A v H

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Master Thompson,Matthew John Thompson
• Judgment Date: 07 July 2016
• Neutral Citation: [2016] JRC 116
• Date: 07 July 2016

Between

A

First Plaintiff

K

Second Plaintiff

L

Third Plaintiff

and

H

First Defendant

John Bisson and Others (practising under the name and style of Appleby)

Second Defendant

[2016] JRC 116

Before:

Advocate Matthew John Thompson, Master of the Royal Court

ROYAL COURT

(Samedi)

Strike out — decision regarding applications by the first and second defendants to strike out parts of first plaintiffs claim.

Authorities

In the Matter of II [2016] JRC 106.

Cummins v Howlands (Furniture) Limited [2014] JRC 165.

Booth v Zenith [2014] JRC 231.

Three Rivers D.C. v Bank of England (No.3) [2003] 2 AC 1.

Nolan et au v Minerva et au [2014] (2) JLR 117.

Fogarty v St Martin's Cottage Limited [2016] JRC 073.

The First Plaintiff appeared in person.

The Second Plaintiff appeared in person.

The Third Plaintiff did not appear.

Advocate S. A. Franckel 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

		Paras
1.	Introduction	1–5
2.	The application for an adjournment	6–10
3.	Adjournment decision	11–23
4.	The defendants' contentions – the strike out application	24–50
5.	The first plaintiff's submissions	51–62
6.	Decision	63–91

THE MASTER:

Introduction

1 This judgment represents my decision in respect of the applications by the first and second defendants to strike out parts of the first plaintiff's claim. While I address later the detailed applications made, what was at the heart of both applications was a request to strike out allegations of fraud and dishonesty made by the first plaintiff against the first and second defendants.

2 The defendants' applications were heard on Monday, 6 ^TH June, 2016. At the commencement of the hearing, the first plaintiff applied for an adjournment of the defendants' application. The application for an adjournment was refused. This judgment therefore also sets out my reasons for refusal of the adjournment.

3 This judgment follows on from the judgment In the Matter of II [2016] JRC 106 handed down by me on 15 ^TH June, 2016, in respect of a strike out application brought by the first and second defendants against the second and third plaintiffs. I therefore adopt paragraphs 3 to 21 of that judgment (“the Strike-Out Judgment”).

4 At paragraph 21 of the Strike-Out Judgment I referred to an application to adjourn the applications made by the first plaintiff which application to adjourn was heard on 11 ^th May, 2016. That application was granted with the result that the defendants' summonses against the first plaintiff were adjourned to 6 ^th June, 2016. The purpose of the adjournment was to allow the first plaintiff to obtain a second opinion from Advocate Baker. In re-fixing the defendants' summonses for 6 ^th June, 2016, I made it clear that I wanted Advocate Baker to provide his opinion by 27 ^th May, 2016, so that determination of the defendants' strike out summonses could take place on 6 ^th June, 2016. The decision to adjourn matters on 11 ^th May, 2016, including the terms contained in the Act of Court of that date were not appealed by any party. I also did not receive any indication from Advocate Baker that he could not provide his advice by 27 ^th May, 2016.

5 As it became clear during the hearing on 6 ^th June, 2016, Advocate Baker's advice was provided in draft on 27 ^th May, 2016. The advice was provided in draft because the first plaintiff asked for time to comment on it. She then provided her comments back to Advocate Baker who provided his final advice on Tuesday, 30 ^th May, 2016. It was not disputed that his retainer had then ceased.

The application for an adjournment

6 At the outset of the hearing on 6 ^th June, 2016, the first plaintiff applied for an adjournment. Her reasons for doing so were as follows:-

• (i) She had not had enough time to go through the advice received;

• (ii) She found the whole process and procedures confusing;

• (iii) She had not received advice from Advocate Baker on interlocutory matters;

• (iv) She had not had enough time to find the authorities she wished to rely on in opposition to the defendants' applications;

• (v) The previous week had been taken up applying for a remise to prevent a dégrèvement against her property from taking place. I was informed that the application for a remise was made on Friday, 3 ^rd June, 2016, and was referred to two Jurats to report back to the Royal Court, with the dégrèvement in the interim being stayed. The need to obtain a stay of the dégrèvement process and to apply for remise affected her ability to consider the advice received from Advocate Baker.

• (vi) The first plaintiff produced a letter from her general practitioner dated 1 ^st June, 2016, stating she was suffering from acute migraines caused, in part, by the stress the first plaintiff was currently undergoing due to the present litigation. I was informed that treatment had commenced but that might take several days to be effective. The letter further indicated that the first plaintiff should be able to make necessary submissions by the 13 ^th June, 2016. The letter also stated in the second paragraph “I understand that the stress is particularly acute because she has found herself with insufficient time to process legal advice given later than the court allowed for, so she tells me”.

7 Advocate Franckel in response opposed the adjournment relying on a number of grounds as follows:-

• (i) The approach I should take in deciding whether or not to grant an adjournment was that set out in Cummins v Howlands (Furniture) Limited [2014] JRC 165 at paragraphs 12 and 13;

• (ii) No skeleton and no affidavit had been provided in support of the application, notwithstanding the fact that the first plaintiff was well aware of the need to issue a summons and support the application by an affidavit as set out in an email from me dated 18 ^th November, 2015, and as set out at paragraph 16 of the Strike-Out judgment.

• (iii) The basis of the strike out application had been in any event known about by the first plaintiff since 10 ^th August, 2015, which was when the arguments for a strike out had been set out in detail in a letter to the amicus copied to the plaintiffs. The first plaintiff had also had the benefit of the defendants' skeleton arguments since early October 2015.

• (iv) There was a pattern of applying for an adjournment either very close to or on the day of the hearing. Since issuing the application there had been six previous adjournments of the defendants' applications granted to the plaintiffs.

• (v) The first plaintiff had had the benefit of legal advice from Advocate Baker in accordance with a time table set down by the court. The only reason a final opinion had not been provided until 30 ^th May, 2016, (which was the next working day) was because the first plaintiff asked for the opinion in draft and then provided further comments on it. In any event by that stage she had already had the opinion from Advocate Milner since 22 ^nd April, 2016.

• (vi) As Advocate Franckel had foreshadowed when matters were adjourned on 31 ^st March, 2016, whatever legal advice was given to the first plaintiff she would not accept it. Delaying matters to obtain further advice or review existing advice given would only lead to further delay. What was needed was a determination of the defendants' applications.

• (vii) In any event the first plaintiff either knew her case or she did not – in other words she can either satisfy the court that there is an arguable claim in fraud or she cannot.

• (viii) Further discovery or looking through existing discovery or for witnesses are all irrelevant to the application. The first plaintiff at this stage should be able to articulate her case.

• (ix) As with the second and third plaintiffs there was ongoing prejudice to the defendants where the application kept being adjourned which could not be addressed by a costs order because the costs order would never be met.

8 Advocate Franckel was also critical of the letter received from the general practitioner. He indicated that it should not have been provided on the morning of the hearing given it was dated 1 ^st June, 2016. The second paragraph which I have set out above was also no more than the first plaintiff's own words. It was not an independent opinion. The letter was also contradictory in terms of on one hand saying several days were needed to treat the migraine but that the first plaintiff would be ready to make submissions after a delay of one week.

9 Advocate Wilson supported Advocate Franckel's opposition to the application to adjourn.

10 Advocate Steenson drew to my attention the fact that I had not received any indication from Advocate Baker that he was unable to provide the advice within the timeframe that I had required on 11 ^th May, 2016, and had not indicated that the hearing on 6 ^th June, 2016, should be adjourned as a consequence.

Adjournment decision

11 In refusing the adjournment I indicated I would give my detailed written reasons when giving my reasons in respect of the substantive applications by the first and second defendants.

12 In terms of the approach I should adopt I agree with Advocate Franckel that the relevant factors to consider are those set out in the Cummins decision at paragraph 12. In particular, I should evaluate the importance and probable adverse consequences for the party seeking the adjournment, the risk of that party being prejudiced in its conduct of the application if the adjournment was refused, the risk to the other party if the application was granted, the convenience of the court and the interests of justice generally in the efficient dispatch of court business. I have noted in particular in Les Pas Holdings cited at paragraph 13 of Cummins Commissioner Page's remarks where he stated:-

“The power to...