T.A. Picot (C.I.) Ltd and Vekaplast Windows (C.I.) Ltd v Michel, Crill and Hamon (Trading as Crills)

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Le Cras, Lieutenant Bailiff:
• Judgment Date: 05 November 1993
• Date: 05 November 1993

ROYAL COURT

Le Cras, Lieutenant Bailiff:

The plaintiffs appeared by Mr. T.A. Picot, a director.

T.J. Le Cocq for the defendants.

Cases cited:

(1) Arya Holdings Ltd. v. Minories Fin. Ltd., 1991 JLR N-2.

(2) Leslie v. Ball (1863), 22 U.C.R. 512.

(3) Rees v. Sinclair, [1974] 1 N.Z.L.R. 180, applied.

(4) Rondel v. Worsley, [1969] A.C. 191; [1967] 3 All E.R. 993; (1967), 111 Sol. Jo. 927, dictum of Lord Upjohn considered.

(5) Saif Ali v. Sydney Mitchell & Co., [1980] A.C. 198; [1978] 3 All E.R. 1033; (1978), 122 Sol. Jo. 761, considered.

(6) Somasundaram v. M. Julius Melchior & Co., [1988] 1 W.L.R. 1394; [1989] 1 All E.R. 129, applied.

(7) Swinfen v. Lord Chelmsford (1860), 5 H. & N. 890; 157 E.R. 1436.

(8) Torrell v. Pickersgill & Le Cornu, 1987-88 JLR 702, applied.

Text cited:

Jackson & Powell on Professional Negligence, 3rd ed., para. 5-10, at 433; para. 5-21, at 439 (1992).

Advocates—immunity from suit—litigation and pre-trial work—advocate immune from suit regarding conduct of trial and intimately connected pre-trial work—may extend back to giving of original instructions

Civil Procedure—pleading—striking out—may strike out for abuse of process if action amounts to attack on existing judgment—action against advocate for negligent handling of case may amount to attack if questions basis of judgment, albeit indirectly

The plaintiffs brought an action against the defendants for damages for the alleged negligent handling by the first defendant of litigation against a third party.

The plaintiffs were sued by a third party in the Royal Court over their use of certain registered trade names and they instructed the first defendant, an advocate, to conduct their case. They later alleged, however, that he had failed to comprehend their position from the outset and that he had handled the matter negligently. The first defendant persuaded the plaintiffs to settle the action out of court against their wishes and judgment by consent was entered accordingly. The plaintiffs' subsequent application to the Superior Number for leave to appeal against that judgment was refused. These proceedings are reported at 1989 JLR 269.

The plaintiffs subsequently brought the present proceedings and the defendants applied for them to be struck out. The defendants submitted that (a) the first defendant, as an advocate, was immune from suit, not only with regard to his conduct of the court proceedings themselves but also with regard to all matters arising from his original instructions, which were intimately bound up with those proceedings; and (b) furthermore, as the settlement had been agreed, ratified by the court and a subsequent appeal refused, it would be contrary to public policy and an abuse of the process of the court to question the process by which the original judgment had been arrived at, which would be to reopen issues that had effectively already been litigated.

The plaintiffs submitted in reply, inter alia, that (a) whilst the first defendant might be immune from suit regarding his conduct of the trial itself, such immunity could not protect him from the consequences of his having negligently handled the matter from the moment of his being initially instructed and long before the trial; he had thereby prevented the true issues being litigated at all and, in particular, by settling the matter out of court had acted outside the scope of his immunity; and (b) their action was not an abuse of process since it did not question the original judgment, which had not addressed or even been able to address the issues now sought to be brought forward.

Held, granting the defendants' application:

(1) The first defendant was immune from suit in relation to the alleged defaults complained of. Every action that he had taken, from his initial instructions onwards, had related to his subsequent handling of the case in court, for which he could not be sued, and was so intimately connected with it that the immunity extended back to the time he was originally instructed. The fact that the settlement complained of by the plaintiffs had taken place out of court was irrelevant, since it too had been an integral part of the conduct of the case and in any event, all the allegations of the plaintiffs related to the fundamental allegation that the first defendant had failed to understand the situation from the outset. The plaintiffs' action would therefore be struck out (page 353, line 45 - page 354, line 15; page 355, lines 29-32).

(2) Furthermore, by raising the present issues, the plaintiffs were effectively attacking the correctness of the existing judgment, albeit indirectly and notwithstanding the fact that there had been a settlement. Public policy therefore required that the action be struck out as an abuse of the process of the court (page 359, lines 17-26).

LE CRAS, LIEUTENANT BAILIFF: This is an application by the defendants to strike out the plaintiffs' Order of Justice or part thereof, either under r.6/13 of the Royal Court Rules 1992 or pursuant to the court's inherent jurisdiction. It has added to it what is effectively a summons for directions.

The action of the plaintiffs has a long history. The litigation from which this action stems was commenced by an Order of Justice issued by Vekaplast Heinrich Laumann K.G. ("V.H.L.") on June 8th, 1984. Pleadings were exchanged and the action came on for hearing on May 19th, 21st and 22nd, 1986, after which it was adjourned before coming on again on August 19th and 21st, 1986.

The plaintiffs' witnesses were heard and Mr. T.A. Picot, the managing director of the present plaintiffs, who were then the defendants, had, by the record at least, entered the witness box. On August 21st, 1986, the action was compromised and the learned Deputy Bailiff gave a short judgment to deal with the situation.

The defendants—that is, the plaintiffs in the present action—were unhappy with the compromise and sought leave to appeal against the consent order. Leave was refused by the Inferior Number by a judgment dated August 15th, 1989. As a consequence, proceedings were issued against Advocate Michel, who had represented the defendants in the original action.

The grounds on which actions may in general be struck out are well enough known: see for example Arya Holdings Ltd. v. MinoriesFin. Ltd. (1); they were put to the court and there is no need to rehearse them here. However, this is an unusual application in that the main thrust of the submissions on behalf of the defendants is a claim of immunity by the advocate acting in the original action from a suit of negligence. The second thrust is that this is an abuse of the process of the court. There is to some extent an overlap with the previous ground whilst as a reserve, as it were, the defendants ask the court to find that...