Estate – reasons for refusing to order a split trial or preliminary
issue.
[2017]JRC001
Royal Court
(Samedi)
4 January 2017
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Before :
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Advocate Matthew John Thompson, Master of
the Royal Court
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Between
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A
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First Plaintiff
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K
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Second Plaintiff
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L
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Third Plaintiff
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And
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H
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Fist Defendant
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John Bisson and Others (practising under
the name and style of Appleby)
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Second defendant
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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
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Paras
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1.
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Introduction
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1-12
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2.
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Submissions
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13-18
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3.
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Decision
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19-29
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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 7th 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 7th October, 2016, and then to the 21st
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 17th 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;
(c) this
is especially so where the issue of damages is detailed and complicated;
(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] A.C. 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):-
“As Lord Scarman observed in
Tilling v. Whiteman [1980] A.C. 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
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 21st 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 7th 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 7th 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).