Jan v National Insurance Ltd [2003] FJHC 2; Hbc0005D.1994s (11 April 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 005 OF 1994S

Between:

HANIFA JAN trading as
WESTCOAST AUTOSPARES AND ACCESSORIES
Plaintiff

and

NATIONAL INSURANCE LIMITED
First Defendant

and

NATIONAL BANK OF FIJI
Second Defendant

S. Chandra for the Plaintiff
T. Tuitoga for the First Defendant
Bale for the Second Defendant

DECISION

Both Defendants have filed summonses to dismiss the action for want of prosecution. Such applications in circumstances similar to these are brought under the inherent jurisdiction of the court (see the Supreme Court Practice – The White Book – 1988 paragraph 25/1/4).

Although both the Plaintiff and the First Defendant have filed chronologies (not entirely consistent with each other) I think it useful again to set out the salient points.

4 January 1994: Writ in contract issued against First Defendant only.

1 February 1994: Defence by (First) Defendant alleging reckless, false and fraudulent misrepresentation, breach of contract and negligence.

8 March 1994: Reply to Defence involving the National Bank of Fiji and alleging, inter alia, ratification, estoppel and waiver.

6 May 1994: Usual orders including discovery and inspection of documents made on summons for directions.

9 June 1994: Plaintiff’s list of documents filed.

20 July 1994: (First) Defendant’s list of documents filed.

28 March 1996: Notice of change of solicitors filed on behalf of the Plaintiff.

17 April 1996: Leave granted to Plaintiff to join the second Defendant and file amended Statement of Claim.

22 April 1996: Amended Statement of Claim filed alleging breach of contract and negligence.

13 May 1996: Second Defendant’s Defence to amended Statement of Claim.

20 May 1996: First Defendant’s Defence to amended Statement of Claim.

24 July 1996: Usual orders made on second summons for directions.

11 October 1996: Plaintiff’s list of documents filed.

31 July 1997: Amended reply to Defence (of the first Defendant?) filed by the Plaintiff.

10 September 1997: Notice by the Plaintiff under RHC O 34 r 2 requesting attendance at a Pre Trial Conference to be held on 26 September 1997.

9 November 1998: Second Defendant’s list of documents filed.

15 March 1998: Plaintiff’s application and supporting affidavits seeking directions and to set down action for trial.

24 March 1988: Second Defendant’s application to strike out amended reply.

9 December 1999: Hearing of Second Defendant’s application.

16 December 1999: Ruling in favour of the Second Defendant.

2 February 2000: Re-amended reply to Defence (of the Second Defendant?) filed.

1 January 2002: Notice by Plaintiff of intention to proceed.

9 January 2003: Summons by second Defendant to dismiss for want of prosecution.

14 February 2003: Summons by first Defendant to dismiss for want of prosecution.

Both Defendants filed affidavits in support of their application and the Plaintiff filed an affidavit in answer. The First Defendant’s submission was that there had been inordinate and inexcusable delay by the Plaintiff and that in the 9 years since the writ was issued the First Defendant’s two principal witnesses had either died or been so incapacitated as to be unable to given evidence at a trial. In the circumstances a fair trial could no longer be held. The Second Defendant relied on the Plaintiff’s inaction and the “loss” of most of the staff who would have been able to give evidence on its behalf.

Mr. Chandra vigorously disputed the Defendants’ version of the history of the litigation. As can be seen from the Plaintiff’s affidavit, Mr. Chandra’s principal submission was that such delay as had occurred was mainly the result of the Defendants failure to return a document (Exhibit A 4 to the Plaintiff’s affidavit) entitled “Minutes of pre trial Conference held on 26^th day of September 1997”: were it not for the Defendants’ lack of cooperation the action could much sooner have been brought to trial. While not contradicting the Defendants’ claim to be embarrassed by the non availability of witnesses Mr. Chandra suggested that the lists of documents filed showed that the Plaintiff’s claim was well documented and could be fairly tried.

The authorities most frequently cited in applications of this sort are Allen v. Sir Alfred McAlpine and Sons Ltd [1968] 2 QB 229; [1968] 1 All ER 543 and Birkett v. James [1978] AC 297; [1977] 2 All ER 801.

In Owen Clive Potter v. Turtle Airways Ltd (Civ App 49/92 – FCA Reps 93/205) the Fiji Court of Appeal broadly accepted the Birkett v. James formulation of the applicable principles but restated them in the form that an application by a defendant will succeed where the Plaintiff’s delay has been “so long that proper justice may not be able to be done between the parties ... [this means] that the delay has made it more likely than not that the hearing and/or the result will be so unfair vis a vis the Defendant as to indicate that the Court was unable to carry out its duty to do justice between the parties”.

In concluding their judgement the Court of Appeal referred with approval to words of Cross J in Zimmer Orthopaedic Ltd v. Zimmer Manufacturing Co [1968] 2 All ER 309 who said at page 311:

“the essence of the matter, as I understand it, is this. It is for the Plaintiff and his legal advisors to get on with the action and to see that it is brought to trial with reasonable dispatch. The Defendant is normally under no duty to stimulate him into action and the Plaintiff cannot complain that he gave him no warning before applying to have the action dismissed for want of prosecution. But the Court will not take the drastic step of dismissing the action unless (a) the delay has been inordinate, (b) there was no excuse for it, (c) the Defendant is likely to be seriously prejudiced by it if the action is allowed to go on.”

In the years since Potter there has been an increasing awareness by the Courts of the need, in the interests of good administration of justice, to ensure that litigation is pursued in reasonable compliance with the rules. This need is separate from and much wider than the specific interest of the parties involved in the particular case under consideration. In the words of Lord Woolf in Lownes v. Babcock Power Ltd The Times 19 February 1998:

“Delays also had an effect on the administration of justice by taking up Court time and putting other cases further back in the queue. This damaged 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 totally 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.”

In Grovit v. Doctor [1997] UKHL 13; [1997] 1 WLR 640 the House of Lords went even further, citing with approval criticism of Birkett v. James which was described as “far too lenient to deal effectively with excessive delays”. Rather, however then make “a substantial inroad” into the Birkett v. James principles the House of Lords enjoined the Courts by case management to prevent the delays occurring. The difficulty in the present case is that the delays have already taken place.

As already seen, this action was commenced in 1994 and complained of matters said to have taken place in 1993, that is 10 years ago. The Defendants say that their principal witnesses are no longer available to answer the Plaintiff’s allegations of ratification, waiver and negligence or to present their own case of false and fraudulent misrepresentation, breach of contract and negligence.

In answer to their allegations of inordinate delay and prejudice the Plaintiff’s answer is that the delay was caused by the Defendants. Is that in fact the case?

As can be seen from the chronology, the litigation moved ahead relatively smoothly until September 1997 when the Plaintiff’s solicitors invited the Defendants to attend a pre trial conference on the 26^th of the month. The conference did not take place but I was not told why. Instead, however, of invoking RHC O 34 rule 2 (3) and seeking an order that the Defendants attend it seems that the Plaintiff’s solicitors began sending copies of “draft minutes” of a meeting which had never in fact been held (see Exhibits 1 – 8 to the Plaintiff’s affidavit). On 13 November 2000, over three years after the original request for a conference to be held, Exhibit A4, purporting to be the minutes of a meeting held in September 1997 was sent to the Defendants. In fact no pre-trial conference was held in September 1997 and none was been held to this day.

Mr. Chandra suggested that it was a well established practice for solicitors to send each other draft minutes of non existent meetings in purported compliance with Order 34 rule 2 (2). While I do not doubt that this practice is indeed prevalent it does not comply with the requirements of the rule. If the Plaintiff’s solicitors had followed the procedures set out in Order 34 rule 2 none of the delay for which Mr. Chandra invites me to blame the Defendants would have occurred.

There is also a twelve month period of inactivity following the 1 January 2002 notice of intention to proceed for which no explanation at all was offered.

In Lownes v. Babcock (supra) the Court commented:

“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 weight to it. The Plaintiff, even in a personal injuries case, had to be responsible for the conduct of his solicitor. Consideration had to be given to the position of parties to other litigation.”

Taking into account all the materials before me I have reached the conclusion that the Plaintiff’s delay in prosecuting this action was indeed both inordinate and inexcusable. The matter is still not ready for trial and there is little prospect that it could be brought on to trial this year. At this distance in time from the events complained of and the counter allegations raised by the Defendants I do not believe that the action could be fairly tried. The dilatory and protracted manner in which the litigation has been conducted seems to me to be a clear abuse of the court process. The Defendants’ application succeeds. The action must be dismissed.

M.D. Scott
Judge

11 April 2003