Maharaj v Permanent Secretary for Health [1997] FJHC 27; Hbc0400d.96s (6 March 1997)

Fiji Islands - Maharaj v The Permanent Secretary for Health - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 400 OF 1996

BETWEEN:

1. VIDYA AJ
a.k.a. VIDYA WATI d/o Bhual

2. DEVANESH PRAKASH SHARMA

s/o Prakashwa Nand

3. PREETI KRISHNA MALA

d/o Prakashwa Nand

Plaintiffs

AND:

1. THE PERMANENT SECR FOR HEALTH

2. THE ATTORNEY GENERAL OF FIJI

Defendants

Mr. Prma for the Plaintiffs

Mr. S. Baiju for the Defendants

DECISION

This is the Plaintiffmmons dated 25 September 1996 seeking an order that they be granted leave of this Court to t to enter Judgment in Default in this action against the Defendants for damages and costs as contained in the Writ of Summons upon the grounds set forth in the Affidavit of Devanesh Prakash Sharma (the second Plaintiff) sworn and filed 25 September 1996.

Plaintiffs' argument

In his affidavit the Second Plaintiff says that the Defendants had filed an Acknowledgment of Serv Service of Writ of Summons on 27 August 1996 but they have not filed a Statement of Defence and that the time to do so has expired. The Plaintiffs therefore ask for Judgment as prayed.

An Affidavit in Reply was filed on 22 October 1996 in which SARAS LATA, an executive officer in the Attorney General's Chambers stated, inter alia, that an extension of time was asked for by letter and that the defendants have a meritorious defence to the Plaintiffs' claim. The proposed Defence is annexed to the said affidavit.

In reply to SARAS LATA's affidavit, D.P. Sharhe second Plaintiff) filed a further affidavit on 6 Novembevember 1996. There he states that Mr. Daniel Singh, a Principal Legal Officer from the Attorney-General's Chambers had indicated over the telephone that the defendants "would not dispute liability to the Plaintiffs' claims and would settle the matter" and requested Munro, Leys & Co "to write to the Attorney-General's Chambers, computing the Plaintiffs' special and general damages." They say that they did this by a "without prejudice" letter dated 9 September 1996.

The Plaintiffs are therefore saying that the Defendants are nowpped from denying liability to the Plaintiffs' claims and tand that the only issue in this case is the quantum of damages.

Dents' Reply

p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> In his Affidavit filed on 13 November 1996 Mr. Daniel Singh, Principal Legal Officer states that he had no mandate to enter into any settlements in any civil actions outside Court without the formal written approval of the Solicitor-General, but he did say that he indicated to Mr. Sharma "this action may be settled if the parties came to an agreement on the quantum" and also indicated that "they should send a breakdown of damages figure proposing settlement directly to the Solicitor-General for his consideration". He said that he "did not at any material time admit or concede liability on behalf of the Attorney-General." He said that this file was never allocated nor referred to him to deal with by the Solicitor-General.

Consideration of the issue

Both counsel made a submission before me and I have consd them.

There are two matters for my consideration. First, whether I ought to enter judgment in view of the alleged admission in other words whether what is alleged to have been said by Mr. Singh amounts to, an admission of liability to enable me to enter judgment. Secondly, the Defendants are applying for extension of time in which to file their Defence.

On the first matter, Mr. Sharma fe Plaintiffs, very seriously argued there was an admission of liability by Mr. Daniel SinghSingh who is a Principal Legal Officer in the Attorney-General's Chambers. Mr. Singh has however denied that and mentioned that what little part he played is contained in his said affidavit as outlined above. As against the verbal assertion of Mr. Sharma regarding admission of liability I will give credence to what Mr. Singh says. I am of the view that what Mr. Singh says is exactly what happened. The Plaintiff knew very well by looking at Acknowledgment of Service dated 27 August 1996 that the defendants stated that they "intend to contest the proceedings". Then why would Mr. D. Singh go ahead and admit liability on behalf of the Solicitor-General. This is highly unlikely to happen.

If the Plaintiffs were firmly of the view that liability was verbally admitted they could have quite easily written to the defendants confirming this in writing. There would then be no difficulty whatsoever.

From my understanding of thidavit evidence it gave me the distinct impression that although Mr. Singh was not handlingdling this matter, he volunteered a statement in passing when discussing some other matter, that this matter could possibly be settled and told counsel to write to the Solicitor-General proposing settlement with facts and figures. This does not tantamount to admission of liability by any stretch of the imagination nor does it amount to an "estoppel" on which Mr. Sharma addressed me at some length. With respect I do not consider that there is any need for me to comment on Mr. Sharma's submissions on "estoppel" suffice it to say that there is no merit in his argument on the facts of this case.

I therefore reject the Plaintiffs' contention thatDefendants' Solicitors had represented to them that defendafendants would not contest the issue of liability and would settle the matter if the parties reached agreement on the issue of quantum of damages.

The defendants have applied to Court to file Statement oence which they have annexed to the affidavit in reply to t to the application by the Plaintiffs.

The Plaintiffs were aware that the dants wanted an extension of time in which to file the defendefence; despite that the Plaintiffs went ahead and made the present application.

Bearing in mind the facts of this case and the fact that the defendants wish to defend and they have also disclosed a defence, the defendants should not be shut out from putting up their defence.

I conclude on this aspect with the following passage and wh adopt from the headnote to METROINVEST ANSTALT AND OTHD OTHERS v COMMERCIAL UNION ASSURANCE CO. plc (1985) 2 All ER 318:

"Once a party to litigation has been guilty of a failure to comply wply with the rules which has not been waived by the other party, the court has a general discretion under Ord 2, r 1(2) to make such consequential orders dealing with the proceedings as it thinks fit. That discretion is to be exercised judicially and the court has to look at all the circumstances of the case, including the questions whether the other party has already been prejudiced by the irregularity and, if the irregularity is one which the court could and should rectify, whether it can do so without prejudice to the other party. Where a litigant has failed to comply with the rules, the other party is entitled to rely on that failure even though it is only a technical breach of the rules if in the event of waiver of the breach the rules would operate to confer a benefit on the party in default which in the circumstances of the case justice requires he should not receive."

For the above reasons, I refuse leavelaintiffs to enter judgment in default against the defendanendants. And it is ordered that the defendants file and serve their Statement of Defence within 21 days of this decision. The costs are to be costs in the cause.

D. Pa/span>

Judge

At Suva

6 March 1997

Hbc0400d.96s