Guernsey Legal Resources

This is an application by the plaintiff for an order directing the parties to provide a joint report on the plaintiff’s current state of health and future prospects from a consultant urologist and a consultant pain management specialist. This relief was sought by the plaintiff in para. 2 of her application dated November 5th, 2004.

2 The background to the application is as follows. The action is a personal injuries claim by the plaintiff against the defendant, an orthopaedic surgeon, arising out of an operation performed by the defendant upon the plaintiff on or about October 20th, 1999. The operation was, it seems, intended to expose and excise the L4/5 disc in the plaintiff’s spine but, in apparent error (which is admitted for the purposes of the action) the defendant exposed and operated on the L3/4 inter-vertebral disc in the plaintiff’s spine, and not the L4/5 disc.

3 The plaintiff claims substantial damages from the defendant, and the trial of the issue of damages (which will involve oral evidence from the plaintiff and from expert medical witnesses called on both sides) will take place over a period of two weeks commencing on May 23rd, 2005. I have been appointed by the Bailiff to be the presiding judge and I shall be sitting with Jurats.

4 By letter from the defendant’s advocate, Advocate Jeremy Wessels, to the plaintiff’s advocate, Advocate John Greenfield, dated October 25th, 2002, Mr. Wessels confirmed that “liability is no longer in dispute although my client continues to reserve his position on causation and of course on quantum.” This position is subject to a partial admission made in an expert’s report served on behalf of the defendant on part of the causation issues. The position is not entirely clear and I shall assume for present purposes that issues of both causation and quantum will arise at the full hearing on damages.

5 In correspondence passing between the advocates, attempts have been made to agree a procedure under which joint experts can be appointed, but these attempts have not succeeded. Nevertheless, it seems from Advocate

7 The 1989 Rules were made pursuant to an express power contained in s.64(1) of the Reform (Guernsey) Law 1948, which declared that the—

“powers and functions of a legislative nature as regards the following matters, namely:—

 . . .

(b)    The making, variation, modification and revocation of Rules of Procedure in the Royal Court and any Division thereof . . .”

remained vested in the Royal Court.

8 When this power was exercised by the full Royal Court in making the 1989 Rules, no specific provision was made for the making of an order for the service of an expert’s report from an expert witness jointly appointed by the parties; a fortiori, there was no power granted to the Royal Court in the 1989 Rules under which the court itself was empowered, in a suitable case, to make an order, of its own motion, for such a report to be provided.

“The Court may by order give directions as to the hearing of any action or any question raised by the pleadings . . . and may (without prejudice to the generality of the foregoing)—

. . .

(b)    order that not more than a specified number of expert witnesses may be called

. . .

(d)    order the manner in which such evidence is to be taken.”

10 In reaching my decision, I have reminded myself of some well-established parts of the procedure of the Royal Court in civil proceedings. Under established Guernsey practice, unless the evidence of experts is wholly or partly agreed between the parties (in which case the parties will agree suitable admissions to put before the court), the experts attend court to give oral evidence. The court, including the Jurats (who will, in due

11 What is clear, I believe, is that the powers of the court to require any particular witness to attend court to give evidence are limited. Rule 49 deals with witness summonses and provides machinery for the attendance of witnesses summonsed to attend the court but generally the parties’ advocates will arrange for witnesses to attend court. It is, I think, accepted practice now that, whereas lay witnesses all attend at the beginning of the trial to be sworn, exceptions are made for expert witnesses, doubtless for good reasons of cost-saving. Furthermore, it seems to me that, unless the parties agree otherwise, witnesses for one side cannot be interposed into the other side’s case, as would often be the case in other jurisdictions where a single judge decides issues of fact. The court does not interfere in the way in which either side might wish to call witnesses and does not “require” any party to call, or not to call, any witness, whether a lay witness or an expert witness. This does not, however, in any way limit the judge’s powers to exclude any inadmissible evidence, whether such evidence is excluded for being irrelevant or for any other proper reason.

12 The Civil Procedure Rules 1998 introduced into English procedure a new rule, r.35.7, under which the courts in England and Wales may, in appropriate cases, make orders for reports to be presented to the court by experts jointly appointed by at least two of the parties. It is clear that this rule introduced a brand-new procedure, which the English courts simply did not possess before the CPR came into force. In other words, the English courts could not order parties jointly to appoint expert witnesses until r.35.7 came into force on April 26th, 1999.

13 The Royal Court does not have any rules relating to civil proceedings other than the 1989 Rules (and any amendments thereto that may from time to time be passed). The question, therefore, arises whether I have any jurisdiction to make an order for the service of joint experts’ reports. This question must, in my judgment, be dealt with by me, even though both advocates argue that there is power in the Royal Court to make such an order—see Advocate Greenfield’s further submissions dated December 13th, 2004 and Advocate Wessels’ written submissions, also dated December 13th, 2004.

14 It is correct to state that the Royal Court is “master of its own procedure” and it seems that both parties’ advocates argue that, despite the absence of a specific rule to this effect in the 1989 Rules, a judge of the Royal Court has the power, or the jurisdiction, to make an order of the kind set out in para. 2 of the plaintiff’s application dated November 5th, 2004, if it is just and fair to do so. Where they differ is on the exercise, rather than the existence, of the jurisdiction.

15 In the well-known decision of the Court of Appeal of Guernsey in Cherub Invs. Ltd. v. Channel Islands Aero Club (Guernsey) Ltd. (1), the issue related to whether or not a party had the right to make an amendment of pleadings by entering an exception de fonds on the day fixed for trial. The Court of Appeal found that there was such a right and made other findings which are not material to this case. The President, Hoffmann, J.A., said:

“It seems to me that the correct approach to this matter is to bear in mind that the Ordinance of 1851 was part of a set of general rules made by the court to regulate its procedure but that the court remains master of its own procedure and can allow a departure from those rules when justice requires this to be done . . .” [Emphasis supplied.]

16 In Laughton v. Jackie Main (3), Day, Deputy Bailiff, sitting in this court on appeal from the Court of Alderney, gave judgment on the question whether, in the absence of express rules of procedure, the Court of Alderney had an inherent power to order interrogatories and to require a defendant to answer a notice to admit facts. The Deputy Bailiff found that the absence of any specific rule relating to interrogatories or notices to admit was not fatal to the application for such procedural steps to be allowed. He said:

“. . . [T]he central question is whether the court, in the absence of any specifically enacted rule, can in any particular case order certain procedures to be followed, so that, in effect, it can make and apply rules during the course of litigation . . .”

He found that the Court of Alderney had unlimited jurisdiction in civil matters and that it had the power to permit the raising of interrogatories and service of notices to admit facts in proper cases.

17 Finally, I refer to the decision of the Court of Appeal of Guernsey in Morton v. Paint (5), where the Court of Appeal found that the Royal Court had the power, as it were, to develop the common law of Guernsey in advance of any statutory provision being passed by the States of Guernsey and introduced into Guernsey law. The issue in the case related to the “ambulatory” nature of the evolution of the common law and the Court of Appeal, in effect, decided to (21 GLJ 61, at para. 14) “bring the law of Guernsey into line with the statutory rule in England” relating to issues of occupiers’ liability “and not to allow a parting of the ways for the two jurisdictions . . .” The

18 Advocate Greenfield addressed me, in relation to the plaintiff’s application for an interim payment, on differences between the practice and procedure of the Royal Court of Guernsey and the Supreme Court in England and Wales (see 2005–06 GLR 1, at para. 15). He argued (a) that the decision in Morton v. Paint was broad in principle; (b) that historically the Royal Court had recognized that neither it, nor its rule-making body, namely, the full Royal Court, meet as often as their counterparts in England; and (c) that the Royal Court had a more direct and “total” involvement in the making of its own rules than the Supreme Court Rules Committee. He therefore contended that the Royal Court had a broad jurisdiction to make an interim payment order in an appropriate case without any need for specific rule-making or the passing of a law introducing an interim payment procedure. Equally, he would, I expect, argue that the same approach should be taken in relation to reports from jointly-appointed experts, and further argue that the position was somewhat stronger in relation to such reports, since, in r.43, the 1989 Rules allow for the service of experts’ reports and the practice of the Royal Court in civil proceedings in personal injury actions is that the giving of directions for such expert evidence is almost universal.

19 What I have to decide, in the absence of a specific law or of an express provision in the 1989 Rules to that effect, is whether there is an inherent power vested in me, as a judge of the Royal Court, to make an order for the service of joint reports from joint experts appointed by the parties in these proceedings, ignoring for present purposes the merits of the plaintiff’s case.

[20 The learned Lieutenant Bailiff then quoted again the persuasive passages from the judgment of Smith, J.A. in the Jersey Court of Appeal in Mayo Assocs. S.A. v. Cantrade Private Bank Switzerland (C.I.) Ltd. (4) and from the speech of Lord Morris of Borth-y-Gest in Connelly v. D.P.P. (2), on which he had relied in his earlier ruling in the present case (see 2005–06 GLR 1, at paras. 17–18 and para. 30). These passages explained the court’s inherent jurisdiction, born of necessity, as one to regulate its own procedure (and not to make changes to the substantive law), not simply because fairness or justice required it in an individual case but because it was necessary to allow it to function properly as a court. Once the court was satisfied that it had inherent jurisdiction on which it could draw to allow the use of a particular procedure, fairness and justice would then be major factors to be taken into account in deciding whether or not to exercise its discretion to do so. The learned Lieutenant Bailiff continued:]

21 As I have already mentioned, it was necessary in England and Wales to introduce a new procedural code, the Civil Procedure Rules, in order to provide a power under which the courts can make orders for joint experts. This new power was one of the most controversial changes made to civil procedure in the CPR and it is quite clear that no inherent jurisdiction existed in England and Wales prior to the coming into force of the CPR under which a master or judge could make an order, whether with the consent of the parties or of his own motion, for the service of a report from an expert witness jointly appointed by the parties.

22 I am convinced that the position in Guernsey, both before and after the coming into force of the CPR in England and Wales on April 26th, 1999, has remained the same. Further, I consider that, if the Royal Court were otherwise minded to require parties to give expert evidence by way of reports from jointly-appointed experts, it should refuse to accept that it has inherent jurisdiction to do so, since it should not, in my judgment, take any steps which could properly be interpreted as affecting, by procedural means, the substantive rights of the parties, namely, their separate rights to call, or not to call, any particular witnesses, whether lay witnesses or expert witnesses.

23 In my judgment, it is a substantive right of a party to civil proceedings before the Royal Court, absent any law or rules or ordinance requiring him to act otherwise, to decide his own strategy, including the most important issue of whether or not to call particular witnesses. This is, to my mind, entirely consistent with the absence of any rule within the 1989 Rules permitting the Royal Court to order the parties to give expert evidence by reports from jointly-appointed experts. As was the case in England and Wales, I am convinced that an express law, rule or ordinance would be required to change or remove this valuable, substantive right.

24 I therefore conclude that there is no jurisdiction in the Royal Court to make an order, either with or without the consent of the parties, for the service of a report from a jointly-appointed expert witness. Accordingly, I reject the plaintiff’s application for such a report, or for two such reports, to be ordered.

25 In their written submissions, both advocates have also helpfully addressed the question whether or not, if I were to refuse to order a report from a jointly-appointed expert witness, I should, nevertheless, vary the order for directions dated July 30th, 2004, which was made by consent. Under this order, the plaintiff was required to lodge her expert reports by September 3rd, 2004 and the defendant was required to lodge his expert reports by February 11th, 2005.

26 It appears that the plaintiff lodged her experts’ reports on about September 6th, 2004, including a report from Mr. B.P. Gardner, a

27 In para. 25 of her affidavit dated November 29th, 2004, the plaintiff dealt shortly with her position relating to the proposed further reports.

28 Although the application is made rather late in the day, I have reached the conclusion that I should make an order varying the consent order dated July 30th, 2004. I cannot escape the conclusion that it would seem unfair to the plaintiff if I were to refuse to do so. In all the circumstances, I consider that it is just and fair that I should vary that order in the following way, taking into account, as I have done, the need to preserve the trial date of May 23rd–June 3rd, 2005 and the need to allow the experts time to form their professional opinions and thereafter to discuss any differences between them (on a “without prejudice” basis) so as to limit, so far as may be possible, outstanding issues between them:

    (1) The plaintiff should, if so advised, lodge reports from (i) an expert in the management of pain, and (ii) and an expert in urology by Tuesday, February 1st, 2005.

    (2) The defendant should, if so advised, lodge reports from (i) an expert in the management of pain, and (ii) and an expert in urology by Tuesday, March 8th, 2005.

    (3) “Without prejudice” meetings, or “without prejudice” telephone conversations, between such experts should take place, in the absence of the parties’ lawyers, by Tuesday, April 5th, 2005, so as to identify (i) the extent of the agreement between the experts, and (ii) the points of disagreement between the experts.

    (4) A statement should be prepared for the court by the experts showing (i) the extent of the agreement between the experts, and (ii) the points of disagreement between the experts.

    (5) A draft duly indexed and paginated trial bundle (excluding reports from expert witnesses) should be agreed between the advocates for the parties by Tuesday, May 3rd, 2005.