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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Zac (A Minor) v The Estate of A (Deceased) [2020] JRC 096 (28 May 2020) URL: http://www.bailii.org/je/cases/UR/2020/2020_096.html Cite as: [2020] JRC 96, [2020] JRC 096 |
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Accident claim - application by the plaintiff to vary directions
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Before : |
Advocate Matthew John Thompson, Master of the Royal Court. |
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Between |
Zac (A Minor) through his Guardian ad Litem |
Plaintiff |
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The Estate of A (Deceased) |
Defendant |
Advocate S. C. Thomas for the Plaintiff.
Advocate L. A. Ingram for the Defendant.
CONTENTS
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Paras |
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1. |
Introduction |
1 |
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2. |
Background |
2-16 |
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3. |
The relevant legal test |
17-23 |
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4. |
The steps required to be completed |
24-45 |
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5. |
The overall position |
46-49 |
judgment
the MASTER:
1. This judgment contains my decision in respect of an application by the plaintiff to vary directions previously issued by me. Those variations included seeking an adjournment of existing trial dates.
2. The background to the present proceedings is set out in a previous judgment I issued in this matter reported at Zac (A Minor) v The Estate of A (Deceased) [2018] JRC 088A at paragraphs 2 to 15 which I adopt for the purposes of this judgment.
3. That judgment ordered a stay to take place to permit an independent living trial to occur to assess the future needs of the plaintiff. In ordering such a stay I also made the following orders referred to at paragraphs 64 and 67 as follows:-
4. This led to the following orders in an act of court of 12th April, 2018 at paragraphs 6 and 7 as follows:-
"6. The Plaintiff shall further be provided on a quarterly basis with a progress report on the independent living trial by the professionals involved, such report to be provided within 28 days of the end of each quarter of the said trial;
7. In addition the Plaintiff within 14 days of the end of each quarter of the independent living trial shall disclose to the Defendant all documents created during that quarter relating to the said trial."
5. I refer to these orders because they are pertinent to one of the issues that emerged during argument, which was how far the plaintiff had complied with these discovery obligations in relation to the independent living trial and, if not, the reasons why.
6. I issued further directions in September and December, 2019, the effect of which was to require the plaintiff's updated experts reports to be produced by 15th January, 2020, the defendant to produce any updated reports from their experts in response by 27th March, 2020, witness statements to be exchanged on 24th April, 2020, and experts meeting by 29th May, 2020. The plaintiff was also directed to indicate by 28th May, 2020 whether he intended to ask the court to make a periodical payment order at trial, with the defendant being under a similar obligation by 3rd April, 2020.
7. Directions for schedules of loss were also issued with the plaintiff having to produce his schedule of loss by 19th June 2020 and the defendant's counter schedule by 10th July 2020.
8. I also permitted trial dates to be fixed to take place with the trial commencing no earlier than Monday, 7th September 2020. The timetable therefore allowed for an interval of some eight weeks between the final step required to ensure the action was ready for trial and the trial commencing. During this period, trial bundles and skeleton arguments would be produced as well as preparation for the trial itself taking place.
9. In relation to witness statements of fact, it is right to set out that at the hearing in September 2019 Advocate Ingram expressed concern about whether such statements were necessary because they might lead to the witnesses purporting to give expert evidence. While I noted this concern, on balance, I was persuaded that statements from those caring for the plaintiff about how they had been caring for him and their view on how far he was able to live independently would assist the Jurats, provided that such statements reflected any contemporaneous medical or other health care records made by the particular witness.
10. I also felt it would assist the experts before any meeting for the experts to have those witness statements before them when the experts were identifying the areas of agreement and disagreement.
11. In relation to periodic payments, the relevant direction was issued because the plaintiff sought permission to adduce evidence from a financial expert. However, at that stage neither party had indicated whether they were going to seek a periodic payment order at trial. This was why the parties were ordered to make their position clear.
12. A power permitting the Royal Court to award a periodical payment order was expressly conferred on the Royal Court by the Damages (Jersey) Law 2019, which law came into force on 3rd May 2019. Prior to the Damages Law, the question of whether the Royal Court possessed such a power had never been definitively resolved.
13. What has led to the present application was described in the affidavit of Mr Scott Rigby, an English Solicitor and partner in Stewarts LLP, who act for the plaintiff. In brief, on 22nd December 2019, the plaintiff suffered a seizure which was suspected to have been epileptic in nature. The plaintiff's position is that epilepsy is a recognised consequence of the injuries the plaintiff suffered as a result of the original accident that led to the present proceedings. A diagnosis of epilepsy could therefore have a significant impact upon issues of quantum in the case in particular the cost of care required for the plaintiff and his employment prospects. This therefore led the plaintiff's team to decide that further investigation of the seizure was necessary.
14. The plaintiff quite properly also informed the defendant's advisers of the seizure by communications to the defendant's English Solicitors and to Advocate Ingram on 23rd December 2019. Regular updates were given of the need for the plaintiff to be reviewed by a neurologist, and for him to undergo an MRI scan and an electroencephalography ("EEG"). The plaintiff's position in summary is that the seizure needs to be investigated and understanding its cause had a direct impact upon the plaintiff's ability to produce its final update experts' reports. All the plaintiff's experts had confirmed that they wished to know the results of these investigations before finalising their own reports.
15. Progress of the case for trial has also been further complicated because of the impact of the coronavirus pandemic. While the plaintiff saw a consultant neurologist at Jersey General Hospital in early February, 2020 and then underwent a MRI and EEG scan, the follow up appointment with the consultant in Jersey was postponed until 15th April 2020.
16. It is the combination of the seizure and the difficulties in obtaining updated expert evidence on the effect of the seizure due to the coronavirus pandemic that have led to the present application. As at the date of the hearing, the results of the appointment with the consultant remained outstanding.
17. As the effect of the plaintiff's application meant that the plaintiff was seeking an adjournment of trial dates, it is appropriate to have regard to the approach to be taken in such circumstances. I considered this in Cummins v Howlands Furniture Limited [2014] JRC 165 and at paragraphs 12 and 13 stated as follows:-
18. In Financial Technology Ventures II (Q) LP v ETFS Capital Limited 2020 JRC 051, Judicial Greffier Clarke rightly emphasized at paragraph 40 the importance of there being a real risk of serious prejudice that could lead to injustice.
19. These are the tests I have applied.
20. The fundamental difference between the parties was that the plaintiff contended that there was simply not enough time between now and the start of the current trial date for all necessary steps to be completed to enable the trial to proceed. The defendant contended otherwise. This difference is the central question I have focused on because, while existing deadlines have been breached, these are understandable because of the combined effect of the seizure and the coronavirus pandemic. I do not therefore consider that the present application is in the territory of imposing any sanction because breaches of previous directions has occurred (see Newman v de Lima [2018] JRC 155 and Powell v Chambers [2018] JRC 169).
21. In terms of the overall approach I should take in light of the pandemic, I was also helpfully referred by Advocate Ingram to a decision of his Honour Judge Eyre Q.C., a judge of the Technology and Construction Court, and his decision in Muncipio de Mariana & Ors v BHP Group Plc [2020] EWHC 928 (TCC).
22. At paragraph 32 of his judgment his Honour Judge Eyre set out the approach he considered should be taken in relation to extensions of time and the impact of the pandemic as follows:-
23. In terms of the factors listed above, I consider these factors have equal force in this jurisdiction and therefore they are factors I have taken into account in deciding the present application.
24. In reaching a decision, it was necessary for me to consider each of the following areas to review what steps needed to be taken to enable me to issue fresh directions including evaluating whether the trial dates should be adjourned. The areas were:-
(i) compliance with discovery obligations;
(ii) the time frame for production of updated experts reports;
(iii) the timeframe for the production of witness statements;
(iv) how long is needed for experts to meet;
(v) the need for schedules of loss;
(vi) the need for expert evidence in relation to periodic payments;
(vii) creating a window for settlement discussions/ADR; and
(viii) time for trial preparations.
25. I propose to deal with each of these in turn to ascertain the current position.
26. In terms of discovery while quarterly reports about the plaintiff's progress had been provided, as required by the act of court of 12th April 2018 cited above, there has been a delay in providing the underlying material required by paragraph 7 of the act of court of 12th April 2018. During the course of argument, I was informed that this was because production of such information was being arranged by Ms Verity Boak or a colleague on her behalf. I was further informed that Ms Boak had both been off duty due to the coronavirus pandemic and was facing significant demands on her time since she had returned to work. I accept that the coronavirus has had a significant impact on Ms Boak's availability.
27. However, in her email dated 14th April, 2020 Ms Boak explained that:-
"disclosing information is not just a case of copying files as CCMS document is reviewed. This then everything has to be again filtered via CCMS. We are filtering the files (we currently have our own around 800) and sill have to upload the emails (over 2000 CM) originally to be categorised and differentiated."
28. With respect to Ms Boak, I am concerned about this email. Firstly, in the context of the coronavirus pandemic, this is a task that lawyers can carry out. The documents appear to be disclosable and lawyers are capable and trained in this area both to list relevant documents and to deal with any queries.
29. Secondly, I do not know what is meant by filtering documents. A possible interpretation of Ms Boak's email is that she is determining what the defendant's advisers should be permitted to see. However if a document that has been created that is relevant it has to be disclosed whether or not it assists the plaintiff. It would only be on the grounds of irrelevance e.g. administrative tasks that a document should be excluded. Again advisers can easily determine what is relevant without this task having to be determined by Ms Boak or a member of her team.
30. The above email also informs me that one of the factors contributing to the delay is the plaintiff's failure to disclose documents on time. This was not what was contemplated by my order of 12th April 2018. These records matter because they are required by the defendant's experts to evaluate whether or not independent living trial has been successful. Those experts should be able to test the quarterly reports provided by reference to the day-to-day material produced during the trial. This lack of information in the timeframe originally ordered creates the risk of those experts not having enough time to analyse detailed material and prepare reports in response in an environment which is challenging. This risk has been caused by the plaintiff's team.
31. Arrangements must therefore be made to ensure that any documents that are discoverable and which have not been produced are in future reviewed by legal advisers on behalf of the plaintiff. I address later in this judgment when considering matters in the round and all the steps that need to be taken, what is the appropriate timeframe for this step to occur and its impact on other required steps.
32. The plaintiff's legal advisers in respect of reviews already carried out by Ms Boak will also have to evaluate any material not provided to them because it has been reviewed by Ms Boak only to verify whether or not any part of any such material is discoverable.
33. It was not in dispute between counsel that updated reports were needed. Advocate Thomas contended that such reports could not be provided because of the impact of the coronavirus pandemic until 19th June 2020. Advocate Ingram contended that this deadline could be brought forward by two weeks. In ordinary times, I would agree with Advocate Ingram but I am concerned that the present constraints that apply to experts, in particular those are working to battle the coronavirus pandemic in the medical field, may be more challenging than in ordinary times. I therefore consider that more time is required than would ordinarily be the case. Again, I consider the overall effect of whether or not the trial dates need to be adjourned later in this judgment.
34. A similar concern arises in relation to experts' reports in response from the defendant. While Advocate Ingram helpfully informed me that all his client's experts had specifically confirmed that they could respond in the two week window he suggested, my general experience of personal injury matters as Master (to my frustration) is that deadlines for medical experts to respond frequently slip. That position is not going to improve in relation to the coronavirus pandemic.
35. It was my view last September, 2019 that such witness statements would in the round assist the Jurats at trial, as long as the statements did not stray into the area of giving expert evidence and only reflected what the particular witness had observed in caring for the plaintiff. The submissions put before me for the present application have not altered that view. At this stage the significance of these statements is that is that although such statements can be prepared by the plaintiff at the same time as the defendant's experts are preparing their response, the experts of both parties will need to review the statement before any further meetings of experts can take place. This was recognised last September and in my judgement remains the position.
36. While I consider that the experts will need a period of time to review the witness statements before they meet, I do not consider that significant time is required for experts to meet compared to the timeframe ordered last September. This is because the proposed meetings are by way of updates, as expert meetings have already taken place and areas of difference identified. Secondly, there is technology available which allows the experts to have discussions remotely. This is an area where the observations of Judge Eyre in relation to experts in my judgment are apposite. What is required is for the experts called by each party in the relevant discipline to make themselves available in a relatively brief window (having regard to work commitments due to the pandemic) and discussing how far their conclusions need to be updated.
37. In relation to schedules of loss, the plaintiff has now indicated that he wishes to seek a periodic payment order. I therefore consider that the schedule of loss to be produced by the plaintiff must identify what payments are sought by way of a lump sum and what payments are sought by way of periodic payment. During the hearing, the question of the plaintiff seeking an order for periodic payments led to argument about how the trial court should determine the suitability of whether or not a periodic payment order was required. Advocate Ingram contended that in England the approach was to address matters in two stages, with the judge determining what sums would be awarded as future loss on an annual basis and what multiplicand was applicable and then leaving it to the parties to determine whether there was any agreement as to which losses were suitable for a periodical payment order and which were to form part of a lump sum. If this could not be resolved, which I was told was unlikely, then the parties would return to court. He cited Tameside & Glossop Acute Services NHS Trust v Thompstone & Ors [2008] 1 WLR 2207 as confirming this approach.
38. In my judgment there are three issues that arise. The first is what damages are payable. The second is whether damages awarded are payable by way of a lump sum or should form part of a periodical payments order. The third is, if a periodical payment order is awarded and provision needs to be made for inflation, an issue may arise as to whether or not the retail prices index or some other index is to be used.
39. In my judgment, these issues should as far as possible be determined at a single trial and should not be leftover (unless the trial judge determines it is appropriate to do so) until certain findings of fact have been made. The trial court should therefore have before it all relevant evidence that can realistically be produced to determine all issues in the case. An approach that leads to more than one hearing should generally be avoided and does not lead to efficiency.
40. In relation to schedules of loss, I have therefore concluded that the plaintiff must set out what damages are sought as a lump sum and what damages should be provided for by periodical payment. This is to occur at the same time as and as part of filing his schedule of loss.
41. When filing his schedule of loss the plaintiff must also file any expert evidence the plaintiff wishes to rely on to justify the schedule of loss. Whether the plaintiff does so is a matter for the plaintiff and his advisers. That may be from an independent financial adviser or an accountant. To the extent that the plaintiff wishes to argue for a different inflation index than RPI, this should also be made clear. If the plaintiff does wish to pursue such an argument, then appropriate actuarial expert evidence should be filed. Permission for such evidence is given accordingly.
42. In response, the defendant should file a counter-schedule, but it is not necessary for the reasons set out in Tameside at paragraphs 111 and 112 for evidence to be filed in from an expert IFA. Rather the defendant should simply make observations in its own counter-schedule of loss if it wishes to do so on any split between a lump sum and a periodic payment. The position is however different in respect of arguments about applying a different interest rate where I consider the defendant, if such a point is raised by the plaintiff, is entitled to file actuarial evidence in response if it wishes to do so.
43. In this case therefore there is a complexity to what is required because the plaintiff needs to be clear in his schedule of loss about what damages are sought as a lump sum and what is asked for by way of a periodical payment with the expert evidence I have permitted. The defendant is required to file a schedule of loss in response and permitted to adduce expert actuarial evidence should an indexation argument arise. This is a development of the approach taken last September because a periodic payment is now asked for. It therefore affects the overall timetable required to prepare this case for a trial.
44. As is well known, the courts have always encouraged parties to try to settle cases in particular in personal injury cases where liability is admitted or resolved. While this case is complex, it is ultimately a case about damages based on the future care needs of the plaintiff. Having a trial is therefore a last resort and should only arise where there are significant differences between experts which can only be resolved by a court rather than compromise. I therefore encourage the parties to reflect on the likely costs of a trial and preparation for a trial compared to points of difference between experts. I therefore agree with Advocate Thomas that it is appropriate in setting a timetable, if possible, to have a window for the parties to pause and explore settlement before they commit to a final trial.
45. It is also appropriate to recognise that between the provision of evidence and schedules of loss and damage, a period of time is required for parties to prepare for trial. Counsel need to prepare for cross-examination, factual and expert witnesses. The preparation for a four week trial, even once evidence is produced, will take as long if not longer than the period set down for trial itself. This preparation includes finalising skeleton arguments. There are also the practical steps of preparing trial bundles (whether in manual or electronic form) which contain evidence and relevant authorities. A lack of time to prepare means that the trial itself runs less smoothly, and there are unnecessary delays or even adjournments.
46. Having evaluated what steps need to be taken in relation to the case management and getting this case ready for trial, I have reached the conclusion that there are too many steps that need to be taken between now and September to enable a trial to take place. The timetable suggested by the defendant ultimately is too tight, does not allow for schedules of loss and evidence in respect of periodical payments, or any period for ADR and leaves very little time for trial preparation. Apart from discovery, this is not the fault of any party. Even the problems with discovery do not affect the need for updated expert opinions because of the seizure and the need to investigate the same. This is a new significant event which when taken with the coronavirus pandemic, despite everyone's best efforts means regrettably there is not enough time for this case to be ready for trial by September.
47. I consider I would be setting the parties up to fail if I fixed a timetable to ensure that all the steps that need to be carried out are completed for a trial in September. In reaching this conclusion, I accept that the defendant wishes to bring this case to trial. I also accept there is a risk that an adjournment of the trial means that a further application for an interim payment may be made. That is generally a matter for another day. However, I agree with Advocate Ingram that, as the plaintiff is seeking a periodical payment, there needs to be careful analysis to ensure that the trial court's hands are not tied by ordering an interim payment which may be more than the periodical payments sought at trial. On any such application I would want to be specifically addressed on this issue both as a matter of law and to understand what periodical payments are sought in order to evaluate any interim payment application that is made.
48. The other point I wish to mention at this stage was the debate that was explored during argument about the extent to which I should take into account the risk of trial dates being adjourned in any event, because of pressures on the court due to the coronavirus pandemic and a possible need for matters which have to take priority causing an adjournment. In reaching my conclusion, I have ultimately decided this is not a relevant factor to be taken into account. I have therefore decided to adjourn the trial dates and reissue fresh directions only for the reasons set out in this judgment, because I am not satisfied that this case will be ready for trial.
49. In terms of the future directions, when this judgment is handed down I will want to be addressed on finalising a detailed timetable but to assist counsel I suggest the following:-
(i) The plaintiff's discovery obligations must be completed by 29th May 2020, such order to be a final order;
(ii) The plaintiff shall provide all updated experts reports by 19th June 2020;
(iii) The defendant may provide any updated experts reports in response by 17th July 2020;
(iv) Witness statements of facts are to be provided by 14th August 2020;
(v) Meetings of experts shall take place by 11th September 2020;
(vi) The plaintiff shall provide a schedule of loss by 9th October 2020, with any expert evidence from an IFA and any actuary it wishes to rely on;
(vii) The schedule of loss must identify what is sought by way of lump sum and what is sought by way of periodic payment
(viii) The defendant shall provide its counter-schedule of loss by 30th October 2020, with any expert evidence from an actuary it wishes to rely on should an indexation argument be raised by the plaintiff.
(ix) The action will then be stayed until mid-December 2020;
(x) Trial dates may be fixed within 14 days of this judgment being handed down with a time estimate of 4 weeks to commence on the first available date after 1st February 2021.
