Janin Caribbean Construction Ltd v Wilkinson and another (as executors of the estate of Ernest Clarence Wilkinson) and another (Grenada)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Clarke |
| Judgment Date | 11 October 2016 |
| Neutral Citation | [2016] UKPC 26 |
| Date | 11 October 2016 |
| Docket Number | Appeal No 0111 of 2014 |
| Court | Privy Council |
[2016] UKPC 26
Privy Council
From the Court of Appeal of Grenada
Lord Clarke
Lord Wilson
Lord Sumption
Lord Hodge
Sir John Gillen
Appeal No 0111 of 2014
Appellant
Jonathan Crystal (Instructed by Sebastians Solicitors)
Respondent
Celia Edwards QC Shireen Wilkinson (Instructed by Blake Morgan LLP)
This appeal arises out of a claim made by Janin Caribbean Construction Limited ("Janin") against Ernest Clarence Wilkinson ("Mr Wilkinson") for damages for breach of a duty of care said to have been owed to Janin for failure to exercise reasonable care and skill in acting for Janin in defence of a personal injuries action brought against Janin by Robert Francis arising out of injuries sustained by him while working for Janin as long ago as 15 May 1993. The principal case against Mr Wilkinson was that he failed to turn up at the trial of the action on 17 January 1995. He was at that time said to have been simply holding papers on behalf of the Attorney of Record, Mr Armand Williams QC.
The claim was dismissed by Henry J ("the judge") with costs on 21 December 2009. Janin appealed to the Court of Appeal in Grenada, which heard the appeal on 24 November 2010 but did not give judgment until nearly a year later on 7 November 2011. The Court of Appeal, which comprised Pereira JA, Gordon JA (Ag) and Bruce-Lyle JA (Ag), dismissed the appeal. The Court of Appeal (Pereira JA, Thom JA and Stollmeyer JA (Ag) subsequently granted Janin's application for final leave to appeal to the Board on 13 October 2014.
The issues in this appeal, as set out with slight amendments and in what seems to the Board to be the most logical order, are these. (1) Who, if anyone, was Mr Wilkinson representing when he held papers on behalf of Mr Williams, the Attorney of Record? (2) Did Mr Wilkinson owe a duty of care to Janin? (3) Was Mr Wilkinson immune from suit in Grenada? (4) If he owed a duty of care was he in breach of duty? (5) If so, should the Board determine issues of causation or remit them to the courts below? (6) If such issues are not remitted, was any breach of duty causative of loss and, if so, what is the measure of damages? As appears below, the Board has decided that it is not necessary, or appropriate, to determine all those questions.
At the relevant time Mr Wilkinson was a solicitor and a barrister but not a QC. Later he became a QC and gave evidence in this action but subsequently died. The first respondents are therefore the executors of Mr Wilkinson's estate. The second respondents are the firm of Wilkinson, Wilkinson and Wilkinson ("the firm"), which (as the Board understands it) it is agreed is vicariously responsible for any breach of duty on the part of Mr Wilkinson, who was the head of chambers and a solicitor with the firm.
On 15 May 1993 Robert Francis was injured while he was working for Janin at Grand Anse in Grenada. He was working as a welder-mechanic on a crane when the crane's boom collapsed and fell on him. In October 1993 Janin received a letter written on behalf of Mr Francis claiming a total of $82,920 against Janin on the basis that it was responsible for the accident. Janin notified its insurers and on 19 October 1993 Mr Williams wrote to Janin saying the he would be "handling the matter on behalf of the other parties concerned." On 4 January 1994 a writ and statement of claim was served on Janin naming Mr Francis as the claimant. On 10 January 1994 Mr Williams entered an appearance on behalf of Janin. However it appears that no defence was served because on 22 February 1994 judgment in default of defence was entered against Janin for damages and costs to be assessed. On 5 April 1994 Mr Alban John filed a summons on behalf of Mr Francis for the entering of judgment for the special damages claimed in the writ and for general damages to be assessed. The hearing was set down for 29 April 1994. It appears that Janin was not represented at that hearing because on that date the court made an order in default of defence that Janin was to pay to Mr Francis the principal sum of $110,653.20 together with interest at 6% per annum. The order was served on Janin by delivery to Mr Williams on 13 May 1994.
The evidence of Mr Geoff Croome of Janin was that shortly after receiving that order, he spoke to Mr. Williams, who assured him that he would be able to get the order set aside. Mr Williams advised him that he intended to hand over the file to Mr Wilkinson because he himself did not do much court work any more. Mr Williams assured Mr Croome that Mr Wilkinson and his firm were competent and experienced in matters of this nature. He said that he would arrange for Mr Croome to meet with Mr Wilkinson. However, Mr Willams sent him his bill for services to date, which was paid, and thereafter, except for a telephone call asking him to attend on Mr Wilkinson, he had no correspondence from Mr Williams and dealt exclusively with Mr Wilkinson.
On 6 June 1994 an application for examination of Janin as judgment debtor on 1 July 1994 was made and granted. According to Mr Alban John, who appeared for Mr Francis, Mr Wilkinson had until then had no connection with the case and did not have the conduct of the proceedings on Janin's behalf. On 28 June 1994 Mr Williams filed a summons requesting a hearing of an application to set aside the judgment and seeking an order that Janin be permitted to defend the action. For some reason that application was heard on 1 July instead of the application on behalf of Mr Francis. According to Mr John, Ms Margaret Wilkinson of the firm held papers for Mr Williams and argued in support of the application. Against what Mr John described as his strong opposition, the judgment was set aside and Janin was given 14 days to enter a defence. The defence signed by Mr Williams was served on 11 July 1994. It alleged that the injuries to Mr Francis had been caused by Mr Francis himself.
On 9 December 1994 a notice fixing the date for trial as 17 January 1995 was sent to Mr Williams and, subsequently to Mr John. Janin was not informed of the hearing date. At some stage Mr Williams asked Mr Wilkinson to hold the papers for him in relation to the hearing on 17 January. Mr Wilkinson's evidence in this regard before the judge in these proceedings included the following:
"Q: You appeared at the hearing to set aside judgment?
A. Yes.
Q. So you were doing a courtesy or favour again?
A. Yes I was. Mr Williams had asked me to make the
application and I did.
Q. And you appeared again as Counsel at the hearing of the application for leave?
A. Yes.
Q. And for an extension of time to file an appeal?
A. That is quite correct.
Q. … So on all these occasions that I just mentioned you agree that you appeared, you were doing a favour?
A. If Mr Williams asked me to appear in court for him …
Q. Right. So it was a courtesy?
A. Yes.
Q. And in your view when you appeared on these occasions would you agree that you were appearing as counsel for the defendants?
A. As I said I was doing Mr Williams a favour. Mr Williams asked me to hold papers for him.
Q. But would you agree that you were appearing as Counsel for the defendant?
A. No. I was appearing as Counsel instructed by Mr Williams who was for the defendant. I was not for the defendant.
Q. So you are saying that Queen's Counsel —
A. Mr Williams gave me instructions.
Q. So then you had conduct of the matter?
A. I wouldn't put it as high as that. What I did know [was] that Mr Williams asked me to hold the papers for him and to seek an adjournment in the matter. He asked me to seek an adjournment of the matter."
In the light of those exchanges, it appears to have been Mr Wilkinson's case that he was doing a courtesy or favour for Mr Williams but not appearing for Janin. The Francis trial was listed in Court No 1 on 17 January 1995 but Mr Wilkinson had a matter in Court No 2 which he attended. When he attended Court No 1 he found out that "the trial had taken place in my absence judgment delivered". The judgment had been delivered in the absence of Janin or any attorney appearing on its behalf. It appears that no-one at Janin had been informed of the trial date, either by Mr Williams or anyone else. It may be noted that in para 10 of his witness statement of 27 October 2003 Mr Wilkinson admitted that in these circumstances it was "inevitable that judgment would be entered against Janin".
Mr Wilkinson further said in evidence:
"Well my recollection that I had to seek an adjournment because I was going to the No 2 Court which was this court and I advised the bailiff that I'll be back to attend to the matter. When I got back there the matter was already heard in this courtroom."
A little later there was this further exchange:
"Q. So would you not dispute that you did not appear?
A. I did appear. Yes I did appear. I can[not] dispute that. I did appear. When I appeared the matter was disposed of."
It is not easy to follow that evidence, but the position appears to be that Mr Wilkinson did not accept that he appeared for Janin at the hearing because he was simply holding papers for Mr Willams and not representing Mr Williams' client. When he arrived, he did appear in a physical sense but by that time judgment had been given in the absence from anyone from Janin.
An affidavit sworn by Mr Wilkinson on 19 January 1995 in the proceedings brought by Mr Francis included the following:
"1. I am a Solicitor with the firm of Wilkinson, Wilkinson & Wilkinson acting on behalf of the Solicitor for the defendant and have had the conduct of these proceedings on behalf of the defendant.
2. That on the 17 day of January 1995 … [Lyle St Paul J] … entered...
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