Ali v Fiji Air Ltd [2005] FJHC 385; HBC0190R.1996S (14 December 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0190 OF 1996

Between:

USMAN ALI
Plaintiff

- and -

FIJI AIR LIMITED
Defendant

Counsel: Dr. S. Sahu Khan for the Plaintiff
Ms. S. Sorby for the Defendant

Date of Hearing: 2nd December 2005
Date of Ruling: 14th December 2005

RULING

Altar Naushad Ali was the pilot of an aeroplane which crashed on 11th of May 1993. He and one other person were killed. Usman Ali brings this action as the Administrator of the estate of Altar Ali. The original Writ of Summons was filed on 12th of January 1995. There were claims for negligence, under the Workmen’s Compensation Act and later, in an amended Statement of Claim filed on 9th of October 1997, under the agreement between the defendants and the Fiji Airline Pilots Association, of which Altar Ali was a member.

Various proceedings followed, including two default judgments which were set aside, until the end of 1997. Nothing further was done for nearly 6 years.

On the 20th February 2004 a Notice of Intention to proceed was filed and served on the 8th of March 2004. Nothing then happened for a further 17 months when the whole case was struck out by the court using its inherent powers and the Constitution. This was part of a programme designed to rid the lists of moribund cases. In the course of that programme over 2000 cases were struck out, of which the parties in less than 1% made application for reinstatement.

On 4th of August 2005 upon the application of the plaintiff this case was reinstated. There were complaints that between February 2004 and July 2005 the court said it could not find its file, and therefore documents could not be filed. I will not comment upon this aspect of the case.

On the 7th of September 2005 the defendants, Fiji Air Limited, applied for the case to be struck out “for want of prosecution and abuse of the process of the court”. Both parties have submitted affidavits and written submissions with supporting authorities.

The authorities are clear and may be summarised as follows: if a party persistently fails to comply with orders of the court then its case may be struck out. If a party has been guilty of inordinate delay and it would prejudice a fair trial for the other party then the court may strike out the action for want of prosecution.

These principles are founded upon old authorities and before the days of case management. The courts will now not tolerate the kind of delay exemplified in this case. Further, the use of the court’s resources and the position of other litigants who are willing to prosecute their cases with diligence are considerations in this kind of application.

It is inexcusable that any litigant’s case should lie dormant for six years. If persons bring proceedings then they should be ready to pursue them and do so with diligence. There is no excuse if the delay is that of the party’s lawyer. It is unfair upon a defendant to let an action become dormant only to bring it to life again 5, 10, 15, 20 years later. It is not for a defendant to awaken the sleeping dog and bring the matter back to court or have it struck out. It is for the party that brings the claim or counterclaim to pursue it.

In this particular case counsel for the plaintiff has abandoned the claim in negligence. He is only pursuing the claim under the Workmen’s Compensation Act and the Airline Pilots Agreement. Those latter two claims are almost entirely dependant upon documentary evidence and non-contentious fact.

Had the negligence claim been pursued I would have had no hesitation in ruling that the defendants have been prejudiced by the plaintiff’s delay. However, their claim is now limited to that under the Workmen’s Compensation Act and Pilots Agreement.

Had the delay in this case occurred under a new regime of case management or indeed in these days when the use and time of the court’s resources is a consideration then I would have dismissed the claims as failing for want of prosecution.

However, given the state of the law in the past and the fact that the claim is one which now apparently can run almost entirely upon paper and, if successful, the awards will be for sums which are readily ascertainable, then I will not strike it out in relation to those two claims.

I do find that this strike out action was properly brought. I will make no order for costs and will give directions for the speedy progress of this case.

It was the action of the court in its backlog clearance programme that forced this case into activity and brought about its progress.

(R.J. Coventry)
JUDGE