Lal v Singh [1993] FJHC 15; Hbc0249d.89s (17 February 1993)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 249 OF 1989

BETWEEN:

1. JAGAT LAL
(father's name Sukh Lal)
of 70 Sharlimar Street, Suva, Tanker
Driver.

2. RAVENDRA PRASAD SHARMA
(father's name Radhika Prasad) of Waila, Nausori,
Tanker Driver.

3. VIJENDRA PRASAD SHARMA
(father's name Radhika Prasad) of Waila, Nausori,
Tanker Driver.
Plaintiffs

AND:

SOHAN SINGH
a Barrister and Solicitor
of 62-66 Cumming Street, Suva.
Defendant

Mr. S.M. Koya: For the Plaintiffs
Mr. G.P. Shankar: For the Defendant

Dates of Hearing: 2nd October and 26th November 1992
Date of Ruling: 17th February 1993

RULING ON INTEREST

On the 25th of September 1992 I gave judgment for the Plaintiffs in this action and indicated after delivery of the judgment that I was prepared to hear argument on the question of whether any interest should be paid to the Plaintiffs on the sum of $99,062.30, the amount in dispute between the parties. I have now received written submissions from the parties.

Mr. Koya, counsel for the Plaintiffs submits that interest should be paid to the Plaintiffs in accordance with Section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap.27.

Section 3 of that Act states that in any proceedings tried in the High Court for the recovery of any debt or damages the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment. The three provisos to the section are irrelevant for present purposes.

Counsel for the Plaintiff argues that the reason why interest should be paid to the Plaintiffs is that they were deprived of the use of the respective amounts of money which they paid to the Defendant when instructing him to act for them and that the relevant moneys were thus in the hands of the Defendant at all relevant times.

Mr. Koya submits that interest should be paid in accordance with five stages on varying amounts ranging from the sums of $80,463.59 paid by the First Plaintiff, $73,110.67 paid by the Second Plaintiff and $11,529.29 paid by the Third Plaintiff to the Defendant between 28th of January 1989 and 15th of June 1989.

On 29th January 1989 each of the Plaintiffs signed a Document entitled "Instructions to Act" on the basis of which the Defendant withdrew a total amount of $99,062.30, the amount still in dispute from money collected by him.

On the 15th of June 1989 as set out on page 4 of my judgment the Defendant deducted from each of the Plaintiffs' bank accounts in the total sum of $165,103.55 which the Plaintiffs had authorised him to collect from their accounts, various sums amounting in total to the aforesaid $99,062.30 which he claimed to be each of the Plaintiff's costs due to him.

Counsel for the Plaintiff then submits that interest be paid by the Defendant on various other amounts less than the $99,062.30 for reasons which I need not mention in view of the conclusion which I have reached.

As stated in my judgment, on the 14th of October 1989 the Defendant paid into Court under a consent order of myself the sum of $51,777.25 to be credited to each Plaintiff as set out on page 4 of my judgment. That sum was shortly afterwards paid out to the Plaintiffs' solicitor under my order.

Counsel for the Defendant first submits that in the Originating Summons no claim was made for interest and it therefore should not be allowed. I note however that even it were necessary to claim interest, which I am satisfied it is not under Order 7 Rule 3 of the High Court Rules, a claim for interest was certainly made in the Writ of Summons under which the parties later proceeded on the 3rd of April 1990 when a Statement of Claim was delivered by the Plaintiffs pursuant to the order of Palmer J. on the 3rd of April 1990. I therefore reject this submission by the Defendant.

Counsel then submits in the alternative that there is no debt due by the Defendant to the Plaintiffs which would allow an award of interest to be made under Section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap.27 (supra).

Counsel submits that there can not be any debt or damage due from the Defendant to the Plaintiffs until after the taxation of their costs. He then quotes a number of English cases which in my view are distinguishable from those of the present on their facts and which, indeed, counsel concedes.

In my judgment there was at least a definite provisional debt due from the Defendant to the Plaintiffs in the sum of $51,777.25 which the Defendant paid into Court and which was subsequently paid out to the Plaintiffs' solicitor, admittedly without prejudice to the rights of any of the parties.

In my judgment it is equitable that the Plaintiffs should have interest at the bank rate on that sum payable to each Plaintiff when the money was paid into Court and as set out on page 4 of my judgment. Such interest should run from the 15th of June 1989 to the 14th of October 1989.

There remains the question of whether any other balance may be payable from the Defendant to the Plaintiffs after their costs are taxed or whether after such taxation it will be found that the Plaintiffs owe the Defendant some money if the Chief Registrar decides that the Defendant's costs exceed the amount of $51,777.25.

If it transpires that no further money is due from the Plaintiffs to the Defendant after their costs are taxed then I consider that interest should be paid by the Defendant to the Plaintiffs on whatever sum remains after subtracting the amount of the Defendant's costs from the sum of $47,285.05 being the amount of $99,062.30 less $51,777.25 already paid to the Plaintiffs. That interest should be at the bank rate and run from the 14th of October 1989 to the date on which the costs are taxed and be paid to each Plaintiff in the proportion which his taxed costs bear to the sum of $47,285.05.

In my opinion any further amount found to be due from the Defendant to the Plaintiffs would constitute a debt within the meaning of Section 3 to which interest would be attracted.

I make orders accordingly.

JOHN E. BYRNE
J U D G E

HBC0249D.89S