Jersey & Guernsey Law Review – June 2008
MISCELLANY
The Wheels of Justice
1 There can be no doubt that Jersey’s Royal Court is pressing the requirement for parties to litigation to progress matters with all reasonable speed. Actions have, historically, be pursued at a relatively leisurely pace; not quite in the Jarndice v Jarndice mould, but nevertheless so that cases might take many years to come to resolution. That of course was all supposed to change with the direction of the Court of Appeal in Re Esteem where Southwell JA indicated that all those involved in civil proceedings before the Royal Court were:
“..to progress those proceedings to trial in accordance with an agreed or ordered timetable, at a reasonable level of cost, and within a reasonably short time.”
2 That laudable aim, expressed some seven years ago, did not see in an immediate or universal change to the culture of litigation in Jersey but is now espoused by the majority involved in practice and, importantly, has continued to be driven home by the Courts in practical ways.
3 First, that overriding objective has been more specifically reflected in a Circular Letter issued by the Master in October 2003, which suggested that the aim should be to dispose of actions before the Royal Court of Jersey within 12 months of their commencement where that was possible. There must be doubts as to whether that aim has been achieved and indeed in many cases it will not, given their complexity, have been possible. It is not known whether the Royal Court has compiled statistics to identify in what measure the aim has been met. The likelihood must be that it is still more of a target than a reality, but it is nevertheless an important indication to those involved in litigation that matters must not be allowed to drift.
4 Furthermore, the objective has been given concrete expression by substantive changes to the rules of court. Jersey’s Royal Court Rules were amended to provide for more active case management – without which the aim of progressing litigation would fall entirely flat - including the requirement for the plaintiff to issue a summons for directions and the ability of the Court to strike out an action for non-compliance with that requirement. Such goes well beyond the only earlier mechanisms of strike out for want of prosecution and the Court’s ability to dispose of actions which had been on the pending list or adjourned sine die without steps being taken toward their resolution.
5 More recently in a number of cases, the Royal Court has shown that within the framework of the Rules and cognizant of its stated aim, it will police the need for litigation to be progressed as quickly as reasonably practicable.
6 In Lescroel v Le Vesconte the Court set out the test to be applied when considering whether to strike out an action for failure to issue a summons for directions and in so doing underlined the need for the judicial control of proceedings as the means of ensuring compliance with the objective of reasonably speedy litigation.
7 Each of the limbs of the test to be applied when deciding to dismiss an action for failure to issue a summons for directions emphasises the need for litigants to be diligent in their prosecution of an action:
(1) the plaintiff must satisfy the Court that, apart from the failure to issue the summons for directions, it has prosecuted the case with at least reasonable diligence;
(2) further, it must satisfy the Court the failure to apply for directions was excusable;
(3) further, it must satisfy the Court that the balance of justice requires that the action be allowed to continue.
8 These three questions are an attempt to provide guidance as to the exercise of the discretion to dismiss in all the circumstances of the case and are not intended to be rigidly or sequentially applied, but they do show the importance placed on diligent progression of an action.
9 The Court in Lescroel emphasised that a summons for directions should always be issued so as to ensure that the case did not fall into a black hole, and to retain judicial control.
10 In Ybanez and Mompo v BBVA Privanza Bank (Jersey) Limited the Royal Court reviewed the law in relation to dismissal for want of prosecution but at the same time took the opportunity to make comment in relation to the progression of litigation more generally in the context of the delay which now would be considered inordinate.
11 The Court confirmed the principles to be applied in considering whether to strike out a claim for want of prosecution as: (i) there having been an inordinate delay in the prosecution of the claim; (ii) that delay being inexcusable and (iii) that delay giving rise to a substantial risk that it would not be possible to have a fair trial of the issues or such as was likely to cause or have caused serious prejudice to the defendant.
12 It is in the context of the acceptable delay that the first point of note comes in the decision. It was made clear that delays which historically may have been regarded as acceptable will now be regarded as inordinate. In the context of the stated aim of litigation being finalised within 12 months, a delay of 24 months in likely to be considered inordinate.
13 The case also decides that the Court can in appropriate circumstances strike out a claim for want of prosecution within the limitation period, since the previous rule that such would only be done in exceptional circumstances was not reconcilable with the reforms and change in culture attendant on the overriding objective stated in Esteem. The coup de grace has been delivered to Birkett v James. This is yet another very real example of the Court’s desire to see litigation progressed with appropriate speed. The Court has also made “unless” orders in respect of anticipated failures to comply with existing orders designed to bring litigation to finality.
14 The overall message is that a leisurely approach to litigation will no longer be tolerated and that litigants must ensure that actions in which they are involved are pursued with all diligence.