Jersey Unreported Judgments

Estate - an application to reinstate two actions which were deemed discontinued.

[2021]JRC004

Royal Court

(Samedi)

6 January 2021

Before     :

Sir Michael Birt, Commissioner, and Jurats Ramsden and Pitman.

 

Court File 2014/056

 

 

Court File: 2014/057

 

 

Advocate R. S.Tremoceiro for the both Plaintiffs.

Advocate L. A. Ingram for the Second Defendant.

judgment

Commissioner:

1.        This is an application to reinstate two actions which were deemed discontinued under Rule 6/25(1).  The Court granted the application on 10^th December 2020 and now gives brief reasons for its decision. 

2.        Both actions are personal injury claims arising out of an accident.  Both actions were instituted in 2014 and adjourned sine die by consent on 28^th February 2014.  The reason for this was that liability was unlikely to be in issue and it was agreed that it was too soon for the long-term consequences of the injuries suffered by the plaintiffs to be clear at that stage.  It was clear therefore that resolution of both claims would have to await developments. 

3.        Discussions did take place with the representatives of the Second Defendant but on 19^th January 2016, this Court approved the decision of the Guardian ad Litem not to accept an offer put forward at that stage, on the basis that it was too soon in view of the many imponderables relating to the plaintiffs' injuries. 

4.        On 11^th February, 2019, both actions were deemed discontinued pursuant to RCR 6/25(1) which provides:-

"(1) When proceedings have been adjourned sine die, if at the expiration of 3 years from the date on which it was first so adjourned no further steps have been taken, the proceedings shall be deemed to have been withdrawn."

5.        This discontinuance appears to have occurred notwithstanding an email from Advocate Tremoceiro's office dated 14^th January, 2019 explaining why the matter was still adjourned sine die and why it could not yet be brought to a resolution, but that they were seeking counsel's advice on settlement.  Furthermore, we were informed by Advocate Tremoceiro that his office was not informed of the discontinuance until contact was made by Advocate Tremoceiro's office with the Greffe in November 2020 in connection with an application which the Guardian wished to make in each of the proceedings.  The Guardian now applies for both actions to be reinstated so that he can proceed with those applications. 

6.        It is well established that the Court has an inherent jurisdiction to reinstate actions which have been deemed discontinued under Rule 6/25(1) - see Croxford v Le Claire [1994] JLR 304 in relation to the then equivalent of Rule 6/25(1) (being Rule 6/20(2) of the Rules of Court then in force).

7.        However, it is a discretion which is to be exercised sparingly.  The purpose of Rule 6/25(1) is to ensure that actions do not fall into black holes and become forgotten, with consequential prejudice to the parties and to the administration of justice generally.  Accordingly, as Hamon DB said in Croxford, the burden lies on a plaintiff to show that there is some exceptional reason for the court to exercise its discretion to reinstate the action. 

8.        Notwithstanding the importance of ensuring that actions are proceeded with in a timely manner, we are satisfied that this is a case where there are exceptional reasons and both actions should be reinstated.  This is not a case where the plaintiffs (or their advocate) have simply been dilatory.  This is a case where a conscious decision was taken to adjourn the action sine die and this was a decision which was taken with the agreement of the Second Defendant.  There was good reason for such a decision because it was clear that the injuries of both plaintiffs would take some time to settle.  Until they did, it would not be possible to ascertain the likely long-term consequences and therefore the quantum of any claim.  Furthermore, it was not a case where liability was in issue.  Where liability is in issue, the fact that there is a delay in assessing quantum is not a good reason to defer resolving the question of liability. 

9.        The Court agreed in January 2016 that it would be premature to settle the case at that stage and accordingly there was good reason for the parties to delay further.  We do not see that it would have been in the interests of justice for the parties to run up costs in filing pleadings, discovery etc when it was likely that the matter would eventually be settled or, if not, quantum would be argued as an issue on its own.  Furthermore, the plaintiffs' advocate had informed the Court in January 2019 as to why no steps had been taken since the hearing before the Court in January 2016.  

10.      Advocate Ingram, for the Second Defendant, very properly rested on the wisdom of the Court and therefore did not actively oppose reinstatement of the actions. 

11.      For these reasons, we reinstated both actions at the hearing on 10^th December 2020.

Authorities

Croxford v Le Claire [1994] JLR 304.

Royal Court Rules.