Guernsey Law Reports 2005-06 GLR Note 10
HENNIGER v. ROBINSON
ROYAL COURT (Talbot, Lieut. Bailiff): October 14th, 2005
Civil Procedure—péremption—restoration to roll
The deceased by will bequeathed a substantial sum of money and a lifetime lease on his home to the defendant, his housekeeper, the residue to be shared equally between his two daughters, of whom one was the plaintiff. The plaintiff brought an action to set aside the will on the ground of the testator’s alleged lack of capacity or on the ground of undue influence exercised on him by the defendant. Although the action was started in good time and there was correspondence between the parties’ advocates, no inter partes steps were taken for over two years, and the defendant, who was suffering from ill health and stress, partly as a result of the proceedings, therefore applied for a declaration that the action had become périmé and to have the proceedings struck out for want of prosecution and as an abuse of process. Consequently, the plaintiff, who was privately funded, applied under r.50(b) of the Royal Court Civil Rules 1989 to restore the action to the roll, arguing that, by applying for legal aid, renewing cautions every six months in the Ecclesiastical Court and her advocate’s signing a consent order for a date and directions for trial, the defendant had tacitly renounced her right to rely upon péremption. The defendant argued that she had not renounced this right and that the action should not be restored, since doing so would cause her to lose her legacy and her home.
Held: (1) The application would not be restored to the roll. The burden was on the applicant to show that it would be just for the court to exercise its discretion—which was unfettered by the terms of r.50, save that it had to be exercised judicially—to restore it. Taking into account that the applicant was privately funded and the lack of inter partes steps in the proceedings over a considerable period, and the severe impact that restoring the action would have on the defendant, the court would exercise its discretion to deny the application.
(2) The plaintiff had failed to show that the defendant had tacitly renounced the right to rely upon péremption. The correspondence between the advocates, the renewal of cautions in the Ecclesiastical Court and the signing of the consent order for a trial date and directions did not amount to the clear evidence required to argue this point successfully.
(3) Guernsey courts were not simply to adopt the principles applied in English cases in relation to the automatic striking-out of county court actions, since certain circumstances in Guernsey were peculiar to the jurisdiction, e.g. the lack of a publicly-funded legal aid scheme and the reliance on, and burdens assumed by, advocates working pro bono publico. Guernsey authority on péremption laid down that the courts were bound to take into account all the circumstances, including the positions of the parties, how they would be affected if the action were restored, the history of the action and the (in)activity of either party leading to it becoming périmé, any other special circumstances and conduct of the parties, e.g. settlement discussions or an agreement not to further the steps in the action, and the general circumstances relating to the relevant class of litigation, such as difficulties in securing legal representation for an impecunious plaintiff or obtaining medical reports for plaintiffs suing for personal injuries (Haines v. Annandale Tile Co. (1980) Ltd. (1997), 24 GLJ 82, dicta of Southwell, J.A. applied). However, where only some of the Guernsey factors were present, the court was to tend towards the stricter view adopted in England (Rastin v. British Steel PLC, [1994] 1 W.L.R. 732, applied), namely, that a plaintiff wishing to reinstate an action that had been struck out for failure to request a hearing date in time had to show that this failure was excusable, and that, in all other respects, he had prosecuted his case expeditiously, before the court would take into account the interests of justice and matters of hardship more generally.
2009
Law Report
None
Guernsey Law Reports 2005-06 GLR Note 10