Devi v Sen [2005] FJHC 701; HBC0082.2003L (25 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0082 OF 2003L

BETWEEN:

MALA DEVI
d/o Shiuji Shiri Krishna of Moto,
Ba, Fiji, Student by her mother and next friend
KANTA MANI
d/o Narayan Sami
of Moto, Ba, Domestic Duties
1st Plaintiff

AND:

ARPANA RAM
d/o Rameshwar Dutt
of Korovuto, Ba, Fiji, Student by her mother and next friend
NAVITA DEVI
d/o Jageshwar Prasad
of Korovuto, Ba, Fiji, Domestic Duties
2nd Plaintiff

AND:

ASHNEEL ARVIND CHAND
s/o Mukesh Chand
of Vutuni, Ba, Fiji, Student by father and next friend
MUKESH CHAND
s/o Ram Udit
of Vutuni, Ba, Fiji, Labourer
3rd Plaintiff

AND:

PENI TOVOLI
of Yalalevu, Ba, Fiji, Student by his mother and next friend
LUISA NAKAIMACA
of Lautoka, Fiji, Dental Hygienist
4th Plaintiff

AND:

BIR SEN
s/o Chandar Sen
of Yalalevu, Ba, Fiji, Driver
1st Defendant

AND:

EMPIRE BUS SERVICE (BA) LIMITED
2nd Defendant

AND:

MANSOOR KHAN
f/n Shamser Khan
3rd Defendant

AND:

MOHAMMED YUSUF
f/n Amzat Ali
4th Defendant

Ms. M. Muir for the plaintiff
Ms. A. Watkins for the defendant

Date of Hearing: 25 November 2005
Date of Ruling: 25 November 2005

EXTEMPORE RULING

This matter comes before the Court by way of a Summons filed on behalf of the 1st and 2nd defendants wherein they seek orders that the plaintiffs’ action and claim against them be struck out and dismissed on the grounds that the plaintiffs have failed to prosecute the proceedings expeditiously without any real interest in bringing this matter to trial and have abused the process of the Court and/or thereby caused prejudice to the defendants and a substantial risk of not obtaining a fair trial and further they seek that the plaintiffs to pay the costs of this application.

The Summons is supported by an affidavit of Sanil Kumar, a law clerk in the employ of Counsel for the Applicants.

I have had the benefit of written submissions on behalf of the applicants and supported by further oral submissions on behalf of the respondents.

It is the applicants’ intention the plaintiffs all of whom are minors have failed to prosecute their claims with appropriate expedition. The chronology set out in the affidavit in support of the Summons shows that the Writ of Summons was filed by the plaintiffs on the 28^th February 2003 with respect to a motor vehicle accident or perhaps more correctly, a school bus accident that occurred on the 24^th December 2001.

On the 19^th March 2003, the acknowledgment of service was filed on behalf of the 1^st and 2^nd defendants and on the 2^nd April 2003, the defence was filed by the 1^st and 2^nd defendants. The next action taken is on the 26^th January 2004 when a Summons for directions was filed on behalf of the plaintiffs. This argued by the applicant that there has been no further action by the plaintiff since that time and that the plaintiffs have in fact failed to comply with the rules of Court to properly progress their claims.

The Court Record shows that the Summons for directions was dealt with by the Court on the 25^th February 2004 and orders were made entering the matter for trial. The respondents/plaintiffs failure to serve a list of documents has then

led, it is submitted to the inability of the applicants/defendants to comply with the provisions of Order 34 of the High Court Rules.

The respondents/plaintiffs however submit that there are no relevant documents in their possession. The only documents required at this point in time are the documents in support of the special damages. It is submitted that the real documents that the applicants/defendants seek are reports with respect to the injuries sustained and it is submitted that there is no obligation on the plaintiffs to make available such reports at this point of the proceedings.

The relevant legal provisions are not in issue. The authorities submitted by the applicants/defendants all relied initially on the decision of the Court of Appeal in Birkett v James [1978] A.C. 297 as adopted in Grovit & Ors v Doctor & Ors [1997] UKHL 13; [1997] 2 All E.R. 417 and most relevantly as adopted in Fiji in Premier Apparels Limited v National Insurance Co. (Fiji) Ltd – HBC0249 of 1994.

The other authorities to which I have been referred including Allen v Sir Alfred McAlpine & Sons Ltd & Anor [1968] 2 Q.B. 229 has similarly been adopted by various decisions of the High Court and Court of Appeal in Fiji including but not limited to Potter v Turtle Airways Limited & Anor. – FCA Civil Appeal No. 049 of 1992.

Counsel for the Respondents/Plaintiffs refers the Court to the decision of Madam Justice Shameem in Edward Michael Broadbridge v Jay Macho & Attorney General of Fiji – HBC0201 of 1993 where Her Ladyship brings together many of the authorities to which I have referred.

In Grovit v Doctor Lord Wolf said:

“That the court had power under its inherent jurisdiction to strike out or stay actions on the grounds of abuse of process irrespective of whether the test for dismissal for want of prosecution was satisfied. Accordingly, since the commencement and continuation of proceedings with no intention of bringing them to a conclusion was itself sufficient to amount to an abuse of process which entitled the Court to dismiss the action, it was not strictly necessary in such a case to establish want of prosecution by showing that there had been inordinate and inexcusable delay on the part of the plaintiff which had prejudiced to the defendant. It followed, on facts that the Deputy Judge had been fully entitled to strike out the action.”

Perhaps prior to further considering whether there is in fact an abuse of process, it is necessary to look at the criteria laid down and to establish whether there has in fact been a failure on the part of the plaintiff to prosecute. In Birkett v James Lord Diplock said at page 805:

“The power should be exercised only when the court is satisfied either:

1. The default has been intentional and contumelious, e.g., disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or
   
2. (a) That there has been an inordinate and inexcusable delay on the part of the plaintiff or his lawyers; and
   
   • (b) That such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.”
     

It is essential notwithstanding the criteria to which I have referred that each case should be considered on its own particular facts and on its own merits. There is nothing before me in the submissions made on behalf of the applicants or the evidence in support of the summons to suggest there is any contumelious behaviour on behalf of the plaintiffs. As I said earlier they are all minors or were at the time their proceedings were commenced.

The injuries they allegedly sustained were sustained in a school bus accident on the 24^th September 2001

The delay in the proceedings to date and the time from the filing of the Writ of Summons on the 26^th February 2003 to date is less than 3 years which regrettably is a very short period of time in this Court.

There is nothing before me to suggest that the defendant/applicant has been prejudiced in any specific way by the delay. I acknowledge the facts that the defendants have to provide provision for outstanding claims may in itself be considered prejudice. I have also acknowledged that the lapse of time must cause witnesses’ memories to fail but there is nothing specific that is placed before the Court.

On the evidence before me and the submissions that I have heard and read, I cannot be satisfied that the default that may be considered intentional has been contumelious and I cannot be satisfied that the delay has been inordinate or inexcusable nor can I be satisfied that the delay such as it is will give rise to a substantial risk that it is not possible to have a fair trial and accordingly in the circumstances, the applicants’ summons is dismissed.

The respondents sought costs of the application. I think in the circumstances that perhaps the application may have served a purpose and it may have prodded the plaintiffs into action and in that regard I think it inappropriate that costs follow the event in the circumstances and accordingly, costs are to be costs in the cause.

JOHN CONNORS
JUDGE

At Lautoka
25 November 2005