IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 394 of 2011

BETWEEN:

CHARAN JEATH SINGH 
of Victoria Apartments, Disraeli Road, Suva in the Republic of Fiji, Businessman.
PLAINTIFF

AND:

SUKHA SINGH
of Sangam Avenue, Labasa in the Republic of Fiji.
DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSELS : Ms. Rakai M. L. for the Plaintiff
Ms. Lagilevu L. for the Defendant

Date of Hearing : 8th August, 2012
Date of Ruling  : 8th October, 2012

RULING

A.	INTRODUCTION

1.	The Plaintiff filed this action for defamation and the Defendant is alleging that he could not find a lawyer in time due to bereavement in the family where he had to travel to USA, and also state that lawyers in Labasa, where he is residing are reluctant to appear because of the social standing of the Plaintiff. The Plaintiff in his affidavit averred his defence and also attached proposed statement of defence, there are merits on the proposed Defence.

B.	ANALYSIS 

2.	The Supreme Court Practice 1997 (Volume 1) page 145, as follows:-

"Regular judgment – if the judgment is regular, then it is an (almost) 13/9/5 inflexible rule that there must be an affidavit of merits, i.e. an affidavit stating facts showing a defence on the merits (Farden v. Richter (1889) 23 Q.B.D. 124. "At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason, "per Huddleston B ibid. p. 129 approving Hopton v Robertson [1884] 8. T.L.R. 445, and Watt v Barnett (1978) 3 Q.B.D. 1983. p 363)

For the purpose of setting aside a default judgment, the defendant must show that he has a meritorious defence. For the meaning of this expression, see Alpine Bulk Transport Co. Inc. v Saudi Eagle Shipping Co. Inc. The Saudi Eagle [1986] 2 Lloyd's Rep. 221, C.A., and note 13/9/14, "Discretionary powers of the court," below. On the application is set aside a default judgment the major consideration is whether the defendant has disclosed a defence on the merits, and this transcends any reasons given by him for the delay in making the application, even if the explanation given by him is false (Vann v Awford [1986] 83 L.S. Gaz. 1725; The Times, April 23, 1986, C.A.). The fact that he has told lies in seeking to explain the delay, however, may affect his credibility, and may therefore be relevant to the credibility of his defence and the way in which the court should exercise its discretion (see para 13/9/14, below)". (emphasis is added)

3.	In Subhodh Kumar Mishra v Car Rentals (Pacific) Ltd (1985) 31 FLR 49. The Court stated as follows at page 52:-

"We now turn to consider the question of whether or not the judgment was entered irregularly or regularly. And we preface our observations by saying that in the application of similar rules as to that which is here under consideration, both in England and New Zealand, the cases in which a default judgment may be set aside have been grouped accordingly as the judgment was regularly or irregularly obtained. The distinction is clearly stated by Fry L.J. in Anlaby v Praetorious (1888) 20 Q.B.D. 764 at page 769 where he said:

"There is a strong distinction between setting aside a judgment for irregularity in which case the Court has no discretion to refuse to set it aside and setting it aside where the judgment though regular has been obtained through some slip or error on the part of the defendant in which case the Court has a discretion to impose terms as a condition of granting the defendant relief."

4.	The Plaintiff filed this action for defamation against the Defendant alleging that such a defamatory letter was written to the Ministry of Education regarding the management of a school. The Defendant admits making queries as to the receipt of certain funds and loans and the disbursements of them but the Defendant categorically deny any malice on his part. The Defendant was an ex-committee member of the school management committee and had raised certain doubts as to the manner in which some financial affairs of the school is administered. The Defendant is making a defence of fair comment and whether the said letter is defamatory is an issue that has to be determined by the court. Neither party has produced the said communication and the whether the said letter is defamatory or not cannot be determined without considering the evidence. The Plaintiff has not quoted any defamatory stamen in its statement of claim and this leaves the plaintiff with the burden of proving the claim for defamation.

5.	In ED& F MAN LIQUID PRODUCTS LTD V PATEL & ANR [2003]EWCA Civ 472 Lord Justice Potter analysed the law relating to the setting aside of default judgment and the summary judgment and the burden of proof relating to both provisions of law. In both provisions in High Court Rules of 1988, the words read as "no real prospect of successfully defending the claim or issue" 

6.	In Lord justice Potter's judgment ED & F MAN LIQUID PRODUCTS LTD V PATEL & ANR [2003]EWCA Civ 472 it was held as follows Paragraph 10

'…However, that does not mean that the court has to accept without analysis everything said by a party in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporary documents. If so, issues which are dependent upon those factual assertions may be susceptible of disposal at an early stage so as to save the cost and delay of trying an issue the outcome of which is inevitable: ….'

Paragraph 11

'I would only add that, where there is a claim or judgment for monies due and issues of fact are raised by a defendant for the first time which, standing alone would demonstrate a triable issue, if it is apparent that, with full knowledge of the facts raised, the defendant has previously admitted debt and/or made payments on account of it, a judge will be justified in taking such acknowledgements into account of it, a judge will be justified in taking such acknowledgements into account as an indication of the likely substance of the issues raised and the ultimate success of the defence belatedly advanced.' 

7.	In Three Rivers District Council v Governor and Company of The Bank of England [2001] 2 All ER 513 Lord Hope of Craighead held in deciding on a summary judgment application (where the same rule applies) as follows

At paragraph 95

'….For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be that that view and resort to what is properly called summary judgment.

8.	In ED & F MAN LIQUID PRODUCTS LTD V PATEL & ANR [2003] EWCA Civ 472

'3. In the Saudi Eagle, when comparing the test to be met by a defendant under R.S.C Order 14 ('an arguable case'), with the standard laid down in Evans v Bartram (H.L.) [1937] A.C 473 in respect of a defendant seeking to set aside a regular judgment signed in default, the Court of Appeal (per Sir Roger Ormrod) said:

"……Evans v Bartarm… clearly contemplate that a defendant who is asking the court to exercise its discretion in his favour should show that he has a defence which has a real prospect of success…

Indeed it would be surprising if the standard required for obtaining leave to defend (which has only to displace the plaintiff's assertion that there is no defence) were the same as the required to displace a regular judgment of the court and with it the rights acquired be the Plaintiff. In our opinion, therefore to arrive at a reasoned assessment of the justice of the case the court must form a provisional view of the probable outcome if the judgment were to be set aside and the defence developed. The "arguable" defence must carry some degree of conviction"

9.	In Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc [1986] 2 Lloyd's Rep 221, it was held that in order to set aside the default judgment, the proposed defence advance "must carry some degree of conviction" and this principle was further advanced in judgment of Moore-Bick j in International Finance Corporation UtexafricaS.p.r.l (2001) CLC 1361 at p 1363 it was held 

"A person who holds a regular judgment even a default judgment, has something of value, and in order to avoid injustice he should not be deprived of it without good reason. Something more than merely arguable case is needed to tip the balance of justice to set the judgment aside. In my view, therefore Mr. Howard is right in saying the expression "realistic prospect of success" in this context means a case which carries a real conviction." (emphasis is added)

10.	The House of Lords have evolved the burden of proof of the allegations in statement of defence to a realistic prospect of success or that it must carry some degree of conviction this is clearly higher than an arguable case. These cannot be ascertained without analyzing the facts before the courts, and on the facts before me I am more than convinced that the defence has merits and it can be considered as a sham defence that can not be considered as a realistic prospect of success. House of Lords has held that the threshold for arguable defence should be at a higher level and defined it as "realistic prospect of success". I need not say more as the facts in the case before me has passed the threshold and this has to be tested with oral and documentary evidence at the hearing.

11.	There is no irreparable loss to the Plaintiff by setting aside the default judgment. No such loss is alleged in the affidavit in opposition. 

12.	The Defendant has adduced documentary evidence to explain the delay. He had to travel to USA due to unexpected death of his own sister and for administration her estate. He had also explained the predicament of his failure to retain a solicitor though he had paid them. I think the explanation given is acceptable.

C.	CONCLUSION 

13.	In the circumstance the affidavit in support has shown merits and this has to be determined by the court by further adducing of evidence. The default judgment entered on 19th March, 2012 is set aside and the Defendant is granted 7 days to file and serve the statement of defence. The cost of this application will be cost in the cause.

D.	FINAL ORDERS

a.	The default judgment is set aside.
b.	The Defendant is granted 7 days to file and serve the statement of defence.
c.	The cost of this application will be cost in the cause.

Dated at Suva this 8th day of October, 2012. 

………………………………………….
Master Deepthi Amaratunga
High Court, Suva