[2007]JRC091

royal court

(Samedi Division)

30^th April 2007

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Allo and Morgan.

 

Advocate A. D. Robinson for the Appellant.

Advocate C. J. Dorey for the Respondent.

judgment

the deputy bailiff:

1.        This is an appeal from a decision of the Master to strike out the order of justice under Rule 6/26(13), which provides that, if two months have elapsed from the time limited for filing pleadings and no summons for directions has been issued, the Court may, of its own volition, having given not less than 28 days notice in writing to all parties, order the dismissal of the action.  We announced our decision at the conclusion of the hearing and now give our reasons.

Background

2.        The factual background is as follows.  The order of justice was issued on 25^th April 2003.  It claims damages for personal injuries suffered by the appellant ("the plaintiff") in a road traffic accident on 15^th October 2002.  According to the order of justice, the plaintiff was a pedestrian who was crossing the road at a pedestrian crossing which was showing in her favour when she was struck by the car driven by the respondent ("the defendant"), who had driven through the red light showing for motor vehicles. 

3.        An answer was filed on 27^th May 2003 admitting negligence by the defendant.  Accordingly, the only outstanding issue was one of quantum but that could not be resolved at that stage because the extent of the plaintiff's injuries could not be ascertained.  On 8^th December 2003 a joint letter signed by Advocate Preston on behalf of the plaintiff and Advocate Dorey on behalf of the defendant was sent to the Master.  It referred to the fact that the matter had been placed on the pending list and stated that the parties were collating medical and accident reports which were yet to be completed and that the parties did not wish to take any further steps in the litigation until such time as the report had been completed. 

4.        We shall refer in a moment to the affidavit of Katherine Thorne, the legal assistant at Voisins who had day-to-day conduct of the action on behalf of the plaintiff, but suffice it to say at this stage that it is said on behalf of the plaintiff that the plaintiff has since then been undergoing various forms of medical treatment and operations for her injuries and that a number of medical reports have had to be obtained by both sides. 

5.        On 10^th November 2003 the insurers for the defendant offered an interim payment of £10,000 which was accepted by the plaintiff.  In July 2004 the sum of £55,000 was paid into Court by the defendant and in October 2005, by agreement, £2,000 of that sum was paid out to the plaintiff in respect of dental treatment. 

6.        By Circular dated 15^th December 2006, the Master gave notice that, under Rule 6/25(2) and Rule 6/26(13) of the Royal Court Rules 2004, the Court intended to consider dismissing the actions listed in the schedule to the Circular.  The present case was one of those included in the schedule in accordance with the terms of paragraph 3 of the letter to the profession from the Master on case management dated 31^st October 2003 which provided that actions over three years old would be listed for dismissal.  The Circular directed that any party objecting to such dismissal should issue a summons within 28 days to show cause why the action should not be struck out. 

7.        No such summons was issued by Voisins on behalf of the plaintiff.  How did that come about?  The Court has received affidavits from Advocate Preston, Miss Thorne and Mr Dexter Flynn.  Advocate Preston recalls receiving the Circular dated 15^th December 2006.  He highlighted those cases which related to his firm and instructed his secretary to copy the Circular to all fee earners in the litigation department for any necessary action.  Unfortunately his secretary omitted to do this.  As a result Miss Thorne never saw the Circular and no summons was issued on behalf of the plaintiff to show cause why the action should not be dismissed. 

8.        Accordingly, on 24^th January 2007, no summons having been issued, the Master dismissed the action together with a number of others listed in the schedule to the order of that date. 

9.        Voisins did not appeal that decision within the 10 day period provided by the Rules.  How did that come about?  It appears that no one at Voisins checked the schedule attached to the Act of 24^th January 2007 because they assumed that none of their cases had been struck out.  This was clearly extremely unwise.  In ignorance of the Order striking the action out, Miss Thorne wrote to the Master on 30^th January 2007 updating him on progress and informing him that settlement negotiations would begin once the medical evidence was complete. 

10.      The first that Voisins knew of the action having been struck out was when Advocate Dorey, on behalf of the defendant, telephoned Advocate Preston on 6^th February 2007.  This was followed by a letter of the same date enclosing a copy of a letter sent to the Judicial Greffe asking for the payment into court to be repaid to the defendant in view of the fact that the action had been struck out.  

11.      There then followed some discussion between the staff at the Greffe and Advocate Preston's office.  We accept that there appears to have been some confusion as to whether the case had indeed been struck out.  Thus we have seen an e-mail dated 17^th February from Nicola Southouse at the Greffe to Miss Thorne stating that, upon checking through the file, it seemed that the case was still in progress and that the Master had fixed a review in one month's time.  Later it was suggested that the Master would be willing to reverse the decision to strike out under the slip rule.  This was objected to by Advocate Dorey and accordingly Advocate Preston and Advocate Dorey attended upon the Master on 13^th February to discuss the way forward.  It is clear that the Master was willing to reinstate the action had both parties agreed but, in the absence of agreement on the part of the defendant, he felt that he was functus officio and could not act further.  He advised that the only route for redress by the plaintiff was an appeal to this Court. 

Leave to appeal out of time

12.      Notice of appeal was filed on 16^th February.  The last day for appealing under the Rules was 2^nd February and accordingly the appeal is 14 days out of time.  The plaintiff therefore seeks leave to appeal out of time. 

13.      In considering whether to grant leave to appeal out of time the Court should take into account the extent of the delay, any explanation for it, the prospects of success of the appeal and the risk of prejudice to other parties.  See Barker v Barclays Bank Plc [1989] JLR N2b. 

14.      In this case the delay is only 14 days.  As to the explanation, the fault clearly lies with Voisins.  No one in that office checked the schedule attached to the Act of 24^th January upon receipt, with the result that no one realised that the action had been dismissed until 6^th February, which was after the time for appealing had expired.  Even then it was the defendant's advocate who brought the matter to Advocate Preston's attention.  We do not think that criticism can be laid at Voisins' door for any delay thereafter.  The firm made immediate contact with the Greffe.  There appears to have been some confusion and a meeting was held promptly with the Master in order to see if it could be resolved by agreement.  Having established that it could not, they delayed only 3 days in filing the notice of appeal.  As to the question of prejudice, we see no particular prejudice to the defendant by reason of the 14 day delay.  The defendant has not changed its position in that time or taken any other step which might be said to have caused it prejudice.  Given our views on the merits, which we shall deal with shortly, we have no doubt that leave to appeal out of time should be granted and we so order. 

The test to be applied

15.      There is no binding authority as to the approach which the Court should adopt when considering a breach of Rule 6/26(13) which provides:-

"If two months have elapsed from the time limited for filing pleadings and no summons has been issued pursuant to any of the foregoing provisions of this Rule, the Court may of its own motion, after giving not less than 28 days' notice in writing to all parties to the action, order that the action be dismissed, and the Court may make such consequential order as to costs or otherwise as it thinks fit."

We have been referred to an obiter dictum of Bailhache, Bailiff in the case of De Freitas v Citadel Trust Limited [2005] JRC035C.  However the parties disagree about the effect of that dictum and accordingly we must consider the competing arguments. 

16.      We must start with the English case of Rastin v British Steel Plc [1994] 2 All ER 641.  This is because Bailhache, Bailiff referred extensively to the case in De Freitas.  Rastin was concerned with a provision of the County Court Rules whereby an action was struck out automatically if a hearing date was not applied for within a specified period.  There was jurisdiction in the County Court to reinstate the action upon application and in Rastin the Court of Appeal sought to give guidance to County Court judges as to the principles which they should apply in considering such applications. 

17.      Having emphasised that the matter had to be considered in the context of the need to ensure that cases were progressed in an expeditious manner Sir Thomas Bingham MR said as follows at 647:-

"A retrospective application to extend time should not succeed unless the plaintiff (in which expression we include his advisers) is able to show that he has, save in his failure to comply with [the Rule], prosecuted his case with at least reasonable diligence.  That does not mean that there is no room to criticise any aspect of his conduct of the case but that overall he is innocent of any significant failure to conduct the case with expedition, having regard to the particular features of the case.  The plaintiff's failure to comply with the Rule can never be justifiable, but he must in all the circumstances persuade the court that it is excusable."

This was the passage quoted by Bailhache, Bailiff but Bingham MR continued as follows:-

"If he is able to show that an extension of time for the requisite period, if sought prospectively, would in all probability have been granted, that will help him, and the more technical his failure, the more readily it will be excused.  If, but only if, the plaintiff can discharge these burdens should the court consider the interests of justice, the positions of the parties and the balance of hardship in a more general way.  If it appears that the defendant might be expected to suffer significant prejudice if the action were reinstated which he would not have suffered if the plaintiff had complied with the Rule, that will always be a powerful and usually a conclusive reason for not exercising discretion in the plaintiff's favour.  The absence of such prejudice is not, however, a potent reason for exercising discretion in the plaintiff's favour.  At this stage, but not before, it is relevant to consider matters such as the availability of an alternative remedy to the plaintiff if the action is not reinstated, the expiry of the limitation period and any admission of liability or payment into court that there may have been." 

18.      The effect of this was conveniently summarised by the Court of Appeal in Bannister v SGB Plc [1997] 4 All ER 129 which made clear at paragraph 21.1 – 22.15 that Rastin had suggested a threefold test which was summarised as follows at para 21.14:-

"In summary, therefore, the guidelines to be applied, bearing the object of the Rule in mind, are these. 

(i) Has the plaintiff satisfied the court that (apart from failure to request a date for the trial) he is innocent of any significant failure to conduct the case with expedition between the trigger date and the guillotine date having regard to the particular features of the case?  If he has not, then reinstatement should be refused.  (ii) Has the plaintiff satisfied the court that in all the circumstances his failure to apply for a date is excusable i.e. should be forgiven?  If he has not, then again reinstatement should be refused.  (iii)  Has the plaintiff satisfied the court that the balance of justice indicates that the action should be reinstated?  If not, then once again reinstatement should be refused." 

19.      We turn next to De Freitas.  This was concerned with Rule 6/21(13) of the Royal Court Rules 1992.  That Rule was in virtually identical terms to Rule 6/26(13) of the 2004 Rules save that a period of five years had to elapse before the case could be struck out rather than the period of two months under the 2004 Rules.  In De Freitas, following close of pleadings, no steps had been taken by the plaintiff for nearly five years until the issue of the Circular by the Master in February 2004 listing the case for possible dismissal.  As in this case, an error on the part of the plaintiff's lawyers meant that they failed to respond, with the consequence that the action was struck out in March 2004.  Despite the matter coming to the attention of the plaintiff's lawyers in May 2004 and their having been advised by the Master that an appeal would have to be brought, no application was made to the Royal Court by way of appeal until November 2004, which was of course several months out of time. 

20.      The main point at issue in that case was the question of jurisdiction.  On that aspect the Court agreed with the decision of the Master in Ebor SA v Incat Construction (Holdings) Limited [2001] JLR 280 that there was no inherent jurisdiction in the Master or the Court to reinstate the action.  The sole remedy lay by way of appeal to the Royal Court from the decision of the Master to dismiss the action.  As the appeal in that case was nearly eight months out of time and given the earlier long delays in the case, the Court had little difficulty in concluding that leave to appeal out of time should not be given.  That was sufficient to dispose of the case but the Court went on to make some obiter observations.

21.      The first of these  were at paragraph 25 where the Bailiff said as follows:-

"Rule 6/21 places a duty upon a plaintiff, within one month after the time limited for filing pleadings has expired, to issue a summons for directions.  This Rule was introduced, amongst other changes, to ensure that civil litigation is conducted in a timely and cost-effective manner.  Delay is the enemy of justice, and Rule 6/21 was designed to make it clear to plaintiffs and to their legal advisers that there is a duty to keep the train of litigation moving and to ensure that it does not get stuck in a siding.  Rule 6/21(13) allows the Court, of its own motion, after five years in effect to call upon the plaintiff to justify the delay and, in default of justification, to bring the litigation to an end.  In practice, the Master will give notice to the parties, as he gave notice to the plaintiffs in this case, that 'Any party objecting to an action being dismissed must do so by issuing a summons by showing just cause why the action should not be struck out'.  The burden is on the objecting party.  On any such application being made, the Court should not exercise its discretion on principles similar to those relevant to an application to cure a procedural defect in the ordinary course of an action.  That would pay insufficient regard to the fact that this provision is intended to be a draconian power of last resort where the plaintiff has failed for five years to comply with his obligation to seek the directions of the Court.  Nor should the Court treat the application as the  obverse of an application to dismiss for want of prosecution, with particular attention being paid to any prejudice (or absence of prejudice) suffered by the defendant.  The whole purpose of Rule 6/21 is to ensure the diligent prosecution of the case by the plaintiff.  It must be borne in mind in the future that on 31^st October 2003 the Master sent a circular letter to all members of the legal profession stating that 'The Bailiff has indicated the wish of the Royal Court to ensure that existing actions progress as quickly as is reasonably practicable.  Furthermore in relation to new actions it is the expressed wish of the Royal Court that all parties and their advisers should seek to have actions disposed of within twelve months of their commencement wherever that is possible'.  That letter was followed by a further circular by the Master on 26^th February 2004 where it was stated "It should not be assumed that the Master will readily agree to an action being allowed to continue.  He will require the applicant to convince him that it is appropriate."  This is the background against which applications under Rule 6/20(3) and rule 6/21(13) are to be considered." 

Save that the period of five years is no longer applicable, with the consequence that matters may come on before the Master at an earlier stage, this description of the underlying objective of Rule 6/26(13) remains of the first importance and we wholeheartedly endorse the Bailiff's observations. 

22.      The Bailiff went on to adopt the first two limbs of the approach laid down in the judgment of Bingham MR in Rastin as they appear from the first of the two passages quoted in para 17 above.  It is on this aspect that the difference of opinion between the parties has arisen. 

23.      Mr Robinson, who has been instructed on behalf of the plaintiff for the purposes of this appeal, submits that the omission by the Bailiff of the third limb of the test was deliberate.  Rastin was concerned with an automatic dismissal because of non-compliance with a Rule.  By contrast, a decision by the Master to dismiss an action pursuant to Rule 6/26(13) is a judicial act and it is therefore appropriate to confine the approach to the first limbs of the test suggested by Bingham MR.

24.      Miss Dorey disagreed and we prefer her reasoning.  A decision on the part of the Master (or this Court on appeal) as to whether to dismiss an action pursuant to Rule 6/26(13) involves an exercise of discretion.  Any discretion should always be exercised having regard to all the relevant circumstances of the particular case.  We see no reason why consideration of the balance of justice should be excluded by the Court or the Master when considering whether to allow an action to continue notwithstanding a breach of the Rule requiring a summons for directions to be issued.  Nor do we see any logic in the suggestion that there is some distinction in this respect between consideration of whether an action automatically struck out should be re-instated (as in England) and consideration of whether the action should be struck out in the first place (as in Jersey) so that the balance of justice is relevant in the former case but not in the latter.  We do not read the Bailiff's judgment as having deliberately excluded the third limb of Bingham MR's test.  It was simply that it was not necessary for him to consider it given the particular facts in De Freitas. 

25.      Accordingly we hold that, when the Master (or the Royal Court on appeal) considers whether to dismiss an action pursuant to Rule 6/26(13), the three-limbed approach referred to above is likely to be of assistance, always bearing in mind the overriding objectives described by the Bailiff in the passage referred to above at para 21 above.  Thus the Master should consider the following questions:-

(i)        Has the plaintiff satisfied him that, apart from the failure to issue a summons for directions as required by Rule 6/26, he (which included his advisers) has prosecuted his case with at least reasonable diligence?  That does not mean that there is no room to criticise any aspect of his conduct of the case but that overall he is innocent of any significant failure to conduct the case with expedition, having regard to the particular features of the case.  If the plaintiff has not so satisfied the Master, that will point strongly towards dismissal of the case.  Clearly the weight to be attributed to this particular factor may vary depending on whether the matter comes before the Master shortly after the expiry of the permitted two month period or much later.

(ii)       Has the plaintiff satisfied the Master that, in all the circumstances, his failure to apply for a summons for directions is excusable, i.e. should be forgiven?  If he fails to satisfy the Master in this respect, this again will point towards dismissal. 

(iii)      Has the plaintiff satisfied the Master that the balance of justice indicates that the action should be allowed to continue?  If not, then again, this will point towards dismissal. 

It will be noted that we have softened slightly the formulation of the test as compared with the wording in Bannister.  This is deliberate.  The English courts were considering re-instatement after an automatic dismissal for non-compliance with the relevant role.  That is not the position in Jersey.  The Master is exercising discretion as to whether to dismiss the action for non-compliance with the Rule requiring the issue of a summons for directions within the stipulated period. 

Application to the present case

26.      We turn to consider the above three questions in relation to the facts of the present case.  As to the first limb, we have seen a detailed chronology attached to the affidavit of Miss Thorne, which outlines the various steps taken on behalf of the plaintiff since the case has begun.  Essentially, Miss Dorey did not challenge that chronology although she did point out two or three respects in which Voisins or the plaintiff could have moved a little more quickly.  We accept her criticism in this respect but in the overall context of the matter we are quite satisfied that the plaintiff and her lawyers are innocent of any significant failure to conduct the case with expedition.  This was simply one of those cases where matters could not be progressed to any material extent until the final nature and extent of the plaintiff's injuries could be ascertained.  These took some time to settle down and required a number of operations and other treatment. The final medical appointment is planned for May and thereafter the plaintiff should be in a position to state the final extent of her injuries and quantify her claim accordingly. 

27.       As to the second limb, we are satisfied that the plaintiff's failure to issue a summons for directions is excusable.  It is clear that, following receipt of the circular from the Master dated 31^st October 2003 (which emphasised the need to issue a summons for directions in accordance with the relevant Rule), Voisins did not simply sit back and do nothing.  On the contrary they arranged for a joint letter signed on behalf of the plaintiff and the defendant to be sent to the Master explaining why all parties were agreed that the action could not be progressed at that stage.  Furthermore, on 30^th January 2007 Voisins wrote again to the Master in order to update him on the progress of the case (see para 9 above).  If a summons for directions had been issued, we do not think it would have made any difference.  Given the uncertainty as to the extent of the injuries, the case could not in any event have been progressed to any material extent.  In these unusual circumstances we find the failure to issue a summons for directions to be excusable notwithstanding the fact that three years had passed since the summons for directions should have been issued. 

28.      As to the balance of justice, we note that liability is admitted, that an interim payment has been made and that there has also been a payment into Court.  We acknowledge that the limitation period has now expired but we are in no doubt that, given our findings in respect of first two limbs, the interests of justice point strongly in favour of allowing this matter to continue rather than putting the plaintiff through the stress and expense of instituting an action for professional negligence against her advocates.  We agree with Mr Robinson's assertion that, if Voisins had responded correctly to the Circular of 15^th December 2006 by issuing a summons to show cause why the action should not be struck out, it is inconceivable that the Master would have dismissed the action.  In those circumstances, should it make any difference that, on top of their original failure to issue the summons for directions as required by the Rule, Voisins also failed to respond to the Circular or to appeal within the required time limit.  We think not.  We remain of the view that the interests of justice point strongly in favour of allowing this action to continue.

29.      It follows that we allow this appeal with the consequence that the action is not struck out.  We do however order the plaintiff to attend before the Master within 14 days in order to fix a date for a summons for directions. 

Lessons for the future

30.      We would mention three matters in case they are of assistance in the future:-

(i)        The sequence of events in this case emphasises the importance of all firms of advocates having in place proper systems to ensure that circulars from the Master listing cases for possible dismissal are reviewed and acted upon and also for ensuring that any Act issued by the Master listing the cases which have been dismissed is similarly reviewed in a timely manner so that any application to reverse the Master's decision can be made promptly.  Although in this case we have allowed the action to be re-instated, there will be others where a contrary decision is made and the advocates will thereafter face claims for professional negligence. 

(ii)       Even in cases such as this (where it is accepted that the issue of a summons for directions would not have enabled the case to progress any more speedily to trial) plaintiffs should always issue a summons for directions in accordance with Rule 6/26(1).  This will ensure that the plaintiff will not subsequently face an application to strike out for failure to comply with the Rule; but more significantly it will give the Master an opportunity to ensure that the case does not fall into a black hole.  Thus, even if he is satisfied on the hearing of such a summons that he should not in fact given any directions at the time and that the case cannot actively be progressed until (for example) injuries have settled down, he may choose to adjourn the summons for directions for a fixed period, thereby ensuring that the matter comes back before him at the end of that period.  At that time he can no doubt ask searching questions in order to ensure matters are being progressed as speedily as possible.  The issue of a summons for direction achieves retention of judicial control so as to ensure that the case is not allowed to drift. 

(iii)      For reasons which we fully understand, it was held in Ebor SA and confirmed in De Freitas that a decision taken by the Master to dismiss an action under Rule 6/12(13) is a judicial act even in those cases where no summons in response to the circular has been issued by the plaintiff with the consequence that the Master has heard no argument on the question of whether the action should be permitted to continue.  This means that an appeal to the Court is the only available route even though, in truth, the Master has not had any real opportunity of exercising the discretion as to whether he would allow the action to continue.  We think it would be preferable for any application to reinstate an action, which has been dismissed by the Master under Rule 6/26(13) because of a failure by the plaintiff to respond, to be made in the first place to the Master so that he has an opportunity to consider the position on the merits.  This would require a change in the Rules so as to permit him to extend (after the event) the time for responding to the circular and allow him to reinstate an action which he has struck out.  It seems to us right that the Master, or the judge responsible for dealing with interlocutory and procedural matters, should consider such matters in the first place.  Naturally, an appeal against the merits of his decision can then be brought to the Royal Court if appropriate. 

Authorities

Royal Court Rules 2004.

Barker v Barclays Bank Plc 1989 JLR N2b. 

De Freitas v Citadel Trust Limited [2005] JRC 035C.

Rastin v British Steel Plc [1994] 2 All ER 641. 

Bannister v SGB Plc [1997] 4 All ER 129.

Ebor SA v Incat Construction (Holdings) Limited [2001] JLR 280.