[2005]JRC084

royal court

(Samedi Division)

16^th June 2005

Appeal by the Representor against two decisions of the Master of the Royal Court dated 12^th April 2005 against a striking out and a costs order.

Advocate A.D. Hoy for the Representor.

Advocate R.A. Falle for the First Respondent.

Advocate D. Le Cornu for the Second and Third Respondents.

Advocate M.L. Preston for Voisin and Co.

judgment

the deputy bailiff:

1.        The Court has before it an appeal against a decision of the Master to strike out the representation in this case.  The decision of the Master was based essentially on two grounds with perhaps a less important third one. 

2.        The first was that he thought that these proceedings, because they attacked the validity of a trust, should be brought by order of justice whereas in fact they have been brought by representation.

3.        The second reason was that the representation, in the form that it was before the Master, alleged fraud not only against the husband but also against the trustee.  No particulars of that fraud were given at all.  A request had been made for particulars which had been contemptuously dismissed by Advocate Hoy in correspondence on the basis that there was no need for particulars.

4.        The third and less important reason, I think, was that the Master thought that the proceedings were perhaps aimed at getting discovery in order to attack the trust. 

5.        The Master, having decided to strike out the representation in whole, concluded that the fault lay with the Representor’s lawyers and ordered Voisin and Co to pay the costs.  His grounds were, first that the action was procedurally misconceived both in being brought by representation and in the way it was pleaded.  Secondly it would not be right to require the representor personally to bear the costs, there having been reference earlier in his judgment to the fact that she was impecunious, and thirdly, he agreed it should be standard costs.

6.        As to the main appeal by the Representor, Mr Hoy has today at the last moment tabled an amended representation which was subject to yet further amendment and clarification at the request of the Court during the course of the hearing. 

7.        The result of that amended representation is first that all allegations of fraud against the trustee have been removed; and secondly the general nature and substance of the claim by the wife against the trust are set out more clearly.

8.        In the Court’s judgment whilst, of course, making no comment at all on the chances of success, the claim is now in a form which can properly form the basis of proceedings before this Court. 

9.        The sole remaining matter is that raised by the Master.  Namely, whether it should have been brought by order of justice and not a representation.  We are inclined to agree with him that it should have been brought by an order of justice.  That is normal where one is attacking a trust and seeking substantive relief.

10.      However, it has not been the invariable practice; for example the whole of the Rahman legislation was based upon a representation; and it is at the end of the day for the Court to be master of its procedure, rather than procedure being master of the Court.

11.      We have to stand back and say is the position satisfactorily set out and sufficiently clear that we should allow this matter to proceed?  We conclude that in the light of the amended pleading it is, and we should not strike it out merely because it is still in the form of a representation, rather than an order of justice.  But we would say this; we can well understand the Master’s view that, in the form it was before him the pleading of fraud was wholly inadequate.

12.      That being so we allow the appeal and we give leave to the representor to file the amended representation to which we have just referred.

13.      That then brings us on to the question of costs.  Mr Preston has appeared for Voisin and Co to appeal the decision of the Master to order Voisin and Co. to pay the costs.  We can well understand the Master’s decision.  This was a case where a wholly unparticularised claim of fraud was made.  There was a blank refusal to particularise it and now the allegations have been wholly withdrawn.  In the circumstances it would not have been surprising had the Master concluded that this amounted to plainly unjustifiable conduct on the part of Mr Hoy who was the advocate with responsibility for the matter.  This Court can well understand that view.  Mr Preston, however, has referred us to the case of Medcalf – v – Weatheral and another [2002] UKHL27 where the House of Lords had to consider a not dissimilar case, where after a trial the judge had held that allegations of fraud were not substantiated in any way and that there had been no reasonably credible admissible evidence to substantiate the fraud allegations.

14.      The House of Lords certainly thought it quite likely that the barristers in that case had not had sufficient evidence upon which to allege fraud, but the barristers were unable to defend themselves fully because the client had not waived privilege and therefore the court did not know what had taken place as between the barrister and the client and therefore the House of Lords held that it would not be right to make an order for wasted costs in such circumstances.

15.      Mr Preston urges that, whatever preliminary view the Court may form, it cannot know whether there was information in Advocate Hoy’s possession and whether therefore he was acting reasonably in bringing the allegation of fraud, or in refusing to give particulars.

16.      I have to say I have found this to be a finely balanced matter.  I bear in mind the decision in Medcalf and Mardell but as against that there is a clear and well established principle, which should be known to all lawyers, that they may not plead fraud unless they have evidence and that fraud has to be adequately particularised.  For my own part I find Advocate Hoy’s response to the request for particulars completely incomprehensible.  Nevertheless, I have just been persuaded by Mr Preston that, because I cannot know the full background but only think it, it would be wrong to make an order for costs personally against the lawyer.  I am therefore going to allow the appeal.

17.      That then raises the question of the costs of the hearing below and in this Court.  In my judgment these costs were incurred entirely because the representor did not get her tackle in order.  She produced a poor pleading and has only rectified the matter at the very last moment today with the assistance of the Court.  Therefore, even though the appeal has been successful I consider that justice requires that the other party should recover their costs because today’s costs and all the other costs have only been incurred because the representor did not get her tackle in order until the 59^th minute of the 24^th hour.  I therefore make an order for standard costs against the representor in respect of the hearing below and in this Court. 

18.      It will of course be a matter for Voisins as to how they then deal with this.  It is quite common that orders for costs are made against clients where the fault lies with their lawyers and no doubt in such cases an accommodation is arrived at between the lawyer and the client, but that is a matter for them and no concern of this Court.  The order I make is, standard costs against the representor in the court below and here.

Authorities

Medcalf – v – Weatheral and another [2002] UKHL27.