Noye v Robbins
[2005] WASC 137
•1 JUNE 2005
NOYE & ANOR -v- ROBBINS [2005] WASC 137
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 137 | |
| Case No: | CIV:2231/1999 | 30 MAY & 1 JUNE 2005 | |
| Coram: | EM HEENAN J | 1/06/05 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Action by co-plaintiffs severed Separate claims by each plaintiff ordered against each defendant separately Orders for separate legal representation for each plaintiff New pleadings ordered Adjournment of unrepresented plaintiff's actions on terms Joint trials for remaining plaintiff's actions against separate defendants | ||
| A | |||
| PDF Version |
| Parties: | JEFFREY HOWARD NOYE LINDSAY GORDON RODDAN STEPHEN JOHN ROBBINS LYNETTE BERYL CRIMMINS |
Catchwords: | Practice and procedure Adjournment Joinder of causes of action by co-plaintiffs Severance Necessity for same series of transactions Conflict of interest of co-plaintiffs Separate legal representation Separate causes of action against different defendants Need for separate claims against each defendant Consolidation or joint trials |
Legislation: | Rules of the Supreme Court 1971 (WA) |
Case References: | Dean-Willcocks v Air Transit International Pty Ltd (2002) 55 NSWLR 64 Goold & Porter Pty Ltd v Housing Commission [1974] VR 102 Payne v Young (1980) 145 CLR 609 Re Matthews [1905] 2 Ch 460 Re Wright [1895] 2 Ch 747 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- LINDSAY GORDON RODDAN
Plaintiffs
AND
STEPHEN JOHN ROBBINS
Defendant
- LINDSAY GORDON RODDAN
Plaintiffs
AND
LYNETTE BERYL CRIMMINS
Defendant
(Page 2)
Catchwords:
Practice and procedure - Adjournment - Joinder of causes of action by co-plaintiffs - Severance - Necessity for same series of transactions - Conflict of interest of co-plaintiffs - Separate legal representation - Separate causes of action against different defendants - Need for separate claims against each defendant - Consolidation or joint trials
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Action by co-plaintiffs severed
Separate claims by each plaintiff ordered against each defendant separately
Orders for separate legal representation for each plaintiff
New pleadings ordered
Adjournment of unrepresented plaintiff's actions on terms
Joint trials for remaining plaintiff's actions against separate defendants
Category: A
Representation:
CIV 2231 of 1999
Counsel:
First-named Plaintiff : Mr D P A Moen
Second-named Plaintiff : Mr G M Irving
Defendant : Mr M T KcKenna
Solicitors:
First-named Plaintiff : Michael Rennie
Second-named Plaintiff : George M Irving (pro bono)
Defendant : Hunt & Humphry
(Page 3)
CIV 2490 of 2000
Counsel:
First-named Plaintiff : Mr D P A Moen
Second-named Plaintiff : Mr G M Irving
Defendant : Mr J D Allanson
Solicitors:
First-named Plaintiff : Michael Rennie
Second-named Plaintiff : George Irving (pro bono)
Defendant : Lewis Blyth & Hooper
Case(s) referred to in judgment(s):
Dean-Willcocks v Air Transit International Pty Ltd (2002) 55 NSWLR 64
Goold & Porter Pty Ltd v Housing Commission [1974] VR 102
Payne v Young (1980) 145 CLR 609
Re Matthews [1905] 2 Ch 460
Re Wright [1895] 2 Ch 747
Case(s) also cited:
Nil
(Page 4)
1 EM HEENAN J: There has been listed for trial before me today two actions which have been directed to be heard together. We have spent most of the day dealing with an application by the second plaintiff in each action, Mr Lindsay Roddan, to adjourn his claims against both the defendants because of lack of preparedness for trial and the absence of legal representation for him in the conduct of the trial. Consideration of that application has led the court into a review of the proceedings generally and, in particular, to the significance of the joinder of causes of action by both plaintiffs in the two actions which have been commenced. This has led to the need to give close attention to some complicating factors which affect the pursuit of the various causes of action advanced by the plaintiffs and the practical consequences of doing so having regard to the situation in which the plaintiffs find themselves with regard to legal representation.
2 In order to understand this dilemma it is necessary to go back to describe the general nature of the proceedings. Mr Noye, a former police officer, and Mr Roddan, presently a mine owner, were each charged over 11 years ago with offences alleged to have been committed during what has become known colloquially as the Argyle diamond affair. This relates to the alleged theft and the instigation of attempts to steal diamonds from the Argyle mine in the Kimberley. A series of criminal prosecutions was brought against Mr Noye and several police disciplinary charges were also commenced against him. Six criminal prosecutions against Mr Noye have been identified in the pleadings and up to four police disciplinary offences. He alleges in the current statement of claim that all of those charges and complaints against him have ultimately been resolved in his favour, but there is an issue on the pleadings as to whether or not that is actually the case.
3 Mr Noye alleges that all of those criminal charges were instituted or pursued against him as a result of malicious prosecution by the defendant, then Inspector Stephen John Robbins, another serving police officer. Mr Noye also alleges that some of those charges, but not all, were also instituted or continued against him as a result of malicious prosecution by Mrs Lynette Beryl Crimmins, a person who provided information to the police about the alleged offences. He has therefore brought two actions, one against Mr Robbins and one against Mrs Crimmins, seeking damages for malicious prosecution and associated torts. Each has been defended.
4 Mr Roddan was associated in dealings with Argyle diamonds at the time and became a person of interest in the investigation. He too was charged with criminal offences arising from alleged diamond thefts and
(Page 5)
- with conspiracy to pervert the course of justice with regard to the police investigation which followed. Four criminal charges were instituted against Mr Roddan of which he presently complains. He alleges that those prosecutions were instituted and pursued as a result of malicious prosecution by the same Stephen John Robbins already mentioned. Mr Roddan further alleges that they were also instituted or pursued as a result of malicious prosecution by Lynette Beryl Crimmins, again the second person previously mentioned.
5 Mr Roddan (as a co-plaintiff with Mr Noye) has brought actions for damages for malicious prosecution and for associated torts against both Mr Robbins and against Mrs Crimmins in two separate proceedings. It is therefore clear that there are four sets of causes of action before the court: those by Mr Noye against Mr Robbins; secondly, by Mr Noye against Mrs Crimmins; thirdly, by Mr Roddan against Mr Robbins; and fourthly, by Mr Roddan against Mrs Crimmins.
6 In spite of the existence of these four sets of causes of action, the proceedings, which have been before the court since 1999 and 2000 respectively, have each been instituted by a writ issued jointly in the name of Mr Noye and Mr Roddan, in the first place against Mr Robbins (action number 2231 of 1999), and secondly, jointly by Mr Noye and Mr Roddan against Mrs Crimmins (action number 2490 of 2000). By an interlocutory order made in these proceedings some time ago it was directed that the two sets of actions should be heard together and it is as a result of that, and other consequential steps taken in the action, that they have all been listed for trial before me today.
7 What has precipitated the present consideration of the propriety of these joinders, particularly in view of the absence of any objection to them by the defendants over a long time, has been the application for the adjournment of the proceedings by Mr Roddan. He finds himself without legal representation to conduct or pursue the proceedings and is here represented today pro bono by Mr Irving who, in the tradition of the bar, has offered to assist, but only for today, and whose presence before the court is noted with appreciation.
8 If Mr Roddan were to withdraw from these proceedings or if they were to go ahead with him representing himself the problem which arises is that Mr Noye and Mr Roddan have for some time past been separately represented. When I say separately represented I mean that there is one firm of solicitors acting for Mr Noye exclusively and counsel has been retained and is appearing for Mr Noye alone. Mr Roddan has no solicitors
(Page 6)
- presently acting for him and is being represented here today by Mr Irving in the manner that I have gratefully acknowledged, but if matters continue will represent himself. Notwithstanding this, there remains the same statements of claim in the two actions in which both men are named as co-plaintiffs.
9 Enough has been said in the course of proceedings today to indicate that there is, at the very least, the potentiality, if not the reality, of a conflict of interest developing in the proceedings between Mr Noye and Mr Roddan. That means that it is most unsuitable for both to be represented by the same solicitors or counsel.
10 During the course of this morning I have been giving some attention to this question of the joinder of both plaintiffs, with their separate causes of action, in both sets of proceedings. I have assumed that the joinder has been made in reliance on O 18 r 4(2) of the Supreme Court Rules which reads:
"4. Joinder of parties
(1) Subject to Rule 5(1), [the ability of the court to order separate trials] 2 or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where -
(a) if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and
(b) all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.
(2) Where the plaintiff in any action claims any relief to which any other person is entitled jointly with him, all persons so entitled must, subject to the provisions of any Act and unless the Court gives leave to the contrary, be parties to the action and any of them who does not consent to being joined as a plaintiff must, subject to any order made by the Court on an application for leave under this paragraph, be made a defendant.
This paragraph shall not apply to a probate action.
... "
(Page 7)
11 There is authority in England, which has been applied in Australia, although not precisely in this setting, that where there has been or when there is to be a joinder under this rule, intending co-plaintiffs should make sure that no conflict of interest nor any division of opinion between themselves is likely to arise. The co-plaintiffs will not be allowed to sever or to take inconsistent steps and must appear at the trial by the same solicitor and counsel: Re Matthews [1905] 2 Ch 460 and Re Wright [1895] 2 Ch 747, even though they became co-plaintiffs under an order for the consolidation of two or more actions. Commentary is to be found in par 15.4.3 of the "White Book".
12 A similar position applies in Victoria. In the case of Payne v Young (1980) 145 CLR 609, joinder of plaintiffs under the corresponding rule in the High Court Rules was disallowed in a case where there were seven plaintiffs bringing an action against eight defendants, each claiming declarations that regulations under the Health Act (WA) levying meat inspection fees were invalid under the Constitution. In that action each of the seven plaintiffs claimed recovery of inspection fees paid from the particular defendant to whom they had been paid under protest. It was held by Barwick CJ, Stephen and Mason JJ with Murphy J dissenting, that as each series of transactions in relation to the payment of the inspection fees was peculiar to each individual plaintiff, the right to the relief claimed was not in respect of, nor did it arise out of, the same transaction or series of transactions within the meaning of O 16 r 1 of the High Court Rules and that there had been improper joinder.
13 In the circumstances of this present case there are allegations of malicious prosecution by each of the plaintiffs in respect of separate and distinct charges laid against them which were separately dealt with and disposed of and in respect of which separate relief is claimed. So there is a large question as to whether this joinder was ever justified. But having regard to the authority which requires that joint plaintiffs appear by the same counsel and solicitors, that leaves the current arrangements for the representation of the plaintiffs, in an untenable position.
14 This immediately causes a problem because the authorities are all to the one effect, that where causes of action by different plaintiffs have been joined in the one set of proceedings, under O 18 r 4(1) of the Rules of the Supreme Court, or its counterparts in other jurisdictions, there can only be an appearance for the co-joined plaintiffs by the one firm of solicitors or by the one counsel or set of counsel. There is a series of authorities for that proposition and I mention Re Matthews [1905] 2 Ch 460; Re Wright [1895] 2 Ch 747; Goold & Porter Pty Ltd v Housing Commission [1974]
(Page 8)
- VR 102 and particularly the passages referred to by Norris J at 104. Those authorities appear to be accepted and confirmed by the decision of Austin J in the Supreme Court of New South Wales in Dean-Willcocks v Air Transit International Pty Ltd (2002) 55 NSWLR 64.
15 The application for the adjournment of the trial by Mr Roddan (which is not joined in by Mr Noye except insofar as his counsel has indicated that Mr Noye would not be averse to that adjournment) because he is not in a position to proceed, shows the first emergence of different interests between the co-plaintiffs. The desire, indeed the necessity for separate legal representation of the two plaintiffs, shows another and is inconsistent with the maintenance of the joinder. For that reason alone, it is necessary to order, as I will order, that the proceedings brought by Mr Noye be severed from the proceedings brought by Mr Roddan, and that will apply both in relation to action 2231 of 1999 and to action 2490 of 2000. From this point on, if the proceedings are to be pursued, they will need to be pursued separately by Mr Noye and by Mr Roddan. That will have implications for the pleadings and for other procedural steps which I will examine more fully in a moment.
16 Another feature emerges, however, arising from this joinder and it is whether, if it were not for the divergence of interest and the desire for separate representation, joinder of this kind should ever have been permitted. It follows from what I have said so far that for Mr Noye to succeed in his claim for damages either against Mr Robbins or against Mrs Crimmins he would need to prove, among other things, that each defendant instituted or continued the prosecutions complained of, that each was actuated by malice in the institution or continuation of those proceedings, that each instituted or pursued those proceedings without reasonable or probable cause and that as a result he, Mr Noye, suffered damage of a particular kind recognised by the authorities.
17 This means that in Mr Noye's case against Mr Robbins, it will be necessary for him to identify which of the six sets of criminal proceedings were instituted by Mr Robbins in the relevant sense, what was the malice harboured or exercised by Mr Robbins in the institution or prosecution of those proceedings; how there was a lack of reasonable or proper cause for the institution of those proceedings in each instance; and then, finally, whether damage and what damage was caused as a result of those alleged torts. Those allegations and the ensuing inquiry will be directed to the impact or involvement which Mr Robbins had in each of those six prosecutions.
(Page 9)
18 When it comes to Mr Roddan's case, he too will need to prove institution or continuation of the four other charges brought against Mr Roddan; the presence and influence of malice by Mrs Crimmins in respect of each of those four, the lack of reasonable or probable cause for the institution of the proceedings and the resultant damage. In other words, each plaintiff will need to establish tortious conduct in respect of conduct by a particular defendant with respect to him personally.
19 This differentiates the case by Mr Noye against each defendant from the case by Mr Roddan against each defendant. It seems to me that this is not a case in which it can be said that all rights to relief claimed in the action are in respect of, or arise out of, the same transaction or series of transactions which is an essential prerequisite for the joinder of such causes of action by virtue of r 4(1)(b) of O 18 of the Rules of the Supreme Court.
20 The reasons for that conclusion find their expression in the requirements for what are considered to be the same or the same series of transactions discussed by the decision in Payne v Young (supra) and particularly in the judgment of Mason J (as his Honour then was) at 617 - 618. That decision, which has been followed in many subsequent decisions, was further discussed recently and considered with particular attention being given to what constitutes the same transaction or series of transactions, by Austin J in the case I have already mentioned, Dean-Willcocks v Air Transit International Pty Ltd (supra) at 70 - 72.
21 Consequently, it is at the very least doubtful whether this joinder was ever proper, and were it necessary for me to decide it, I would conclude that joinder was not permitted in these cases. However, joinder in these present circumstances can only be permitted by leave. I would refuse leave or revoke leave, had it been formally granted, particularly having regard to the divergence of position which has developed between the two plaintiffs and the need and wish for separate representation.
22 Therefore, not only is it necessary to sever the claims brought by Mr Noye and Mr Roddan in both sets of proceedings but it is also necessary to direct that Mr Noye may only bring one claim against Mr Robbins and must bring a separate claim, if he desires to do so, against Mrs Crimmins. Similarly, Mr Roddan may only bring one claim against Mr Robbins and must bring a separate claim against Mrs Crimmins if he wishes to pursue that matter.
(Page 10)
23 For these proceedings to be properly constituted it will be necessary for amended writs to be prepared involving four claims, one by Mr Noye against Mr Robbins, a second by Mr Noye against Mrs Crimmins, a third by Mr Roddan against Mr Robbins, and a fourth by Mr Roddan against Mrs Crimmins. I direct that counsel for the plaintiffs prepare amendments to the existing writs in order to accommodate this direction and also prepare revised statements of claim, each plaintiff bringing two actions.
24 There is simply no alternative but for these procedural steps to be taken having regard to the developing conflict and inconsistency in position between the two plaintiffs and their desire for separate representation but it equally follows from the application of the rule in Payne v Young (supra). Despite this there are many factors which suggest that, within bounds, it would be economical and advantageous for these four sets of causes of action, or at least more than one of them, to be heard together. That is reflected by the order for the joint trial which has previously been made. Although the matters complained of may not involve the same transaction or series of transactions they all emanate from a common background and there is much evidence in one action which would need to be repeated in the second, third and fourth and which, for convenience and economy, should, if possible, be taken together.
25 This therefore directs attention to the possibility of further or substitute orders for the consolidation of the proceedings or for joint trials. I turn to O 83 of the Supreme Court Rules which, as has been pointed out, provides in sub-r (1):
"Whenever any issues between the same parties can be conveniently tried together, or whenever it is desirable notwithstanding that the parties are not identical and that the evidence necessary to prove the issues is not identical, the Court may consolidate any number of causes or matters in order to quiet all claims relating to one subject matter, transaction or event, or to substantially similar subject matters transactions or events."
26 The difficulty with an order for consolidation in the present circumstances is the need for separate representation of the two plaintiffs. Were an order for consolidation to be made that would involve giving to one of the plaintiffs, rather than to the other, the conduct of the consolidated actions. Having regard to the factors which I have already mentioned and to the probability that Mr Roddan may be without further
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- legal representation that seems to me to be a recipe for major procedural difficulties.
27 Nevertheless, a joint trial or a joint trial of some of the causes of action would seem to be desirable and that could be accomplished within the general scope of procedural powers available to the court. The question is whether all four actions in the amended form in which they will need to be reconstituted can be pursued in the time which has been set aside for this joint trial. I am afraid that it is not possible to say whether or not that can be done at the moment because we do not yet have revised writs or statements of claim nor any indication of how they are to be met. Consequently, I will make the orders severing the proceedings and directing the plaintiffs to recast their claims by bringing in amended writs and amended statements of claim, so that the position can be considered in the light of the revised proceedings in order to determine what, if any, orders can be made for a joint trial or trials.
28 I can see, however, that this is likely to impose perhaps insurmountable difficulties for Mr Roddan who will not have the benefit of legal representation. His application for an adjournment no doubt reflects the very real dilemma in which he is presently placed. All I can say, however, is that no matter how great the sympathy may be for his present situation, there is every indication that he has had more than an ample opportunity to prepare for the trial. When considering matters of procedural fairness I must have regard to the position of the defendants to the actions which he brings and the inconvenience, anxiety and expense which are caused to them if the trial does not proceed. Accordingly, were Mr Roddan's lack of preparation the only factor, I would be inclined to refuse the application for the adjournment but today's proceedings have resulted in such major revisions to the nature of the claims being directed that it seems that this adds a different dimension having regard to his lack of legal representation. It may, at the moment I say no more than "may", be sufficient to secure for him an adjournment of one or both of the actions which he wishes to bring.
29 Were that to occur, there would be a major procedural question to decide, namely, whether or not Mr Noye's action against Mr Robbins and his action against Mrs Crimmins should proceed, notwithstanding any adjournment which might be granted to Mr Roddan. In that situation both Mr Robbins and Mrs Crimmins would both be exposed to the prospect of some subsequent proceedings in the future by Mr Roddan duplicating much of what has already occurred.
(Page 12)
30 At this point the interests of the defendants diverge because Mr Robbins' position described by his counsel is that whatever happens, he wishes the proceedings against him to be brought and determined finally in these nine days which have been set aside. His position is that, if the Roddan proceedings cannot be brought against him, at least the Noye proceedings should be heard and determined, presumably because of an expectation that the fate of those may, in some way, conduce to a resolution of the others. That is a perfectly understandable and respectable position to adopt and I understand and respect the decisions which have been taken by Mr Robbins in that regard. Mrs Crimmins' position, however, is different. She too adopts what, in the circumstances, is a perfectly reasonable position. Her situation is that if proceedings are to continue, all proceedings against her should be heard and determined in the time presently set aside by the court for this week and next week, but if only one set of proceedings can be heard or determined, leaving her exposed to the need to defend a second set of proceedings in the future, she would rather that neither goes ahead. Naturally enough, she does not want to be exposed to the anxiety, effort and expense of a dual trial. No doubt different practical considerations weigh upon her and although her position is different from that of Mr Robbins, it seems to be perfectly justifiable.
31 I am not in a position at present to decide whether all the proceedings should continue against both defendants or whether only the Noye proceedings should proceed and, if so, whether against Mr Robbins and Mrs Crimmins or only against Mr Robbins. Until counsel grapple with the need to reformulate statements of claim and to consider other factors necessary for the commencement of a trial one cannot forecast how the trials may evolve or where the advantages of proceeding against one, if not both, of the defendants really lie.
32 I consider that I will be in a better position to consider those matters and make decisions once reformulated pleadings have been prepared. In the course of argument I raised with counsel a timetable for the plaintiffs to bring in amended writs and amended statements of claim by 2.15 pm tomorrow and then to assemble to hear how they could be dealt with. I remain of the view that I should order that amended writs and amended statements of claim should be brought in by the plaintiffs by 2.15 pm tomorrow, but rather than consider the position at that stage, it would be preferable then to direct that upon receipt of those amended writs and statements of claim the solicitors or counsel for the defendants, as the case may be, should prepare and file amended defences by 5 pm tomorrow,
(Page 13)
- and that I should adjourn the proceedings until Wednesday morning at 10.30 to consider how, or whether, the trial should then continue.
33 Accordingly, the directions will be: (1) the joint proceedings brought by Mr Noye and Mr Roddan in action CIV 2231 of 1999 be severed and that the joint proceedings brought by them in CIV 2490 of 2000 also be severed; that in CIV 2231 of 1999 Mr Noye shall bring in an amended writ of summons and an amended statement of claim in relation to his claim against Mr Robbins and that Mr Roddan shall bring in an amended writ of summons and amended statement of claim against Mr Robbins. That may even require the issue of a second writ but, if so, that can be dealt with later.
34 Similar orders will be made in relation to CIV 2490 with the result that there will be four sets of proceedings: one by Mr Noye against Mr Robbins; one by Mr Roddan against Mr Robbins; one by Mr Noye against Mrs Crimmins and the fourth and final one by Mr Roddan against Mrs Crimmins. Those amended papers and statements of claim are to be filed in the court and served upon the solicitors for the defendants by 2.15 pm tomorrow. The solicitors for the defendants must then, by 5 pm tomorrow, file amended defences in relation to each of the new four statements of claim and I will relist the matter for hearing generally on Wednesday morning at 10.30.
On 1 June 2003
35 For reasons which I gave in this Court on Monday I am satisfied that it is necessary to direct that the causes of action which have been brought by Mr Noye and Mr Roddan as co-plaintiffs in the two sets of proceedings, 2231 of 1999 and 2490 of 2000, be severed.
36 In addition, I decided on Monday that in the severed proceedings each plaintiff should sue only one defendant giving rise to the need for Mr Noye to separate his claim against Mr Robbins from his claim against Mrs Crimmins, as indeed had been done in the original proceedings. The result of that decision, followed through in its necessary combinations, has been to require four sets of proceedings for the four causes of action. I adjourned the trial late on Monday afternoon to allow the parties to prepare new statements of claim, any necessary amendments to the writs of summons and for the defendants to prepare draft defences to the newly formulated claims. I also specified a timetable yesterday for that to be done.
(Page 14)
37 Although the timetable has not been observed with the utmost punctilio it has nevertheless substantially been complied with by Mr Noye. Amended statements of claim and amendments to the writ have been filed on behalf of Mr Noye and proposed amended defences to his new claims have been filed by the solicitors for both defendants. Mr Roddan, however, through his counsel, has explained that he has not been able to amend as directed or to give any forecast when he may be able to do so. No amended statement of claim has been filed in relation to either of his two claims. Quite naturally, no new defences have been filed.
38 We are left in the position therefore where there is no proper formulation of Mr Roddan's claims before the court. An additional affidavit was filed on his behalf this morning adding to the reasons set out in his earlier affidavit describing why he is in his present position. I can say, in relation to both affidavits, that the explanations are most inadequate. They describe a general inability to comply with the rules of the court and an inability to obtain legal representation which derive mainly from Mr Roddan's personal lack of knowledge and experience in dealing with litigation. I do not, in saying that, overlook his reference to a serious personal incapacity following an illness or injury and certain difficulties in obtaining access to documents. Nevertheless, there has been a great amount of time during which Mr Roddan has had an opportunity to comply with the rules of the court and he simply has not done so.
39 In ordinary circumstances there would be no doubt that such explanations would not justify an adjournment of a trial on important matters such as these but there are complicating considerations - first of all, that there has been the major reconstitution of the claims rendered necessary by the directions which I made on Monday. Secondly, there is the lack of continuing legal representation for Mr Roddan which I expect will lead to practical difficulties and complications if all trials are to proceed together. Because Mr Roddan's lack of experience and lack of preparation, the lack of properly-formulated pleadings will almost certainly act as a great impediment and a drogue upon the efficient pursuit of the trial by Mr Noye. Mr Noye is ready to proceed. He has counsel ready to present his case for him, it has been reconstituted and can be heard.
40 Then there is the question of whether or not Mr Roddan's claims against these two defendants should be heard in conjunction with Mr Noye's. I appreciate that many minds have examined this situation in
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- the past, including judges who have considered applications to consolidate or to allow a joint trial. It is a finely-balanced decision but there are some disadvantages in a joint trial even in the best of circumstances because the charges against Mr Noye which are alleged to result from malicious prosecution are not the same as the charges against Mr Roddan. The background and roles of the two men are very different. The justification advanced for the charges will be different and the personal consequences will be different. At any trial it will be most important to ensure that the evidence against Mr Roddan in relation to those charges is not treated, or at least not fully treated, as evidence in support of the claim against Mr Noye and vice versa.
41 Having regard to these potential difficulties, but more significantly to the practical difficulties which are likely to be experienced by a trial which if it proceeds with all four matters is likely to involve very limping progress, I have concluded that the most efficient way to proceed is to direct that the trial of Mr Noye's claims against the two defendants should proceed today and that the trials of Mr Roddan's claims against the two defendants should be adjourned sine die.
42 I therefore will give leave to amend Mr Noye's statement of claim in the manner proposed and treat the minutes of amended statements of claim as standing as the amended pleadings. I will allow the amended defences which have been proposed by both defendants to stand as the defences to Mr Noye's claims, and I abridge all time limits otherwise applying and for any replies so that the action can proceed on these draft pleadings.
43 In relation to Mr Roddan's adjourned proceedings, they are to remain in the list. I consider that he should be required to produce amended statements of claim within six weeks regardless of the progress of the action against Mr Noye, and I reserve liberty to apply to the defendants to strike out his action if amended statements of claim are not filed and delivered within that period. Otherwise Mr Roddan's action can remain in the lists but with liberty to apply reserved to each defendant to seek that they be removed from the lists. I would be prepared to case-manage Mr Roddan's claims in the meantime.
44 All questions of costs arising from the adjournment of the claims of Mr Roddan will be held over for attention and consideration later. The costs of the amendments to the proceedings brought by Mr Noye and of the severance will be reserved until the end of the trial.
(Page 16)
45 The consequence of these orders is that Mr Roddan's claims against both defendants are, as I have already said, adjourned. I am encouraged by the thought however slim the prospect may be, that the result in the Noye proceedings may lead to agreement upon a result in the Roddan proceedings once its outcome is known. I will hear submissions from counsel as to how to implement these orders and I will adjourn the proceedings this morning for a short time to allow counsel at the bar table to rearrange their affairs and I will then hear submissions as to when we should resume the trial of the claims brought by Mr Noye.
46 Orders accordingly.
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