Striking out - application to strike out the Defendant’s
Counterclaim
[2020]JRC178
Royal Court
(Samedi)
7 September 2020
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Before :
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T. J. Le Cocq, Esq., Bailiff
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Advocate A. D. Hoy for the Plaintiffs.
Advocate H. B. Mistry for the Defendant.
judgment
the bailiff:
1.
This is an
application by Ian Strang, Ashley Hoy, Nigel Pearmain and others, practising as
Voisin Advocates, Solicitors and Notaries Public (“the Plaintiffs”)
against Camilla de Bourbon des Deux Siciles (“the Defendant”)
seeking to strike out the Defendant’s counterclaim pursuant to Rule
6/13(1)(a) of the Royal Court Rules 2004.
2.
Rule
6/13(1)(a) of the Royal Court Rules 2004 is in the following terms:-
(1) The
Court may at any stage of the proceedings order to be struck out or amended any
claim or pleadings, or anything in any claim or pleading, on the ground that:-
(a) it
discloses no reasonable cause of action or defence, as the case may be;”
3.
Sub-paragraph
(2) of the same Rule provides:-
“(2) No evidence shall be admissible on an
application under paragraph (1)(a).”
4.
The
Plaintiffs’ action against the Defendant is for unpaid fees incurred
whilst the Plaintiffs were retained by the Defendant as her legal advisers in
and about an application to the Court of Appeal that resulted in the Judgment
in BNP Paribas Jersey Trust Corporation Limited and Others v Crociani and
Others [2018] JCA 136A (“the Court of Appeal Judgment”). The general background to the case in
which the Plaintiffs acted for the Defendant can be found in the Court of
Appeal’s Judgment at paragraphs 2 – 10 and I do not propose to set
it out in this Judgment.
5.
The
background with regard to the Plaintiffs’ claim in this case can be
briefly stated. In or around
October 2017 the Plaintiffs were instructed by the Defendant to act for her in
connection with a trust claim. In
that claim the Royal Court had held, amongst other things, that the Defendant
had acquiesced in or assisted in the breach of trust by her mother by which
various sums were transferred out of a trust known as the Grand Trust as, in
effect, part of a course of conduct which deprived the Defendant’s sister
of access to the family’s wealth.
6.
The
Defendant appealed to the Court of Appeal.
That Appeal gave rise to the Court of Appeal Judgment. The hearing in the Court of Appeal took
place between the 26th of February 2018 and the 1st March
2018. Advocate Ashley Hoy of the
Plaintiffs (“Advocate Hoy”) had conduct of the Defendant’s
case.
7.
On the 20th
February 2018, the court was informed that Advocate Hoy had been taken into
hospital and that there may be difficulty with his recovery in time to deal
with the Defendant’s appeal scheduled to take place during the following
week. On the 21st
February 2018 it was confirmed that Advocate Hoy would be unable to
appear. The Plaintiffs were unable
to offer or secure the services of alternate counsel to appear in his stead. Accordingly, at the hearing, the
Defendant was unrepresented.
8.
The Court
of Appeal Judgment considers how the court approached these circumstances. At paragraph 174 of the Court of Appeal
Judgment it says this:-
“It was apparent that if we
were to adjourn Camilla’s appeal we would also have to adjourn
substantial parts of the appeals of BNP Jersey and Appleby Mauritius. At short notice, this would cause not
only difficulty in relation to ongoing proceedings before the Royal Court,
where various accounts had been ordered, but also a significant delay in the
hearing of the appeals and a waste of both court time and litigants’
costs in preparing for the appeals.
We recognised that Camilla was not in any sense culpable for Advocate
Hoy’s indisposition, but we were faced with a position where either there
would be a serious disadvantage for BNP Jersey and / or Appleby Mauritius, or a
disadvantage for Camilla. In the
circumstances that Camilla, unlike BNP Jersey and Appleby Mauritius, had not
appeared in the Royal Court to give evidence or to argue the case, we
considered that the fairest outcome was to proceed with the appeals and allow
Camilla’s advisers to make written submissions by 12 noon on Tuesday 6th
March. In making that order we
recognised that Camilla would have the advantage of transcripts of the
proceedings during the week of the 26th February…..”
9.
It is
inherent in those statements that whereby the Court of Appeal determined that
any disadvantage to the Defendant in not being represented was outweighed by
the substantial disadvantage to other parties in any adjournment of the case,
nonetheless the Defendant did at least suffer some potential disadvantage at
least by her lack of representation which the Court of Appeal sought to address
by dealing with the matter in the manner that is set out above.
10. The instant proceedings began by the
Plaintiffs’ summons of the 20th June 2019 and particulars of
claim were filed followed by an answer and counterclaim filed on the part of
the Defendant, and a reply and answer to the counterclaim.
11. During the course of a hearing for directions
in this matter on the 28th October 2019, the Plaintiffs’
alleged that the counterclaim filed by the Defendant on the 19th
July 2019 (“the Counterclaim”), was liable to be struck out for, in
summary, failing adequately to plead a case against the Plaintiffs. By Act of Court of the 28th
October 2019 at paragraph 5, the Master ordered, amongst other things:-
“The Defendant further by
close of business on Friday 29th November 2019 shall provide
particulars of paragraph 22 of her answer and counterclaim dated 19th
July 2019, identifying all facts and matters relied upon as to why a lack of
representation was detrimental to the Defendants’ appeal, including what
loss this caused to the Defendant.”
12. As a consequence a further document entitled
“Further Information” was filed by the Defendant on the 29th
of November 2019 (“the November Pleading”).
13. It is the Plaintiffs’ case before me
that, taken together, neither the Counterclaim nor the November Pleading
disclose a claim.
The Court of Appeal Judgment
14. This matter has been decided at the request of
both parties on the papers. As a
preliminary point, however, the Defendant relying on Rule 6/13(2) set out
above, objected to the use of by the Plaintiffs of the Court of Appeal
Judgment. It was argued that, in
accordance with authority, as no evidence could be admitted in an application
of this nature, the facts pleaded by the Defendant should be taken as correct
for my purposes and the Court of Appeal Judgment cannot be used to support the
Plaintiffs’ case. This would
be to go beyond the pleadings, so it is argued, and would be to admit
evidence.
15. I do not agree. Where there is a judgment of the Court
of Appeal that arose out of the very substance of the this case and in which
the Court of Appeal dealt with some of the aspects of the complaints in these
proceedings it would to my mind be unrealistic for me to treat the Court of
Appeal Judgment as if it did not exist.
To the extent the Court of Appeal said what it said and did what it did,
there is no issue of fact that would need to be determined by the Jurats. It is part of the procedural story and,
so it seems to me, can be considered in that context.
16. I do not, therefore, exclude reference to the
Court of Appeal Judgment as is apparent from the references above and
below. However, I must be mindful
of the fact that the Defendant would dispute some of the determinations made by
the Court of Appeal and undoubtedly may lay some of those determinations at the
door of her lack of representation by the Plaintiffs.
The Defendant’s Claim
17. As I have already stated the Defendant’s
claim is set out in the Counterclaim and the November Pleading. The essence of the case as pleaded in
the Counterclaim is that:-
(i)
the
Defendant wished to appeal against the judgement of the Royal Court;
(ii) it was an express or an implied term of the
Agreement between the Defendant and the Plaintiffs that the Plaintiffs would
provide full legal services (which included representation for a hearing before
the Court of Appeal);
(iii) Advocate Hoy failed to attend and the
Plaintiffs sent no alternative representation;
(iv) the lack of representation was detrimental to
the Defendant’s appeal;
(v) The Court of Appeal Judgment went against the
Defendant.
18. At paragraph 26 of the Counterclaim, the
Defendant says that details as to quantum would be provided but set a minimum
of €2m in connection with an appeal to the Privy Council.
19. It was to the allegation that a lack of
representation was detrimental to her appeal that the Master made the Order on
28th October 2019 set out at paragraph 11 above.
20. The November Pleading in essence:-
(i)
States
that the Defendant discussed with Advocate Hoy in September 2019 the nature of
his instructions which were to set aside a disclosure order and to appeal or to
seek clarification in respect of a particular point in the Royal Court
proceedings;
(ii) States that Advocate Hoy, in an email, agreed
to cap costs on those two matters in the sum of £200,000;
(iii) Suggests that it was an express term between
the Defendant and the Plaintiffs in relation to the appeal/clarification of the
Royal Court proceedings that the Plaintiffs would advise, prepare and represent
the Defendant in the Court of Appeal.
The Defendant makes a reference to an email from the Plaintiff dated 21
February 2018, concerning at the representation of the Defendant by the
Plaintiff in the Court of Appeal in the following terms:-
“while in England, our
client might well be expected to brief alternative Counsel, there is, of
course, a large pool of QCs available.
That is not quite the same in Jersey. While there are a number of Advocates at
Voisin (not all are in the Litigation Department) and they simply do not have
the experience of Court of Appeal matters that Ashley enjoys. You will be aware of this from your own
personal experience.
I am therefore not in a
position to offer up alternative Counsel at this late stage”.
This, so the Defendant asserts, is an
acceptance that representation in the Court of Appeal was something that the
Plaintiffs’ were engaged to provide;
(iv) States that no disclosure has been provided by
Advocate Hoy as to his medical condition and therefore the Defendant avers that
it was not as serious as described and this goes to the heart of the terms that
she has pleaded.
(v) Asserts the Plaintiffs owed a number of duties
to exercise care, skill and diligence including being able to provide advice
and representation at court hearings, not to place themselves in a position
where they could not provide representation; to act at all times in the
Defendant’s best interest and in the event the Plaintiffs could not
provide representation to secure a suitable alternative. The Defendant alleges breaches of those
duties.
21. The alleged breach of duties are particularised
at paragraph 14 of the November Pleading and all of those particulars relate to
the failure, as alleged, by the Plaintiffs to provide legal representation to
the Defendant in the Court of Appeal.
22. At paragraph 15 of the November Pleading, the
Defendant indicates that she is entitled to:-
“(i) repayment
by the Plaintiff of the costs of and associated with the loss a chance or
similar of the Court of Appeal Hearing;
(ii) repayment by the Plaintiff of
the costs of and associated with the appeal to the Privy Council … Had
there been representation at the Court of Appeal Hearing, it is averred that
matters would have been clarified and arguments tested by the Judges of Appeal;
(iii) in the alternative, equitable
compensation …;
(iv) interest on the costs of and
associated costs pursuing the appeal to the Privy Council, on an equitable
compensation, at such equitable rate or rates as the Court thinks fit”.
23. At paragraphs 16 and 17 of the November
Pleading, the Defendant pleads negligence and particularises that negligence as
a failure by the Plaintiffs to take all necessary steps to protect her
interests, failure to follow her instructions meaningfully to apply to adjourn
the Court of Appeal Hearing and/or failure to advise the Defendant to make an
application to appeal the decision of the Court of Appeal; and failing to
ensure that there was adequate staffing in place to deal with the possibility
of illness.
24. Furthermore, the Defendant pleads particulars
of loss and damage flowing from the consequence of Advocate Hoy’s failure
to attend the Court of Appeal Hearing and cites as particulars the fact that
the Court of Appeal found that the Camilla Trust was “virtually
distributed” and therefore the Defendant’s interest in the said
Trust was paid out – a loss that she quantifies in the sum of
US$105,275,090.52 and the legal costs incurred in applying for leave to the
Privy Council. She also asserts
that the Court of Appeal made adverse findings of fact against her and heard no
oral evidence or submissions.
Findings of the Court of Appeal
25. It is correct that the Court of Appeal Judgment
contains a number of findings against the Defendant.
26. At paragraph 30 the Court said:-
“The improperly enriched beneficiary cannot benefit twice and
the trustee who has committed the breach of trust may have done so at the
instigation of, or upon request, by or with the consent of a
beneficiary.”
27. At paragraph 31 the Court said:-
“…where a beneficiary of full age and capacity
participates in the breach, consents to it, releases his claim or later
acquiesces in the breach, such acting provides the trustee with a defence to
the claim of that beneficiary: Re Pauling’s Settlement Trusts
[1962] 1 WLR 86”.
28. At paragraph 46 the Court said:-
“No claim was made by Camilla…that there had been a
breach of trust. In such circumstances one need not enter into discussion as to
the juristic characteristics of acquiescence, concurrence, waiver or release or
confirmation of the transaction in breach of trust…..Camilla…..does
not and cannot now contend in favour of liability for breach of
trust….”
29. At paragraph 47 the Court of Appeal said:-
“There is a further reason for reaching the view that, in the
exercise of the discretion, it is appropriate to proceed upon the basis that
there should no longer be a trust fund held for Camilla’s trust….by
the Summer of 2011…Camilla was playing a leading role in the fight
entirely to cut off Cristiana from the family wealth….”
30. At paragraph 48 the Court said:
“Camilla was not a trustee, but Madame Crociani and Camilla
were acting together dishonestly and setting up breaches of trust. As a matter of law, Camilla’s
actions might be characterised as knowing assistance in breach of trust.”
31. At paragraph 49 the Court said:-
“….the trustees could have treated Madame Crociani and
Camilla as liable jointly and severally for the whole loss caused to the Grand
Trust….but, in the alternative, they could have taken the view that had
Camilla instead asked for a disbursement….they would have acceded to
it…on the balance of probabilities, Camilla can anticipate receiving, if
she has not already received, the preponderance of assets obtained from the
Grand Trust by Madame Crociani.”
32. At paragraph 190 of the Court of Appeal
Judgment, reference is made to paragraphs 431 and 444 of the Royal
Court’s Judgment that “show that [Camilla] had the requisite degree
of knowledge in relation to the breaches of trust of BNP Jersey to justify a
defence of acquiescence against her, whether or not she thought that Madame
Crociani was through the foundation a beneficiary of the Grand Trust.”
The Plaintiffs’ case
33. In essence the Plaintiffs’ argument
before me is that the November Pleading does not improve upon the Counterclaim
and that taken together they do not disclose a reasonable cause of action or
defence because they do not identify any loss. It is argued that the Defendant is seeking
to re-litigate matters that are the subject of the Court of Appeal’s
Judgment.
34. In particular, the Plaintiff points out that
the Judgment of the Royal Court of 7th October 2019 (BNP Paribas
Trust Company v de Bourbon des Deux Siciles [2019] JRC 199) where at
paragraph 19, Clyde-Smith, Commissioner, said:-
“On 29 March 2019, BNP Jersey filed a claim for damages
against Camilla for conspiracy with Madame Crociani to injure BNP Jersey by
unlawful means, by jointly breaching the worldwide freezing order dated 4
August 2016”.
35. This demonstrates, so the Plaintiffs assert,
that proceedings commenced by BNP had nothing to do with the findings made in
the Court of Appeal Judgment. In
terms of the potential of the Court of Appeal to hear more evidence, the Plaintiffs
refer to paragraph 190 of the Court of Appeal Judgment which says:-
“…. findings of fact are not challenged nor is it easy
to see how they might be challenged by Camilla, given that she did not attend
in the Royal Court to give evidence”.
36. The Plaintiffs assert that the protections
afforded by the Court of Appeal protected the Defendant’s interests.
37. In essence, the Plaintiffs argue that the
Counterclaim and November Pleadings do not plead how it is the
Plaintiff’s failure to appear for the Defendant, having filed the various
documents ordered in the Court of Appeal’s directions, in fact caused any
loss to the Defendant. In their
skeleton argument the Plaintiffs argue that neither the Counterclaim nor November
Pleading asserts or identifies the conclusions or findings of the Court of
Appeal that caused loss, the conclusions that were wrongful, and why they were
wrong; the conclusions that are wrong as a result or consequence of the
Plaintiffs’ actions or inactions; or the actions or inactions of the Plaintiffs
that caused the Court of Appeal to make any wrongful conclusions or findings.
38. The findings in the Court of Appeal’s
Judgment were to the effect that the Defendant failed to allege breach of trust
against her Trustees and could not now do so. She was guilty of dishonestly assisting
her mother to remove assets from the Grand Trust and to keep them from her
sister. She had acquiesced the
breaches of trust and therefore her Trust was deemed to be distributed to her.
39. In these circumstances the Plaintiffs assert
that actionable loss is an essential element of the cause of action that the
Defendant brings, she cannot or has not pleaded actionable loss and accordingly
her Counterclaim must fail. She
cannot establish any loss that arose as a direct consequence of the
Plaintiff’s actions or inactions, so it is alleged.
The Defendant’s case
40. Much of the Defendant’s arguments are,
quite naturally, based on the contents of her Counterclaim and the November
Pleading. The Defendant’s
main position is that the Plaintiffs must accept or have accepted that failing
to attend the Court of Appeal was negligent and any dispute on causation of
loss can only be resolved by reference to the facts of the case and therefore
her case should not be struck out.
Alternatively, she says that the strike out should be adjourned until
after full discovery has been given.
41. I pause to observe that given that the
Plaintiff’s claim before me is proceeding under Rule 6/13(1)(a) then it
must proceed without reference to evidence which might flow following
discovery. The Defendant is
protected however, by the high threshold that has to be met. The Defendant’s case must be
unsustainable on the pleadings for the Plaintiffs strike out to succeed.
The law on striking out
42. The approach by the Court to striking out
particularly under Rule 6/13(a) is well understood and has been fairly
characterised by the Defendant in her skeleton argument.
43. The jurisdiction to strike out is a summary
one, and is limited to plain and obvious cases. It is not appropriate on an application
to strike out under Rule 6/13(a) to conduct a protracted examination of the
facts of the matter and all documents relating to it, in order to establish
whether there is a reasonable cause of action or defence;
44. The Court should give
reasonable latitude to a pleading before holding that it should be struck
out. In re Esteem Settlement UJ
[2000] 150 the Court of Appeal said:
“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.”
45. A
pleading may be struck out as disclosing no reasonable cause of action or
defence pursuant to Rule 6/13(1)(a)
if the factual allegations made in the pleading would be insufficient to
satisfy the Court to grant the relief sought. A reasonable cause of action or defence
is one with some chance of success.
46. In the
recent English case of Office Depot International (UK) Limited v UBS Asset
Management (UK) Limited [2018] EWHC 1494 which involved, inter alia, an application to strike out, O’Farrell J
referred with approval to the case of Global Asset Capital, Inc and another
v Aabar Block SARL and others [2017] EWCA Civ 37 and the judgment of
Hamblin LJ in which he stated that:
“It was common ground that for the purpose of the present case
the applicable principles concerning strike out and summary judgment may be
conveniently summarised as follows.
(1) The court must
consider whether the case of the respondent to the application has a realistic
as opposed to fanciful prospect of success – in this context, a realistic
claim is one that carries some degree of conviction and is more than
‘merely arguable’,
(2) The court must
not conduct a ‘mini-trial’ and should avoid being drawn into an
attempt to resolve conflicts of fact which are normally resolved by the trial
process.
(3) If the
application gives rise to a short point of law or construction then, if the
court is satisfied that it has before it all the evidence necessary for the
proper determination of the question and that the parties have had an adequate
opportunity to address it in argument, it should ‘’grasp the nettle
and decide it’.
47. In Summers
v Fairclough Homes [2012] UKSC 26, Lord Clarke giving the speech for the
Supreme Court, said this:
“The draconian step of striking a claim out is always a last
resort, a fortiori where to do so would deprive the Claimant of a substantive
right to which the court had held that he was entitled after a fair
trial.”
48. There
is therefore a high hurdle to be overcome by the Plaintiffs in seeking an order
to strike out under Rule 6/13(1)(a).
Law on claims against legal advisers
49. The
Defendant also refers to cases covering claims against legal advisers. In the English Court of Appeal’s
case of Channon v Lindley [2002] EWCA Civ 353, the Plaintiff claimed
that due to the solicitor’s negligence his case had been presented in a
weaker way at trial than it should have been. The Plaintiff sued his solicitors
claiming that if his claim had been better presented he would have achieved a
better result. Potter LJ cited the
following:
“It has not been in dispute between the parties to this
appeal, nor indeed was it in dispute before the judge that, given the
uncertainty of what the District Judge would have ordered had the case been
properly presented to him, the damages in respect of the defendants’
negligence fell to be assessed on the ‘loss of chance’ basis. Thus, having decided that substantial
loss had undoubtedly been suffered as a result of the deficiencies in the
material put before the District Judge, the judge was faced with the
uncertainty of assessment identified by Hobhouse LJ in Allied Maple Group v
Simmonds and Simmonds [1995] 4 All ER 907, [1995] 1 WLR 1602 at 1621 of the
latter report:
“The judge will have to assess the plaintiffs’ loss on
the basis of the value of the chance they have lost….This involves two
elements: what better terms might have been obtained – there may be more
than one possibility – and what were the chances of obtaining them. Their chance of obtaining some greater
improvement, although significant, may be less good than the chances of
obtaining some other lesser improvement.
It will be a question for the judge, on the basis of the
evidence….which the parties place before him…to make his assessment
of the value of what the plaintiffs lost.””
50. Of course
it may be observed that this case was clearly one in which it was accepted that
there was “uncertainty” relating to what the district judge would
have ordered in the case had it been “properly presented to
him”. In the context of this
case it would be necessary to establish that there is some prospect that, had
Advocate Hoy represented the Defendant in the Court of Appeal, the outcome
would have been better for the Defendant.
Of course, in looking at that it is necessary to take the Defendant’s
pleadings at face value.
51. In Feakins
v Bairstow [2005] EWHC QB 1931, the Court considered the correct approach
to causation and damages when the Plaintiff contends that the case was not
presented as well at trial as it could have been. The Court said:
“The task of the court is to assess the chances of the
Claimant’s success at a notional trial if the solicitor had fulfilled his
duty. To succeed the Claimant must
establish that he had a real and substantial rather than a negligible chance of
success. If the chance was more
than negligible, the court must assess it.
If the likely outcome would have been by way of settlement, in my view
the court should take account of that.
In Mount v Baker Austin [1998] PNLR 493 Simon Brown LJ stated:
“1. The legal
burden lies on the plaintiff to prove that in losing the opportunity to pursue
his claim (or defence to Counterclaim) he has lost something of value i.e. that
his claim (or defence) had a real and substantial rather merely a negligible
prospect of success. (I say
‘negligible’ rather than ‘speculative’ – the word
used in a somewhat different context in Allied Maples Group Limited v
Simmons & Simmons [1995] 1 WLR 1602 – lest
‘speculative’ may be thought to include considerations of
uncertainty of outcome, considerations which in my judgment ought not to weigh
against the plaintiff in the present context, that of struck-out litigation.)
2. The
evidential burden lies on the Defendants to show that despite their having
acted for the plaintiff in the litigation and charged for their services, that litigation
was of no value to their client, so that he lost nothing by their negligence in
causing it to be struck out.
Plainly the burden is heavier in a case where the solicitors have failed
to advise their client of the hopelessness of his position and heavier still
where, as here, two firms of solicitors successively have failed to do so. If, of course, the solicitors have
advised their client with regard to the merits of his claim (or defence) such
advice is likely to be highly relevant.
3. If and insofar
as the court may now have greater difficulty in discerning the strength of the
plaintiff’s original claim (or defence) than it would have had at the
time of the original action, such difficulty should not count against him, but
rather against his negligent solicitors.
It is quite likely that the delay will have caused such difficulty and
quite possible, indeed, that that is why the original action was struck out in
the first place. That, however, is
not inevitable: it will not be the case in particular (a) where the original
claim (or defence) turned on questions of law or the interpretation of
documents, or (b) where the only possible prejudice from the delay can have
been to the other side’s case.
4. If and
when the court decides that the plaintiff’s chances in the original
action were more than merely negligible it will then have to evaluate
them. That requires the court to
make a realistic assessment of what would have been the plaintiff’s
prospect of success had the original litigation been fought out. Generally speaking one would expect the
court to tend towards a generous assessment given that it was the
Defendants’ negligence which lost the plaintiff the opportunity of
succeeding in full or fuller measure.”
52.
The
Defendant argues that the question for me is whether or not a reasonable cause
of action is disclosed in the Counterclaim and the November Pleading. It is argued that the cause of action is
clear in as much as it was alleged to be a breach of contract and negligence.
53.
The
Defendant also argues that causation and loss are inevitably fact sensitive
issues and will require an understanding of what happened at the trial, what
was said or submitted at the Hearing that Advocate Hoy did not attend, what
should have happened and what on the Defendant’s argument would or should
have been submitted. There would
need to be evidence as to what the likely or indeed possible effect would have
been should the matter had been dealt with with Advocate Hoy in attendance and
whether or not a chance has been lost because the case was not presented in the
way that it should have been.
Decision
54. In my Judgment, the cumulative effect of the
Counterclaim and the November Pleading is not satisfactory. It seems to me that there may well be,
should the matter proceed, scope to request further and better particulars over
and above those already provided in the November Pleadings.
55. However, that is not what I have to
consider. I must consider whether
any arguable case is made out on the pleading.
56. It seems to be at least arguable that the
Defendant has suffered a detriment as a result of not being represented in
Court by Advocate Hoy or another competent advocate fielded in his stead. It has an air of unreality for the
Plaintiffs to suggest that the absence of Advocate Hoy could have no possible
detriment to the Defendant. It is
not suggested that the Defendant was advised to dispense with Advocate
Hoy’s services and simply rely on written submissions before, he became
ill. The Defendant was forced into
the unwelcome position of being unrepresented through no fault of her own.
57.
It is
in my judgment at least arguable then that the Defendant has a case in
negligence and/or breach of contract because of the failure of Advocate Hoy to
attend (for reasons for which I accept he was not responsible) or for someone
to be fielded either from Voisin or employed as an agent at no additional
expense to the Defendant in his stead.
58. The Defendant’s case, as pleaded, is
in effect that she was denied the opportunity to advance her case and for
Advocate Hoy to respond to all submissions during the course of the
Hearing. That, in reality, may or
may not have been to her detriment but I am certainly not in a position to say
that it was not and could not have been so.
59. I am not satisfied that I understand
sufficiently from the Defendant’s pleadings what her positive case may
have been if an application had been made for her to give evidence (even though
that might have been unlikely to have succeeded) or the case presented orally. Advocate Hoy is an able and experienced
Advocate and I do not think it can be said that his presence and submissions
before the Court of Appeal would have had a neutral or negative effect. They may not have taken the matter to a
point where the Defendant prevailed in any of her arguments but that is not a
matter that in my judgment I can assess at this point. The fact is that the determinations made
in the Court of Appeal Judgment, significant as they may be, were made without
Advocate Hoy’s submissions at the hearing or those of alternate Counsel
in his stead.
60. Has the Defendant suffered a detriment? I cannot at this point say. Has the Defendant pleaded a
detriment? Yes, she has done so in
express terms. Is that pleading
adequate? In my judgment the
pleading needs to be improved to explain what the Defendant’s positive
case might be. It seems to me that
the assessment of the loss of a chance may well involve consideration of what
arguments might have been put, whether or not any further evidence could have
been received by the Court of Appeal, whether it might have been, and, if so,
what the consequences might have been for the Defendant.
61. An inadequacy in the pleading in that way,
however, is not fatal to the Defendant’s Counterclaim which can in my
judgment be improved by other interlocutory steps.
62. There is much in the Plaintiff’s
argument concerning the inadequacy of the Defendant’s pleading but in my
judgment those inadequacies can and should be addressed by an improvement to the
pleading and not the draconian step of striking it out.
63. In short, I do not think that the Plaintiffs
have discharged the extremely high burden on them to cross the threshold of a
strike out under Rule 6/13(1)(a) which, of course, I must consider without
reference to the evidence.
Accordingly, I dismiss the application to strike out the
Defendant’s Counterclaim and direct the parties should place the matter
before the learned Master for further consideration as to the adequacy of the
pleadings.
64. I do not
suggest that there is not a possibility that the Plaintiffs might apply again
to strike out the Counterclaim once it is fully pleaded on whatever basis may
then be appropriate. I do not think
that it is necessary to reserve the matter to myself should the Master deem it
appropriate that he deal with it.
Authorities
Royal Court Rules 2004.
BNP
Paribas Jersey Trust Corporation Limited and Others v Crociani and Others [2018] JCA 136A.
BNP
Paribas Trust Company v de Bourbon des Deux Siciles [2019] JRC 199.
re
Esteem Settlement [2000] 150.
Office Depot
International (UK) Limited v UBS Asset Management (UK) Limited [2018] EWHC 1494.
Global Asset
Capital, Inc and another v Aabar Block SARL and others [2017] EWCA Civ 37.
Summers v Fairclough
Homes [2012] UKSC 26.
Channon v Lindley [2002] EWCA Civ 353.
Feakins v Bairstow [2005] EWHC QB 1931