J. Purdie, E.M. Purdie (Née Stevenson) and Lancashire Hotel (Holdings) Ltd v Gould, P.M. Bailhache, W.J. Bailhache and Boxall (Practising as Bailhache and Bailhache)

JurisdictionJersey
CourtCourt of Appeal
JudgeFrossard, Harman and Blom-Cooper, JJ.A.:
Judgment Date28 March 1989
Date28 March 1989
COURT OF APPEAL
Frossard, Harman and Blom-Cooper, JJ.A.:

G. Le V. Fiott for the appellants;

M.C. St. J. Birt for the respondents.

Cases cited:

(1) Abdel Rahman v. Chase Bank (C.I.) Trust Co. Ltd., 1983 J.J. 1; on appeal, 1984 J.J. 127; further proceedings, 1985-86 JLR N-5; further proceedings, 1987-88 JLR 81, dicta of Tomes, D.B. applied.

(2) Bayerrissche Ruckversicherung A.G. v. Clarkson Puckle Overseas Ltd., The Times, January 23rd, 1989.

(3) Bellenden (formerly Satterthwaite) v. Satterthwaite, [1948] 1 All E.R. 343.

(4) Cutner v. Green, 1980 J.J. 269.

(5) Tilling v. Whiteman, [1980] A.C. 1; [1979] 1 All E.R. 737; (1979), 123 Sol. Jo. 202; 38 P. & C.R. 341; 250 E.G. 51.

Additional cases cited by counsel:

Evans v. Bartlam, [1937] A.C. 473.

G. v. G., [1985] 2 All E.R. 225.

Hadmor Prods. Ltd. v. Hamilton, [1982] 1 All E.R. 1042.

Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp, [1979] Ch. 384.

Legislation construed:

Royal Court Rules, 1982 (R. & O. 7026), r.6/19: The relevant terms of this rule are set out at page 115, lines 27-30.

Text cited:

Halsbury's Laws of England, 4th ed., vol. 37, paras. 483-484, at 366-367.

Civil Proceduretrial of preliminary issueprescriptionalthough all issues normally tried together, wide discretion to order separate trial of preliminary issue under Royal Court Rules, 1982, r.6/19issue of prescription may be tried separately if precludes full trial or if evidence given on preliminary issue reduces time and expense of full trial

The appellants appealed against the Royal Court's decision that the issue of prescription was to be tried as a preliminary issue in their suit against the respondents.

In May 1974, the appellants had entered into an agreement to purchase a certain property, in respect of which the respondent firm of advocates had acted for them. The purchase had been completed in December 1974. When the appellants wished to sell the property in 1984, it emerged that the title acquired in 1974 was defective and the sale fell through. The appellants then brought an action against the respondents in contract and tort asserting that, having failed to ensure good title, they had been professionally negligent. The Deputy Judicial Greffier, exercising the discretion conferred upon him by the Royal Court Rules, 1982, r.6/19, ruled that, in view of the time which had elapsed since the agreement of sale, it was possible that the action would be time-barred in contract as well as in tort and that it was therefore essential that the issue of prescription be tried as a preliminary issue. The appellants' appeal to the Royal Court (Le Cras, Commr.) against this ruling was dismissed.

On further appeal, they submitted that prescription was not in fact a preliminary issue because, although their action would clearly be time-barred in tort (the 3-year limitation period had elapsed since the date of the contract and the completion of the purchase), this was not the case in contract since less than 10 years had elapsed since the date of completion, at which date the respondent was still under a duty to use reasonable care and skill. The matter should therefore go to full trial.

The respondents submitted in reply that the court should exercise its discretion under the Royal Court Rules, 1982, r.6/19 to determine, as a preliminary issue, whether the appellants' action was prescribed; this conclusion was reinforced by the fact that this procedure would require evidence to be tendered in respect of the nature and extent of an advocate's duty when completing a purchase of land which might well reveal that it was in fact prescribed in contract as well as in tort (the date of the accrual of the right of action being the date of the agreement, which was outside the 10-year limitation period), and therefore the preliminary trial of the prescription issue would avoid the time and expense involved in going to a full trial.

Held, dismissing the appeal:

The court, as an exception to the general practice of ordering a single trial of all issues, would exercise its wide discretion under the Royal Court Rules, 1982...

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