000, Schedule 1, Part 1 and that the refusal to grant permission to amend the counterclaim was unreasonable in all the circumstances. A number of authorities were put before us in that regard but we do not think that it is necessary in this Judgment to refer to them.
33. Other arguments were also advanced by the Appellant but we do not propose to refer these.
34. In essence the Respondents argue that an inadequate answer or an incomplete, irrelevant or irrational response cannot be an answer to the requirements of the Unless Order.
35. With regard to summary judgment, the Respondents argue that an affidavit is not a requirement for an application under Rule 7 because the material in the case comprises court documents and no facts are deployed which might be in dispute. In essence, insofar as this argument is concerned, the Respondents rely on the determination of the Master. The Respondents refer to a judgment of the Bailiff in an earlier hearing of this matter Strang and Ors v de Bourbon des Deux Siciles [2020] in which the Bailiff said at Paragraph 15:
36. This quotation was cited in support of the contention that there was no need for an affidavit. We merely observe that in the case quoted above, consideration was being given to the question of admissibility of evidence pursuant to Rule 6/13(1)(a) of the Royal Court Rules (2004) and was not a consideration of Rule 7.
37. With regard to the question of summary judgment and the exercise of discretion the Respondents asserted that the Master did consider the relevant matters in full and effectively repeats the Master's statements contained in the Master's Judgment.
38. With regard to the strike out on the basis that the Appellant's pleading disclosed no reasonable cause of action, the Respondents maintain that no reasonable cause of action was disclosed and in particular rely on the position referred to in the Master's Judgment relating to the children's appeal to the Privy Council.
39. The Respondents repeat the Master's assertion to the effect that the Respondents case was vexatious and an abuse and argue that the counterclaim is clearly an abuse on the basis that it seeks substantial damages from the Respondents which are the same damages that have been sought before the Privy Council and there is no proper assessment of loss or loss of opportunity. A number of other arguments are deployed by the Respondents but in our judgment it is not necessary to refer to them in full.
40. Although we have not set out all of the arguments advanced by both sides in this appeal we have considered them.
41. We have not found this an easy matter to determine because we entirely understand the approach of the Master, his desire under the overriding objective to bring order and clarity to these proceedings and the frustration that arises out of pleadings which are inadequate.
42. It is indeed true that the breach of an unless order is a serious matter but it seems to us that where an answer to questions required under an unless order is provided, that answer is purportedly detailed and purportedly makes some attempt to address the questions in a proper manner then those answers should not be reviewed on the basis of adequacy. The requirement was to produce answers and, absent answers which are wholly and obviously inadequate once provided, the terms of the unless order have been met. If, in the round, the pleadings are then inadequate it is appropriate for an application to be made to strike them out. It is not appropriate, in our view, to judge those answers against the test of adequacy. In those circumstances this gives rise to risk of an inappropriate test being applied.
43. On the matter of summary judgment, whilst we understand the approach of the Master to the requirement for an affidavit, in our view the Rules of Court make the provision of an affidavit mandatory and we do not think that it was open to the Master to derogate from that mandatory requirement.
44. Furthermore, whilst we think that the Appellant's pleading is inadequate to the task we do not think that on its surface it could be said to pass the test of unreality to justify a summary judgment although we entirely agree with the Master that the pleaded case must be clarified in full and we propose, as set out in the last paragraph of this judgment, to afford the Appellant a final opportunity adequately to plead her case.
45. In conclusion, and whilst appreciating the difficulties posed by the current state of the pleadings, and the Master's approach, we are left with the concern that the overall approach in dealing with this matter in this way led to a potential unfairness and thus we allow the appeal, overturn the Order and reserve the matter of costs to the final hearing.
46. We add this. It is apparent in this matter that it is likely that any decision of the learned Master will be appealed to this Court by the party who is dissatisfied with it. In the circumstances we think it appropriate at this stage (with the possibility of reviewing the position later) to reserve this matter to this Court which will sit to deal with procedural matters as needed.
47. Notwithstanding this judgment we do not think that the pleadings are in a satisfactory state. We do not think it possible or appropriate for the Court to be taken through the transcript by counsel for the Appellant and for points then to be made as to what would have been different had Advocate Hoy represented the Respondent before the Court of Appeal. A transcript in full is available to the Appellant and we see no reason why the Appellant cannot fully particularise in improved pleadings what disadvantages she has suffered and what could or should have been done or said on her behalf during the course of oral advocacy, that was not done within the written advocacy that the Court of Appeal put in place to protect her interests. We cannot see why the Appellant cannot particularise why these alleged acts or defaults would have caused her loss or damage so that her loss of a chance could be evaluated and assessed by the Court. If it can be done at trial it can be done in particulars and we are minded to make orders for the provision of particulars and direct that the parties appear before us at a date to be fixed for that exercise. This is something that the Court is minded to require of its own motion but we shall afford the parties the opportunity to make submissions as to the precise form of any order that the Court might make and the time frames for compliance.
