[2003]JRC090

royal court

(Samedi Division)

4th June 2003

(1) Application by the defendants, under Rule 1/5 of the Royal Court Rules 1992, as amended, for an extension of time within which to appeal against an Order of the Master of 14^th February, 2002, striking out part of the Defendant’s answer, with costs to be paid by the Defendants; (2) an appeal against the said Order of 14^th February, 2002; and (3) an appeal against the decision of the Assistant Judicial Greffier with regard to taxation.

Advocate A J Clarke for the plaintiff

The First Defendant on his own behalf and

as a representative of the second and third defendants

judgment

the bailiff:

1.        This is a simple claim for professional fees amounting to £4,792.  A summons was issued on 29 May, 2001, and the action was placed on the pending list when first called before the court.  Particulars of claim were lodged, and an answer was filed putting the Plaintiff to proof as to the terms of the contract and as to the value of the work performed pursuant to the contract.  So far so good. 

2.        In August, 2001, further and better particulars of two paragraphs of the answer were requested by the Plaintiff and in October, 2001, those particulars were furnished.  On 11th December, 2001, the Plaintiff issued a summons seeking to strike out parts of the answer and to obtain summary judgment for part of the claim.  A skeleton argument was prepared and the summons was heard before the Master on 14 February, 2002.  The Master adjourned the application for summary judgment but granted the Plaintiff’s application in relation to the strike-out and struck out one paragraph and part of another paragraph of the Defendants’ answer.  He ordered the costs to be paid by the Defendants on the standard basis. 

3.        A bill of costs was prepared by the Plaintiff, who had employed his own firm for the purpose of the hearing before the Master.  A bill totalling £4,683.55 was submitted for taxation.  The taxing officer taxed off £1,453.64 and a taxation certificate was issued on 31st December, 2002, in the sum of £3,547.70 (including disbursements, the costs of the taxation hearing and the taxing fee). 

4.        Owing to an administrative error the taxation certificate was not apparently received by the defendants until February, 2003.  The Defendants have now issued a summons seeking an extension of time, pursuant to Rule 1/5 of the Royal Court Rules, 1992, as amended, within which to appeal against the Master’s order striking out parts of the answer.  The Defendants also seek to appeal the decision of the taxing officer on the basis that a Plaintiff advocate is to be treated as a litigant in person and that in the context of this case a Factor B uplift should not have been allowed.  Earlier this week half a day was devoted to the hearing of these appeals, the Defendants on this occasion being represented by the first defendant personally and the Plaintiff being represented by counsel.

5.        If one stands back from the issues for one moment, what does one see?  This is a claim for £4,792.  Leaving aside the question of who will ultimately pay the costs, the hearing before the Master cost the Plaintiff £4,683.  Presumably the costs incurred by the Defendants were also measured in thousands.  The legal costs incurred thus already exceed by an uncomfortable margin the amount at stake and the action has not yet been heard.  This is an absurdity.  What has gone wrong?

6.        We recall the strictures of Southwell J A giving the judgment of the Court of Appeal In Re Esteem (27th July 2000) Jersey Unreported; [2000/150] –

(2) There is apparently as yet no appreciation that the time when it was acceptable for advocates to play interlocutory games passing from the Royal Court to the Court of Appeal and back again several times before pleadings were closed, and perhaps more times before the stage of trial was reached, has gone.  Such conduct of civil proceedings is unacceptable in the 21st century, because usually the only beneficiaries of such procedures are the lawyers, and not their clients……..

(3) From now on it has to be appreciated by all who are involved in civil proceedings in the Royal Court that their objective has to be 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.

(4) Consistently with that objective, the correct function of pleadings needs to be kept in mind.  The function of pleadings is to set out the material facts on which the parties will rely at trial to establish their causes of action or defences, and which the parties will seek at trial to establish by relevant and admissible evidence.  It is no part of the function of advocates to seek to persuade the Royal Court to strike out the whole or part of a pleading which contains plainly arguable causes of action, or to edit a pleading whether so as to improve it or to make it less effective.  It is no part of the function of the Royal Court to lend itself to any such endeavours on the part of advocates.  Formal pleading is an art, not a science, and to seek to achieve some abstract level of perfection in pleadings is not consistent with the objective I have stated, or of value in terms of time, effort or expense.

(5) It is essential that there is now a change to new ways of practice consistent with that objective, because if there is no such change advocates may find themselves either being ordered themselves to pay the costs of the opposing part, or being denied the ability to charge their own client for the work of supererogation they have performed.”

7.        In our judgment the application to strike out passages of the Defendants’ answer should never have been made.  It was wholly disproportionate to the nature and value of the claim.  It was not in context a necessary application.  If millions had been at stake it might have been a proper application.  But millions were not at stake.  It was tantamount to an interlocutory game.  Moreover, it was a game which the Plaintiff, who was using at that stage the resources of his own firm, could afford more easily to play than the Defendants.  We think that the Master ought not to have acceded to the Plaintiff’s request that the application to strike out be heard.  In so saying, we do not criticise the Master because practice is evolving and the legal profession has apparently not yet entirely come to terms with the overriding objective of bringing proceedings to trial at a level of cost which is reasonable and commensurate with the sum in dispute.

8.        In our view this dispute ought to be compromised.  However, if one or more of the parties is unwilling to compromise, then the court must act robustly to ensure that the overriding objective set out above is met.  Rule 6/21 empowers the court to give directions for the trial of an action.  This action should not be allowed to occupy more than half a day of the court’s time.  We think that the Master, in refusing to hear the strike out application, ought to have invited the Plaintiff to issue a summons for directions.  At that hearing, directions should have been given to ensure that the issues, viz. what were the terms of the contract between the parties, and was the contract performed or was there a failure on the part of the Plaintiff to fulfil his obligations, could be resolved within that time frame.  The precise directions would be a matter for the discretion of the Master, but we envisage, for example, that evidence could be reduced to affidavit form with cross-examination only with leave and cross-examination being time-restricted.  Written submissions could be directed, and oral submissions equally limited in time. 

9.        Ordinarily we would not extend the time within which to appeal against an order of the Master given fifteen months ago.  Time-limits are important and should generally be observed.  These appeals do, however, raise an important issue of principle as to how litigation involving relatively small sums of money should be managed.  We think that the justice of the matter will be met by the making of the following orders.

10.      We grant the Defendants’ application for an extension of time within which to appeal the order of the Master of 14th February, 2002, and we set aside the order made on that date, including the order for costs against the Defendants.  Each party will therefore pay its own costs of the proceedings before the Master.  The action remains on the pending list.  In default of negotiations to compromise the issues between the parties within a reasonably short period, we request the Master to proceed as indicated in paragraph 8 above to give directions designed to bring the action on for trial in short order.  The parties will pay their own costs of this appeal.

Authorities

In re Esteem (27^th July 2000) Jersey Unreported CofA; [2000/150}

Finnegan –v- Parkside Health Authority (1998) 1 All ER 595 C.A.

Malkinson –v- Trim [2003] 2 All ER 356.

London Scottish Benefit Society –v- Cherley et Al (1885) 13 QBD 572.

Re Eastwood (1975) 13 QBD 872.

Haas –v- Duquemin (27^th June 2002) Jersey Unreported; [2002/122]

Royal Court Rules 1992; Rule 15/2.