Boyd v Pickersgill and Le Cornu

JurisdictionJersey
CourtRoyal Court
JudgeHamon, Deputy Bailiff:
Date06 August 1998
ROYAL COURT
Hamon, Deputy Bailiff:

P. de C. Mourant for the plaintiff;

R.J. Michel for the defendant.

Cases cited:

(1) Public Servs. Cttee. v. Maynard, 1996 JLR 343, distinguished.

(2) Purdie v. Bailhache & Bailhache, 1989 JLR 111, applied.

Legislation construed:

Royal Court Rules 1992 (R. & O. 8509), r.7/8:

"(1) The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any proceedings at any stage of the proceedings where it appears to the court—

(a) such question is suitable for determine without a full trial of the action; and

(b) such determination will finally determine (subject only to any possible appeal) the entire proceedings or any claim or issue therein.

(2) Upon such determination the Court may dismiss the proceedings or make such order or judgment as it thinks just."

Text cited:

Supreme Court Practice 1997, vol. 1, para. 14A/1-2/5, at 185.

Civil Procedure—trial of preliminary issue—prescription—although normal practice to try all issues together, may consider prescription as preliminary issue on application under Royal Court Rules 1992, r.7/8, e.g. action in contract and tort with no factual disputes, if likely to dispose of entire case

The defendant claimed that the plaintiff's action against them was prescribed.

The plaintiff brought an action in contract and tort against the defendant firm of advocates, who claimed that her action was prescribed. Both parties agreed that the issue of prescription should be dealt with at an early stage and the plaintiff accordingly applied to the Greffier Substitute under r.6/19 of the Royal Court Rules 1992 for an order that he refer the question of prescription to the court as a preliminary issue. This application was refused, apparently on the ground that the case was not sufficiently exceptional to warrant a departure from the normal rule that all the issues be tried together.

The plaintiff accordingly made the present application under r.7/8 of the Royal Court Rules for the court to consider the question of prescription prior to any hearing of the substantive issues, submitting that it was a question of law suitable for determination without a full trial of the issues, which, if decided against her, would determine the whole of the matter between the parties.

Held, making the following order:

Because the present proceedings, based on contract and tort, contained no disputed facts and because a decision on the question of prescription could determine the whole matter between the parties, it was appropriate that that question be heard as a preliminary issue and the court would so order, in the interests of saving time and costs. The case was to be distinguished from one based on, e.g. personal injuries, in which there were disputes over factual matters and the date from which time started to run (page 126, line 3 - page 127, line 12).

HAMON, DEPUTY BAILIFF: This is a summons by the defendants for an application under the provisions of r.7/8 of the Royal Court Rules 1992 for a preliminary hearing on the application of prescription periods of three years for tort and ten years for contract in this case. These prescription periods were pleaded by the defendant in answer to an Order of Justice commenced on April 21st, 1997.

The Greffier Substitute had already refused the plaintiff's request that she be permitted to issue a summons for an order under r.6/19 to refer the matter to the court for determination prior to the trial. The Greffier Substitute, it is felt, found himself bound by the words of the Court of Appeal in Public Servs. Cttee. v. Maynard (1), where it said (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."

Whilst that part of the judgment is clearly obiter, it has the authority of the Court of Appeal and should not be lightly ignored. In my view, it is not, in any event, applicable to this case.

Maynard was a personal injury case. This case is founded on tort and contract and is as near a mirror-image case to that of Purdie v. Bailhache& Bailhache (2) as one could hope to find. In the Court of Appeal, it was said (1989 JLR at 116-117):

"Painting with a broad brush on this particular canvas, we conclude as follows: if time runs in both the tortious and contractual claims from the date of the agreement, May 21st, 1974, then this action dies and there is no need to engage in a full-scale trial.

However much the plaintiffs might wish to establish the professional negligence of the defendants, it will profit them nothing to have their claim prescribed after an inevitably costly piece of litigation. If time runs from any date later than September 18th, 1974, then there will be no prescription in contract, or possibly in tort. But in the course of the preliminary issue evidence will need to be elicited about the nature and extent of the duties of advocates in advising clients on the sale of land, such that it is highly likely that the issue of professional negligence will have been pinpointed, if not finally determined without the need for a full trial. In these circumstances, we have no hesitation in coming to the conclusion that, exceptionally, the trial of this action should be split so that the question of prescription, and the facts supporting or negating it, can be dealt with by way of preliminary process. But even if we doubted the proper conclusion or had cause to contemplate a contrary view, that would not lead to a reversal of the decision of Mr. Commissioner Le Cras."

In this case there are no disputed facts, no problems of "empêchement defait" that will have to be aired at trial.

Mr. Michel, who was supported in this application by Mr. Mourant, also quoted the words of Bingham, M.R. in 1 The Supreme CourtPractice 1997, in a discussion of O.14A, which was a template for our r.7/8, as follows (op. cit., para. 14A/1-2/5, at 185):

"Sir Thomas Bingham, M.R., considering the inter-relation of striking out and O.14A, expressed unease at '... deciding questions of legal principle without knowing the full facts'. However he continued 'But applications of this kind are fought on ground of a plaintiff's choosing, since he may be generally assumed to plead his best case ... [If] the legal viability of a cause of action is unclear (perhaps because the law is in a transition), or in any way sensitive to the facts, an order to strike out should not be made. But if, after argument, the court can be properly persuaded that no matter what (within the reasonable bounds of the pleading) the actual facts [are] the claim is bound to fail for want of a cause of action, I can see no reason why the parties should be required to prolong the proceedings before that decision is reached' (E (a Minor) v. DorsetC.C. [1995] 2 A.C. 633; [1994] 4 All E.R. 640). These words were approved on appeal to the House of Lords by Lord BrowneWilkinson (the other members of the Appellate Committee concurring) reported sub nom. X (Minors) v. Bedfordshire CountyCouncil (another appeal heard at the same time) at [1995] 2 A.C.

633; [1995] 3 All E.R. 353. H.L. (E.)."

Dates are fixed for July at the latest and both counsel are...

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