Prasad v Chand [2012] FJHC 1491; HBC64.2006 (4 December 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC No. 64 of 2006

BETWEEN:

Arvind Prasad and Annushal Chand
Plaintiffs

AND:

Manik Chand and Viliame Molikau
Defendants

Appearances: Mr Daniel Singh for the plaintiff
Ms Rakai for the defendants

Date of hearing: 10th April, 2012

JUDGMENT

1. This is an application by the plaintiffs seeking leave to appeal from a Ruling of the Master. The application is made under Order 59 Rule 11.
   
2. The defendants had filed summons on 4th April, 2011,for striking out the action for want of prosecution and inordinately and unreasonably delaying or not making any effort to prosecute its claim.
   

On 19th August, 2011, the Master made order striking out this case for want of prosecution. The Order was sealed by the Registry and entered on 26th August, 2011. The Master found that the plaintiffs had not prosecuted this matter first since 3rd September, 2007, when notice was sent to the plaintiff by the Registry in terms of Order 29 rule 9, and again, since 24th February, 2009.

The action had commenced by writ of summons filed on 20 February, 2006, claiming damages suffered as a result of a motor collision that occurred at Queen's Road on 10th June, 2003, between a taxi (in which the plaintiffs were passengers) and a van.

3. The hearing
   

The affidavit filed in support of the leave to appeal application, sets out the following proposed grounds of appeal which provides that the Master failed to consider:

1. properly the history of this case....
2. paragraphs 15,16,17, 18, 19 and 20 of the Affidavit filed on behalf of the plaintiffs on 9th June, 2011.
3. whether the delay was so prejudicial to the defendants that it would undermine a fair trial .
4. properly whether the delay was intentional, contumelious or mala fide.
   

The defendants filed affidavit in opposition, stating that the application for leave to appeal should not be granted, as the plaintiffs have not shown any merits in their defence.

At the hearing, Mr Daniel Singh, counsel for the plaintiffs submitted that the delay was not inordinate. He further submitted that the defendants had failed to demonstrate that they would suffer prejudice, if the action continued.

Ms Rakai, counsel for the defendants in her reply, submitted that the delay of two years caused serious prejudice to the defendants. In support, she cited Lord Diplock's celebrated passage in Birkett v James, (1977) 2 All ER 801 at 805 which I have reproduced below .

4. The determination
   

Lord Diplock in Birkett v James,(supra) formulated the classic exposition of the principles to be applied in striking out applications as follows:

"The power should be exercised only where the court is satisfied either (1) that 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 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." (emphasis added)

The principles expounded by Lord Diplock has been restated by the Court of Appeal of Fiji in Pratap v Christian Mission Fellowship, (2006) FJCA 41 and Abdul Kadeer Kuddus Hussein v Pacific Forum Line Limited,(Civil Appeal No. ABU 0024 PF 2000S).

The judgment of the Court in Pratap v Christian Mission Fellowship, cited the following two passages from Dey v. Victorian Railways Commissioners, (1949) 78 CLR 62 and Agar v Hyde[2001] HCA 41; , (2000) 201 CLR 552.

In the first case, Dixon J at page 91 said:

"A case must be very clear indeed to justify the summary intervention of the court.... once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

In the second, the High Court of Australia at page 575 stated that:

"It is of course well accepted that a court .... should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way and after taking advantage of the usual interlocutory processes."

The Court of Appeal of Fiji in Trade Air Engineering (West) Limited v Laisa Taga, (2007 FJCA(ABU 0062J of 2006) stated:

"In our view the only fresh power given to the High Court under Order 25 Rule 9 is the power to strike out or to give directions of its own motion. While this power may very valuably be employed to agitate sluggish litigation it does not in our opinion confer any additional or wider jurisdiction on the Court to dismiss or strike out on grounds which differ from those already established by past authority."

Inordinate and inexcusable delay

The first of Lord Diplock's conditions does not apply in the case before me. The first limb of the second condition requires the court to consider whether there has been inordinate delay. The Master has quite correctly found that there was delay, since the plaintiffs had not prosecuted this matter from 24th February, 2009, for nearly a period of two years, until the defendant filed summons for want of prosecution.

The second limb of the second condition requires the Court to consider the explanation given by the plaintiffs for their delay. The plaintiffs, in the affidavit filed on their behalf before the Master, had given the following explanation. The 1st defendant had died on 15th January, 2009, and probate was granted on 17th November, 2010. It was also stated that the plaintiffs had made several requests to the Medical Superintendent, CWM Hospital to provide percentage permanent disability reports, but none were issued, as evidenced in the letter attached. It was also stated that that several attempts had been made by the plaintiffs' solicitors to the solicitor for the defendants to settle this case out of court, but no positive response was received.

It would appear that as stated in the plaintiff's proposed grounds of appeal, the Master has not given his mind to the explanation given by the plaintiffs and whether the delay was excusable.

In Pratap v Christian Mission Fellowship,(supra) the defendant had filed summons on 31 August, 2005, to have the plaintiff's claim struck out principally on the ground that the plaintiff had not provided further and better particulars ordered by court in April, 1999. The plaintiff had explained that the delay in the prosecution of his claim was a result of financial weakness and the downturn in business. It was held that although the delay was inordinate, the lower court had failed to make a finding as regards to whether the delay was excusable. It was also held that findings of fact had not been made by the lower court, in coming to the conclusion that the defendant had suffered prejudice, which is the third condition of the second limb of Lord Diplock' s principles.

Substantial risk that it is not possible to have a fair trial or serious prejudice In order to justify the striking out of an action, in addition to prolonged delay, prejudice must also be shown to have occasioned to the defendants, in the conduct of their defence,

The plaintiffs' grievance is that the Master had not considered the matter of prejudice and there was no evidence before the Master, that the delay in this matter was prejudicial to the defendants and would undermine a fair trial. I find that that the defendants had not laid any evidence of prejudice. The Master has not considered this aspect

In Deo v Sharma,( 2007) FJCA 23(ABU 0041 of 2006 S) the Court of Appeal of Fiji found that the lower court had failed to make a finding " on the final question to be asked when applying the Birkett v James principles namely:"In view of the delays which have occurred, is a fair trial now possible?".

In Abdul Kadeer Kuddus Hussein v Pacific Forum Line Limited,( supra) the Court was not satisfied that the inordinate delay of 3 years and five months would seriously prejudice the defence of the claim.

In my judgment, the plaintiffs have demonstrated that they have sufficient prospects of succeeding on the appeal.

5. Orders
   

The plaintiff's application for leave to appeal is allowed. The costs of this application are to be costs in the appeal .

4th December, 2012

A.L.B.Brito-Mutunayagam
Judge