![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
Jersey Unreported Judgments |
||
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Dentskevich v Strachan (Royal Court : Hearing (Civil)) [2025] JRC 053 (25 February 2025) URL: https://www.bailii.org/je/cases/UR/2025/2025_053.html Cite as: [2025] JRC 053, [2025] JRC 53 |
[New search] [Help]
Application for a split trial and a variation of directions
Before : |
Advocate David Michael Cadin, Master of the Royal Court |
Between |
Frederick Dentskevich |
Plaintiff |
And |
Julia Strachan |
Defendant |
Advocate S. C. Thomas for the Plaintiff.
Advocate D. A. Corbel for the Defendant.
judgment
the MASTER:
1. This is my judgment in relation to an application by the Plaintiff for a split trial and for a variation of the directions previously given for an exchange of witness statements.
2. The Plaintiff, Mr Dentskevich, is now aged 18 years. On 26 March 2020, when he was aged 14 years, he was riding his bicycle and was involved in a road traffic accident with a vehicle driven by the Defendant, Ms Strachan.
3. He alleges that the accident was caused by her negligence and that as a result, he sustained serious injuries. She denies this and alleges that he caused the accident by cycling into the path of her vehicle and further, that the Plaintiff caused or contributed to his injuries by, amongst other things, failing to wear a cycle helmet.
4. Criminal proceedings were instituted against Ms Strachan before the Magistrate's Court for an offence of causing serious injury by careless driving contrary to Article 26A of the Road Traffic (Jersey) Law 1956. In May 2023, the Crown offered no evidence and the charge was dismissed.
5. An Order of Justice was issued in April 2024, and an Answer was filed in May 2024. In accordance with my usual practice, I listed the case for directions on 16 August 2024 as the parties had not themselves fixed a date for a directions hearing under Royal Court Rules 2004 ("RCR") 6/26(1).
6. At that hearing, the Plaintiff's then-advocate mooted the possibility of a split trial, in part on the basis of the apparent complexity inherent in assessing quantum and in part, on the basis of the Plaintiff's needs, and specifically, his need not to be overwhelmed with medical appointments whilst recovering from a head injury and trying to progress his education. From the submissions made, it was evident that the Plaintiff's parents felt very strongly that his education should not be disrupted by attending unnecessary medical appointments and were very much in favour of a split trial. The application was resisted by the Defendant.
7. The Court was therefore faced with the challenging position of a contested application, made without a summons or evidence in support, for a young and vulnerable plaintiff, who had been injured 4 years before, and who had just instituted proceedings. In the absence of any application, I declined to order a split trial and gave directions in relation to discovery and the exchange of witness statements. I also gave permission for the parties to rely upon expert evidence from an orthopaedic surgeon, a dental surgeon, a neurologist and a psychiatrist and in terms of the arrangements for the appointments for those experts, I directed that:
"5. pursuant to the Overriding Objective set out in RCR 1/6 and in particular paragraphs (2)(a) and (d), (4), and (6)(a), (g), (j) and (I) the parties shall use their best endeavours to work together and to cooperate to ensure that -
a. medical reports in each of the above disciplines are obtained and disclosed sequentially by firstly the Plaintiff, and secondly the Defendant;
b. all such medical reports have been obtained and disclosed to the other party by Friday, 29 August 2025;
c. in obtaining the said reports, the parties take into account both the Plaintiff's needs and the requirement for each of the parties to be placed on an equal footing in relation to these proceedings "
8. The intention behind the order was to give the parties utmost flexibility to obtain the requisite medical evidence within a proportionate period and in a structured manner, whilst respecting the needs of the Plaintiff. The cooperation between the parties that was both anticipated by the Court, and required under the terms of my Order, did not occur:
(i) in September 2024, the Plaintiff changed legal representation in Jersey to Advocate Thomas assisted by a Mr Rigby of Stewarts Law in England;
(ii) on 9 October 2024, the Defendant's English solicitor, Mr Mitchell of DAC Beachcroft chased Mr Rigby for confirmation of the then-scheduled medical appointments which had been fixed by the Defendant with regard to the Plaintiff's school timetable; no response was received;
(iii) on 23 October 2024, Mr Mitchell chased Mr Rigby again only to be informed that he was on leave and would get back to him; nothing further was heard;
(iv) on 11 December 2024, the Defendant chased Mr Rigby again in relation to possible medical appointments, the previous ones having been vacated; Mr Rigby replied to this communication saying that he was going to be seeking a split trial and noting that if one was agreed or ordered it may also "affect the timing of medical and non-medical expert assessments";
(v) on 13 December 2024, the Defendant's English solicitor replied stating that:
"I note that your client maintains his desire for a split trial. If it was never your client's intention to engage with the existing directions (re attending appointments), for that reason, then that ought to have been made clear. The issue of a split trial has of course already been decided by the Master and directions handed down - with which we must comply, until alternative directions are in place."
(vi) on 27 January 2025, the Defendant proposed further dates to Mr Rigby for the Plaintiff to be medically examined; no response was received;
(vii) the Defendant chased Mr Rigby again on 31 January 2025 noting that they were at risk of losing the appointments and on 3 February 2025, Mr Rigby responded stating that the Plaintiff would be unable to attend the appointments and offered to attend in July 2025. When the Defendant, unsurprisingly, objected given that it would mean the first appointment was 11 months after the date of the Order, Mr Rigby replied stating that his client was unavailable as he was going to a concert and noting that:
"It is regrettable that my client was asked to explain his plans. I hope that doesn't have a negative impact upon him. In my experience that isn't customary, and I would like to remind you that my client is still very young and vulnerable, with significant ongoing difficulties. I would ask the defendant to be more mindful of that in the future."
9. As matters stand today, 6 months have elapsed since I gave directions and despite the endeavours of the Defendant's legal team, no medical appointments with the Defendant's experts have been accepted by the Plaintiff. Further, in answer to a question from the Court, the Plaintiff's Advocate was unable to say whether the Plaintiff's own experts had even examined him. Far from working within the parameters of my order to ensure that the Plaintiff was not overburdened with medical appointments at the expense of his schooling and/or his recovery, it appears that the Plaintiff's legal team have shoehorned all of the medical appointments into a period of 6 months, as opposed to the 12 months anticipated.
10. However, despite the Plaintiff not having been examined by any permitted experts, Mr Rigby did obtain a report on his capacity from Dr Koychev, a neuropsychiatrist. He was instructed on 11 November 2024, examined the Plaintiff and provided a draft report on 24 November 2024. That draft report concluded that:
" reasonable adjustments should be made to allow Mr Dentskevich in relation to his litigation activities - he should be given sufficient time to consider the relevant information. Also, allowances should be made for him to authorise trusted individuals to act on his behalf in dealing with the case On balance of probabilities and provided reasonable adjustments are made possible as above, Mr Dentskevich has mental capacity to conduct litigation."
11. On 12 December 2024, Mr Rigby wrote to Dr Koychev noting that the matter was currently proceeding on the basis of a single trial of all issues and stating that "[t]here is an alternative plan which Freddie's parents are keen on a split trial (dealing with liability issues only)" and asking for Dr Koychev's views on such a proposal. Dr Koychev then added the following at the end of the extract set out above (amendments underlined):
"In this context, Mr Dentskevich would benefit from the court timetable being organised in such a way that would allow him to deal with limited number of issues at a time. Therefore, I would be supportive of a split trial that deals with liability issues first before moving on to the value of the claim. This would allow the Claimant to manage his commitments outside of the work and would benefit the court process by allowing further opportunity for him to engage with rehabilitation which in turn would provide a more precise prognosis."
12. That amended report was disclosed to the Defendant on 17 December 2024. No mention was made of the fact that it had been amended, although Mr Rigby did draw attention to Dr Koychev's opinion about a split trial. In response, the Defendant asked Mr Rigby for sight of the letter of instruction. No response was received. On 9 January 2025, the Defendant chased again. On 26 January 2025, Mr Rigby responded stating that he would reply once he had heard back from Dr Koychev. When the Defendant's Advocate uploaded her skeleton argument on 12 February 2025 for this hearing, the letter of instruction to Dr Koychev had still not been provided, although I note that it is now included within the Court bundle.
13. Further, the psychologist treating Mr Dentskevich, Dr Kennedy-Williams, wrote a letter dated 3 February 2025 stating that "in my view, in this case a split trial would be beneficial for you". On 5 February 2025, Mr Rigby wrote to Dr Kennedy-Williams, providing him with a copy of Dr Koychev's report and asking for his views on a split trial. Mr Rigby chased for a response on 12 February 2025, and was informed by Dr Kennedy-Williams that he was waiting for "final approval of the letter" from the Plaintiff's mother and he would send it over, "hopefully within the hour pending her response". That report was first provided to the Defendant through the Court bundle. In response to the question from the Defendant's English solicitor as to how Dr Kennedy-Williams provided a report 2 days before he was instructed so to do, Mr Rigby simply stated that Dr Kennedy-Williams had dated his report incorrectly. No evidence has been provided as to the communications or correspondence between Dr Kennedy-Williams and the Plaintiff's mother.
14. Against that background, the Plaintiff issued a summons on 3 January 2025 seeking a split trial and a direction that witness statements as to liability be exchanged by 20 February 2025. No affidavit has been filed in support. Under the directions issued in August 2024, as subsequently varied by consent, witness statements on all matters were to be exchanged by 20 December 2024, and it follows that the summons was issued after the deadline had expired.
15. Before turning to the substance of the application, I think it important to note that active case management of proceedings under the Royal Court Rules has to be carried out in accordance with the Overriding Objective. It requires, amongst other things, for the parties to be "on an equal footing", for the case to be dealt with "expeditiously and fairly" and to enforce "compliance with rules, practice directions and orders".
16. Complex personal injury cases are, unfortunately, not unusual and in actively managing those cases the Court is used to working constructively with the parties, taking into account the challenges faced by injured plaintiffs, with a view to meeting the Overriding Objective. In order to progress such cases to trial, expeditiously and fairly, the parties' representatives must co-operate with one another and assist the Court to manage the case to a conclusion.
17. In my judgment, in terms of the Overriding Objective, there are benefits to ensuring that parties are on an equal footing as soon as possible. In particular, the Court, and the parties, are better placed to make informed decisions about the matters listed in RCR 1/6(6)(b) to (l) and once information has been shared, alternative dispute resolution in accordance with RCR 6/28 has a possibility of being successful in whole, or in part, which may avoid the need for a trial.
18. That sharing of information is, in my judgment, particularly important in cases such as this which concern a young, and apparently vulnerable, plaintiff who was seriously injured nearly 5 years ago. Yet as far as I can tell, neither party has managed to have the Plaintiff examined by a permitted medical expert, and the only information as to the potential quantum of the claim is set out in a without prejudice schedule disclosed in July 2024, which has not been provided to the Court.
19. I accept that the initial delay in these proceedings may have been caused by the criminal proceedings. However, once they were concluded and these proceedings were issued, the Plaintiff had an obligation to progress them; his legal team did not do so. Moreover, from the correspondence I have seen, the Plaintiff's English solicitor appears to have adopted an obstructive stance in that he failed to progress medical appointments, failed to respond to correspondence, and in instructing Dr Koychev and Dr Kennedy-Williams pursued his own agenda rather than complying with the orders made.
20. That impression is further reinforced by the fact that this application is presented as something of a fait accompli in that:
(i) 6 months have elapsed since I gave directions, the only direction that has been complied with is as to discovery;
(ii) notwithstanding that the deadline for exchange of witness statements has passed, the Plaintiff is not in a position to provide a general witness statement on all matters and will apparently require a further 2 weeks to complete a statement on liability only;
(iii) in the absence of any factual statements, the reports from the accident reconstruction experts have not been obtained or exchanged;
(iv) none of the medical reports necessary for a trial on liability and quantum have been obtained, and the Defendant's representatives have been actively prevented from obtaining any such reports;
(v) expert evidence supporting the proposal for a split trial has been obtained, unilaterally by the Plaintiff, without the permission of the Court, without proper notice to the Defendant, and without proper disclosure of all matters relating to the underlying instructions or engagement with those experts;
(vi) the Plaintiff's Advocate's submissions are to the effect that a trial on liability could be scheduled relatively quickly whereas a trial on liability and quantum will be far more complex and uncertain.
21. In my judgment, such litigation conduct on the part of the Plaintiff's legal team is not in furtherance of the Overriding Objective, nor in accordance with the directions previously given. Nor does it necessarily assist the Plaintiff or advance his case.
22. It is also predicated on the assumption that if I order a split trial, I will vary my Order dated 16 August 2024. However, that is not an application which the Plaintiff has made and if that were what he intended to seek, he has singularly failed to comply with the provisions of paragraphs 18 to 21 of Practice Direction RC 17/05.
23. The parties were agreed that the applicable test for ordering a split trial is set out in Barreto v Sanguy [1990] JRC 061a:
24. The Plaintiff submits that not only is there a clear line of demarcation between liability and quantum, but in this case, the Court should also order a split trial on the basis of the medical evidence to "ensure that the Plaintiff's capacity to litigate is not compromised by having to deal with an abundance of issues on the same occasion".
25. As was noted in Barreto, the usual procedure is for there to be a single trial of liability and quantum. In Le Claire v Brown [2014] JRC 187A, Master Thompson recognised that whilst that may be the starting point, it does not mean that there cannot be a split trial, and the Court must proceed to consider the factors set out in paragraphs (a) to (e) of Barreto.
26. The first question is paragraph (a) of Barreto and whether there is a clear line of demarcation between liability and quantum. The Defendant has raised the issue of contributory negligence on the part of the Plaintiff, and in particular his alleged failure to wear a cycle helmet. That plea does not go to the mechanics of the collision between bike and car but does go to the mechanics of the Plaintiff's injuries which, allegedly, include a serious, concussive brain injury, and the consequences of those injuries. Whilst the issue of contributory negligence for failing to wear a helmet is a live issue in the proceedings, liability and quantum will be inexorably linked.
27. In her Skeleton Argument, the Defendant's Advocate raises a further interaction between liability and quantum in terms of the Plaintiff's evidence. According to the interview he gave to the police on 2 May 2020, the Plaintiff remembers very little about the accident. Of the details that he does remember, some of those appear to come from things that he has been told by others. Although a small evidential point, the Defendant's Advocate submits that it may assist the Jurats when assessing the Plaintiff's evidence about the collision to be able to take into account the medical evidence; and similarly when determining the extent and impact of his injuries to take into account any findings that they might have made about his evidence on liability.
28. In my judgment, the demarcation between liability and quantum is not clear and requirement (a) in Barreto is not met.
29. However, in the absence of any evidence (factual or medical) it is difficult for the Court to make any assessment about the extent of the interaction between liability and quantum. Unless the Court were to find that the Defendant was not liable at all for the accident and/or that the Plaintiff was wearing a helmet, evidence on quantum may need to be adduced before the Court could make any definitive findings as to each party's percentage liability for this accident. Accordingly, in terms of paragraph (b) of Barreto, the issue of liability is not "separate and distinct from the issue of damages".
30. In terms of paragraphs (c) and (d) of Barretto, I accept entirely that quantification of this claim is not going to be straightforward, and will be "detailed and complicated" but in the absence of any medical evidence, it is difficult for the Court to make any assessment as to the level of that complexity or as to the amount of uncertainty in any prognosis.
31. As to paragraph (e) of Barreto and the benefits and disbenefits that might accrue to the parties from a split trial:
(i) There is an obvious benefit in parties giving evidence when matters are fresh in their mind. However, in this case, the accident occurred nearly 5 years ago and no trial has yet occurred.
(ii) Both Dr Koychev and Dr Kennedy-Williams think that a split trial would be more manageable for the Plaintiff.
(iii) From the Plaintiff's perspective, he has faced a number of challenges as a result of this accident and as is noted in section 4 of Dr Koychev's report, has suffered greatly. As Advocate Thomas for the Plaintiff eloquently submitted, if there were to be a split trial, the Plaintiff would not have to switch suddenly from giving evidence about the mechanics of the accident to suddenly talking about his worst thoughts. Whilst a split trial would certainly achieve this, in my judgment, active case management in terms of identifying which issues are to be determined and when, together with proactive trial timetabling to separate out witness evidence on liability and quantum, could also do likewise.
(iv) From the Defendant's perspective, once she has given evidence in the trial on liability, the proceedings will be conducted by her insurers.
(v) There is a risk, if not a likelihood, that in ordering a split trial, the Court would face a similar difficulty to that identified in Chivers v Araujo [2024] JRC 058 where the parties agreed that there be a split trial, but the Royal Court left over the issue of contributory negligence and an apportionment of liability to a further trial. Objectively it might appear that in that case, the parties' decision to hold a split trial did not advance matters greatly.
(vi) Whilst a trial on liability might be short, it is not going to be held instantaneously. Witness evidence has to be exchanged, accident reconstruction experts must opine, mobile phone evidence must be adduced and trial dates fixed. Were a 4 day trial to be fixed now, once availability of witnesses and Counsel is taken into account, the Court might be looking at September or October 2025, if not later. That immediately raises the question as to what to do with the existing orders.
(vii) Alternatively, were all matters to be tried together in the usual way, there is unlikely to be any significant increase in the time required for the quantum trial if liability were to be determined at the same time.
32. The main thrust of the Plaintiff's submissions as to the benefits that flow from a split trial is that this would accord with the opinions of Dr Koychev and Dr Kennedy-Williams. I am singularly unimpressed with their conclusions about a split trial, and with the manner in which they came to opine:
(i) Mr Rigby asked leading questions of both experts, seeded in the case of Dr Koychev by reference to the Plaintiff's parents' views, and in the case of Dr Kennedy-Williams by reference to a split trial being the option "which I am instructed to pursue".
(ii) Mr Rigby failed to volunteer information about the instructions given to the doctors.
(iii) The assumption underlying both expert's views and indeed, Mr Rigby's instructions to them, was that a split trial "would also delay quantum investigations to allow more time for Freddie to rehabilitate and his future prognosis to become clearer." That assumption is based on relief which has not been sought, namely the Court varying the order it made in August 2024 requiring an exchange of medical evidence by August 2025. It was also not a matter necessarily advanced by the Plaintiff's advocate who submitted that if the Court were not minded to vary the existing directions, it should direct a split trial in parallel with the expert evidence being obtained.
(iv) Neither expert was asked to comment on the other potential outcomes which might arise as a result of this application, namely -
(a) the Plaintiff having to give evidence twice; and/or
(b) the trial on liability being determinative of very little and providing no tangible closure for the Plaintiff unless he were to be wholly unsuccessful; and/or
(c) a trial on liability and/or preparations for such a trial occurring at the same time as the Plaintiff is required to attend for examination by the permitted experts which was the Plaintiff's Advocate's alternate position; and/or
(d) uncertainty and/or delay being caused by separate appeals on liability and/or quantum.
(v) Neither expert was asked to consider what other reasonable adaptations the Court might consider making to ensure that the Plaintiff is not disadvantaged by the trial process.
33. Dr Koychev's conclusion prior to amendment was that Mr Dentskevich needed time to consider matters and trusted people around him if he was not to be overwhelmed. With careful planning, both of those matters can be achieved and maintained during the trial process.
34. Similarly, part of my intention in making the order that I did in August 2024 was to balance the needs of the litigation against the apparent needs of the Plaintiff, which appears to accord with Dr Kennedy-Williams' clinical aims:
" there have been a large number of professionals involved in your care (resulting in many appointments, tests, and therapeutic work), and I understand this has at times felt stressful and overwhelming for you. My intention is that your time in Oxford is a stabilising one, with an opportunity to focus on your studies, improving your psychological wellbeing, and building a meaningful social base here."
35. In my judgment:
(i) the reports from Dr Koychev and Dr Kennedy-Williams are not determinative of the application but they do highlight that some additional care may be needed to manage this trial in accordance with the Overriding Objective;
(ii) the requirements of paragraphs (a) and (b) of Barreto have not been met;
(iii) whilst there may be benefits to an early determination, there are also disadvantages and as it currently stands, a real possibility that an early hearing will determine very little and critically, will not assist the parties to move forward;
(iv) on the basis of the evidence adduced before me, it is not appropriate to order a split trial and I dismiss the Plaintiff's application.
36. However, once the relevant medical evidence has been obtained and the parties have had an opportunity to reflect, it might be possible for a preliminary issue to be scoped in terms of both evidence and issues such as might allow determination of all matters relating to both liability and contributory negligence, with quantum to be determined separately. This was, in effect, the approach adopted in Le Claire v Brown.
37. Having dismissed the Plaintiff's application, the Court is faced with the challenging reality of a vulnerable Plaintiff, whose legal team have failed to progress the claim or to comply with the directions given, and whose submission to me was that despite 6 months having elapsed since I made my order, they are not able to provide a comprehensive witness statement.
38. I have considered carefully whether I should vary my previous order concerning medical evidence. However, there is no separate application for a variation of that direction and RCR 1/6(f) requires the Court to enforce compliance with orders. I have also considered whether an unless order might be appropriate to secure compliance. In my judgment, there are alternatives.
39. Accordingly, I amend the Act of Court dated 16 August 2024 to read:
"2. signed and dated witness statements of fact in relation to liability only shall be simultaneously exchanged by close of business on 10 March 2025;
3. the Plaintiff and the Defendant shall be permitted to file expert evidence from an Accident Collision Expert, and any such evidence shall be simultaneously exchanged by close of business on Friday 11 April 2025;"
40. For the avoidance of doubt, all of the other provisions of the Act of Court dated 16 August 2024 remain in force.