Attorney General of Fiji v Dre [2011] FJCA 11; Misc.13.2010 (17 February 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

MISCELLANEOUS ACTION 13 OF 2010

BETWEEN:

1. ATTORNEY GENERAL OF FIJI
2. MINISTRY OF HEALTH
Appellants

AND:

LORAINA DRE
Respondent

Date of Hearing: Monday, 31st January 2011

Counsel: Mr R Green for 1st and 2nd Appellants
Mr D Singh for the Respondent

Date of Ruling: Thursday, 17th February 2011

RULING

1. In October 2006 a sixty six year old woman Ms Loraina Dre went to Nabouwalu Hospital in Vanua Levu for treatment of an ear infection. Five weeks later her right arm had to be amputated.
   
2. She claimed the injury was caused by medical negligence and the matter came before Sosefo Inoke J in the High Court sitting at Labasa. Inoke J gave judgment on 24th June 2009 for the Plaintiff. The judgment was stayed by the High Court pending an appeal by the Attorney General on behalf of the Ministry of Health.
   
3. Acting President of Court of Appeal, John E Byrne in 2009 was asked to present a paper on medical negligence cases for those attending the Attorney General's Conference on Civil Law held on 28th November 2009 at the Warwick Resort near Sigatoka. In that written paper orally delivered to the conference he discussed inter alia the Loraina Dre case. He discussed the details of the allegedly negligent treatment and expressed the view that Justice Inoke had been right to find medical negligence.
   
4. The first time that Acting President Byrne would have been aware that on 29th July 2009 the Attorney General had filed an appeal against the finding of liability by Justice Inoke, was on 19th January 2010 when he gave directions for a hearing before him on an application by the Respondent for interim damages. It seems that Counsel for the Attorney General was unaware of the paper delivered at Attorney General's Conference. I say that because, if he knew about it he would surely have reminded Acting President Byrne of his public comments on the case and stated whether or not the Attorney General moved for Acting President Byrne to recuse himself or, alternatively, consented to his hearing of the interim damages application. It is unlikely that Acting President would himself recall that this was one case of a number of medical negligence cases discussed in a long conference paper prepared by him some months previously.
   
5. At a hearing on 16th February 2010 with ruling handed down on 8th June 2010 Justice Byrne ruled that the sum of $50,000 be paid to the Plaintiff / Respondent within 21 days. Again on neither of these hearing dates was the issue of bias or recusal raised. Nor was it agreed by the parties that knowing the facts they nonetheless agreed to Acting President Byrne presiding over these proceedings. In my view the informed consent of the parties in a civil case will override a later objection on account of bias. See paragraph 9(4) below.
   
6. On 23rd July 2010 the Attorney General seems to have discovered for the first time Acting President Byrne had in a paper at the Attorney General's conference referred as described above to the Loraina Dre case. The Attorney General on 23rd July 2010 filed an application that Justice Byrne should recuse himself from all proceedings in the appeal, that he should set aside his ruling and Order of 8th June 2010 and refer the interim damages matter to another Justice of Appeal.
   
7. Towards the end of October 2010 Mr Justice Byrne retired from his position as Acting President of the Court of Appeal and as a Justice of Appeal. I am now dealing with interlocutory matters in this appeal.
   
8. On the issue of bias the decisive case in the matter of a judge sitting on a cause or matter in which he has an interest is Reg v. Bow Street Magistrate Ex parte Pinochet (No.2) [2000] 3AC 119. This involved an extradition request from Spain that the former President of Chile Augusto Pinochet Ugarte be extradited to Spain to face crimes of humanity committed when he was President of Chile between 1993 and 1990. There was an appeal to the House of Lords from a decision of the Divisional Court quashing one of the extradition warrants.
   

Lord Hoffman sat on the appeal. The House of Lords were split by three to two in favour allowing the appeal and reinstating the warrant of extradition. This would have allowed the Home Secretary to extradite Pinochet to Spain to stand trial. While Lord Hoffman did not give a reasoned judgment, his agreement with the other law lords in favour of this result, was instrumental in the outcome. Lord Hoffman had close connections with Amnesty International (AI). He was the Chairman of the Trustees and a Director. Amnesty International Charity Limited, which although charitable, was closely involved in the human rights decision making of Amnesty International. This became crucial when Amnesty International were permitted to intervene and became parties to the appeal. Lord Hoffman did not at the hearing or earlier declare his connections with Amnesty International. In the result it was unanimously held that the decision of the House of Lords would have to be set aside and the matter be heard by a different panel.

9. In my view the following propositions from R v. Bow Street Magistrate Ex parte Pinochet (No.2) are relevant to the issues which I have to consider in this case.
   
   • (1) A man must not be a judge in his own cause. He cannot sit if he has a financial interest in the outcome. Secondly where the judge is not a party to the suit and does not have a financial interest in its outcome, his conduct or behavior may give rise to a suspicion that he is not impartial.

(Pinochet No.2 per Lord Browne-Wilkinson at pages 133 and 134).

(2) If the interest is non pecuniary but rather the promotion of a cause, the rationale for disqualifying automatically applies to an equal extent.

(Pinochet No.2 per Lord Browne-Wilkinson at page 135).

(3) In criminal appeals in Scotland such as Bradford v. McLeod 1986 S.L.T. 244 it has been held that impartiality in a judge is so important that if he has made remarks showing suspicion of partiality, the decision will be set aside on appeal.

(Pinochet No.2 per Lord Hope of Craighead at pages 141 and 142).

(4) In the context of a civil case if the Judge declares his interest the parties may waive any objection to his sitting. But without declaration and waiver the decision cannot stand.

(Pinochet No.2 per Lord Hope of Craighead at pages 140 and 141).

(5) Lord Hewart C.J.'s famous dictum in Rex v. Sussex Justices Ex parte McCarthy [1924] 1KB 256 must be observed.

"[it is] of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

(Pinochet No.2 per Lord Browne-Wilkinson at page 135 and per Lord Hope at page 142).

10. I turn to applying these principles to the facts of the present application. In my view the alleged disqualifying interest is not pecuniary. But can it be said to be the promotion of a cause? At issue in this appeal is whether Mr Justice Inoke was correct to find negligence. In his paper Acting President Byrne said at page 13:
    

"I personally have no hesitation in saying that Justice Inoke was right in finding negligence."

That in my view is the espousing of a cause. It expresses an emphatic view on the principal question which the Court of Appeal is to decide.

11. Another issue is whether Acting President Byrne's conduct in stating the view I have cited above gives rise to a suspicion that he is not impartial. In my view it gives rise to such a suspicion of partiality if he then hears the appeal or any part of it. This falls foul of the second principle within paragraph 9(1) above.
    
12. Since there is an expression of partiality Lord Hewart's dictum concerning justice being seen to be done is clearly applicable. The test in R v. Gough [1993] UKHL 1; [1993] AC 646 is whether the court examining the matter finds that in its view there is a real danger that the judge was biased. In Webb v. The Queen [1994] HCA 30; 181 CLR 41 the test was expressed differently. The enquiry approved in Webb is whether the events in question give rise to a reasonable apprehension of suspicion on the part of a fair minded and informed member of the public that the judge was not impartial.
    
13. In my view the facts compel me to find that there is a real danger of bias in this case. I believe also the fair minded and informed member of the public would take the view that Acting President Byrne's prejudgment of the appeal compelled the conclusion that justice could not be seen to be done and that Acting President Byrne could not be found to be impartial.
    
14. I therefore set aside the hearing before Acting President Byrne and his orders for interim damages. However I am sure, as was the case with Lord Hoffman in Ex parte Pinochet No.2, at no time was there any actual bias involved. I am sure Acting President Byrne correctly applied the law of interim orders for damages under Order 29 to the facts of the case. That assessment did not require making decisions on the grounds of appeal. Acting President Byrne was properly able to use the trial evidence and finding on liability by Inoke J to conclude that the criteria either under Order 29 Rule 11(1) (b) or under Order 29 Rule 11(1) (c) was satisfied so that an interim payment order could validly be made. I reiterate that I find that probably Mr Justice Byrne was not aware that the instant case was one that he had commented upon in his paper at the start or during the time he was engaged in ruling upon this application.
    

Application for Interim Damages under Order 29

15. I now consider the interim damages application afresh.
    
16. Having looked at the evidence at the trial and having considered for myself the appropriate findings on that evidence I am satisfied that Loraina Dre will succeed in her claim against the Ministry of Health. In so holding I am adopting the test relevant to Order 29 Rule 11(1)(c) as explained in British and Commonwealth Holdings plc v. Quadrex Holdings Inc [1989] QB 842, Andrews v. Schooling [1991] 1 WLR 783 and Yeung Sek Sung v. Cheung For Ming [1991] 1 HKLR 1.
    
17. In so finding I deal with it as an interlocutory appeal matter only. I have not and will not decide the appeal unless and until it comes before me on the appeal hearing. All Order 29 requires of me is prediction of chances of success and they are in my opinion very high. There is a high chance of success that the verdict for the Plaintiff now the Respondent will remain undisturbed.
    
18. In my opinion it is appropriate to order an interim payment of 50% of the damages and interest awarded by Justice Sosefo Inoke. The relevant figure is therefore 50% of $10,1,660 which is $50,830. I order this sum to be paid to the Plaintiff within 21 days. Loraina Dre is now about 71 years of age and it is highly appropriate that she receives the necessary care during her lifetime. That is why this payment must be made within 21 days.
    
19. I also will direct that the substantive appeal be heard by the Court of Appeal on 14th March 2011 at 9.30am. The appellant's submission must be filed by 14th February 2011. The Respondents' submissions by 28th February 2011 and the Appellant's Reply by 4th March 2011.
    
20. Before leaving the question of interim payments, I note that a stay of execution was granted on 1st September 2009. It appears that no reasons were given for this ruling. In my view there should always be reasons given. Having read the Appellant's affidavit opposing an interim payment I suspect that the Appellant's grounds were that if the money was paid out and their appeal succeeded in the Court of Appeal or in the Supreme Court the Ministry of Health and the Fiji Government might not get the money back from Loraina Dre. One would have thought that in some earlier medical negligence cases the Government have ultimately succeeded and found that the impecunious Plaintiff who may well be aged with few years left being in extreme need of care has spent the money or some of it on care and necessary expenses. In such cases the Government might not have recovered some or all of the money paid out. In addition, Ground 1 in the Appellant's opposition to a payment of interim damages is that the stay of 1st September 2009 precludes them.
    
21. However looking at the affidavit of Mr Prasad for the Ministry of Health dated 22nd January 2010 I am far from assured that the legal framework for granting stays of execution pending appeal were understood by the parties or the Court. It is most likely that the affidavit of Mr Prasad is essentially the same for the stay application as it is now for opposing interim damages under Order 29. If so there are statements in it that raise real doubts that it could have succeeded. I repeat that it did succeed on 1st September 2009. Mr Prasad deposes:
    

"The Respondent has not been denied the fruit of her judgment since there is an appeal pending ...

... there is a high probability that our appeal will succeed ...

... in any event if our appeal is successful it would be difficult to recover the sum paid under an interim Payment Order since the Respondent is unemployed ...

... the State in the past has faced difficulties in recovering funds paid under an interim payment order. In the matter of Registrar of Titles v. Prasad [2003] FJCA4; ABU0031u.2002s [4 February 2003] the State had to apply to this Court for recovery of a proportion of the sum paid out to the Respondent. The matter was further complicated by the Respondent's argument that the portions to be paid back were costs accrued by the Respondents because of the delay in bringing the matter to finality."

It seems my expectation that damages in one or more personal injury cases might not have been paid back after a successful state appeal, is erroneous. Any such case would have been reported by Mr Prasad. Registrar of Titles v. Prasad is a land case with nothing to do with personal injuries.

22. In respect of stay of execution pending appeal if the appellant fails before the High Court, the application can be renewed before the Court of Appeal. The Respondent against whom a stay has been granted, has the same right of renewal of the issue before the Court of Appeal. I would have expected Ms Loraina Dre to have combined a motion for interim damages before me with a motion that the matter of the granting of the stay on 1st September 2009 be revisited and the decision reversed or modified by the imposition of terms. That has not happened. It is clear that granting stays pending appeals is inter-connected with ordering interim damages under Order 29. I shall try to explain the legal framework in respect of stays pending appeal and its inter connection with interim damages under Order 29. It may result in a better application of the rules relating to stays pending appeal so that in future cases decisions that are in accord with the relevant legal principles are reached.
    

The legal framework re stays pending appeal

23. It is useful before explaining the matter further to set out a summary of the law of when a stay of execution pending appeal will or will not be granted. I take it from Volume 1 of Hong Kong Civil Procedure 2007 (The Hong Kong White Book) at page 910 the note being 59/13/1. Order 59 dealing with appeals to the Court of Appeal, is derived from the English Rules of Supreme Court (RSC) which were in place from 1873 to 1999 when English Civil Procedure was reformed as a result of a major report by Lord Woolf. In England the Civil Procedure Rules 1999 superceded R.S.C. For a jurisdiction such as Fiji that follows the substantive rules, the format and familiar numbering of the former R.S.C. in England this change is confusing and unfortunate. However the annually published Hong Kong White Book is an update with the R.S.C. Rules and commentary thereon in pari materia with the English White Book which ended in 1999. What is more it is updated with all relevant cases and amendments that have occurred between 1999 and the year in which it is published. Order 59 in England (before 1999) and in Hong Kong is the equivalent of in Fiji, the Court of Appeal Act and Rules. It follows that the commentary with cases cited is useful to all those involved with civil appeals in Fiji.
    
24. The heading of note 59/13/1 is "When will a stay of execution be granted."
    I set out only the parts of this note that are relevant to the present discussion:
    

"An appeal does not operate as a stay on the order appealed against, except to the extent that the court below, or the Court of Appeal (or a single Judge of the Court of Appeal otherwise directs (O.59, r.13(1)(a); see also World Trade Centre Group Ltd & Another v. Resourceful River Ltd & Another [1993] H.K.L.Y.847; and Re Schindler Lifts (H.K.) Ltd v. Dickson Construction Co. Ltd [1993] H.K.L.R. 45). It follows that service of notice of appeal and setting down the appeal does not, by itself, have any effect on the right of the successful party to act on the decision in his favour and to enforce the order of the court below. If an appellant wishes to have a stay of execution, he must make an express application for one (see further para.59/13/5 (below) ). The most important consideration in respect of whether a stay of execution should be granted is whether there are strong grounds of the proposed appeal: World Trade Centre Group Ltd & Another v. Resourceful River Ltd & Another; Civ. App No.70 of 1993, May 12, 1993. That hurdle is higher than that of chances of success for considering whether leave to appeal should be granted. See also Asha Harskishin Premsingh v. Harskishin Isarsingh Premsingh Kishinani M.P. No.3436 of 2000, November 12, 2000, unreported. Neither the court below nor the Court of Appeal will grant a stay unless satisfied that there are good reasons for doing so. Unless a stay can be justified by good reasons, one will not be ordered (Star Play Development Ltd v. Bess Fashion Management Co. Ltd, unreported, HCA No. 4726 of 2001, May 28, 2002; and see Wenden Engineering Service Co. Ltd v. Lee Shing Yue Construction Co. Ltd, unreported, HCCT No.90 of 1999, July 17, 2002, [2002] H.K.E.C. 1059). The court does not "make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds to which prima facie he is entitled", pending an appeal (The Annot Lyle (1886) 11 P.114 at 116, CA; Monk v. Bartram [1891] 1 Q.B.346). ...

... Where the appeal is against an award of damages, the long established practice is that a stay will normally be granted only where the appellant satisfies the court, that, if the damages are paid, then there will be no reasonable prospect of his recovering them in the event of the appeal succeeding (Atkins v. Great Western Ry Co. (1886) 2 T.L.R. 400, following Barker v. Lavery [1885] UKLawRpKQB 32; (1885) 14 Q.B.D. 769, CA; this rule applies equally to Admiralty cases, see: The Annot Lyle, above, at 116). ..."

25. It is of interest that in none of the three cases cited in respect of "no reasonable prospect of recovering if appeal succeeds" was a stay of execution pending appeal ever granted. So it seems that in the common law world there is no reported case where a stay was ever granted on these grounds. Also the three cases in question are dated 1885, 1885 and 1886.
    
26. The first in time is Barker v. Lavery [1885] UKLawRpKQB 32; (1885) 14 QBD 769 was in a property dispute. The defendant against whom a costs order had been made appealed to the House of Lords. He then applied to the Court of Appeal for a stay in respect of the costs order. He offered payment into Court of the full amount and expected a stay to be granted on these terms. The Lord Chancellor, the Earl of Selborne at page 769 asked in argument:
    

"Are there any circumstances in evidence to show that the plaintiff, if he is defeated in the House of Lords, will be unable to pay back the money levied by execution against the defendant?"

Then Lord Selborne gave a succinct judgment at page 770:

"... The defendant is not entitled to have the application granted as a matter of course. Evidence ought to have been adduced to shew, that the plaintiff would be unable to repay the costs if he should be unsuccessful before the House of Lords. As to the request for time to make an affidavit about the plaintiff's means, we cannot accede to it; those, who apply for a stay of execution, must come before us prepared with all necessary materials."

27. The next case in time sequence was Atkins v. Great Western Railway (1885 – 86) 2 Times Law Reports at page 400. This most likely was a personal injury case. A civil jury had awarded the Plaintiff 350 pounds against The Great Western Railway. Counsel for the railway company's grounds for a stay were:
    

"that a great deal of prejudice had been imported into the case and that these were the strongest grounds of appeal."

Lord Esher M.R. dismissed the application, followed Barker v. Lavery and dismissed the applications robustly (at page 400):

"The Master of the Rolls said that he would not undertake to say that the Court of Appeal would never listen to what happened at the trial in order to see whether they would grant a stay of execution, but, as a general rule, the only ground for such a stay was an affidavit showing that if the damages and costs were paid there was not reasonable probability of getting them back even if the appeal succeeded. He would not say that the Court would not interfere for some other reason, but that there were strong grounds for an appeal was no reason, for no one ought to appeal without strong grounds for doing so. In Barker v. Lavery [1885] UKLawRpKQB 32; (14 QBD, 769) the Court enunciated that rule when Lord Selborne, then Lord Chancellor, was present, and he was precisely of the same opinion. The application should be refused."

28. Later in 1886 the application of these rules in the Admiralty Division of the High Court was considered in The Annot Lyle (1885 – 1887) 10-12 PD at 114 a case involving a collision between "The Annot Lyle and another ship which was at anchor at the time. Having lost for the second time, this time in the Court of Appeal, the Defendants appealed to the House of Lords. The Defendants had put up a bail bond as security in this action in rem and cited this as a reason for the granting of a stay of execution pending appeal. In the second judgment delivered, Bowen CJ agreed with the Master of the Rolls Lord Esher. At page 116 he said:
    

"I am of the same opinion. An unsuccessful litigant comes to ask us to deprive a successful one of the fruits of his success, until a further appeal is determined. No affidavit has been made on behalf of the applicants, and we must therefore assume that if the money is paid over to the respondents, and the appeal is successful, the appellants will be able to get it back. There is no reason, in my opinion, why in Admiralty cases we should make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds, to which prima facie he is entitled, for a long time because they are secured by the bail bond. We cannot assume that it is a matter of small importance to a successful party to go without his damages for a long time. The rule which this Court laid down in Barker v. Lavery applies to Admiralty cases as much as to the other cases which come before the Court, for no special distinction between the different classes of cases has been drawn in the Rules of Court."

Lord Esher in the course of his judgment had said much the same. The following citation (at page 116) is relevant:

"We are asked to depart from that rule, although it is admitted that there are no special circumstances in this case which afford a ground for so doing. If in any particular case there is a danger of the appellants not being repaid if their appeal is successful, either because the respondents are foreigners, or for other good reason, this must be shewn by affidavit, and may form a ground for ordering a stay."

29. Some further light may be cast by cases which give guidance on the terms which may be imposed if a stay be granted. The defendant may be ordered to pay the money to the Plaintiff, the Plaintiff giving money security for the repayment if the appeal is successful, or the Defendant, if the Plaintiff prefers that course, may be ordered to pay the money into Court. See Merry v. Nickalls ([1873] UKLawRpCh 14; 1873) LR 8 Ch. App. 205 at 206; Cooper v. Cooper [1876] UKLawRpCh 166; (1876) 2 Ch D 492 and Morgan v. Elford (1870) 4 Ch.D.388
    

30. I have only found one relevant personal injury case other than Atkins v. Great Western Railway (supra). That is Bloor v. Liverpool Derricking & Carrying Company Ltd. 1936 3 AER 399. It involved a fatal accident arising from Mr Bloor's work on one of the river barges owned by the company. At first instance Swift J found for his widow. Swift J awarded £300 out of the total common law damages of £785 to be irrecoverable and to be paid to the widow and stayed the remainder pending appeal. The way the common law was on negligence at the workplace in 1936 was not very Plaintiff friendly. In the Court of Appeal, Lord Justice Greer talked about sympathy and humanity and then said:

"I am inclined to think that the learned judge did not succeed in divorcing that feeling of humanity from his judgment in the case."

It is fair to say that this Defendant's appeal had very good if not exceptional chance of success. It is therefore not surprising that Mr Justice Swift ordered a stay pending appeal on most of the damages. The conclusion of the Court of Appeal was that if there was part of the claim which was likely to survive the appeal, judges at first instance could order such sum to be paid out and be irrecoverable in the hands of the Plaintiff. But if the judge at first instance refused a stay and wished part or all of the damages not in that category to be paid, they must not say that any part of such monies were irrecoverable in the hands of the Plaintiff. In Bloor's case the part likely to survive on appeal intact was the parallel Workman's Compensation Act claim which the Court of Appeal assessed at £250. That stayed with Mr Bloor's widow.

31. Reviewing the 19th Century cases discussed above, the tone is set by Barker v. Lavery (supra) where the Defendant commenced his application by offering to pay the damages ordered into court. The response from Lord Selborne is hostile. The court favours the view that the successful Plaintiff, now the successful Appellant, is entitled to the whole fruits of the litigation at that point. Any general view that payment into Court will ensure a stay is disapproved by the Court. The Defendant is then asked if there is any evidence that the Plaintiff will be unable to repay. The Defendant blusters that he might find some such evidence. The Court then slams the door:
    

"those who apply for a stay must come before us prepared with all necessary materials."

32. In Atkins shortly afterwards the same philosophy is shown. When the Defendant claims that it has the strongest grounds of appeal, Lord Esher M.R. shoots that down with:
    

"strong grounds of appeal is no reason for no one ought to appeal without strong grounds for doing so."

It is also established by Lord Esher M.R. that any affidavit re possible failure of pay back by the Plaintiff:

"must show that if the damages and costs were paid there was no reasonable probability of getting them back if the appeal succeeded."

It is likely that the Plaintiff in Atkins suing the railway company for personal injury was a person of reasonable means.

33. In the Annot Lyle strong disapproval of the application is palpable in the words of Bowen LJ:
    

"an unsuccessful litigant comes to ask us to deprive a successful one on the fruits of his success while a further appeal is determined."

Bowen LJ then draws the inference that the absence of a relevant affidavit, means that if they later became entitled to a refund there will be no difficulty in the Plaintiff finding the money. Lord Esher M.R. dealing with special reasons for departing from the usual rules adds that it could apply "if the respondents are foreigners."

34. The absence of any other cases on stay of execution until the late 20th century when as the 2007 Hong Kong White Book, cited in paragraph 24 above, states, it became the rule that no stay would be granted unless the chances of success were very high. What can be taken from this is that successful Plaintiffs in personal injury cases in the United Kingdom did not usually or often have their damages stayed in whole or in part. In UK if Government acts as its own insurer or an insurance company stands behind the tort feasor, there should be little concern over the Defendant being able to pay out when the final appeal is lost. There should be little chance also of such defendants taking barely arguable appeal points in order to postpone the time of payout. But with a credit crisis affecting insurance companies and credit squeezes affecting central and local government agencies there may be a temptation to try and postpone payouts wherever possible.
    
35. If that is true for developed countries in 2007 – 2011 institutions in small less developed countries are likely to face cash flow pressures more acutely. For the small countries the pressure to delay payment on the part of those standing behind Defendants, must have been substantial not just in the world crisis of the last few years but for many decades.
    
36. One of the factors that would prevent stay applications in places like the United Kingdom in personal injury cases would be the way they would be perceived by judges and the media. Firstly the Plaintiff is suffering or slowly dying as a result of the negligence of the tort feasor who has after trial lost his case. Secondly any rule of law that says that a disabled person who needs money for expenses incurred by reason of living as a disabled person cannot get any relief until the finality point within a three tier system of civil litigation is reached because they are poor and of little means rather than rich, is extremely unattractive. It is also indefensibly discriminatory. In Fiji personal injury cases routinely take between six and ten years to pass through the courts. In the United Kingdom it is now a fraction of that time. Thirdly any rule of law that may result in injured persons who have proved their case in court dying before they receive financial redress, with the consequence that their relatives receive the compensation is distasteful. Particularly if their demise is hastened by the lack of damages which they can use.
    
37. Whatever may be the history in the United Kingdom the introduction of interim damages in 1980 inter alia for personal injuries must have been or would have been a game changer.
    
38. That is because the philosophy behind it is that those injured and disabled persons in need of damages, whether they be rich or poor, must be able to obtain some part of their damages as soon as is reasonably possible. Of course a first instance judge on evidence in an interlocutory application must be satisfied that liability on the part of the tort feasor will be proved. In the United Kingdom experience shows that interim payment applications are relatively successful. The result has been the early disposal of the liability issue one way or another with huge savings in legal costs.
    
39. The introduction of the same reform in Fiji where our Rules of the High Court Order 29 were amended after 1980 to be in pari materia with the new rules for interim payments in the United Kingdom is interesting. For some reason an application for interim payments in serious cases seem to be an infrequent occurrence. There may be a perception that liability in Fiji is so hotly contested that it is better to prepare once for trial.
    
40. But my concern is here limited to the impact that the introduction of interim damages in Fiji should have had on applications for stays of execution made by losing defendant tort feasors at first instance. The legislature has passed a law that says that the tort victim without reference to his or her means must get interim damages for treatment and expenses as soon as reasonably possible. There is no rule in this legal framework that makes interim payments only to be available and to be paid if, should the defendant reverse an adverse decision on appeal or upon final appeal, the Plaintiff will have the means to repay the damages represented by the interim payment.
    
41. So if granting The Ministry of Health a stay pending appeal was ever justified on the principles laid down by Barker v. Lavery, Atkins v. Great Western Railway and the Annott Lyle it cannot be a valid interpretation of the Rules of Court, after interim damages were introduced into the law. The rule of Court allowing a stay pending appeal does not contain any reference to the alleged rule. It must now be interpreted in accordance with the legislative policy of the post 1980 statutory scheme under Order 29 in Fiji allowing for interim damages. The Order 29 scheme, if the evidence of the Plaintiff reaches the required high level on liability has no legal policy allowing the Court to withhold interim damages because the tort victim is poor and will have no money to repay should the verdict on appeal go against him or her. The absence of any such exception cannot be accidental.
    
42. There are a number of reasons why the stay application pending appeal in this case should have failed. Leave interim damages principles on one side. On this basis it should still have failed.
    
43. Firstly it is not relevant to admit evidence of previous experience with other Plaintiffs whose verdict alleging injuries as a result of negligence was reversed on appeal. Not that it appears that the Ministry had any such cases. In paragraph 11 of the Affidavit of Ms Preetika Prasad, the defendant refers to a 2003 decision in a land matter. Even then in this 2003 land case, the complaint of the Defendant did not allege non recovery. What the appellant says:
    

"In Registrar of Titles v. Prasad the State had to apply to this court for recovery of a proportion of the sum paid out to the Respondent. The matter was further complicated by the Respondents argument that the portions to be paid back were costs accrued by the Respondents because of the delay in bringing the matter to finality."

Perhaps the deponent should have reflected that a litigant in Fiji in accordance with the rule of law is entitled to argue a set off or counterclaim and have the matter decided by the Court.

44. I continue with this first ground. Evidence about other cases is irrelevant because the test was established by Lord Esher M.R. in Atkins. The test refers only to the Plaintiff in the case before the Court. I state again what Lord Esher M.R. said:
    

"[the Appellant] must show that if the damages and costs were paid there was no reasonable probability of getting them back if the appeal succeeded."

In his affidavit on behalf of the Ministry what Mr Pradeep says about Loraina Dre (a now 70 year old woman) is that she is "unemployed". Some wealthy individuals are unemployed and probably most are unemployed when they reach the age of 70. The evidence adduced does not begin to establish what must be shown.

There is a second ground on which the application would have failed upon application of the Barker v. Lavery line of cases. In Barker v. Lavery the Defendant commenced his application by offering to pay the damages ordered into Court. If in addition he had evidence that proved in respect of the Plaintiff that there was no reasonable probability of the Defendant getting the damages back if the appeal succeeded, the Defendant would still have had to bring all the damages, and possibly also the costs into Court. This rule is confirmed by the Merry v. Nickalls, Cooper v. Cooper and Morgan v. Elford line of cases referred to in paragraph 29 above.

In the Loraina Dre case there was no offer or intention of bringing the money into Court. This is because one of the Ministry's objectives in seeking a stay was to postpone the need to pay out for as long as it was legally possible to do so. The evidence of that lies in the analysis of the Ministry's chance of success in its appeal.

45. This brings us to the third ground upon which the application should have failed upon application of the Barker v. Lavery line of cases. In this case the deponent Mr Praveen Prasad at paragraph 9 states:
    

"That there is a high probability that our appeal will succeed."

But as was said by Lord Esher M.R. in Atkins:

"... strong grounds of appeal was no reason, for no one ought to appeal without strong grounds for doing so."

46. What probably always has been relevant to these stay applications but is now expressly so in view of the Hong Kong cases cited from the Hong Kong White Book 2007 at paragraph 24 above, is the negative chances of success of the appellant. The policy behind, "not denying the Plaintiff the fruits of his judgment" is the experience of the law that many litigants, will appeal any judgment until finality on any grounds in order to postpone the day of paying out. Too often delay is the name of the game. So it has probably always been correct to say that there will be no special reasons based on the Plaintiff's lack of means to repay or otherwise where on examination of the Defendants' chances of success on appeal the decision maker concludes that they are low to non-existent. The Defendant should not be appealing because he does not have strong grounds; the fact that he has low to non-existent chance of success in his appeal must determine his application for a stay against him.
    
47. In hearing the application before the Court I asked Mr Green for the Ministry of Health the basis for claiming a high chance of success in appeal. Mr Green said his client would win because of causation which I took to mean that the treatment found to be negligent did not cause the amputation of the left arm. Looking at 3.1(b) of the Notice of Appeal claiming error in the trial judge in finding facts amounting to negligence and failing to find:
    

"that the Respondent's pre existing disease did not contribute or break the chain of events that led to the amputation."

48. From the parts of the Record that I presently can access, I note
    
    • (1) The Defendant at trial filed no written submission.
      
    • (2) The Defendant at trial called no witnesses.
      
    • (3) That Dr Chaudhari an expert witness called by the Plaintiff opined that injecting a high concentration of bloxacillin into the artery would cause the artery to spasm stopping blood flow leading to ischaemia in the area and gangrene for which the only treatment was amputation.
      
    • (4) That Dr Chaudhari on being asked the outcome if Ms Loraina Dre had consented to a nerve blocking procedure replied that it would have relieved the pain but would not have changed the outcome.
      
49. My only duty here in these applications, one of which is an application for interim damages, is to assess the Appellant's chance of success in the appeal. Taking the above into account I find the Appellant's chances of success to be "low to non-existent". On the same issue at the stay hearing of 1st September 2009 the only reasonable conclusion of the tribunal of fact, if the issue had been addressed, would have been the same. I am mystified how Mr Prasad in his affidavit could state that the chances of the Appellant were high.
    
50. I conclude that even if Order 29 had not been amended to provide for interim damages in Fiji, the application of the legal framework relating to stays pending appeal explained above could only have lead to the refusal of a stay of execution.
    

Orders and directions

51. My orders on the issues raised in these rulings:
    
    • (1) Acting President John E. Byrne's ruling on interim damages be set aside.
      
    • (2) the Appellant pay to the Respondent within 21 days interim damages of 50% of those awarded at first instance by Mr Justice Inoke which comes to $50830.
      
    • (3) direction that the substantive appeal will be heard on 14th March 2011 at 9.30 a.m.
      
    • (4) direction that the Appellants submission must be filed by 14th February 2011; the Respondents submissions by 28th February 2011 and the Appellants' reply by 4th March 2011.
      

William R. Marshall
Resident Justice of Appeal