Jersey Unreported Judgments

[2003]JRC115

ROYAL COURT

(Samedi Division)

 

9^th July 2003

 

 

 

 

 

 

Appeal by the Defendant, under Rule 15 (2) of the Royal Court Rules 1992, as amended, against the Order of the Master of the 10^th February, 2003, striking out the Defendant's amended answer and refusing leave to the Defendant to join a Third Party.

 

 

The Defendant on his own behalf.

Advocate L. Springate for the Plaintiff.

 

 

judgment

 

the COMMISSIONER:

1.        This is an appeal by Terence Allan Picot against the Order of the Master dated 10^th February, 2003.  The Master ordered that the appellant's Amended Answer be struck out, both pursuant to Rule 6/13(1) (b) and (c) of the Royal Court Rules 1992 and under the inherent jurisdiction of the Court. 

2.        As the Amended Answer was struck out the application to convene Mr E.M.W. Fay, a Guernsey resident, to the proceedings as Third Party also failed.  The appellant was ordered to pay the costs on the standard basis.

3.        The learned Master ordered that the Amended Answer be struck out because it was scandalous, frivolous or vexatious and that it might prejudice, embarrass or delay the fair trial of the action, as well as under the inherent jurisdiction of the Court.

4.        It is clear that the Master carefully considered the provisions of the White Book which are on all fours with Rule 6/13 of the Royal Court Rules and decided thus:

"In relation to the application under Rule 6/13(1) (a) - namely that if the answer discloses no reasonable cause of defence, I am precluded from considering any evidence - according to paragraphs 18, 19, 10 of the White Book I have to consider the matter only on the allegations in the pleadings; and the mere fact that the case is weak and not likely to succeed is no ground for striking it out under this provision."

5.        He later went on to say in his meticulously argued reasons -

"I have come to the conclusion that the amended answer is frivolous and vexatious because the arguments raised are, in my opinion, obviously unsustainable.  I consider that to allow the arguments to be put forward would be an abuse of the process of the Court.  The issues raised in the answer would also, in my view, prejudice, embarrass, or delay the fair trial of the action.  I must of course exercise my discretion in a judicial manner and, having done so (and acknowledging that the jurisdiction to strike out must be exercised with great circumspection) I have come to the conclusion that the contention set out in the amended answer cannot succeed".

6.        We had a preliminary hearing to allow Mr Picot to put in further documents and to swear an affidavit, as he felt aggrieved that he had had but 24 hours to prepare for the hearing before the Master.  He claims in his affidavit that because of the late filing of the plaintiff's papers and arguments he was seriously disadvantaged.

7.        This argument is dismissed by the respondent in its skeleton argument in these terms:

"The Appellant's Affidavit dated 6 May, 2003 includes a fair amount of argument, with complaints about the late delivery of documents and general comments about what are considered to be the shortcomings in the Respondent's case.  The real substance of his Affidavit begins at paragraph 14 thereof."

8.        That is, in our view of the situation, a little too dismissive.  Mr Picot was entitled to a reasonable period to prepare his case.  Furthermore, we remind ourselves that in 1988 Mr Fauvel, the Deputy Judicial Greffier, applied the criteria under the 1982 Rules applicable to a striking out in these terms in Poole -v- Poole (1987/88) JLR N5:

"An action may be struck out under r.6/13 of the Royal Court Rules, 1982, as disclosing no reasonable cause of action only if the claim is on its face obviously unsustainable.  The question is one to be answered on the basis of the allegations made in the pleadings: if the claim discloses some cause of action and has some chance of success, however slight, it should not be struck out.

9.        We have now studied over the course of a day not only the detailed affidavit of Mr Picot but also all the documentation in support.  We have no doubt that Remo Rochelle Limited is the alter ego of Mr Fay just as we have no doubt that Vekaplast Windows (C.I.) Limited was the alter ego of Mr Picot.  It is inevitable that an argument (and we have been greatly assisted by Advocate Springate over a whole day) is going to disclose better information than was before the learned Master in what was a 2 hour hearing.

10.      It may stretch the imagination to believe that the registered bond and the standard letter of authority could be gainsaid by other evidence to show that interest was waived, that there were collateral contracts between the parties by reasons of which repayment was not required and that the moneys concerned were a gift. 

11.      The Master had a difficult balancing act to perform.  What apparently weighted the balance against Mr Picot was the documentary evidence; that is, the promissory note, the Act of Registration before the Royal Court, and the letter of the 28^th July, 1990, upon which the Master based a perfectly proper interpretation. 

12.      This is not a case which has the background of legal complication to be found in Channel Islands and International Law Trust Company and Others -v-  Pike (1990) JLR 27 one of the three cases cited by the learned Master the contents of which would have been in the forefront of his mind.

13.      We refer during the course of our deliberation to the 'bizarre correspondence' written by Mr Fay. Had it not been for that correspondence, we would have followed the Master in his decision.  We deliberately avoid drawing out the letters that we have studied with some care over the course of this hearing. 

14.      We remain unconvinced, on the facts now before us - some of which were not before the Master - and having heard Mr Picot 'à tête reposé', that this is not a case, that we feel, should be struck out.  We restore it to the hearing list and we will allow Mr Fay to be convened as a third party.  We are told by Advocate Springate that he is still in good health, but this case must not be allowed to drag on.

15.      The Court, as we have said, gives leave to convene Mr Fay, who lives in Guernsey.  We, therefore, give leave to Mr Picot to serve out of the jurisdiction on Mr Fay by personal service.  This must be done within 10 days of this order.  Mr Fay will have 21 days in which to file an answer from the date that he is served.  Mr Picot will have the right, as will Advocate Springate, to file a reply in accordance with the time scale of the Royal Court Rules. 

16.      Once these pleadings are closed the Court directs that in accordance with Rule 6/21, and I will set out the relevant passage for Mr Picot's benefit:

"The plaintiff shall within one month after the time limit of filing pleadings has expired issue a summons for directions to be heard at least 14 days and not more than 42 days thereafter in the form (or substantially in the form) prescribed in the Seventh Schedule to these Rules".

17.      We have to repeat that this case is now to be strictly time controlled.  A copy of the record of service is to be delivered by the defendant to the plaintiff and filed with the Judicial Greffier within 14 days of such service.  As to the question of costs, we feel that these must now be costs in the cause both here and below.

Authorities

Wenlock -v- Maloney (1965) 2 All ER 871.

Poole -v- Poole (1987/88) JLR N5.

Channel Islands and International Law Trust Company and Others -v- Pike (1990) JLR 27.

Royal Court Rules 1992, as amended: Rule 6/21.