Jersey Unreported Judgments

Child custody - application by the plaintiffs for directions in the context of a personal injury claim.

[2012]JRC068

Royal Court

(Family)

26 March 2012

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

 

 

Advocate T. V. R. Hanson for the Plaintiffs.

Advocate C. R. Davies for the Defendant.

judgment

the COMMISSIONER:

1.        This is an application by the plaintiffs for directions in the context of a personal injuries claim brought by them against the defendant for alleged negligence and/or breach of duty over a period of some ten years.  The children are aged 16, 14 and 11 and are in the defendant's care.

2.        The defendant, whilst admitting that the children suffered harm, including sexual abuse, physical abuse, emotional abuse and the results of neglect, denies negligence and/or breach of duty.

3.        In order to progress the matter, it is necessary for the plaintiffs to be assessed and it is agreed between the parties that it is very desirable that this should be undertaken by a jointly appointed independent expert.  These are seriously damaged children and the issue arises as to whether an assessment could of itself cause the children further harm.  One of the children has already been assessed by an expert appointed by the guardian, with consequences which the defendant says were harmful.

4.        Accordingly, a directions hearing has been fixed for 8^th May, 2012, at which the Court will consider what directions should be made in relation to the expert assessment of the plaintiffs.

5.        By consent order dated 28^th February, 2012, the Minister will by now have filed evidence dealing with the following issues:-

(i)        The current position and progress of the two other children and what work has yet to be undertaken with them.

(ii)       The anticipated dates that they might leave the unit in which these two children reside.

(iii)      Whether or not any face to face assessment by an independent expert for the purpose of these proceedings risks causing them damage at this juncture and whether or not a suitable expert could work with them in performing an assessment that minimises any such risk.

6.        In correspondence disclosed by the defendant to the guardian the unit questioned whether Dr Miriam Silver, who prepared the expert clinical psychology report for the care proceedings in 2008, could be commissioned to re-assess them.  If the Court wanted a comparison between the position then and now, with some extrapolation as to prognosis should progress be maintained, they thought that might be the best option.  They would not want the children to become embroiled in the proceedings of which, in their own interests, they had little or no knowledge.

7.        Picking up on the suggestion, the guardian contacted Dr Silver, who confirmed her availability and expressed certain initial views as to how the assessments might be conducted.  The guardian would like to call Dr Silver for the directions hearing on 8^th May, so that she can assist the Court, but is concerned that if he does so, she might thereafter be precluded from carrying out the jointly instructed independent assessment.  Accordingly, the guardian makes what he described as an unusual application, namely that:-

(i)        The Court directs that Dr Silver be jointly instructed by the parties to provide a report for the 8^th May on ways in which the children might be assessed and how any risk of harm to the children can be minimised.

(ii)       Alternatively, the Court instructs Dr Silver to provide the same report.

8.        The guardian submitted that the Court's jurisdiction to determine the instruction of experts is derived from Rule 6/20(2) (d) of the Royal Court Rules 2004 and from its inherent jurisdiction.

9.        The relevant part of Rule 6/20 is as follows:-

"Evidence

1.        Subject to these Rules and to any other enactment relating to evidence, any fact required to be proved at the hearing of any proceeding by the evidence of witnesses shall be proved by the examination of the witnesses orally and in open court.

2.        However, the court may -

.....

(d)       order that not more than a specified number of expert witnesses may be called."

10.      It is worth observing that Rule 6/20(3) gives the Court full discretionary power of its own motion to direct that additional witnesses be heard at any time before delivery of a judgment.

11.      The guardian submitted that Rule 6/20(2)(d) would enable the Court in an appropriate case to limit the expert witnesses to one, either jointly appointed by the parties or appointed by the Court.  The guardian was not, however, seeking an order limiting the number of experts to be called at the directions hearing on 8^th May, 2012, to one, but an order appointing Dr Silver, and leaving the parties free to call their own expert witnesses to the extent that they wish to do so.  He was not therefore seeking to prevent the defendant from calling the expert witness she has lined up for the directions hearing but the expert witness he would otherwise wish to call would instead be called by the Court, so that she would be available to carry out the independent assessments for the final hearing. 

12.      Our Rules have not been extended as they have in England to deal expressly with the appointment of experts.  Under Order 40/1 of the Supreme Court Practice 1999, the English Court had express power, on an application of any party, to appoint an independent expert or experts either agreed by the parties or nominated by the Court.  Instructions, if not agreed, would be settled by the Court.  The cost of the independent expert would be discharged by the parties jointly and severally unless the Court ordered otherwise.  The commentary states that this Order was used very rarely. 

13.      Under Rule 35.7 of the Civil Procedure Rules 2011, the English Court now has power to direct that evidence is to be given by a single joint expert:-

"35.7- 1.          Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert.

2.        Where the parties who wish to submit the evidence ("the relevant parties") cannot agree who should be the single joint expert, the court may -

(a)       select the expert from a list prepared or identified by the relevant parties; or

(b)       direct that the expert be selected in such other manner as the court may direct."

The single joint expert, however selected, is instructed by the parties concerned.  The commentary makes the following observations:-

"The main difficulty with this new rule is that the court is only involved in most disputes at a relatively late stage.  On occasions, one or both parties may have needed, or chosen, to obtain advice from an expert before proceedings were issued.  This can pose a dilemma for the case management judge when giving directions on expert evidence, especially in cases allocated to the fast track.  While the court may perceive there to be significant advantages for evidence to be obtained from one single joint expert, the impact on the timetable of the action, and particularly on the costs incurred, may be disproportionate if the court orders the instruction of  new expert at directions stage, when one or both parties have already instructed their own expert.  In some circumstances it will be more appropriate to allow the parties to retain their own expert, and for the court to seek to narrow the issues in dispute on the expert opinion evidence by requiring service of written questions on the experts, and by ordering an experts' discussion."

Guidance is now given on when an English Court might order expert evidence to be given by a single joint expert. 

14.      In terms of the Court's inherent jurisdiction, the guardian referred me to Finance and Economics Committee v Bastion Offshore Trust Co Limited [1994] JLR 370 where the Court of Appeal held that the Royal Court had power under its inherent jurisdiction to order the Committee to supply further and better particulars of allegations in the Committee's case.  In a passage often referred to, Neill JA said this:-

"Practitioners in these courts and in the courts of Guernsey are familiar with the maxims "La cour est toute puissante" and "The court is master of its own procedure".  The better known a proposition is, the harder it is to find authority for it and so it turns out if one seeks judicial statements of these two maxims (though in Guernsey the Court of Appeal relied on the second maxim in Cherub Invs. Ltd. v. Channel Islands Aero Club (Guernsey) Ltd (1)).

Both maxims are expressions of the inherent jurisdiction of the court.  So far as English law is concerned, the inherent jurisdiction of the court has been said to be -

"a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them." (37 Halsbury's Laws of England, 4th ed., para. 14, at 23).

Reference is there made to a lecture on the topic.  Jacob, The Inherent Jurisdiction of the Court, 23 Current Legal Problems, 23 (1970).  The definition quoted above first appeared in that erudite and authoritative lecture and it has been approved judicially in Canada and New Zealand.

One feature of the inherent jurisdiction is that it can exist alongside an identical or similar rule of court.  The court does not lose its power because a rule is made (through there may be many cases where the court will have no need to look outside the text of the rule).  Striking out pleadings is the classic example of overlap of powers.  The fact that the Rules of the Supreme Court in England make express provision for striking out and dismissing an action or pleading has been held not to displace the court's inherent power to do so.  As Sir Jack Jacob said in his lecture (loc. Cit., at 50). "the inherent jurisdiction of the court is a most valuable adjunct to the powers conferred on the court by the Rules."

15.      The guardian also referred me to the English Court of Appeal decision in Daniels v Walker (2000) AER 608 where it was stated that in a substantial case, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue.  In that case, a report had been prepared by a jointly instructed expert, but one side was unhappy with the outcome. 

16.      Finally the guardian referred me to four older English authorities in which the English Court had exercised its inherent jurisdiction to call expert evidence.  In Badische v Levinstein (1883) 24 CHD 156, a case involving an alleged patent infringement, the Court employed an independent expert to give advice upon which the Court could form its judgment where contradictory evidence had been called by the parties on a scientific question.  In Hindson v Ashby (1896) 2 CH 1, a case involving alleged trespass, the Court ordered that photographs should be taken by the joint surveyors of the parties.  In Kennard v Ashman (1901) 2 KB 224, the evidence of the surveyors called by the parties was so contradictory that the judge, despairing of ascertaining the true facts of the case from their evidence, adjourned in order that an independent surveyor nominated by him should report on the state of the house.  In the Privy Council decision of Colls and Home and Colonial Stores Limited (1904) AC 179, the Privy Council questioned why the Court did not more frequently avail itself of the power of calling in a competent adviser to report to the Court and approved of the Court below obtaining such a report for its own guidance. 

17.      Miss Davies did not dispute that the Court had in inherent power to appoint its own expert, but her case was that it was not fair to do so and not necessary. 

18.      The defendant has marshalled her evidence for the hearing on the 8^th May which, as she says, is an interlocutory hearing, not a final hearing.  She is providing an affidavit from Dr Posner, the consultant clinical psychologist, from CAMHS, and affidavits from appropriate persons at the unit and from Children's Services.  The defendant agrees that it would be desirable for a joint expert to be instructed to carry out any independent assessment that is directed to take place for the purposes of the final hearing but the defendant does not believe Dr Silver to be appropriate for this purpose.  Whilst it is accepted that she knows the children, it is apparent, Miss Davies says, from her CV that she is largely an expert in care and custody proceedings and does not often act in complex personal injury proceedings.  Furthermore, she has already expressed an initial view on the issue.  The defendant takes the view that it is for the guardian to produce such evidence as he thinks fit in accordance with the agreed directions for the hearing on 8^th May and it is perfectly open to him to produce an affidavit from Dr Silver, in which case she would be precluded from being put forward as the jointly appointed expert to carry out the assessment.  If, however, the guardian wishes to keep her available for that purpose, then he must provide expert evidence from another witness. 

19.      This is not a children's case, but a personal injuries claim and Miss Davies submitted that it would not be fair to impose upon the defendant for the purpose of the directions hearing the expert testimony of Dr Silver, whom the defendant did not wish to call and when the defendant has her own expert, simply as a device put forward by the plaintiffs to keep Dr Silver free to be fully instructed for the purpose of the final hearing, particularly when the defendant would not agree to her being jointly instructed for the purposes of the final hearing in any event.  Furthermore, Miss Davies submitted that there were likely to be a range of views about the impact of an assessment upon the children, which would seem to be the case, in which event the imposition of either a jointly or Court appointed expert in addition to the experts called by the parties would tend to cloud the issue.  The Court should hear the range of views expressed by experts on both sides to enable it to reach its conclusions. 

20.      I am persuaded by the arguments put forward by Miss Davies.  The guardian is not in reality seeking to use Rule 6/20(2)(d) to limit the number of expert witnesses but to impose upon the defendant an expert either jointly appointed by the parties or by the Court in addition to the experts which the defendant wishes to call.  I appreciate that the guardian feels that the expert evidence of Dr Silver will be valuable to the Court on 8^th May and with her prior knowledge of the children that may well be so, in which case he should call her as his witness.  She will then be precluded from acting as the expert to carry out the assessments, but it is clear that the defendant would not agree to her being jointly appointed for that purpose in any event. 

21.      In my view, in the absence of an express statutory provision equivalent to rule 35.7 of the CPR, the Court has no power under Rule 6/20(2)(d) or under its inherent jurisdiction on the application of one party to order the other party against its will to jointly instruct and pay for an expert.  I accept that the Court does have an inherent jurisdiction and the power under Rule 6/20(3) itself to appoint an expert witness where it is fair and necessary to do so but I see no justification in exercising that power at this stage when the parties are perfectly capable of appointing their own experts (the defendant has already done so) and there is no suggestion that those experts would not be capable of giving the Court the expert assistance it requires.  

22.      I agree that it is unfair upon the defendant that, having marshalled her own expert evidence as per the consent order, she should now have imposed upon her the evidence of Dr Silver simply because the guardian would like Dr Silver to be kept available to act subsequently as the jointly appointed expert to carry out the assessments. 

23.      I therefore dismiss the application.  

Authorities

Royal Court Rules 2004.

Supreme Court Practice 1999.

Civil Procedure Rules 2011.

Finance and Economics Committee-v-Bastion Offshore Trust Co Limited [1994] JLR 370.

Daniels-v-Walker (2000) AER 608.

Badische-v-Levinstein (1883) 24 CHD 156.

Hindson-v-Ashby (1896) 2 CH 1.

Kennard-v-Ashman (1901) 2 KB 224.

Colls and Home and Colonial Stores Limited (1904) AC 179.