Abdul v Carpenters Fiji Ltd [2001] FJHC 165; HBC0013D.1997s (21 December 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 013 of 1997S

Between:

JOHNNY ABDUL
(f/n George Abdul)
Plaintiff

and

CARPENTERS FIJI LIMITED
Defendant

M. Arjun for the Plaintiff
H. Lateef for the Defendant

DECISION

This is an application by the Defendant to dismiss the action, brought pursuant to Order 25 rule 1 (4).

The Writ was issued on 11 April 1993. The Plaintiff claims approximately $93,569.69 said to be owed by the Defendant to the Plaintiff following the supply to the Plaintiff of a caterpillar tractor which later broke down and was repossessed.

An amended Defence was filed on 18 July 1997. The Defendant’s case is that the tractor was sold to the Plaintiff on an “as is where is” basis, that any break down was the responsibility of the Plaintiff and that the machine was legally repossessed following failure by the Plaintiff to repay the instalments due under the bill of sale.

On 29 August 1997 a Reply was filed. The Plaintiff denied that the machine was bought on an “as is where is” basis. He pleaded that he purchased the tractor after one Shiu Baran, a servant or agent of the Defendant, assured him that it was “as good as new”. In paragraphs 2, 5, 6, 7 and 11 the Plaintiff made numerous other statement of fact relating to the condition of the machine when it broke down, when repairs were undertaken, when it was repossessed and when it was sold.

The pleadings closed on or about 14 September 1997 (see O 18 r 19 (1) (a)).

After filing the Reply the Plaintiff did not take any further step in the action until nearly 3 years later when on 8 May 2000 a notice of change of solicitors and a notice of intention to proceed was filed under the provisions of O 3 r 5. The Plaintiff did not in fact proceed following this notice and the next step was the filing of the present summons on 23 April 2001 supported by the affidavit of Peni Navu, law clerk.

On 23 April a second notice of change of solicitors was filed by the Plaintiff together with a second notice of intention to proceed. On 7 June 2000 the Plaintiff finally filed the summons for directions which should have been filed by mid October 1997 (see O 25 r 1 (1)). The summons has been adjourned to allow this application to be heard.

On 19 June 2000 the Plaintiff filed an affidavit in answer to the application. As can be seen from the affidavit the Plaintiff blames his former solicitors for failing to prosecute the action.

In support of the application Mr. Lateef relied on the length of the delay – 3 2 years and the difficulty the Defendant would face in producing witnesses to rebut the Plaintiff’s allegations, particularly when the principal witness named by the Plaintiff in his reply, Shiu Baran, has emigrated to Canada and severed all contacts with the Defendant.

In answer, Mr. Arjun suggested that the delay was not inordinate by Fiji standards. Citing Hornagold v. Fairclough Building Ltd (1993) TLR 316 Mr. Arjun suggested that the Defendant had not sufficiently particularised which aspects of its case had been prejudiced by the delay. He suggested that a fair trial could still be held.

The basic principles governing dismissal for want of prosecution where most recently explained by the Fiji Court of Appeal in Merit Timber Products Ltd v. Native Land Trust Board (1994) 40 FLR 279 where the Court followed broadly Allen v. Sir Alfred MacAlpine & Sons [1968] 2 QB 229 and Birkett v. James [1978] AC 297. In order that an application of this kind succeed the Defendant must show:

(i) that there has been inordinate and inexcusable delay by the Plaintiff; and
(ii) that the Defendant is likely to be prejudiced by the delay, one aspect of the prejudice being that it is unlikely that a fair trail can be held.

During the course of Counsel’s submissions I wondered whether the Plaintiff’s claim was time barred. As pleaded in paragraph 3 of the Statement of Claim the foundation agreement between the parties was dated 14 May 1990 but the writ was not issued until just under 7 years later. In the course of discussion with counsel Mr. Arjun produced a copy of the agreement which contained a condition stating that the sale of the tractor was to be on an “as is where is” basis.

As I see it, the existence of that written condition in the agreement is especially relevant to this application since in order to succeed in his claim the Plaintiff would need to find a way to adduce evidence of conversations between himself and those whom he dealt with on behalf of the Defendant varying the contract between them as signed. These conversations would have occurred no later then May 1990, that is over 11 years ago.

In this situation the words of Lord Diplock in Allen’s case are apposite:

“where the case is one in which at the trial disputed facts will have to be ascertained from oral testimony of witnesses recounting what they can recall of events which happened in the past memories grow dim, witnesses may die or disappear. The chances of the Court being able to find out what really happened are progressively reduced as times goes on. This puts justice to the hazard”.

As has been seen, the Plaintiff blamed his former solicitors for the delay. Mr. Arjun suggested that in this sort of case it is wrong that the Plaintiff should suffer as a result of his solicitors default.

In the face of such a submission the words of Woolf M.R. in Lawnes v. Babcock Power Ltd the Times 19/2/1998 are of interest:

“the person who suffered because the action was dismissed was not the Plaintiff’s solicitor but the Plaintiff personally therefore it could be said that the judge was visiting the sins of the solicitor on the client and should not let the desire to discipline the solicitor injure the Plaintiff personally. His Lordship was very conscious of the force of that point but it was wrong to give way to it. The Plaintiff even in a personal injury case had to be responsible for the conduct of his solicitor. Consideration had to be given to the position of parties to other litigation.”

And:

“delays also have an effect on the administration of justice by taking up Court time and putting other cases further back in the queue. That damages the reputation of civil justice. The message to the profession which should be read and understood was that the standard of diligence in this case was wholly unacceptable. In balancing the prejudice to the Plaintiff against the prejudice to the Defendants account had to be taken of prejudice to other litigants and the administration of justice generally”.

As the final sentence of Lord Woolf’s remarks suggest, the Courts no longer regard delay as a matter of concern solely to the parties.

In Grovit v. Doctor [1997] UKHL 13; [1997] 1 WLR 640 the House of Lords expressed the view that the principles laid down in Birkett v. James were:

“far to lenient to deal effectively with excessive delay.”

While declining to tighten up those principles their Lordships pointed out that the Court retains an inherent jurisdiction to strike out or stay proceedings where the delay amounts to an abuse of the processes of the Court.

The main reason for not revisiting the Birkett v. James principles was the imminent introduction of the Civil Procedure Rules 1998 which increased the Courts’ power to manage cases and gave them the power to strike out for want of prosecution of their own motion. In Fiji, unfortunately, there is no prospect of the early introduction of such a regime, however desirable.

In Grovit their Lordships suggested that the use of “unless orders” could provide the Court with the means to achieve greater control over delay. However, the use of such an order in the present case would not answer the Defendant’s complaint which is that it has already been prejudiced to such an extent by the delays which have already occurred that the action should now be dismissed.

The action commenced by the Plaintiff in 1997 is substantial. It involves a number of legal and factual issues. If he had a genuine interest in the action then the Plaintiff, as principal should have ensured that his agent, his solicitor, progressed the matter in reasonable compliance with the requirements of the Rules of the High Court. This he failed to do. He cannot have been unaware that his action had been left to lie dormant. As a consequence of this default by the Plaintiff it cannot be denied that inordinate and inexcusable delay has resulted. I am satisfied that given that delay and the nature of the dispute between the parties that the Defendant has been seriously prejudiced: it is clear to me that a fair trial could not now be held.

The Application succeeds and I order that the Plaintiff’s action be dismissed. Counsel did not address me on the Counterclaim but since I have found that the action cannot be fairly tried it must follow that the Counterclaim, arising as it does from the same broad facts, could not be fairly tried either. Accordingly the Counterclaim is also dismissed.

M.D. Scott
Judge

21 December 2001