Mrs. Hannah Morahie Drake née Neville in her capacity as executrix of the late Derek Cyril Drake v Arlindo Reis Freitas Gouveia

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Bailiff
• Judgment Date: 01 December 2000
• Neutral Citation: [2000] JRC 238
• Date: 01 December 2000

[2000] JRC 238

ROYAL COURT

Samedi Division

Before:

Sir Philip Bailhache, Bailiff and Jurats Tibbo and Allo.

Between

Mrs. Hannah Morahie Drake née Neville in her capacity as executrix of the late Derek Cyril Drake

Appellant

and

Arlindo Reis Freitas Gouveia

Respondent

and

Lemprière, Whittaker Renouf a firm

Party Convened

Advocate P.S. Landick for the Appellant

Advocate J.C. Martin for the Respondent

Advocate Mrs. M.E. Whittaker for the Party Convened

Authorities.

Skinner v Myles & Public Health Committee (1990) JLR 88.

Skinner v Myles & Public Health Committee (1990) JLR 98.

Civil Proceedings (Jersey) Law, 1956: Article 2(1).

Supreme Court Act 1981: s.51(1).

Aiden Shipping Co. Ltd v. Interbulk Ltd., The Vimeira [1986] 2 All ER 409.

Gupta v. Comer [1991] 1 All ER 289.

Myers v Elman [1939] 4 All ER 484.

Symphony Group plc v Hodgson [1993] 4 All ER 143.

Representation of the Bâtonnier re Sinel (27th January, 2000) Jersey Unreported.

Boyd v Pickersgill & Le Cornu (14th September, 2000) Jersey Unreported.

Drake v Gouveia (10th August, 200) Jersey Unreported.

Appeal by the Appellant from the order of the Master of 10 ^th August, 2000, relating to the costs of and incidental to a strike out application and the main action and seeking an order that:

• a) the said order of the Master be set aside; and

• b) the Party Convened pay the costs of the Appellant and the Respondent of and incidental to the strike out application and the main action.

JUDGMENT.

Bailiff

THE

Introduction

1 This is a summons by which Mrs. Hannah Morahie Drake (“the appellant”), executrix of her husband the late Derek Cyril Drake (“the deceased”) is appealing against an order of the Greffier Substitute (to whom we shall refer as “the Master”) relating to the costs of the deceased's action against Arlindo Reis Freitas Gouveia (“the respondent”). This action was struck out by the Master on 10th August 2000 on the application of the respondent on the ground of inordinate and inexcusable delay. The Master ordered the appellant to pay the respondent's costs. The appellant now seeks orders that the firm of Lemprière Whittaker Renouf (“LWR”), the deceased's former legal advisers, should pay the respondent's costs of the action and her own costs incurred since 16th March 2000. From the appellant's perspective, this is a sorry tale.

Background

2 The history may be adumbrated as follows. On 18th March 1994, there was a minor road traffic accident in which a car driven by the respondent emerged on to a major road, La Vallée de St. Pierre, and collided with a car driven by the deceased. On 31st October 1994, an Order of Justice was issued claiming damages from the respondent for negligence. On 25th November, 1994, the action was placed on the pending list and there, so far as the court file is concerned, it rested quiescent until March 2000.

3 In fact, there was activity in the background which was mainly directed towards establishing which insurance company would take responsibility for the respondent's actions. In January 1995, the Motor Insurers' Bureau was approached and a question arose as to whether fresh proceedings should be served on the Bureau. The Bureau at first instructed Guardian Insurance. In August 1996 Guardian was replaced by Eagle Star. After much procedural wrangling, Eagle Star informed LWR in March 1997 that they were able to deal with the deceased's claim. In April 1997, LWR sent details of the claim to Eagle Star. On 18th July 1997, Eagle Star responded, apologizing for the delay and asking for confirmation whether proceedings had been served and if so, upon whom. Thereafter, in so far as the action was concerned, nothing happened until March 2000. Meanwhile, on 9th May 1999, the deceased had died.

4 It is claimed by the appellant, and not denied, that between 18th July 1997 and 12th November 1998 she and her husband had written to LWR on at least seven occasions, asking for news of progress and urging that the claim be pursued. They received only one response by letter of 18th March 1998, which promised to inform them of developments. On 15th June 1999, after the death of her husband, the appellant wrote to the Bâtonnier asking for help in getting a response from LWR. She wrote again on 29th September 1999 and 2nd December 1999. By letter of 7th March 2000, the Bâtonnier wrote to the Acting Bâtonnier stating that he had written to LWR five times asking that the matter be dealt with, but had received no reply. On 16th March 2000, the firm of Ogier & Le Masurier was instructed by the Acting Bâtonnier to deal with the appellant's affairs.

5 That was the history which led up to the respondent's application to the Master on 1st August 2000 to strike out the action. The action was struck out, as we have stated, and no appeal has been brought against that decision. The respondent, naturally, applied for costs. Mr. Landick, for the appellant, asked that LWR be ordered to pay the respondent's costs or that the matter be adjourned so that LWR could be convened. The Master's judgment of 10th August 2000 did not recite any of the arguments on these submissions but merely recorded his decision that the costs of the action be paid by the appellant on the standard basis. After the lodging of the appeal, he elaborated his reasons. He had declined to make any order against LWR on the grounds that:-

• “(i) that firm was no longer acting for the plaintiff and obviously was not a party to the strike out application or the proceedings generally;

• (ii) I was not prepared to make any finding as to whether there had been professional negligence on the part of that firm which had caused such inordinate and inexcusable delay in the prosecution of the action as led to it being struck out;

• (iii) [LWR] were not present or represented at the hearing on 10th August and thus could not be heard on the application and I did not consider it appropriate to adjourn matters so as to allow them to be convened and I also had some doubt as to whether they could, in fact, be convened in any event.”

The convening of LWR

6 Prior to the hearing which took place before the Master on 1st August, Ogier & Le Masurier had given notice to LWR of their intention, should the strike-out application succeed, to apply for an order that LWR should pay the costs. That notice was given by fax of 27th July. Ogier & Le Masurier stated:-

“ Insofar as you may object that I am giving you only two clear days' notice of this possible costs application, which turns on whether the strikeout application is successful, I must point out that your firm has only today, for the first time, made any substantive response to my repeated requests for help and that response has provided no explanation for the inactivity since, at the latest, 25th July 1997 which will be the only or most likely reason for the strikeout application to succeed.

It would be iniquitous for Mrs. Drake to bear any costs order. …

If you wish to be heard on this application for costs, Mrs. Drake will not object to any application by you to be joined in the proceedings for that purpose.

I shall, of course, continue to resist the strikeout application and I maintain my request that you assist me in any way you can.

I also reserve Mrs. Drake's right to ask for an order that you pay this firm's costs of acting for her”.

7 There was no response to that fax. After judgment was reserved by the Master on 1st August, Ogier & Le Masurier wrote again on 7th August, repeating that if the strike-out application were successful, an application would be made for the costs to be paid by LWR. Ogier & Le Masurier reiterated that no objection would be taken to LWR's seeking to be joined in the proceedings in order to be heard. There was no reply to that fax. On 8th August, Ogier & Le Masurier wrote again to advise that judgment would be given by the Master on 10th August, and reiterating the notice given in the previous message. Again, there was no reply to that fax. On 11th August, Ogier & Le Masurier wrote to LWR advising that the action had been struck out, giving notice of a possible appeal and asking whether LWR would agree to pay the costs of the action. There was no reply to that fax. On 4th September, Ogier & Le Masurier wrote again to LWR advising that the costs appeal would be heard on 29th September and reiterating that the Court would be asked to order that LWR should pay all the costs of the proceedings. LWR was invited to discuss the content of the letter or any other aspect of the matter. There was no reply to that fax.

8 On 25th September, Ogier & Le Masurier wrote again to LWR confirming the date of the hearing, inviting discussion and attaching a copy of the appellant's draft skeleton argument. On 29th September, the hearing of the appeal took place. LWR did not apply to be joined in the proceedings, and indeed was not represented. Counsel for the appellant urged the Court to deal with the matter without convening and hearing LWR, because LWR had been kept fully informed about the appeal and had chosen not to seek to intervene. After hearing argument from counsel for the appellant and for the respondent, we reserved our judgment.

9 On the afternoon of 29th September, the Bailiff's Secretary received a fax from counsel for the appellant enclosing a copy of a fax from LWR which had been sent to Ogier & Le Masurier that morning, but which had not been drawn to the attention of counsel before the hearing. LWR asked to be heard if the Court were to find that it had jurisdiction to make an order for costs against them. The Court, without hearing counsel further,...