Cristiana Crociani v Edoarda Crociani
| Jurisdiction | Jersey |
| Court | Royal Court |
| Judge | Matthew John Thompson |
| Judgment Date | 01 July 2016 |
| Neutral Citation | [2016] JRC 112 |
| Date | 01 July 2016 |
[2016] JRC 112
ROYAL COURT
(Samedi)
Advocate Matthew John Thompson, Master of the Royal Court
Advocate P. O. J. Lewis for the Plaintiffs.
Advocate N. M. Santos-Costa for the First, Second and Fourth Defendants.
Advocate S. M. Baker for the Third and Seventh Defendants.
The Fifth, Sixth and Eighth Defendants did not appear.
De Gruchy v Planning and Environment Committee [2001] JLR 196 .
Ball v King [2006] JRC 143 .
Crociani v Crociani [2015] JRC 145
Crociani v Crociani [2015] JRC 177 .
Crociani v Crociani [2016] JRC 085 .
Esteem Settlement [2000] JLR Notes-41A .
Trust — reasons for granting extension of time on application of the first, second and fourth defendants.
| Paras | ||
| 1. | Introduction | 1 |
| 2. | The relevant background | 2–8 |
| 3. | The parties contentions | 9–20 |
| 4. | Decision | 21–34 |
This judgment represents my detailed written reasons for granting an extension of time on the application of the first, second and fourth defendants for the provision of witness statements, including my reasons in relation to the imposition of sanctions consequent upon the extension granted.
The general background to the dispute has been rehearsed in a number of previous judgments in relation to this matter and it is not necessary for me to repeat the underlying dispute, save to note that it is reasonably complicated and there are significant financial amounts involved.
The current stage of the proceedings is that directions have been given for this matter to proceed to trial commencing in January 2017 with a time estimate of 12 weeks. In addition to directions for the exchange of evidence by witnesses of fact, which is the subject matter of the present application, directions have also being given for production of expert evidence by the end of September 2016, for meetings of experts by mid-November 2016 and for a pre-trial review before the trial judge in mid-December 2016. The expert evidence cannot be finalised until witness statements have been exchanged.
Both parties have also been through a significant exercise of providing documents to the other with the result that the parties have received significant amounts of documentation. There are certain requests for specific discovery which are in the process of being dealt with, which may lead to further applications, but in general terms the obligation to provide documents is close to completion. Any further specific discovery issues will not affect the timetable set out above significantly if at all.
In relation to the exchange of witness statements of fact, by an act of court dated 12 th January, 2015, exchange of witness statements of fact was first ordered to take place by 18 th September, 2015. In light of disputes over the provision of further and better particulars and amendments to pleadings, this deadline was extended by an act of court of 11 th November, 2015, to 29 th February, 2016.
On 20 th January, 2016, by an act of court the deadline for exchange was extended further to 29 th April, 2016. This act of court primarily set the timetable to take this matter to trial as set out at paragraph 3 above. This order was expressed to be a final order “entitling any party to apply for any appropriate relief, consequent on any other party failing to provide a witness statement in accordance with the terms of this order”.
Subsequent to this order, Messrs. Carey Olsen ceased to act for the fourth defendant on 3 rd February, 2016. As a consequence of the termination of the fourth defendant's retainer by Carey Olsen, the first and second defendants terminated the retainer of Carey Olsen later in February 2016. I address later in this judgment what led to this change in representation.
Messrs Collas Crill came on the record for the fourth defendant by 24 th February, 2016. However they did not come on the record for the first and second defendants until determination of a fee dispute between the first and second defendants and Messrs Carey Olsen. The first, second and fourth defendants were therefore not going to be able to provide witness statements by 29 th April, 2016. The time limit was therefore extended to 15 th June, 2016. I again, however, made it clear that the extension was a final order made on the same basis as the order of 20 th January, 2016.
Advocate Santos-Costa in support of his application for an extension indicated that one of the principal reasons for seeking a further extension of two weeks was the transfer of representation between Carey Olsen and Collas Crill had been significantly slower than expected. He referred to receiving three hundred chronological bundles on 3 rd May, 2016, draft witness statements on 4 th May, 2016, further documents relating to specific discovery on 20 th May, 2016, and a further fifty-seven boxes of files on 1 st June, 2016, which he had not yet reviewed. He further explained that the witness statements when provided were not as advanced as he had thought would be the case. Moreover, he was also trying to take a more proportionate approach to who worked on the matter. This was partly driven by the amount of costs that had been incurred already when the matter was handled by Carey Olsen and partly by a desire to focus on what was at the heart of this dispute. He had already cut down the number of witnesses involved from thirty-seven to ten.
He indicated that the witness statement of the second defendant was finished and that of the first defendant was all but finished subject to her final approval. The other witness statements of the witnesses he now intended to call would not be finished by 15 th June, 2016. The deponent of the evidence to be given on behalf of the fourth defendant was away on honeymoon until 20 th June, 2016, which had not been known by Advocate Santos-Costa until recently. He also needed further discussions with the other witnesses, who were family and friends before their statements could be finalised.
Advocate Santos-Costa understood that some form of sanction should be imposed, but he felt sure that compliance would occur if the extension asked for was granted.
In terms of the legal test to be adopted, I was referred to the decision of Master Wheeler in De Gruchy v Planning and Environment Committee [2001] JLR 196 approved in Ball v King [2006] JRC 143.
Advocate Lewis in response contended as follows:-
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(i) As a matter of principle court orders and timetables should be adhered to. If they are not then the court will take steps to enforce its orders.
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(ii) This is a late application made on the day that witness statements of fact should have been exchanged.
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(iii) The blaming of Carey Olsen did not stand up to analysis. The statements were nearly ready and therefore the application was based on the failure by Collas Crill to have completed the work within the time period previously allowed.
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(iv) In respect of the fourth defendant, the lack of availability of the witness until after the deadline was not the fault of Carey Olsen; it was for Collas Crill to have ensured that a statement was ready to be provided in time since they had been acting for the fourth defendant from the end of February 2016.
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(v) The remaining witnesses were not central players to the dispute.
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(vi) Accordingly a further two weeks was not needed and a shorter time limit should be allowed.
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(vii) While there was six months until trial, there were a number of other issues that still needed to be dealt with; delaying matters unnecessarily had a cumulative effect which could cause problems later on.
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(viii) The fact that Collas Crill may resume acting for the fifth defendant (her retainer with...
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