Is
There A “Woolf” in Jersey?
Matthew
Thompson
This article is based on a speech given by
the author to the Law Society of Jersey concerning the rationale for and
possible effect of Amendment No 20 to the Royal Court Rules 2004 which
introduced an overriding objective and other significant procedural changes
relevant to the conduct of civil disputes before the Royal Court. The article
explores the intended effect of the principal changes either in the Rules
themselves or in related Practice Directions and their impact for clients and
advisers for future disputes before the Royal Court.
Introduction
1 Since 1962, when Jersey’s civil
procedure rules were first introduced, the rules and practice of the Royal
Court in general terms have followed the approach taken by the courts in
England and Wales set out in what was commonly known as the White Book. The English rules however
were fundamentally altered in 1999 following a detailed review led by Lord
Woolf, MR. Some of those changes have
now found their way into the Royal Court Rules through Amendment No 20. This article
sets out the background to the changes that came into force on 1 June 2017,
what led to those changes, and how civil procedure might develop in the future.
2 As with all articles from a member of the
judiciary, this article simply contains the author’s personal views at
the time of writing to assist those who come before the courts in the future. However,
these views may not necessarily translate into legal decisions or practice
following contested argument whether before the author as Master of the Royal
Court or judges of the Royal Court.
3 The changes came about following Sir
Michael Birt, as Bailiff, establishing a group known as the Royal Court Rules
Review Group to review the Royal Court Civil Procedure Rules and Practices.
4 In a consultation paper issued in October
2014, the Review Group described
its remit as (a) improving access to justice, and (b) reducing the risks of
costs associated with litigation.
5 The Group also made it clear that its
focus was on how disputes might be adjudicated in a manner which was both
proportionate to what was at stake and was cost effective. The Group was
particularly concerned about issues affecting ordinary individuals resident in
Jersey who might be deterred from bringing or defending claims before the Royal
Court.
6 In looking at the current Royal Court
Rules, the Group was of the view that the criticisms made by Lord Woolf about
the system in England prior to the introduction of its current civil procedure
rules in 1999 were relevant to an assessment of the current litigation process
in Jersey. What Lord Woolf stated was that the English procedure was—
(a) too
expensive and costs would frequently exceed the value of the claim;
(b) too
slow;
(c) too
unequal with a lack of equality between the powerful and wealthy litigant and
the under resourced litigant;
(d) uncertain
in terms of what litigation might cost and how long it might last;
(e) difficult
to follow from a litigant’s perspective; and
(f) too
adversarial.
7 The Group considered that, to a greater
or lesser degree, the criticisms made in England prior to 1999 applied to the
civil procedure system in Jersey. Amendment No 20 and the related Practice
Directions were therefore one step to try to address some of these criticisms.
8 The changes, however, should not be seen
as a marked departure or abandonment of practice. Rather they are an evolution
of what has gone before. In particular a number of court judgments had already
set out how the court expected cases to be conducted. The changes introduced
follow on from these decisions. The most well-known and oft-cited remarks are
those of the Court of Appeal in the In re
Esteem Settlement which famously as long ago as 2000 stated—
“The objective of all involved in civil
proceedings is to progress to trial in accordance with an agreed or ordered
timetable, at a reasonable level of cost and within a reasonably short time.”
9 Despite the best efforts of the courts
since 2000 it cannot be said in every case that this objective has always been
met. At present this statement in part still remains an aspiration. It is also
only in more recent years that the court has started to manage cases actively
rather than leaving compliance with the Esteem
guidance largely in the hands of the parties.
10 The current changes are therefore
intended to be the evolution of the approach set out in Esteem and to build on previous decisions of the Royal Court so
that the Esteem observations become
the norm.
11 What is not happening, however, is a
simple adoption of relevant parts of the English Civil Procedure Rules. The
Group recognised that reforms in England had not been wholly successful. While
it appears that changes across the water since 1999 led to many cases settling
either without proceedings or at an earlier stage, a cursory review of almost
any English legal publication shows that debates still rage about the changes
to the English system. The changes have therefore been drafted to try to take
account of some of these criticisms, with particular regard being paid to
avoiding undue complexity or increasing cost in manner that might be said to be
unnecessary.
12 The proposed changes are also only part
of the story. There is a clear recognition of a need for guidance for litigants
in person as to the practical steps that need to be taken for each stage of a
dispute. The States are also being asked to increase the Petty Debts Court
jurisdiction to £30,000 later this year which will require a review of the
practices of that court.
13 Nevertheless what is proposed is
designed to have a significant effect on the conduct of civil disputes before
the Royal Court. So what is that effect?
The overriding objective
14 The starting point for the changes is
the introduction of an overriding objective by a new rule, r 1/6. This
rule requires disputes to be conducted justly and at a proportionate cost. It
also expressly requires active case management by the courts. This has not been
stated by the Rules before although the change clearly follows from the
observations of the Court of Appeal in Esteem.
15 This objective is extremely broad. While
it will not apply to criminal proceedings, it will otherwise underpin all other
types of dispute that come before the Royal Court unless there is a specific
provision to the contrary.
16 However, the overriding objective is not
just a question of requiring the judiciary to play an active role in terms of
case management. It goes much further. At its heart is the fact that any client
who becomes involved in a dispute ultimately has a choice of attempting to
resolve that dispute in private or having the court adjudicate upon it in a
timely and proportionate fashion. It does not matter what method a client seeks
to use. What is key is that, from the outset, a client needs to consider
whether he, she or it wishes to reach a solution through any other means
available rather than proceed to engage in a dispute before the courts.
17 What is necessary to achieve resolution
will clearly depend on the type of case. The court, at each stage that it is
involved, will be focusing on what orders are required to meet the overriding
objective. Judges will expressly explore whether an opportunity to try to
resolve a dispute should be inserted into any timetable before significant
costs are incurred.
18 The overriding objective may well have
the consequence that more analysis will need to be carried out in respect of a
client’s case at an earlier stage than has sometimes been the practice to
date. In other words the key issues will have to be ascertained and evaluated
sooner rather than later. It is suggested ultimately that this will serve a
client well and in particular allows a client to make an informed decision
about how to approach a claim.
19 However, these changes are not designed
to go as far as those in England where criticism has been made that the CPR
required too much cost to be incurred at too early a stage. The changes
introduced for the Royal Court are therefore simpler in scope and involve
amendments to existing practice rather than starting again with entirely
different rules.
20 The hope is that earlier analysis will
first lead to clear decisions being made about resolution of claims and will
encourage more parties to seek to resolve their differences either before
litigation has begun or at an early stage. Secondly, if resolution is not
possible, there will be a clear focus on what issues the court needs to decide
and so what evidence needs to be produced by the parties involved.
21 From one perspective, this approach
requires no more than the obligation on an adviser to discharge the duty of
care owed to a client. The proposed changes should therefore be seen as being
consistent with good practice. The flipside however is that, if it were not the
case before, procedure is now only a means to an end—the end being a
settlement or a trial. This goes beyond procedural game playing being
unacceptable, which was also spelt out by Esteem
17 years ago. I suggest it also involves a modification of the adversarial
approach.
22 It is certainly clear from English and
Isle of Man jurisprudence, the latter of which is particularly interesting as a
jurisdiction of comparative size and with similar challenges to those we face,
that the overriding objective requires there to be more co-operation and less
confrontation between litigants and their advocates.
23 Parties and advocates should therefore
give positive assistance to each other in the setting of timetables, they
should limit the opportunity for delay between each stage in the process and
should cooperate with each other where possible.
24 Of course, there will be procedural
disputes which require adjudication. Those should be disputes where there are
genuine differences on what is necessary for a trial to take place. These
should be contrasted with tactical applications designed to put pressure on an
opposing party. The latter will not find favour and are likely to have adverse
consequences for a party and/or possibly its advisers.
25 Parties and their advisers should
therefore focus on what is necessary in respect of the dispute between them. They
should cooperate in narrowing the main areas of dispute, and procedural
disputes should be a last resort.
26 These observations do not just apply to
procedural steps. They apply to the conduct of the trial itself. While the
adversarial approach will apply in relation to how substantive matters in
dispute are dealt with, this is subject to the proviso that the case has been
dealt with by the parties and their advisers fairly, expeditiously and
economically as a whole.
27 A recent illustration of the
modification of the adversarial approach is Aukland
v Minister of H&SS where I drew a distinction
between the approach to be taken in relation to exchange of experts’
reports where there was an argument on liability and the approach to be taken
where what was in dispute was the extent of a plaintiff’s injuries. In
the former case, because the adversarial approach ultimately remains the way
disputes are resolved, simultaneous exchange of expert evidence was ordered and
will be the norm. In disputes where there is disagreement about the extent of
injuries that has been suffered, sequential exchange will be the norm, still
applying the approach taken in Ure v
Minister of Economic Development.
Delay
28 One of the major criticisms of Jersey’s
Civil Procedure System concerned that the fact that it took too long to resolve
disputes and there were too many delays. The introduction of Amendment No 20
and the related Practice Directions makes it clear that generally delay will be
unacceptable. This will reflect itself in a number of different ways.
29 First, indefinite adjournments will be
the exception and will have to be specifically justified. The question will be
posed why an adjournment for a fixed period cannot be agreed, assuming a good
reason for an adjournment exists.
30 Secondly, apart from one initial period
of four weeks following a matter first coming to court, any other adjournment
will have to be justified.
31 Thirdly, if timetables are breached and
adjournments of trials are sought as a consequence, the overriding objective
strengthens the ability of the court to refuse an adjournment if it concludes
that to grant the adjournment would be contrary to the overriding objective.
32 Fourthly, delay that cannot be justified
will lead to sanctions. This may include sanctions against advisers. It is more
often than not the adviser who manages the process of getting the case to
trial. If the timetable is not met, the question will be asked whether the
adviser has managed the process properly. Adverse cost consequences may fall on
the adviser.
33 This possibility has prompted advisers
to question whether the threat of adverse costs orders might interfere with the
lawyer/client relationship. Ultimately, if an adviser refuses to answer a
question as to why a timetable set by the court has not been met on the grounds
of privilege, the court may be left with the option of having to make an
adverse costs order against the client only. However, in doing so the court is
likely to make it clear publicly that it could not determine whether the client
or the adviser was at fault because of a claim to privilege. This will have the
effect of leaving the client and the adviser to resolve any issues to where an
adverse costs liability might fall. The author suggests that if this causes
difficulties, it is either because the approach required by the court has not
been made clear to a client, or the requirements of the rules have been
deliberately ignored.
Pre-action communications
34 The overriding objective also leads
directly to the practice direction on Pre-Action Communications. The rationale
of this practice direction is to enable parties to set out their claim or
defence, as the case may be, to allow the parties to make the choice I have
described, namely, whether they wish to explore settlement or whether
proceedings are required. It is not based on any particular practice direction
in force in England and Wales or any other part of the United Kingdom, but
rather is one produced for the full range of disputes that take place before
the Royal Court.
35 The key requirement is for a party to
set out that it has a claim or a defence and the essential events or legal
issues relied upon. It does not require evidence to be produced. That will be a
choice for the parties if they decide to engage in some form of dialogue to try
to resolve their dispute.
36 This
practice direction should not become a battleground as to whether or not its
requirements have been met. Rather, any consequence of non-compliance will most
likely arise at the conclusion of any trial. In particular non-compliance may
arise at an application for costs where a party’s case turns out to be
materially different without justification from that set out in the claim
letter or response to the claim letter. It may also arise on procedural
applications, again where a material change of case occurs. Any material change
of position will therefore have to be explained.
Clarity
of pleadings
37 The underlining philosophy in terms of
the practice direction on claims letters also underpins the introduction of a
general power to require a party to make its case clear which is found in a new
rule, r 6/15.
38 This power is identical to its English
equivalent. It replaces requests for further and better particulars,
interrogatories and requests for a further and better statement of case.
39 The intended effect is that each party
is required to make its case clear if its pleading does not do so. This can
include being required to do so by the court. A reasonably robust approach has
already occurred in requiring a party to make its case clear e.g. Campbell
v Campbell.
This will be more likely in the future.
40 However this rule should not open the
floodgates to numerous or lengthy requests. The court has already made it clear
that requests for further and better particulars amounting to requests for
evidence are not an appropriate way to proceed (e.g. Crociani v Crociani). Nor are swathes of requests
that go significantly beyond understanding a case (see Booth v Collas Crill). The same approach is
likely to be applied to requests for information. The touchstone is whether a
party’s pleading is understandable or not.
41 Where a request for information is
broader in scope, then the present rule is that a party may be required to set
out the particular legal principle it is relying upon where this is not clear
from its pleaded case. An illustration of this approach is Nautilus Trustee Ltd v Zedra Trustees (Jersey) Ltd. This is so that the other
side can understand the claim or defence it is facing. This is not to turn
pleadings into skeleton arguments or statements of evidence; rather a party may
be required to identify the legal label relied upon.
42 What is at an end from a defendant’s
perspective (and to be fair it does not happen often) is for a pleading simply
to be a series of admissions, non-admissions or denials. A party should
therefore only be put to proof of some event or fact that is at the heart of a
dispute and not for the sake of making that party’s life difficult.
43 Likewise a statement that a particular
element of the other side’s case is denied, i.e. the facts are disputed, should be accompanied by a statement
of the rival version of events. If a pleading does not do so, at a directions
hearing a party may be asked why and required to explain why a case is not
admitted or denied.
Directions hearings
44 The next significant change concerns
directions hearings. If no directions hearing has been fixed by any party
within three months of the matter being placed on the pending list, a date for
a hearing will be fixed by the court itself.
45 The reason for this change is that the
pleadings phase is often where cases drift or become bogged down in pleading
debates. I accept that ultimately the court has power to strike out cases where
no summons for directions has been fixed. However to strike out a case is a
remedy of last resort because dismissing the claim must not be disproportionate
to the breach involved (see Mayhew Ltd v
Bois Bois).
46 In most cases, therefore, not having a
summons for directions fixed automatically after a period for pleadings just
leads to unjustified and, therefore, unacceptable delay.
47 When looking to give or approve
directions, the court’s approach is summarised in paragraph 16 of
practice direction RC17/05 as follows—
“the Court will order directions appropriate to
the needs of the case, the steps the parties have taken at the time directions
are given and the overriding objective. In particular, the Court will wish to
ensure the issues between the parties are identified and that the necessary
evidence to resolve those issues is prepared and disclosed within an
appropriate timeframe and in a proportionate manner.”
48 To the extent parties wish to explore
some form of settlement, the court at a directions hearing will have sufficient
powers to make orders to enable parties to do so. What orders are made will be
determined on a case-by-case basis. It may involve discovery, some expert
evidence or some factual evidence.
49 Otherwise at the first hearing, unless
directions are focused on some form of negotiation or mediation, directions are
likely to be given in relation to discovery and exchange of witness statements.
Directions may also be given for expert evidence and fixing of trial dates; it
may, however, be seen as appropriate to do that at a later date, i.e. depending on compliance with orders
for discovery and witness evidence, or after expiry of a stay for mediation or
settlement discussions.
50 The background to any directions will be
the pleaded cases of both sides, subject to any clarification being required.
Generally directions hearings will be more informal and discursive than a summary
judgment or strike-out application. They will only be truly adversarial if
there is a point that requires judicial determination.
51 In one way, the guidance on directions
hearings simply reflects the court’s current practice. However I consider
the new practice direction gives the court greater flexibility in terms of what
directions are ordered and for what purpose. Underpinning this is the
overriding objective and the obligation on the court to engage in active case
management. The days of leaving directions to the parties alone are therefore
at an end.
52 The other key aspect to this practice
direction is that the court expects parties to comply with the timetables set. At
present, there are still too many occasions where timetables are agreed and are
then ignored. In future parties and advisers will be asked to explain why a
timetable has not been met; the more matters have been left to the last minute
or orders ignored, the more likely it is that sanctions could follow. Parties
and advisers should therefore, in advance of the directions hearing, make
sufficient enquiries to ensure that any timetable they are agreeing to or which
is set, can in fact be met.
53 In particular, where directions in
respect of expert evidence are to be given, a party’s adviser, in
agreeing to a timetable, should be satisfied that the expert can meet the
relevant deadline. If there are difficulties in finding the expert because only
very few specialists exist, this should be raised at the first summons for
directions.
54 Despite what has been said already, it
is not the court’s intention to impose unrealistic timetables or ones
that are unfair. A timetable is only a means to an end. What is required is for
the parties and their advisers, absent unforeseen and unforeseeable events, to
attempt to get the timetable right first time.
55 It is accepted that circumstances will
arise where a timetable cannot be met. I suggest, however, that an inability to
comply will usually be known to both parties and advisers some time before the
relevant deadline expires. Accordingly, parties and advisers will be expected
in the ordinary course to seek to agree a variation (subject always to court
approval) before a deadline expires. If parties/advisors cannot agree, then the
parties should return to court as soon as possible. Only dealing with
variations just before a deadline expires will not be acceptable and is a
scenario where sanctions are likely to be imposed. It is key for parties and
advisers to understand ensure deadlines are met.
56 The range of likely sanctions for my
part includes adverse costs orders, unless orders, depriving a party of
interest for a period, or possibly orders debarring evidence from a particular
witness or striking out an issue.
Budgets
57 The other significant change relevant to
directions hearings concerns budgets which are now required for all disputes
worth less than £500,000. The rationale for this requirement is that such
cases are those most likely to affect Island residents so that they will know
the costs involved in going to trial.
58 The budget produced is one that should
be a party’s best estimate of the costs to take a matter to trial. By
this stage the parties should have complied with the Pre-Action Communications
practice direction and should have made their case clear in pleadings including
any applications for requests for information about a party’s pleaded
case. The parties and their advisers will therefore have had around six months
to understand the case. This is more than adequate time to produce a realistic
budget and to assess what costs are estimated to be incurred to take the matter
to a trial.
59 In producing this practice direction, I
was specifically asked whether the parties could revise budgets at a later
date. The answer to that question was “no” for the reasons I have
already given, i.e. the party and
their adviser should have enough information to set out the likely costs to be
incurred. This has led parties to take an unduly cautious approach to preparing
budgets which was not acceptable (see Horne
v Equity Trust (Jersey) Ltd).
60 Budgets are important even though their
production will involve some extra work because for a claim worth less than
£500,000, the risk of a claim becoming uneconomic or being pursued to recover
costs is high. The likely costs are therefore significant factors to be weighed
in the balance as to whether or not a party wishes to settle its differences or
take a case to trial. Having an accurate budget is key to all parties having
the information to decide how they wish to proceed and outweighs the extra work
involved.
61 Budgets will also be relevant in
relation to what other directions are made depending on the objective of the
parties at that stage. If a budget produced in a case indicates that a
particular step will lead to significant costs being incurred, this will form
part of the information taken into account by the court in deciding when such a
step might be required to take place. In particular, the court can consider
whether the parties should explore settlement before certain costs are
incurred. Such a direction does not mean that some costs will not have to be
incurred before settlement can be considered. In appropriate cases, orders for
exchange of discovery (either on a general or limited basis) may be required so
that parties can evaluate further the merits of their claim or defence. In
other cases disclosure of some expert evidence might be required.
62 An assessment of the budget itself will
however not take place at the directions hearing. This was a deliberate
decision to avoid disputes over budgets. Rather the powers are limited to
either a failure to provide a budget or where a budget lacks sufficient detail.
What I cannot rule out is judicial comment if a budget looks disproportionate
(see Pearce v Treasurer of the States).
63 Where a budget may be taken into account
is on any assessment of costs, whether following a trial or a procedural
application, if the amount of costs claimed departs materially from that set
out in a budget, without appropriate justification. A party is therefore
expected to get budgets right pretty much the first time.
Discovery
64 In producing a practice direction on
discovery, subject to one point, the test as to what is a discoverable document
has not changed. What is different however is the following.
65 First, once a dispute is contemplated, i.e. when a claim letter is being
considered or a response to a claim letter is being prepared, a client must
ensure that potentially discoverable documents are preserved. In particular,
any normal destruction policies of a client should not apply to documents where
a dispute is contemplated. Legal advisers are therefore under a specific
obligation to inform a client of a need to preserve such documents and all
reasonable steps should be taken to prevent destruction.
66 Secondly, where the obligation to
provide discovery may alter is not because the test of relevance has changed
but is in relation to the extent of the enquiries to be carried out. The
practice direction makes it clear that what is reasonable will be determined
having regard to (a) the overriding objective; (b) the number of documents
involved; (c) the nature and complexity of the proceedings; (d) the ease of
retrieving of any particular document; and (e) the significance of any document
which may be located during the search and therefore the likely expense of
carrying out any search.
67 These factors will also apply in
relation to whether or not discovery should be limited. While the power to
limit discovery exists, it is envisaged that a greater use of this power will
be made than to date because of the overriding objective.
68 The factors I have just described may
also be relevant to any application for specific discovery. Parties should
therefore be prepared to address these factors at the directions hearing where
any order is sought other than a general discovery order and to focus on what
is key or necessary to resolve the claim.
69 This paper does not go into the detail
of the format of a list of documents which is set out in the practice direction
and which has been updated. What should be noted however is that any claim for
privilege must be spelt out. It is not enough to say simply that a document is
privileged without saying why (see Smith
v SWM Ltd).
Documents stored electronically
70 As far as electronic discovery is
concerned, the guidance issued by the Royal Court applies to any case involving
significant quantities of electronically stored material.
71 First, electronic discovery is an area
where the parties should not be taking an adversarial approach and instead
should be cooperating with each other to explain how documents have been
preserved, the processes they have followed to search for documents, the proposed
process for listing documents so that a document that has been disclosed can
easily be identified, and arranging workable methods for electronic inspection.[16]
72 Secondly, in large cases, technology
should be used, because the use of technology is generally a more cost
efficient and accurate method of gathering relevant documents than a manual
process. In particular, using artificial intelligence systems to identify
relevant documents does not cause any issue of principle. Indeed, if parties
attempt solely to provide discovery in cases where there are mainly documents
in electronic form using exclusively or extensive manual processes, such a
methodology would be disproportionate and a waste of client money.
73 These observations do not mean that lawyers
do not have a role to play in discovery. Far from it, lawyers will have a key
role in identifying the issues in the case which underpins what documents are
discoverable. What technology allows is for the lawyer to focus on an analysis
of key documents and to do so more quickly. The lawyer will also advise on any
uncertainty about whether a document produced as a result of technology is
relevant.
74 The benefit of technology is to take
away or reduce the laborious process of listing and instead allows advisers to
use their skills of analysis and evaluation. Technology is therefore a tool to
enable the best use of an adviser’s time as well as being much more cost
efficient.
75 Thirdly, the discovery process adopted
must ultimately be set out in the affidavit of discovery. The person who should
provide the explanation is the person best placed to do so. It may be an
expert, it may be an advisor with specific responsibilities for managing the
discovery process or it may be the client. What must be described is the
process that has been followed.
76 This requirement leads to an issue which
applies to both discovery and electronic discovery and concerns the obligation
of a Jersey lawyer to endorse the affidavit of discovery, unless the lawyer
swears the affidavit personally. The obligation is that the advocate or lawyer
concerned must be satisfied that the client’s discovery obligations have
been met. This is a reflection of Hanby v
Olliver
where the court stated—
“the advocate owes a duty to the court carefully
to go through the documents disclosed by his client to make sure, so far as is
possible, that no relevant document has been withheld from disclosure. The
existence of this duty on the advocate enables and indeed requires the court to
proceed on the basis that a list of documents which appears to have been
prepared with the assistance of the parties’ advocate and is verified by
affidavit ought to be regarded as conclusive save in exceptional circumstances.”
77 The practice direction on discovery at
para 20 quite deliberately does not set out any particular indorsement that is
required. Much will depend on the extent of the task and whether discovery
covers mainly manual or electronic documents or both. However, more is required
than just advising the client of the test on discovery and leaving it to the
client to carry out the entire process.
Expert evidence
78 This article has already touched upon
experts in the context of preparing for a directions hearing. However, there
are other points concerning expert evidence which are addressed briefly.
79 First, there is still no power to
appoint single experts unless the parties agree. The position was not altered
because, the more the issue is debated, the more complex it becomes. The
practice direction is therefore limited to inviting parties to agree the use of
single experts. In particular, this is envisaged where the expert evidence is
part of but not central to the dispute, e.g.
in personal injury cases. For key issues, each party will retain separate
experts.
80 Secondly, in claims other than personal
injury cases, the starting point is that no more than two experts from
different disciplines should be required. This is to encourage parties and
advisers to reflect on what experts are necessary for the court to adjudicate.
A request for more than two experts will have to be justified as being
necessary to resolve the dispute.
81 Thirdly, when directions are given in
respect of expert evidence the parties are likely to be directed to name their
experts within a defined period. This is to prevent expert shopping. It also
further underlines the importance of making enquiries of potential experts
before the directions hearing dealing with expert evidence. Underpinning this,
ultimately, is the desire to avoid unnecessary delay because all too often the
search for relevant experts starts only when the obligation to produce expert
evidence is looming. This is too late to achieve a resolution of a dispute in
an appropriate time frame.
82 Finally, in relation to expert evidence,
in Neal v Hawksford Trustees (Jersey) Ltd, I reached the conclusion
that the overriding objective permitted me to determine the scope of any expert
evidence as part of deciding whether or not to give permission to adduce expert
evidence. In other words, the court can restrict the category of expert
evidence to be adduced to that which is reasonably required to resolve the
proceedings.
Summary judgment
83 The changes to the summary judgment
rules involve a complete replacement of Part 7 of the Rules with a new Part 7
largely based on the equivalent English Rules.
84 The purpose of the revised summary
judgment rule is still to deal with cases or issues that are not fit for trial
at all. However, the application can now be brought by either party in respect
of all or part of a case.
85 The threshold to grant summary judgment
has also changed. It is now a “no real prospect of success” test. This
is the identical test to that applied in England and Wales, Guernsey and the Isle
of Man, and is a lower threshold for the applicant than the test under the
former r 7.
The introduction of the rule requires the court to consider whether the claim
or the issue it is considering has a realistic as opposed to a fanciful
prospect of success.
86 In evaluating assertions made, the courts
will carefully scrutinise affidavits by reference to contemporaneous documents,
and evidence that might reasonably be expected to be available to test whether
there is substance to any factual assertions being made. Some cases will
involve analysis of what points may be in issue, including points of law. Simply
because affidavits may be lengthy does not mean that, following analysis, there
is an issue to be tried. A case should also not be allowed to go to trial
simply because something might turn up which would have a bearing on the issue.
Ultimately, the test will involve the judge making an assessment of the
arguments and evidence before the court to decide if the case requires a trial.
87 If a pleading is not one that has a real
prospect of success, if it were to be amended by reference to evidence or other
material before the court to meet the required threshold, then it is likely
that the court’s approach would be to grant leave to amend, as it does at
present with strike out cases.
88 Despite the change to Part 7, the power
to strike out remains. It may be that the more common application in future
will be for summary judgment but there will be some cases where one or more of
the grounds available to strike out a case are relied upon. The introduction of
a new summary judgment test did not therefore lead to the conclusion that the
power to strike out was no longer needed or should be removed.
89 Finally, in respect of summary judgment,
the power is also important because it is a counterbalance to the cost
protection afforded to litigants in personal injury claims. The new summary
judgment process allows the court to deal with speculative claims brought in
the hope of putting pressure on a defendant in particular one that is insured
in the hope of extracting some form of payment. Ultimately what any defendant
chooses to do in response to any claim is a matter for that defendant but it
was an important part of introducing cost protection for a plaintiff in
personal injury cases to give a defendant in such a case the ability to
challenge a claim of no real merit.
Cost protection for plaintiffs in personal
injury matters
90 Amendment No 20 also introduced a new
Part 12A to the Royal Court Rules. This new rule was created to address the
very real concern expressed by individuals who had suffered personal injury
that they were deterred from bringing claims because of the fear of adverse
costs orders should their claim prove unsuccessful. This led to an inequality
of arms because a plaintiff could not afford to lose. For a plaintiff whose
only asset was the family home, such an individual was often not prepared to
run the risk of losing it if a claim proved unsuccessful. After-the-event
insurance was not seen as an answer because of the high levels of premium and
because such premiums are not recoverable as part of the costs of litigation.
91 This change is based on the English
rules known as qualified one-way costs shifting. What the new change
introduces is that costs orders against a plaintiff in personal injury cases
may only be enforced at the end of a matter and are limited to the amount of
damages recovered by a plaintiff unless—
(a) there
were no reasonable grounds for bring the proceedings;
(b) proceedings
were an abuse of the court’s process; or
(c) the
conduct of the plaintiff or his adviser was likely to obstruct the just
disposal of the proceedings.
92 One of the issues this change may give
rise to is the interrelationship between r 12A and payments into court or
offers made on a without prejudice save as to costs basis. Clearly this is an
issue which will need determination. If a plaintiff fails to beat at trial a
payment into court or a without prejudice save as to costs offer, this is
likely to lead to some form of costs order in a defendant’s favour
applying the usual principles on an exercise of a discretion as to costs.
However it is suggested that something more is required to remove the
protection contained in r 12A(1). In other words, a defendant would have
to show that a plaintiff, by refusing to accept a payment into court or an
offer, has acted unreasonably, has abused the court’s process or has
obstructed the just disposal of the proceedings. To take a different approach to otherwise
allows a payment into court or an offer to override the protection afforded by r 12A.
This would effectively allow the intention behind r 12A to be undermined.
93 Any argument that the protection should
be lifted will have to be determined on a case-by-case basis. It may depend on
the findings of the trial court or may also lead to further argument before the
trial judge or both.
Miscellaneous
94 There are a few other changes to note as
follows.
95 First, if a party is required to apply
to fix a day for a trial or a hearing of an action this obligation is only
satisfied by the date fix appointment itself taking place before expiry of the
relevant time limit. It is not therefore enough simply to ring up the court on
the last day to ask for a date fix appointment.
96 Secondly, the time limit by which
actions adjourned sine die are
automatically struck out has been reduced to three years. This applies to all
actions past and future. Automatic strike out does not however apply to any
adjournment for a fixed period.
97 Thirdly, interim payments under r 8
can now be sought before the Judicial Greffier as well as before the Royal
Court.
Conclusion
98 These changes are designed to improve
the process for those who come before the Jersey courts in civil disputes. Some
have a particular focus on individual litigants; some are technical changes for
particular types of claims; and some are general in nature. All arise from the
goal of the Royal Court to be more accessible, and to ensure that disputes are
resolved in a timely and effective manner, focusing on the key issues at stake.
They are neither the beginning nor the end of a journey, but simply a step in a
process in ensuring that the focus of all involved in a dispute, whether the
parties, advisers or the courts, is on what is necessary to determine the
dispute.
Matthew
Thompson has been Master of the Royal Court (Jersey’s Civil Procedure
Judge) since 2013, following 25 years in private practice. He was a member of
the Royal Court Rules Review Group referred to in the article.