Goncalves v D. B. Cummins (Jersey) Limited [2019] JRC 227 (26 November 2019)

judgment the master: 1. This judgment represents my written reasons in respect of costs orders I made in relation granting extensions of time for the filing of witness statements and expert evidence.

2. The plaintiff's claim is for damages arising out of an accident at work leading to a significant eye injury. Liability is disputed by the defendant who also puts the plaintiff to proof of the damages claimed. The detailed reasons why liability is disputed are not material to this judgment.

3. On 25 th June, 2019, I approved directions agreed by consent. The material directions were for exchange of witness statements by 30 th August, 2019, and exchange of expert evidence by 31 st October, 2019, in the fields of health and safety and ophthalmology.

4. In relation to witness statements the deadline for exchange was extended by the parties by one week to 6 th September, 2019. On that date the plaintiff's advocate chased for exchange but received no response. Accordingly, he chased further on 10 th September, 2019, which received a holding response. The plaintiff's advocate chased again on 11 th September, 2019, threatening to refer the matter back to me if no response was received. On 13 th September, 2019, the plaintiff's advocate notified the defendant's advocate of a date fix to take place on 19 th September, 2019, at 9:00 a.m.

5. Ultimately, apart from one witness statement, exchange of witness statements took place before the date fix appointment. Exchange of the final statement relied upon was provided by the defendant on 1 st October, 2019.

6. All the witnesses relied upon by the defendant were employees.

7. An issue then arose in relation to expert evidence leading to the defendant issuing a summons on 7 th October, 2019, seeking an extension of time for the filing of expert evidence. The particular difficulty concerned the provision of evidence from an ophthalmologist who could not see the plaintiff and produce a report until after the deadline for the provision of expert evidence had expired.

8. In relation to both extensions of time for the provision of witness statements of fact out of time and an extension of time for the filing of expert evidence, I granted these requests. This was because although my previous orders had or were not going to be met, it would have been a disproportionate sanction to have prevented the evidence being adduced. The delay was also relatively short and trial dates were not prejudiced. For the sake of completeness, the order made in relation to the defendant providing an expert opinion from an ophthalmologist was a final order.

9. The real issue before me therefore concerned what costs orders should follow from witness statements of fact having been filed out of time and the extension of time required for exchange of experts reports.

10. In relation to the costs incurred in relation to the filing of witness statements out of time, I applied the approach set out in Newman v de Lima and Anor [2018] JRC 155 . That case concerned a failure to provide expert evidence in accordance with the timeframe which I explored at paragraphs 41 to 49.

11. This led me on the facts of that case to order the second defendant to pay the plaintiff's costs on an indemnity basis for the following reasons set out at paragraph 63:- "(i) No application was made before expiry of the relevant time limit for an extension of time; (ii) No application was made for relief from sanction; (iii) There was no response to entirely appropriate communications from the plaintiff asking when compliance would take place; and (iv) The second defendant's explanation was only filed on the morning of the hearing and following a communication from me." 12. In relation to the present case, the same failings have occurred:- (i) The defendant did not either seek further extension from the plaintiff or from the court before expiry of the time limit to exchange witness statements; (ii) Nor did the defendant apply for relief from sanction; (iii) There was no response to the plaintiff's emails of 6 th and 10 th September, 2019, asking when compliance would take place other than one holding response; (iv) The only explanation I received was during the hearing itself when I was informed that some of the witnesses were in the United Kingdom and could not be contacted. This was some two months after the event and given that the witnesses were all employees of the defendant was not persuasive.

13. I therefore concluded that the plaintiff should recover its costs in dealing with the late filing of witness statements. Although the plaintiff asked for these on the indemnity basis, witness statements were ultimately provided shortly after notification of the court application was issued save in respect of one employee. While the defendant was therefore in breach, the conduct was not as serious as that complained of in Newman v De Lima and accordingly I ordered payment on the standard basis only as I was not satisfied that the case was one which justified indemnity costs.

14. In relation to the extension of time required for expert evidence, the application was made before expiry of the relevant time limit and therefore relief from sanction was sought. An explanation was also provided as to why more time was required and this took place in advance of the hearing.

15. Why the extension was required ultimately however was because the defendant did not start making enquiries about the availability of an expert until some 6 or 7 weeks after the order setting the timetable for exchange of expert evidence. This was too late. It is at times difficult to find medical expert evidence. Sadly it is also all too common that directions set have to be varied because an expert witness is simply not available. These are well known problems. The defendant's advocates who are experienced personal injury lawyers are aware of these difficulties and therefore in this case should have made enquiries much earlier. Paragraph 15 of Practice Direction RC17/05 states:- "15. Following directions being given, all parties must take all necessary steps to ensure as far as possible that they will be able to adhere to any timetable set." 16. The fact that discovery had not been completed and the expert could not form a definitive view until he had the medical records is not an excuse or justification for not starting a process to find an appropriate expert and to make appropriate appointments.

17. It is right however to also record that the plaintiff's response to the request for an extension of time, although understandable, was not justified. The plaintiff indicated, through his adviser, that he would agree to an extension of time if an interim payment was made. This was because of the plaintiff's financial needs. However, the flaw with this approach was that a ground for an interim payment did not exist because liability was very much in dispute.

18. The conclusion I reached in respect of this part of the hearing was that the appropriate order was plaintiff's costs in the cause, namely the defendant would therefore bear its own costs for the extension of time, but the plaintiff would only recover his costs if he were successful at trial.

19. Finally, because I reached different conclusions in respect of the two issues before me, the order I made was that the plaintiff would recover 50% of his costs on the standard basis with the balance being plaintiff's costs in the cause. I took the view that approximately half the time had been spent dealing with witness statements and half dealing with expert evidence and so this was an appropriate apportionment. Authorities Newman v de Lima and Anor [2018] JRC 155 Practice Direction RC17/05 Page Last Updated: 03 Dec 2019 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII