His Lordship said that the purpose behind cases like Hunter v. Chief Constable of the West Midlands Police ( [1982] AC 529 ) and Somasundaram v M Julius Melchior & Co ([1988] 1 WLR 1394) was to restrict to a minimum satellite litigation, the purpose or major effect of which would be to undermine in one court the considered decision of another court on the same issue.
In the instant case, the question was whether Mr. Justice Harmans decision to appoint the receiver was correct, not whether subsequent events would have justified the court in removing him."
In our judgment these principles should be adopted and applied as part of the law of Jersey.
We turn therefore to consider whether the fresh evidence put forward in the affidavit of Mr Watkins has the effect of entirely changing the aspect of the case. Mr Watkins is a private investigator who was formerly a senior police officer. He has no expertise which would enable him to give evidence relevant to the issues in this case. Strictly the plaintiff has put forward no relevant evidence such as to meet the test set out in the cases to which we have referred. However Mr Watkins has exhibited to his affidavit copies of correspondence which we have examined de bene esse . Mr Watkins enquiries were carried out with a view to establishing whether there existed technical, scientific or other evidence which might expose to doubt the conclusion of the Royal Court at the original hearing that the plaintiff did not jump onto the roof but fell through the roof vertically whilst walking upon it on a frolic of his own.
(1)Mr Watkins corresponded with Filon Products Limited in order to establish whether technical data was available as to the properties of Filon translucent sheeting manufactured in 1968-1969 which was thought to be the material on the roof at the time of the accident in 1985. That data was provided and showed that the sheets would remain structurally sound for between twenty-five to thirty years, although they were not designed to be walked upon. A letter dated 4 November 1994 from the company stated:
"However, in practice we know that many will walk on an asbestos cement roof without taking such precaution and generally the asbestos cement will take their weight, but there are accidents as a result of this and frequently the people concerned do not live to give their account. With the roof lights, generally people will avoid walking on them because they do give way, they do feel uncomfortable to stand on and generally will fail more readily than the asbestos cement. However in this particular case, you will note that the roof is generally covered with a layer of dust and, with the passage of time, the roof lights look very similar to the asbestos cement. Thus an unwary person working on the roof, without crawling boards, could readily make the mistake of walking on to the roof light with inevitable consequences."
The company was unable to draw any conclusions from the material placed before it as to whether the hole in the roof had been caused by a high or low velocity impact. This question was posed in order to establish whether the company considered it more or less likely that the hole had been caused by a man leaping eight feet on to the roof rather than walking upon it.
(2)Mr Watkins obtained a report from S R C (Consultants) Limited. This report concluded that two matters supported the plaintiff’s claim to have jumped on to the roof, namely -
(i)the absence of footprints in the dust on the roof, and
(ii)their conclusion that it was entirely feasible to jump the distance in question.
As to (i) we observe that this evidence was before the Royal Court in the original proceedings. As to (ii) the report offers no evidence in support of its conclusion that it was likely that the plaintiff did make the jump.
(3)Mr Watkins wrote to a stunt man, Mr Bill Weston, in an attempt to obtain evidence of the likelihood of the plaintiff having jumped the distance in question and caused the type of hole to the roof which was found. It appears that Mr Weston advised in a telephone conversation with Mr Watkins that the jump could have been made, but no written response from him was exhibited.
Even if the matters contained in the correspondence and documents exhibited to Mr Watkins affidavit were to be regarded as admissible evidence, we consider that they fall a long way short of satisfying the test of evidence which entirely changes the aspect of the case. But the plaintiffs difficulties are even greater. Even if there were credible evidence tending to show that the plaintiff had jumped on to the roof as a result of the defect in the scaffold, which in our judgment there is not, he would still have to overcome the hurdle of showing why he was on a part of the scaffold where he was not working and where he had no reason to be.
We have reached the conclusion that there is no credible evidence which has the effect of entirely changing the aspect of the case. The plaintiffs order of justice seeks to raise issues which have already been determined against the plaintiff both in this Court and in the Court of Appeal. The claim is an abuse of process and the order of justice must therefore be struck out in its entirety. Having reached this conclusion on the second argument, it is not necessary to consider the remaining arguments advanced by the defendants.
Authorities
Cooper -v- Resch (1987-88) JLR 428
Poole -v- Poole & Practice Direction (Striking Out) (1987-88) JLR N5
Lazard Brothers & Co (Jersey) Ltd -v- Bois and Bois, Perrier & Labesse (1987-88) JLR 639
TA Picot (CI) Limited -v- Michel, Crill and Hamon (1995) JLR 33
J Torrell & Another -v- Pickersgill and Le Cornu (1987-88) JLR 702
Johnson -v- Bingley Dyson & Finney (1997) PNLR 392
Hacon -v- Godel & Brocken & Fitzpatrick [1987-88] JLR 547
Royal Court Rules (1992) (as amended): Rule 6/13
Picot -v- Crills [1995] JLR 33
Saif Ali -v- Sydney Mitchell & Co. [1978] 3 All ER 1033
Atwell -v- Perry (27 th July, 1998) TLR
RSC (1997 Ed’n) Vol. 1 paras 18/19
Phipson on Evidence (14 th Ed’n) para. 4.29
Picot -v- Crills [1993] JLR 348
Jackson & Powell: Professional Negligence (4 th Ed’n) paras 4-83; 4-84 & 4-189
Oliver & Another -v- McKenna & Co (a firm) (20 th December, 1995) TLR
Walpole & Another -v- Partridge & Wilson (a firm) [1994] 1 All ER 385
Hunter -v- Chief Constable of West Midlands and Another [1981] 3 All ER 727
Nestlé -v- Best and Others [1996] PNLR 444
Steamship Mutual Underwriting Association Ltd and Another -v- Trollope & Colls [1986] 33 BLR 77
Hytrac Ltd -v- Conveyors International Ltd [1982] 3 All ER 415
Goymer -v- Lombard North Central Wheelease Ltd (1 April 1993) TLR
Halliday -v- Shoesmith & Another (1993) WLR CA