X and Z v Health and Social Service Committee [2007] JRC 088 (25 April 2007)

judgment the bailiff: 1. Argument was heard in private, but it seems to me that my decision, and the reasons for it, should be delivered in public, the names of the parties having been excised. I am asked to decide a short point in relation to the reasonableness of the first and second plaintiffs being separately represented. Mr Benest, who appeared for the defendants, contended that the answer is that the plaintiffs should not have been separately represented because separate representation was neither necessary nor reasonable. He had drawn this view to the attention of the first plaintiff's legal advisers by letter of 31 st August 2005 when he stated - "I make one observation whilst writing. You will note paragraph 2 of the Answer. It is clear on the face of the pleadings that there is no conflict as concerns liability and quantum between the two Plaintiffs to the action. Whilst there may be an issue between the Plaintiffs on the question of the apportionment of any damages which might be recovered that is not something which necessitates separate representation at this stage. We give notice, therefore, that whatever the outcome of these proceedings, and we contend that the Defendants will not be found liable in any event, the Defendants will argue on costs that only those costs incurred in instructing one law firm for both Defendants shall be recoverable. This is something no doubt you will wish to consider with those acting for the Second Plaintiff for whom it seems to the Defendants you might usefully act also at this stage".

2. By letter of 1 st November 2005, the legal advisers to the second plaintiff responded to state - "Given the common interest between the plaintiffs and with a view to the cost considerations, it is proposed that Voisin & Co. take a "back seat" in the litigation until such time as there is a divergence (which may not arise) between the plaintiffs' claims." 3. Alternatively, Mr Benest contended that this question could be decided by the taxing officer pursuant to the power conferred by Rule 12/3 which is in the following terms - "(1) The Greffier shall have the power to tax - (a) the costs of or arising out of any cause or matter in the Court; and (b) any other costs the taxation of which is directed by order of the Court." Counsel submitted that the reasonableness of the fees incurred by the guardian ad litem of the second plaintiff could be assessed by the Judicial Greffier.

4. Counsel for the defendants is of course right that there is a general duty, both upon the parties and their legal advisers, to conduct proceedings and to bring them to trial at a level of cost which is reasonable and commensurate with the issues in dispute.

5. My conclusions on the matter are these. First, it seems to me that it would be helpful to the taxing officer if I were to decide this question of principle, namely whether it was reasonable for the plaintiffs to be separately represented.

6. Secondly, I turn to that question. The background to this tragic case can be shortly stated. The plaintiffs are the widow and child respectively of the deceased who died on 26 th September 2002 aged 29. At the time of his death, his wife was pregnant with their first child, the second plaintiff, who was born on 29 th December 2002. The deceased suffered from a rare form of tumour and the plaintiffs claimed that his death was avoidable and due to the negligence of some of those who treated him. Liability was not admitted. The Court has now approved the terms of settlement of the claim.

7. After the death of the deceased, and one month after the birth of her child, the first plaintiff consulted Messrs. Bedell Cristin. She was understandably in a state of great stress and distress. Mrs. Springate told the Court that although the first plaintiff has turned out to be a loving and caring mother, her legal advisers did not know that at the time. They were concerned about wearing two hats, i.e. they were concerned about representing both the mother and her newly born child. They consulted the Legal Aid office and it was agreed that a second Legal Aid certificate should be issued so that the child could be separately represented. An application was made by the second plaintiff through her mother and next friend, on legal advice clearly, for the appointment of a guardian ad litem . On 6 th December 2004, Mr Kendall was duly appointed.

8. The key question is whether there was at that stage any conflict between the interests of the first plaintiff and the second plaintiff. Mr Benest for the defendants submits that there was no conflict. It was known that action would have to be taken against the defendants who had denied liability. That action was to be brought for the benefit of the estate of the deceased under the provisions of the Customary Law Amendment (Jersey) Law 1948 and the Law Reform (Miscellaneous Provisions)(Jersey) Law 1960 , as amended, and for the benefit of the first and second plaintiffs, as dependants of the deceased under the Fatal Accidents (Jersey) Law 1962 , as amended. Counsel for the defendants contended that, although a conflict might have arisen at a later stage when questions of apportionment of damages as between the two heads of claim were being considered, there was at the outset no possibility of conflict.

9. Counsel for the first plaintiff asked rhetorically what would have happened if the guardian ad litem had not been separately represented, but had been dissatisfied with the settlement negotiated by the first plaintiff. Counsel for the defendants regarded that rhetorical question as being akin to a self-fulfilling prophecy. I incline to agree. If a professional guardian ad litem is appointed to represent the interests of a child in the context of an action for damages of this kind, he is bound to involve himself in the conduct of the action to a certain extent so as to ensure that the interests of his ward are being adequately protected. Suppose however that there had been five minor children; should each have had his or her own separate guardian ad litem ? Expressed hypothetically in that way, it would in principle plainly be a nonsense for each to have his or her own legal adviser. With the benefit of hindsight, it is possible to see that it was a mistake for Mr Kendall to have been appointed as guardian ad litem of the second plaintiff. The proper person to be appointed was the child's mother, the first plaintiff. No question of conflict could therefore have arisen. The mother's twin duties would have been to the estate and to the dependant's of the deceased. Until damages had been awarded or agreed, there was no possibility of conflict between those duties. In truth, there would have been a single duty, namely a duty to procure the best possible award from the Court or to negotiate the best possible settlement with the defendants.

10. However, it remains the case that the Court did appoint Mr Kendall as guardian ad litem and accordingly placed him under a duty to protect the interests of the second plaintiff. It seems to me that it would be wrong, therefore, to order that the second plaintiff is disentitled to recover any costs of legal representation prior to the conclusion of the settlement. Having been put on notice by the letter of 31 st August 2005 that the defendants saw no conflict between the positions of the plaintiffs, the second plaintiff thereafter fell under a duty to mitigate his costs so far as possible. Indeed, Messrs Voisin & Co acknowledged that they could take a "back seat" until such time as there was a divergence between the interests of the two plaintiffs. In my judgment the proper order is one which delegates to the Judicial Greffier the duty to disallow any costs incurred by the second plaintiff other than those involved in keeping himself informed of the progress of the claim so as to satisfy himself that the interests of the child were being properly protected.

11. I am prepared to hear argument if necessary, but my inclination is that the justice of the matter would be met if I were to make no order in relation to the costs incurred in the argument of this issue. Subject to any counsel giving notice within 10 days of handing down this judgment that he or she wishes to argue the matter, that will be my decision. Authorities Royal Court Rules 2004. Customary Law Amendment (Jersey) Law 1948. Law Reform (Miscellaneous Provisions) (Jersey) Law 1960. Fatal Accidents (Jersey) Law 1962. Page Last Updated: 27 Mar 2017 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII