Strike out - appeal against a decision of the Master of 13 January 2021.
[2021]JRC196
Royal Court
(Samedi)
27 July 2021
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Before :
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T. J. Le Cocq, Esq., Bailiff, sitting alone.
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Between
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Badrul Huda
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Plaintiff
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And
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Minister for Health and Social Services
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Defendant
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Advocate I. C. Jones for the Plaintiff.
Advocate J. P. Rondel for the Defendant.
judgment
the bailiff:
1.
This is an
appeal by Badrul Huda ("the Plaintiff") against a decision of the
Master of 13th January 2021, in which the Master for the reasons that
he set out in his Judgment of that date (under reference Huda v Minister for
Health and Social Services [2021] JRC 007 ("the Judgment"))
refused to strike out the answer of the Minister for Health and Social Services
("the Defendant").
2.
The
Plaintiff's Notice of Appeal contains two grounds. The first is that the Defendant's
answer should have been struck out by the Master as a result of the
Defendant's failure to complete a discovery exercise in accordance with
the Order of the Court of 6th August 2020 ("the Court
Order") which was, in express terms, an "unless order". The second ground is that because the
Master did not strike-out the Defendant's answer pursuant to Rule 6/13(d)
of the Royal Court Rules 2004 (as amended) (Rule 6/13D), the Master permitted
an abuse of the process of the Royal Court and it was no longer possible for
the Plaintiff to receive a fair trial.
3.
The
Judgment was typically comprehensive running to some 91 paragraphs. The background to this application is
set out in Paragraph 3 - 11 of the Judgment which, for ease of reference,
I set out below:
"Background
......................
3. The
central relevant events leading to the present proceedings were summarised at
paragraphs 9 to 33 of my previous decision which I also adopt. They began at the end of June 2016 with
a complaint by patient A. This
complaint led to a referral about the plaintiff's conduct being made on
behalf of the defendant to the General Osteopathic Council ("GOC" )
in August or September 2016 in breach of the defendant's own procedures
- the precise timing of the referral is in dispute. The plaintiff was then suspended from
practice on 7th November 2016. On
2nd December 2016, the GOC wrote to the plaintiff to indicate that it had found
a case to answer. The
plaintiff's suspension was lifted subject to certain conditions on 5th
January 2017. However, the final
hearing did not take place until 19th - 25th July 2018. Following an application on behalf of
the plaintiff to the GOC that there was no case to answer, the complaint
against the plaintiff was dismissed.
4. In
my previous judgment I found there was an arguable claim of misfeasance in
public office on the basis of untargeted malice (see paragraphs 80-84). The persons alleged to have acted in
such a manner against the plaintiff on behalf of the defendant are Lorraine
Wells, Mary Campfield, Miss Christine Blackwood and Dr Susan Turnbull.
5. Although
the defendant is described as being the Minister for Health, the individual
holding the position at the time of the relevant events was former Senator
Andrew Green.
6. Following
the previous judgment being handed down, the parties were directed to seek to
agree directions in relation to discovery (and amendment to pleadings following
discovery) to reflect the previous judgment (see paragraph 5 of the Act of
Court of 17th February 2020). This
direction led to the Act of Court dated 15th April 2020 where the parties were
required to provide discovery by Friday, 31st July 2020.
7. The
same Act of Court identified the email accounts to be searched by the defendant
as well as the search terms to be used for each email account and the periods
of the search. Those periods were
generally for 29th June 2016 to 20th July 2018. 36 email addresses were identified. The main argument concerned the extent
of the time period applicable for searches of email accounts. I ruled that the period of searches was
to be for the period from the date of patient A's complaint until the GOC
ruled there was no case to answer.
However, in the case of Mr. Chris Dunne, the then Director of Community
Care, the period was extended until the plaintiff's complaint to the
States Complaints Board ("SCB") was concluded on 26th October 2018.
8. At
the hearing on 15th April the defendant was represented by Advocate Lacey of
Lacey Advocates. I encouraged her
to consider using e-discovery providers to carry out the searches I had
required using appropriate artificial intelligence tools. This was because I regarded this as more
efficient than someone within the information technology department of the
States applying search terms to email accounts over a two-year period. My concern was the amount of data that
might have to be searched. Advocate
Lacey reassured me that she was very familiar with the States' systems and so expert
assistance would not be necessary.
I made it clear that I expected compliance with the deadline I had set.
9. On
9th July 2020 Advocate Rondel took over conduct of the case from Advocate
Lacey.
10. On
6th August 2020 the deadline for the defendant's discovery exercise was
extended to close of business Friday, 28th August 2020. Paragraph 2 of the Act of Court of 6th
August 2020 provided as follows:-
"2. if the Defendant fails to provide
discovery pursuant to the deadline extended by paragraph 1 of this order, then
the Defendant's answer will be struck out automatically without further
order...."
11. This
order followed a summons issued by the defendant on 4th August 2020. The plaintiff had indicated it was
minded to apply for judgment. However, I indicated that I would take
some persuasion to grant judgment as a result of which the summons was dealt
with by consent leading to the Act of Court of 6th August 2020. I had also indicated that an unless
order was justified because of the length of time the Modernisation and Digital
Department of the States (which looks after the States IT systems generally)
had taken to comply with the orders I had made on 15th April 2020."
4.
The
procedural background relied upon by the Plaintiff in this appeal is set out at
Paragraph 1.2 of the Plaintiff's skeleton argument which I also adopt for
ease of reference. It is as
follows:
"(i) On 15th
April 2020, the Court, having heard argument, made an order for general
discovery ("the Discovery Order") pursuant to Rule 6/17 of the
Royal Court Rules 2004 (as amended) ("the Rules"). The Discovery Order detailed, inter
alia, that the Defendant was required to search various email accounts as per a
schedule, which was attached to and formed a part of the Discovery Order. The deadline for compliance with the
Discovery Order was 31st July 2020:
(ii) On 17th June 2020, Lacey
Advocates, on behalf to the Defendant wrote to the Plaintiff requesting an
extension to the deadline specified in the Discovery Order.
(iii) On 23rd June 2020, the Plaintiff
responded, explaining that no extension would be agreed;
(iv) On 25th June 2020, the Plaintiff wrote
again to the Defendant raising various queries. These queries were raised in response to
the indication of the Defendant that the matter would be returned to Court;
(v) On 8th July 2020, the Plaintiff
wrote again seeking a response from the Defendant to (iii) and (iv) above. It is noted that at this point the
deadline in the Discovery Orders was less than 3 weeks away;
(vi) On 9th July 2020, the Plaintiff is
advised that Lacey Advocates' retainer has been terminated and that
Advocate James Rondel of the Law Officers' Department was coming on to
the record;
(vii) On 31st July 2020, the Defendant files
its first affidavit of discovery (the "First Affidavit") in
accordance with the deadline.
Within the First Affidavit, the Defendant concedes that it has failed to
comply with the Discovery Order;
(viii) On 4th August 2020, the Defendant serves a
summons on the Plaintiff seeking an extension to the deadline specified in the
Discovery Order;
(ix) On 6th August 2020, the Court orders
by consent that the deadline for the Discovery Order is extended to 31 August
2020. That order for an extension
was an 'unless order' which specified that failure to comply with
the Discovery Order by 31st August
2020 would result in the automatic strike-out of the Defendant's Answer;
(x) On 28th August 2020; the
Defendant provided a second affidavit of discovery (the "Second
Affidavit");
(xi) By letter dated 7th September 2020,
the Plaintiff invited the Defendant to apply to the Court for relief from
sanction because it was clear from the content of inter alia the Second
Affidavit that the Defendant had, by its own admission failed to comply with
the terms of the Unless Order; and
(xii) On 17th September 2020, the Plaintiff
served a summons seeking the strike out of the answer of the Defendant;
(xiii) On 20th October 2020 the Master heard the
strike-out application and thereafter made various further orders for the
parties to comply with pending his decision;
(xiv) On 13th January 2021 the Master handed down
the decision refusing the strike-out application at the same time as ordering
the Defendant to pay the Plaintiff's costs on the indemnity basis;
(xv) On 20th January 2021, the Plaintiff
served the notice of appeal giving rise to this hearing.
The Law
5.
The
jurisdiction on appeal from the Master in matters such as this has been
frequently stated. I could refer
many cases in this regard but suffice it to say that in AC
Mauger & Sons Ltd v Allscot Ltd [2011] JRC 048 the Court said:
"This Court should apply the
traditional test for appeals from the Master, namely that this Court was
entitled to come to its own decision on the matter whilst having due regard to the
decision of the Master."
6.
The Court
has in other cases made the point that the Master is an experienced procedural
judge and before that a litigation lawyer that the Court was in general terms
minded to pay a high measure of regard to the exercise of his judgment and
discretion.
7.
In terms
of the Law applicable to the Court's discretion where striking-out for
breach of its Orders is concerned, both parties rely upon the case of Newman
v de Lima [2018] JRC 155, a Judgment of the Master. In referring to a relief from sanctions
issue and the overriding objective, the Master in that Judgment referred to the
case of Denton v TH White Limited [2014] 1WLR 3926 quoting from it as
follows:-
"24. We consider that the guidance given at paras 40
and 41 of the Mitchell case remains substantially sound. However, in view of the way in which it
had been interpreted, we propose to restate the approach that should be applied
in a little more detail. A judge
should address an application for relief from sanctions in three stages. The first stage is to identify and
assess the seriousness and significance of the "failure to comply with
any rule, practice direction or court order" which engages rule 3.9(1). If the breach is neither serious nor
significant, the court is unlikely to need to spend much time on the second and
third stages. The second stage is
to consider why the default occurred.
The third stage is to evaluate "all the circumstances of the case,
so as to enable [the court] to deal justly with the application including
[factors (a) and (b)]". We
shall consider each of these stages in turn identifying how they should be
applied in practice We recognise
that hard-pressed first instance judges need a clear exposition of how the
provisions of rule 3.9(1) should be given effect. We hope that what follows will avoid the
need in future to resort to the earlier authorities."
8.
In
paragraph 29 of Newman, the Master said this:
"29. The Defendant had failed to apply
for a variation before the time limit had expired as required by paragraphs 19
and 20 of Practice Direction RC17/05.
These paragraphs states:
"19. It is essential
that any party who wishes to vary a direction takes steps to do so as soon as
possible and in particular before any time limit for compliance with the
direction has expired.
20. Any
such application shall be accompanied by an appropriate written summary and
submissions setting out what steps have been taken to adhere to the timetable
set, why the previous directions have not been complied with, what variation is
sought and its impact on any directions previously given."
9.
At
paragraph 45 et seq of Newman the Master said:
"45. There are also other helpful observations in Denton
which apply to the conduct of litigation in this jurisdiction. I therefore refer to paragraphs 40 and
41 of Denton which state:
"40. Litigation cannot be conducted efficiently and at
proportionate cost without (a) fostering a culture of compliance with rules,
practice directions and court orders, and (b) co-operation between the parties
and their lawyers. This applies as
much to litigation undertaken by litigants in person as it does to others. This was part of the foundation of the
Jackson report. Nor should it be
overlooked that CPR r 1`.3 provides that "The parties are required to
help the court to further the overriding objective". Parties who opportunistically and
unreasonably oppose applications for relief from sanctions take up court time
and act in breach of this obligation.
41. We
think we should make it plain that it is wholly inappropriate for litigants or
their lawyers to take advantage of mistakes by opposing parties in the hope
that relief from sanctions will be denied and that they will obtain a windfall
strike out or other litigation advantage.
In a case where (a) the failure can be seen to be neither serious nor
significant, (b), where a good reason is demonstrated, or (c) where it is
otherwise obvious that relief from sanctions is appropriate, parties should
agree that relief from sanctions be granted without the need for further costs
to be expended in satellite litigation.
The parties should in any event be ready to agree limited but reasonable
extensions of time up to 28 days as envisaged by the new CPR r 3.8(4)."
46. Where
I consider that a different approach should be taken to Denton relates to the
exercise of discretion. The third
stage of Denton was directly affected by the two factors listed in 3.9(1) if
the CPR. The Court of Appeal in
Denton stated that these factors were:-
".... of particular importance
and so particular weight should be given at the third stage, when all the
circumstances of the case are considered."
47. In
my judgment in this jurisdiction, the discretion is a more general one. This discretion still requires me to
consider whether the case can be dealt with justly and at proportionate cost
and any relevant factors listed in Rule 1/6. However, I consider that I am also
required to look at the case as a whole and the nature of the proceedings in
particular, what is in issue where some form of strike out of a claim is
contemplated. In cases involving a
failure to issue a summons for directions (albeit pre-dating the overriding
objective), the Royal Court has noted that the most severe sanction of striking
out a plaintiff's claim should not be applied if there are other
sanctions which could be applied which would enable justice to be done between
the parties - see for example Viera v Kordas [2014] JRC 042 at
paragraph 19 and Mayhew v Bois Bois [2016] JRC 024 at paragraphs 8 and
9. Whether the failure is to issue
a summons for directions required by the Rules or a failure to comply with a
particular order. I consider that
the same approach should be taken to imposition of sanction which has the
effect of striking out a claim or counterclaim or an answer, thus depriving a
party of their day in Court.
48. I
also consider it may be possible to make orders which fall short of striking
out the entire claim. Depending on
breach it may be possible to limit the sanction to striking out part of a case
or that if a particular step is not complied with part of the case will be
struck out or evidence may not be adduced on a particular issue. There is also the sanction of costs.
49. I
have referred to these different possibilities available to the Court because
they are all illustrative of the more general discretion available to the Court
where a party has not complied with a Court order. In reaching this view, it should not be
forgotten that procedure is a means to an end namely a trial or settlement and
breaches should be kept in that context.
The key issue is therefore the effect of any non-compliance and whether
or not a fair trial can take place after a breach. I accept I have to also take into
account, if it is right to impose a sanction for non-compliance whether that
non-compliance was either deliberate or there is no justification for it. In every case there will always come a
point where the conduct of a party in ignoring Court orders will lead to the
ultimate sanction of a case being dismissed even if a trial could still take
place. This judgment should not
therefore be taken as any indication that non-compliance of any Rules and
Practice Directions is acceptable, will be tolerated, or will not, in
appropriate cases lead to the ultimate penalty of a claim or answer being
struck out.
10. I take these to be the principles that I apply
in considering this matter and indeed there does not appear to be any dispute
between the parties that this is the appropriate approach to be taken.
11. It may at this point be worth noting that in a
judgment issued after the instant case in the case of Camilla
de Bourbon des Deux Siciles v Strang and Others [8 April 2021] JRC 109 the
Master was then considering whether or not an unless order had been breached. He made the following observation at
Paragraph 78:
".... An unless order is
a serious obligation intended to make it clear to a party that if they do not
comply with court orders that a sanction may follow."
I agree.
The Order
12. The Order which was breached by the Defendant
was as I have indicated in the quote from the Judgment above, in the following
terms:
"If the Defendant fails to provide discovery pursuant to the
deadline extended by Paragraph 1 of this Order, then the Defendant's
answer will be struck-out automatically without further order ...."
13. It is common ground that the Defendant was in
breach of the Order set out above and, therefore, prima facie on a
strict application of the Order in its term the answer would be deemed to be
struck-out.
The Judgment
14. After setting out the background of the matter
above, at paragraph 33 of the Judgment the Master reflected on the fact that
there was serious force in the Plaintiff's criticism of the failure by
the Defendant to explain a document preservation policy where litigation was
reasonably in contemplation and that the Defendant only appeared to have
started to take steps to preserve documents at the directions hearing on 15th
April 2020. The Master made it
clear that any party, when proceedings are threatened, should be taking steps
to preserve documents. Similarly
any lawyer when instructed should be putting their clients on notice of the
obligation to preserve documents.
With this also I can only agree.
15. Because of these concerns the Master explained
that he had required the Defendant to file a further affidavit to answer those
various points; a further affidavit was filed on 28th October
2020. The Master also sought
further submissions from counsel by way of analysis of a number of emails in
part because he needed to assess the seriousness of the significance of a
failure to comply with any court order.
He nonetheless indicated that prima facie there appeared to have
been a serious failure. The Master
at Paragraphs 39 - 42 of the Judgment observed that he had a discretion
as to whether or not to give effect to an unless order.
16. In referring to the further affidavit the
Master said that it contained an explanation as to who was responsible for
documentation and what policies were in place. In particular, the Master referred to
paragraphs 19 and 20 of the affidavit which were in the following terms:
"19. I did not write to the relevant employees in
relation to data retention as I ordinarily would have done. I can only explain the submission as
being as a result of a substantial document retention exercise which had
already taken place in respect of this dispute and therefore I did not consider
contacting the relevant individuals in relation to document retention, or to
ask them to preserve their documents and records in circumstances where they
had already been subject to certain disclosure requirements. Whilst I should have nonetheless written
to the relevant employees, and put them on notice to retain all of their
documents and records, the complaints made by the Plaintiff and the necessity for internal
investigations to be conducted, as well as the subject access request and the
States Complaints Board Hearing led to a large amount of documents, and indeed
the documents which go to the heart of the Plaintiff's dispute with the
Defendant being retained and indeed disclosed to the Plaintiff.
20. I
regret not having not taken further steps to ensure that all electronic records
and emails in respect of this case are identified, downloaded and preserved. However, I reiterate this was not
intentional."
17. At paragraph 48 et seq of the Judgment,
the Master then entered into a discussion of the issues before him before
reaching a conclusion.
18. At paragraph 54 of the Judgment he said this:
"54. In relation to the present case, the defendant is
firstly in breach of paragraph 4 and the schedule to the Act of Court of 15th
April 2020. The email accounts
required to be searched have not been searched because they had not been
preserved by the defendant prior to the making of the order."
19. At paragraph 55 the Master said:
"55. This breach is serious because, as
noted above, discovery plays a significant role in relation to the resolution
of the vast majority of disputes before the Royal Court."
20. At paragraphs 56 and 57, the Master went on to
say:
"56. In this case the breach is more serious because
the defendant has failed to follow its own policies and procedures, such as
they are, and has failed to adhere to the requirements of Practice Direction
RC17/07. Paragraphs 3 to 5 of that
Practice Direction provide as follows:-
"3. As soon as a party is aware that
litigation is contemplated, that party must immediately take all reasonable
steps to ensure that potentially discoverable documents are preserved.
4. As
soon as a party retains a legal representative, that legal representative must
inform its client of the need to preserve all potentially discoverable
documents.
5. The
party and its legal advisers in either case shall take all reasonable steps to
ensure that no potentially discoverable document is destroyed pursuant to any
document retention policy or otherwise in the ordinary course of
business."
57. In
this case the defendant had at least four separate opportunities to preserve
documents:-
(i) When
the plaintiff wrote to Senator Green on 20th November 2016 complaining of the
Jersey's handling of the matter and asserting that the actions of Senator
Green had caused him upset and damaged his reputation and loss of earnings. I consider that litigation was in
reasonable contemplation at this stage given the assertions of damage to
reputation and loss of earnings.
(ii) If litigation was not in
reasonable contemplation when the plaintiff complained at the end of 2016
including making a subject access request for relevant documents, litigation
was clearly in contemplation when a letter before action was sent on 28th March
2017. I do not regard the fact that
this letter was threatening defamation proceedings in England as significant. The underlying factual complaint namely
a referral by the defendant of the plaintiff to the GOC was at the heart of the
threatened proceedings. The
obligation to preserve potentially discoverable documents should have been
triggered on receipt of this letter at the latest.
(iii) Further opportunities were missed when
Advocate Jones sent his letter before action dated 13th December 2018 and when
proceedings were served in July 2019.
(iv) If the defendant had applied, its own
policies properly either when the plaintiff first complained or when the first
letter for action was sent then all of the email accounts would have been
preserved. Even if steps had been
taken as late of service of the proceedings the email accounts of the most
significant individuals involved i.e. Senator Green and Miss Blackwood could
have been preserved using the back-up tapes I am now informed are in
place."
21. At paragraph 64 of his Judgment the Master
says:
"64. I should therefore have been told prior to making
the order of 6thAugust 2020 that ten email accounts had been lost irretrievably
and that what was expected by the Act of Court of 15th April 2020 in terms of
what searches were going to be carried out and which email accounts were going
to be searched, could not be given effect to. This is a very serious failing. I should also have been provided with
the detailed explanations I have now received."
22. He carried on at paragraphs 65 and 66 in the
following terms:
"65. Returning to the second question formulated in
Newman, is there any excuse for these breaches? In my judgment there is not because had
the defendant applied its own policies and procedures then the relevant
documents would have been preserved.
The defendant should also have come to court with the information that
has now been provided. It should
not have taken an order from me requiring such information to have led to its
production and the admissions now made.
This is particularly troubling when the defendant is a government
minister.
66. There
is therefore no justification for the breach and to be fair to the defendant,
Miss Adkins in her third affidavit did not advance any justification for
failure to preserve email accounts."
23. In the Judgment the Master then turned to
consider whether or not the breach of the unless order, which he had clearly
viewed as very serious, should nonetheless not lead to the Defendant's
answer being struck out. He
referred to his own judgment in Powell v Chambers [2018] JRC 169 from
which, at Paragraphs 68 of the Master's Judgment, he quoted the following
extract:
"68. I observed that each case had to be considered on
its own facts but that the underlying approach might be encapsulated by the
following:-
"An unless order was an order
of last resort, not made unless there was a history of failure to comply with
other orders. It was the
party's last chance to put its case in order.
Because it was the last chance, a
failure to comply would ordinarily result in the sanction being imposed.
The sanction was a necessary
forensic weapon which the broader interests of the advanced to exonerate the
failure.
It seemed axiomatic that if a party
intentionally flouted the order he could expect no mercy.
A sufficient exoneration would
almost invariably require that he satisfied the court that something beyond his
control had caused the failure.
The judge would exercise his
judicial discretion whether to excuse the failure in the procedural
inefficiencies causing the twin scourges of delay and wasted costs. The public administration of justice to
contain those blights also weighted heavily. Any injustice to the defaulting party,
though never to be ignored came a long way behind the other two. (Hyler
Information Systems Ltd v. County City Council, [1997] 1 WLR 1666,
CA)."
24. The Master concluded that had those principles
applied and there was nothing more in this jurisdiction then the unless order
would have taken effect in its terms.
However, he made the statement that the Court possessed a more general
discretion than set out above and, at Paragraph 72 of the Judgment said this:
"72. In my judgment, I have to balance these extremely
serious and inexcusable breaches against what discovery has been provided in
order to decide whether I should vary the effect of the unless order. Therefore I asked both parties for an
analysis of the defendant's discovery to try to ascertain whether the
material disclosed told the whole or most of the story so that a trial could
proceed safely or whether there might be significant gaps in respect of
material disclosed such as to prevent a fair trial."
25. The Master considered the analysis carried out
by the Advocates of the documentation that had been provided whilst
acknowledging the Plaintiff's submission that it was difficult to know
what had not been provided. I will
not in this judgment set out the detailed explanation of the analysis in the
Judgment. In reaching his final
decision, the Master expressed the view that the Plaintiff's criticisms
really amounted to specific discovery requests and reflected that a number of
failures to provide information which now could not be remedied were
troubling. In particular, at
paragraph 86 of the Judgment he said this:
"86. The failure to preserve Miss Blackwood's
account is the most troubling because she was one of the decision makers and
the most senior person involved who decide to make a referral. Senator Green, although the Minister of
Health at the time only appears to have become involved after the plaintiff
complained, and so what is most pertinent is what he may have been told about
why a referral had been made. The
same applies to other missing accounts as their involvement is about the
handling of the plaintiff's complaint including the complaint to the
States Complaint Board and they were only involved after the decision to refer
has been made."
26. In paragraph 87 of the Judgment he quotes an
extract from the Leeds United Football Club v Admatch [2011] JRC 016A in
relation to considering whether or not a case should be struck out. In that case Sir Michael Birt, then
Bailiff stated the following:
"I draw from the above
authorities the conclusion that it is a strong thing to strike out a defence
and there must be an abuse of process such as to render further proceedings
unsatisfactory or prevent the court from doing justice or, to quote Page
Commissioner, a party must have flouted or ignored the Court's orders or
persistently conducted himself in a way that evinces an unwillingness to engage
in the litigation process on an equal footing with the other parties."
27. The Master's final conclusion is to be
found at paragraph 88 of the Judgment which is in the following terms:
88. In
this case although I am extremely troubled as set out above by parts of the
defendant's conduct and its failure to preserve documents, I do not
consider that this conduct convinces me of the unwillingness to engage in the
litigation process on an equal footing with other parties. In addition, a significant number of
documents have been disclosed so that a large part of the factual matrix is
known. Discovery has been provided
from four of the five individuals named in the order of justice. Some emails sent to Miss Blackwood have
also been recovered and disclosed from other email accounts. Furthermore, the duty of discovery is
ongoing. The queries raised by the
plaintiff which I have summarised above do require further investigation by the
defendant both by further searches and by making enquiries of the individuals
who may have sent or received the relevant emails. This may produce a fuller picture. Lawyers were also involved in both the defamation
proceedings and the States Complaint Board hearing and so, if their files have
not been reviewed already (as they should have been) they can be reviewed now
for any relevant material. I have
therefore concluded on balance however that a safe trial can still proceed
notwithstanding the serious and inexcusable breaches that have occurred and so
I should not the unless order to take effect even though in part it has been
breached. I stress however that this
has not been an easy decision and I came very close to allowing the unless
order to take effect and the answer on liability to be struck out. If the Defendant's procedures do
not change to comply with the relevant practice directions in future cases, the
same forbearance may not be shown."
28. The Judgment appeared to rely on the Admatch
case set out above. It is right at
this point to note that on my reading of that case, it was not concerned with
the consequences of a breach of an unless order (although an unless order had
been breached as part of the procedural background) but rather to a general
application to strike out on the grounds of abuse of process. It is not clear from the judgment in
that case that the Court intended the statement to apply in cases where there
was a breach of an unless order.
29. It is equally clear in the Judgment that the
Master viewed this decision as a very close thing and described the exercise of
his discretion as "forbearance". He imposed a "price"
for permitting the Defendant to continue to defend the claim which was to
answer additional queries raised by the Plaintiff's legal advisers at its
own expense and for them to take further procedural steps. He also made a costs order that the
Defendant must pay the Plaintiff's costs on an indemnity basis.
30. I have set out the Master's Judgment at
some length as it was clear that the Master viewed the failings of the
Defendant as serious and that certain of the failings, could not now be
remedied.
The Plaintiff's contentions
31. The Plaintiff's arguments in this appeal
are relatively straightforward.
32. The Plaintiff points to the quotations from the
Judgment set out above and points to the section in the Admatch case
quoted at paragraph 26 above, but makes the submission that whilst the Master
considered a willingness of the other party to engage in the litigation process
on an equal footing, he did not consider the other limb of the test he set out
which is a flouting or ignoring of the Court's Orders. The Plaintiff submits that where the
Defendant has flouted and ignored the Court's orders, as it was submitted
was the case here, then the Master should have applied the principles in Admatch
and given the unless order its effect.
33. The Plaintiff goes onto to argue that the
Master's assertion that a "large part of the factual matrix is
known" is difficult to justify in the circumstances where it is
clear that information has been deleted in contravention of a discovery
order. The Plaintiff argues, with
which I have some sympathy, that it cannot be an answer to a failure to comply
with discovery obligations to simply invite the Court to look at the
documentation that has been disclosed.
In addition to the documents that can no longer be provided from Ms
Blackwood and Senator Green the Plaintiff argues that the email account of Mr Dunne
is of equal importance as it was he who directed the investigation into the
Plaintiff's complaint and he was at the forefront of the complaint
handling before the States Complaints Board. Significant email traffic would
have been anticipated. The Plaintiff
complains that we are left to speculate on what might have been there and the
Plaintiff is denied certainty and the documentation he is entitled to see.
34. The Plaintiff goes on to argue that the
Defendant should not be allowed to maintain its defence in circumstances where
it has taken action to prejudice the possibility of the Plaintiff receiving a
fair trial. The Plaintiff, in his
skeleton argument, says:
"The Defendant is not allowed
to profit or even have the possibility of profiting from actions that it has
taken in relation to discover more material, i.e. destroying it. It is submitted that it would be the
definition of an abuse of process."
35. In summary, really, the Plaintiff's case
is that it is difficult to reconcile the Master's material findings with
his ultimate decision.
36. The Plaintiff further makes the submission that
there is no basis for the Master to show forbearance. Forbearance is not an appropriate
approach.
37. Advocate Lacey, the Defendant's former
legal adviser, had urged the Court to rely her own expertise and familiarity
with the Minister's policies and procedures in carrying out the discovery
exercise. It appears, without
justification, so the Plaintiff argues, that the Defendant has been shown the
benefit of the doubt in circumstances where, it is suggested, other litigants
might not be.
38. In support of this somewhat difficult
submission the Plaintiff relied on the case of Oleg Sheyko v Consolidated
Minerals Limited [2021] JRC 006, where even though there was not an unless
order in place, the Master struck out the Defendant's answer and
counterclaim having concluded that the various discovery orders applicable in
that case had been breached by the Defendant. It is not suggested by the Plaintiff
that the facts in that case are similar to the facts in the instant case but
the Plaintiff calls upon that case as illustrative of the Master's
approach to similar issues.
39. At the time of the filing of the skeleton
argument of the Plaintiff on 9th March 2021, the Plaintiff argued
that the Defendant remained in breach of Orders of the Court because they had
not answered the additional queries raised or checked the files that the Master
had required in the Judgment.
The Defendant's contentions
40. The Defendant argues that the Court should uphold
the Master's decision and dismiss the appeal. The Defendant relies on the
Master's assessment that a safe trial can still proceed and therefore
argues that the correct and proportionate decision has been reached by the
Master.
41. The Defendant argues that to strike out its
answer would be to drive it from the seat of justice where the
Plaintiff's Order of Justice contains a number of serious and
wide-ranging allegations in relation to the conduct of public officials. It is argued that the record would then
show that there had been some form of misfeasance in public office and the
Plaintiff would not have to prove that serious allegation.
42. I do not fully understand this argument. It would, so it seems to me, very often
be the case that where a pleading was struck out because of the failure to
comply with orders of the Court (as opposed for example, as disclosing no cause
of action) then the consequence would always be substantial for the party whose
pleading was struck out. I cannot
see that it is an argument against striking out to say that the other parties
case, which contains unwelcome allegations, would thereby succeed.
43. The Defendant accepts that the failure to
comply with the Order of the Court was a serious one and indeed in its skeleton
argument, the Defendant concedes "it is inevitable that as a result of
its failure to preserve the relevant inboxes, that some documents would not
have been preserved and, as a consequence, will not form part of the factual
matrix of the case and will not be available to either the Applicant or the
Court."
44. The Defendant conceded that the first two
grounds of the test set out in Newman, namely, that the failure to
comply with the Order was a serious one and the default was inexcusable were
met. The Defendant rather relies on
the third test as not having been met because, on its argument the case can
still be dealt with "justly and at a proportionate cost".
45. The Defendant relies on the overriding
objective and on the Master's decision that, on balance, a safe trial could
proceed.
46. The Defendant argues that this was an entirely
appropriate exercise of the Master's discretion and that as a significant
number of documents had already been disclosed a large part of the factual
matrix was known. The Defendant
argues that it is properly engaging with the Court process and indeed the
Plaintiff had accepted that its failures were not as a result of bad
faith. It is appropriate to take
these matters into consideration when looking at the case as a whole and the
nature of the proceedings.
47. The Defendant argues that other appropriate
sanctions could have applied including full indemnity costs.
48. The Defendant goes onto argue that:
"Whilst the Appellant's
conclusion is correct that (emphasis added)
(i) He
might be prejudice as a result of the Respondent serious and inexcusable
breaches;
(ii) The
Respondent may gain an advantage in respect of the same and
(iii) That
the Court will never know what documents are being destroyed as a result of the
Respondent's failings, it is also correct that if the Respondents answer
is struck out the Plaintiff will have been awarded a windfall victory and the
Respondent will have been irrevocably prejudiced. This is because the Respondent would
have been denied the opportunity of defending itself at trial against
allegations of the utmost severity which have been made by the Appellant
against officers and servants of the Respondent. It is respectfully submitted that to
reach such a position would be neither just nor proportionate."
Discussion and conclusion
49. As I have said it is clear that the Master did
not consider this to be an easy decision.
50. In bold terms, in his view, the Defendant was
guilty of a serious and inexcusable breach of an unless order and concedes that
it might have prejudiced the Plaintiff but that a fair trial can still take
place.
51. It is difficult given that the Master in the
Judgment relied on Admatch, not to conclude that whereas the Master
addressed the question of whether or not the Defendant was failing to engage
with the trial process on an equal footing he did not engage with whether there
had been a flouting or disregard of the Orders of the Court. Had he asked himself that question, he
would in my judgment inevitably have concluded that there had been.
52. On the one hand there is the risk of prejudice
to a party who may otherwise have benefitted from a proper compliance with the
Order of the Court and on the other hand, the prejudice to another party who if
the answer is struck out the Judgment will be entered on a factual basis which
remains disputed. The fact that
giving a judgment does not amount to either an acceptance by the Defendant of
the factual basis of the claim still less than any finding by the Court to that
effect, the record would, however, reflect that judgment had been taken.
53. It is always uncomfortable for a judge to
strike a case out other than in the plain circumstances where it is without
merit. However, orders of the Court
are to be followed and in my judgment a breach of an unless order (which is already
an extremely serious order and should have placed the Defendant on the highest
possible alert to comply with it) which may have prejudiced the party who, in
terms of the breach of the order, is the innocent party must it seems to me
other than in the most exceptional circumstances be met with the natural
consequences of that breach - namely that the pleading is struck out.
54. Accordingly with reluctance, I am driven to the
conclusion that this is not a matter for forbearance but rather of a clear
breach of an Order of the Court in respect of which consequences should
flow. I uphold the appeal, reverse
the Master's Order, strike out the answer and enter judgment for the
Plaintiff.
55. I leave over the issue of costs for subsequent
argument.
Authorities
Huda
v Minister for Health and Social Services
[2021] JRC 007.
Royal Court Rules 2004.
AC
Mauger & Sons Ltd v Allscot Ltd [2011] JRC 048.
Newman
v de Lima [2018] JRC 155.
Denton v TH White
Limited [2014] 1WLR 3926.
Camilla
de Bourbon des Deux Siciles v Strang and Others [2021] JRC 109
Powell
v Chambers [2018] JRC 169
Leeds
United Football Club v Admatch [2011] JRC 016A
Oleg
Sheyko v Consolidated Minerals Limited [2021] JRC 006
