Injunction- appeal against the decision of the Master dated October
2016.
[2017]JRC012
Royal Court
(Samedi)
16 January 2017
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Before :
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T. J. Le Cocq, Esq., Deputy Bailiff, and
Jurats Liston and Grime
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Between
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Harry James Lingard
HJL Holdings Limited
Angel Fish Limited
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Appellants
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And
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Shane Michael Holmes
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Respondent
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Mr Lingard appeared for himself and for the
other two Appellants.
Mr Holmes appeared in person.
judgment
the deputy bailiff:
1.
This is an
appeal brought by Harry James Lingard, HJL Holdings Limited and Angel Fish
Limited ("the Appellants") from a decision of the Master of the
Royal Court encapsulated in the Act of Court of 17th October, 2016,
("the Act of Court") and the Master's reasons handed down on
31st October, 2016, ("the reasons").
2.
The Act of
Court contains a number of procedural orders but this appeal is really only
concerned with paragraph 4 of the Act of Court in which it was ordered that:
"The issue of whether or
not the Plaintiff has settled matters with the Defendant shall be determined at
trial and not by way of a preliminary issue."
3.
This
particular aspect has some short procedural background which can be stated as
follows:
(i)
On the 11th
November, 2015, the Master struck out the entirety of the Respondent's
claim against the Appellant for the reasons set out in his judgment of the same
date.
(ii) That judgment was appealed and in its judgment
of 23rd September, 2016, this Court allowed that appeal for the
reasons set out therein. As part of
its reasons this Court said, at paragraph 19, the following:
"It is clear that the Master
took the view that in the event it could be concluded that a binding settlement
had been reached between the parties but to allow such proceedings to continue
would be both vexatious and an abuse of the process of the Court because the
Court would be asked to adjudicate on the matter that had been resolved by
agreement. We agree that if it is
completely clear that such an agreement has been reached then it would be
appropriate to strike out the claim.
If, however, that question turned on disputed fact then in our view
the more appropriate course was for the agreement to be pleaded and perhaps
dealt with as a preliminary issue."
(iii) The matter then returned before the Master for
procedural directions, which included the suggestion that the question of
whether or not the proceedings had been compromised should be dealt with by way
of a preliminary issue. The Master
declined to do so.
4.
In
considering this appeal we apply the test in the case of Murphy v Collins
[2000] JLR 276 which is to the effect that on an appeal from the Master (where
he is acting as a Greffier Substitute operating a delegated jurisdiction from
the Royal Court) the Court should exercise its own discretion and give such
weight as it thought fit to the discretion exercised by the Master.
5.
Of course
not only is the Master a senior Jersey lawyer but he has a very significant
practical experience of litigation both as a practitioner and as a procedural
judge of this Court. Accordingly,
in matters of case management, we would normally be minded to give very
considerable weight to his exercise of discretion.
6.
It was not
argued before us that the Master had applied any incorrect principles when he
considered the possibility of a preliminary issue. At paragraph 16 of the reasons he sets
out the applicable law in the following terms:
"14. There was no disagreement between the parties on
the applicable legal principles as to when a preliminary issue should be
ordered.
15. I explored these
principles in Stock v Pantrust [2015] JRC 268 at paragraphs 13 and 14 as
follows:-
"13. I was also reminded of the words of Southwell J.A.
in Public Services Committee v Maynard [1996] JLR 343 at page 360 lines 11 to
19 as follows:-
"However, in our judgment,
the Royal Court should consider its current practice. To single out bare points of law in this
way (which might, when the facts are found, prove to be hypothetical) is likely
to increase costs and to extend the time before the plaintiff knows whether he
or she is to receive damages for his or her injury and receives the damages
awarded. Justice delayed is usually
justice denied, particularly in personal injury cases, in which the normal
approach should be to fix as early a date as possible for the trial of all
issues."
14. He
also referred me to a decision of the English Court of Appeal reported at
McLoughlin v Grovers [2001] EWCA Civ 1743.
In setting aside a first instance judgment where a preliminary issue had
been ordered and had taken place, the English Court of Appeal were critical of
a trial on the issue of foreseeability of damage only. Mr Justice David Steel at paragraph 65
of the decision stated:-
"No attempt was made to
distinguish between the factual investigation required for the purposes of the
limitation plea as opposed to the issue of foreseeability. It was wholly impracticable for there to
be a full trial of the factual issues pertinent to foreseeability. It was an issue that should have
presented on agreed or assumed facts.
If this was not a practical proposition, the issue of foreseeability
should never have been taken separately.
In my judgment, the right approach
to preliminary issues should be as follows:-
a. Only
issues which are decisive or potentially decisive should be identified;
b. The
questions should usually be questions of law;
c. They
should be decided on the basis of a schedule of agreed or assumed facts;
d. They
should be triable without significant delay, making full allowance for the
implications of a possible appeal;
e. Any
order should be made by the court following a case management
conference.""
16. While
Advocate Speck warned me against treating the decision in McLoughlin as
creating some form of code or binding legal principle, he did not dispute that
the factors listed were useful guidance as to whether or not a preliminary
issue should be ordered. I took these factors into account as set out below in
reaching my decision.
17. Prior
to the hearing I had also referred the parties to X Children v Minister for
Health and Social Services [2011] JLR 772.
Paragraphs 10 to 12 are pertinent and state as follows:-
'10 The possibility of taking a discrete issue
which might determine the whole case, thus avoiding the costs which the parties
would incur in taking the matter further, is attractive at first blush. An
appeal against the decision to the Court of Appeal and potentially to the Privy
Council, however, can without exaggeration add years to the process. A number
of English and Jersey cases have warned against the practice. In the case of
Southwark L.B. v. O'Sullivan (6), a case in which the construction of a
statute was taken as a preliminary issue, Lewison, J. said this ([2006] EWCA Civ 124, at para. 14):-
"As Lord Scarman observed in
Tilling v. Whiteman [1980] AC 1, preliminary points of law are too often
treacherous shortcuts, their price can be, as here, delay, anxiety and expense.
As so often, the decision to try preliminary issues on assumed facts has lead
[sic] to an over-complication of the case and puts the court into a position of
having to decide questions, without a full picture of the factual background on
which the case depends. In this case, as in many others, the decision to have a
trial of preliminary issues has turned out to be a false economy. I have
therefore reached the conclusion that this court should not embark upon a
consideration of the questions of construction in advance of the fact-finding
exercise."
11 In
Public Servs. Cttee. v. Maynard (5), our Court of Appeal (Southwell, J.A.
presiding) gave a similar warning in the context of a personal injuries case
(1996 JLR at 360):
"It appears from the order of
the Judicial Greffier of September 30th, 1994 that the issue he ordered to be
heard as a preliminary issue, 'whether the plaintiff's right of
action is prescribed,' was an issue of both fact and law. In the event,
it was argued before the Lieutenant Bailiff and before this court simply as
involving points of law. To choose points of law such as these for initial
decision seems to us to be within the current practice of the Royal Court of
Jersey. However, in our judgment, the Royal Court should reconsider its current
practice. To single out bare points of law in this way (which might, when the
facts are found, prove to be hypothetical) is likely to increase costs and to extend
the time before the plaintiff knows whether he or she is to receive damages for
his or her injury and receives the damages awarded. Justice delayed is usually
justice denied, particularly in personal injury cases, in which the normal
approach should be to fix as early a date as possible for the trial of all
issues together."
12 In
addition to the delays and costs that can be incurred through the appeal
process, there is a further danger, in my view, in taking a preliminary point
in a factual vacuum, particularly where, as here, Convention rights must be
taken into account."
18. The
court's reasoning in X Children in refusing to order a preliminary issue
is found in paragraph 15 as follows:-
"15. Taking into account the warnings given in
particular by our Court of Appeal in Maynard that in personal injuries cases
all issues should be tried together; the risk of substantial delays and costs
being incurred through the appeal process; my concern about the court dealing
with this issue in advance of the fact-finding exercise; and the relative
merits of the arguments that would be presented to the court, I decline to
order the trial of this preliminary issue."
19. I
also took this guidance into account in reaching my decision."
7.
The trial
of a preliminary issue is a mechanism available to the Court to be ordered,
generally, in circumstances where to do so would either determine the action or
alternatively significantly shorten the overall length or expense of the
litigation. There are risks in
doing so. It is open to the
unsuccessful party to the outcome of the preliminary issue to appeal and this
could add very considerably to the delay.
This is particularly the case where the outcome of that preliminary
issue would, as here, depend upon factual determinations by the Court on
evidence before it.
8.
In his
reasons the Master sets out, from paragraph 17, why he thought that it was
inappropriate to order the trial of a preliminary issue:
"In this case I was concerned
that there would be an overlap between any preliminary issue and a trial. The plaintiff argued, and I accepted his
submission, that in relation to any argument about whether or not he had
reached a settlement agreement, he would wish to adduce evidence on the
financial benefit he claimed he was entitled to and to challenge witnesses as
to why he would settle on a drop hands basis given the significant value of his
claim. This approach means that
there would be an overlap between matters considered at any trial and on a preliminary
issue."
18. I
was also concerned about the effect of any appeal. If the preliminary issue failed, there
could well be an appeal by the plaintiff which would delay the hearing of any
trial. The risk of an appeal is not
just a theoretical possibility because the plaintiff in a number of different
matters has exercised his right to appeal where he is not satisfied with the
decision of a particular Court.
19. This
is also a dispute that has already gone on since 2014 and relates to events from
2011 onwards. If a preliminary
issue is ordered and is unsuccessful, any trial will be put off further, with
the result that the Royal Court would be examining evidence and the
recollection of parties some years after the events that have led to the present
dispute. This factor also pointed
towards a single trial of all issues taking place sooner rather than later.
20. Accordingly,
I was not persuaded to order a preliminary issue."
9.
There is,
of course, an attraction to the trial of a preliminary issue where that issue
is whether or not the entire proceedings have been compromised. If successful, the proceedings are at an
end and the parties do not need, it may be supposed, to prepare as extensively
for the preliminary issue as they may have needed to do for the substantive
trial.
10. It is understandable that the Appellants should
argue forcibly for such a preliminary issue. They wish the opportunity of drawing the
proceedings to a close sooner rather than later. They fear that if a preliminary issue is
not ordered they would be robbed of an early disposal of the matter.
11. That might very well be the case if the
Appellants were to succeed on their preliminary issue. Even if successful at first instance, of
course, they may well face a journey to the appellate courts. If they do not succeed, however, then
those costs and efforts will be wasted, and there will still, significantly
further down the line, need to be a trial on the main issues.
12. It also appears to us that there is a very real
likelihood that the evidentiary ambit of any preliminary issue will widen into
those areas which would also be explored on the trial of the main issue.
13. This is not to our mind a clear cut decision
and there were arguments of some force going in either direction. Given the longstanding nature of this
case, however, we fully understand why the Master took the view that it was in
the interests of justice and, ultimately of the parties, to move towards one
final hearing where the substantive case can be determined.
14. Brief as his reasons may have been we do not
fault his analysis and we dismiss this appeal.
Authorities
Murphy
v Collins [2000] JLR 276.
