Alam v Colonial National Bank [2012] FJHC 826; Action2.2006 (27 January 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

ACTION NO. 2 OF 2006

BETWEEN:

MOHAMMED ALAM
(Mohammed Alam Khan)
Plaintiff

AND:

COLONIAL NATIONAL BANK
First Defendant

AND:

QUEENSLAND INSURANCE (Fiji) LIMITED
Second Defendant

AND:

REGISTRAR OF TITLES
Third Defendant

AND:

MOHAMMED SHAHEEM AIRUD KHAN
Fourth Defendant

Mr A Sen for the Plaintiff
Mr A Ram for the First Defendant

DECISION

This is an application by the First Defendant for the following orders:

"(i) The First Defendant be granted leave to amend and file its Statement of Defence as per Annexure "A" hereto _ _ _.

(ii) The Plaintiff file and serve further and better particulars as set out in annexure "B" hereto _ _ _.

(iii) If the Plaintiff fails to file and serve further and better particulars as aforesaid then the Plaintiff's allegations in paragraphs 23, 24, 34 and 36 of its amended Statement of Claim filed on 27 July 2006 be struck out."

The application was made by an undated summons filed on 19 October 2011. It was supported by an affidavit sworn by Roneel Ravikash Ram on 18 October 2011. An answering affidavit sworn by Mohammed Alam Khan on 14 November 2011 was filed on behalf of the Plaintiff.

The application came on for hearing before me on 8 December 2011. Counsel for the second, third and fourth Defendants were excused as they were not involved in the application which concerned only the Plaintiff and the First Defendant. During the course of submissions both Counsel made certain concessions which enabled the issues raised by the application to be resolved apart from the question of costs. At the request of the parties I indicated that I would provide a written ruling that set out the preliminary views that I had expressed during the course of Counsels' submissions. I heard Counsel on the question of costs and I shall also rule on that issue.

To put the issues raised in the application into context it is necessary to trace briefly the relevant procedural steps taken by the parties.

On 28 July 2006 an amended Writ was issued out of this Court. Annexed to the Writ was the Plaintiff's Amended Statement of Claim. The Writ and the Statement of Claim were filed on the same day and served on the First Defendant on 31 July 2006. The First Defendant's Statement of Defence to the amended Statement of Claim and Counter-claim was filed on 4 September 2006.

An Amended Summons for Directions was filed on 23 January 2007 returnable before the Deputy Registrar on 31 January 2007. Sealed Orders were filed on 28 February 2007. Apart from the usual orders concerning the discovery and inspection of documents, the First Defendant was required to answer interrogatories served on it by the Plaintiff.

The First Defendant appears to have filed an amended Statement of Defence and Counter-claim. I say appears to have filed because the document is undated and there is no court stamp to confirm filing in the registry. There were subsequent pre-trial issues relating to further discovery of documents and further interrogatories. On 20 May 2010 the Master made further orders for discovery of documents by the First and Second Defendants.

On 2 October 2010 the Plaintiff filed an affidavit verifying the Plaintiff's supplementary list of Documents.

The Plaintiff filed on 30 September 2011 a Summons to enter the action for trial. Under Order 34 Rule 2 (2) before the action can be set down for trial it is necessary for the parties to attend a pre-trial conference unless the Court orders that such a conference need not be held (O.34 R.2 (3) ). It would appear that the parties were not able to draft minutes in respect of their pre-trial meetings. When the action was called before Wati J on 3 October 2011 the Court indicated that the action should be listed for trial on 7 – 9 November 2011 as a matter of priority subject to the Plaintiff's health.

It was then on 19 October 2011 that the First Defendant filed its documents in the present application. These are matters which will be considered when I turn to the question of costs. It is sufficient to say at this stage that the First Defendant's application was extremely late and has been left to the last minute. Although undated the First Defendant had filed its amended Statement of Defence in 2007 some four years earlier. It is only after the dates for the trial had been fixed that the present application was made. Similarly, the Plaintiff had filed its amended Statement of Claim in 2006. I do accept that the First Defendant had attempted to obtain particulars from the Plaintiff prior to the application being made. However the affidavit in support appears to suggest that those attempts only started earlier this year.

In so far as the application to amend the Defence is concerned, the principle that is usually applied is that the Court has jurisdiction to amend under Order 20 Rule 5 a Defendant's Defence at any stage of the proceedings for the purpose of determining the issues in dispute between the parties to the action however late the proposed amendment. Such an amendment should be allowed if it can be made without injustice to the other side (See Fiji Electricity Authority –v- Balram and Others [1972] 18 FLR 20 at page 21).

It was on the basis of this principle that I indicated to the parties that I was prepared to allow the amendment. The only issue of prejudice that Counsel for the Plaintiff raised was the subsequent delay to the Plaintiff in having his claim set down for trial. Although that may go to the question of costs, it was not prejudice in the sense that the amendment would be unfair or unjust to the Plaintiff.

As a result the First Defendants' Amended Defence is further amended so that paragraph 8 now states:

"8 Except to say that:

(i) it wrote to the Plaintiff by a letter dated 16th day of November 2004 which contents were written by the 1st Defendant under a mistake of fact because the insured in the insurance policy taken out with QBE Insurance was not the Plaintiff till the First Defendant and

(ii) it was under no obligation to the Plaintiff to obtain his agreement to accept the sum of $79,000.00.

The First Defendant denies paragraph 18 – 24 of the Amended Statement of Claim."

As for the further and better particulars sought by the First Defendant, its application is in a far more precarious position. I am concerned about the delay in making the application. The approach taken by the courts to a late application such as the present was discussed by the Court of Appeal in Astrovlanis Compania Naviera SA –v- Linard [1972] 2 All ER 647. In that case the Court was considering an application by the Plaintiff for particulars of the Defence. The Court of Appeal concluded that the Plaintiff had been guilty of inexcusable delay in leaving the application for particulars until only shortly before the date fixed for the trial. The application was dismissed on the basis that the application should have been made as soon as the Defence had been served. If the application had been granted so close to the date fixed for trial the result would have been that, that date would have had to be vacated resulting in indefensible inconvenience and expense to the other party. However, the majority of the Court of Appeal (Edmund Davies and Stephenson LJJ) did consider it appropriate to order particulars in cases, in accordance with Order 18 Rule 11 (1) (a) which is designed to ensure that the trial is conducted fairly and openly, where a party who has made a general allegation to give such particulars as are necessary to enable the party against whom the allegation is made to be informed of the case he has to meet.

During the course of the hearing of the application I indicated to Counsel that in order to ensure that all the issues were placed before the Court, where necessary the Plaintiff should provide the particulars sought by the Defendant. Furthermore having heard Counsel on the various particulars sought by the Defendant, I indicated that the particulars of the negligent and/or false statement requested in (a) (vii) of Annexure B to the Summons should be provided by the Plaintiff. The particulars sought related to paragraph 23 of the Amended Statement of Claim filed on 27 July 2006.

I also directed the Plaintiff to provide particulars sought in (b) (iii) to (vii) that relate to paragraph 24 of the same Statement of Claim.

Finally, any particulars that are required in respect of the claims under the Consumer Credit Act and the Fan Trading Decree are also to be provided.

The power to allow an amendment to a pleading is given to the Court under Order 20 Rule 5 and such an order can be made on such terms as to costs as may be just. Similarly, power to order particulars is given to the Court under Order 18 Rule 11 (3) and any order so made may be made on such terms as the Court thinks just. This, or course, gives rise to the question of costs.

The Defendant has sought to amend its Defence. The application was made late and in fact only a short time before the date fixed for the trial. Such an amendment should be sought well before the pre-trial conference mandated under Order 34.

I can see no reason why the observations of the Court of Appeal in Pita Sajendra Sundar and Another –v- Chandrika Prasad (unreported civil appeal No.22 of 1997 delivered on 15 May 1998) should not be applied in this case. At page 6 of the unreported decision (PACLII) the Court of Appeal stated:

"However, the later the amendment the greater is the chance that it will prejudice other parties or cause significant delays, which are contrary to the interest of the public in the expeditions conduct of trials. When leave to amend is granted, the party seeking the amendment must bear the costs of the other party wasted as a result of it."

In so far as the request for particulars is concerned, the request again was very late. The amended Statement of Claim had been filed and served some years earlier. Whether the recent correspondence passing between the parties constituted a request by letter under Order 18 Rule 11 (6) is of little relevance at this late stage. It is, of course, well settled that an allegation of fraud must be pleaded together with the facts matters and circumstances relied on to support the allegation. It is also the practice in pleading to particularise allegations of negligence. The Defendant is entitled to those particulars. If they are not provided in the Statement of Claim, they may be sought by way of application with the usual consequence that the defaulting party should pay the costs of the application.

However when the application is formally made by summons shortly before the start of the trial and at least three years after the Amended Statement of Claim was filed, it seems to me that the party at fault is the applicant. The Plaintiff had failed to provide the particular and had done so to his detriment.

In my judgment the application to amend the defence and the request for particulars have had the unfortunate effect of delaying the trial of the action. Although, for the reasons stated above and with the agreement of Counsel, the application has been granted in relation to the amended defence and in part in relation to particulars, I am satisfied that it is the Defendant who should pay the costs of the application, together with an amount that represents costs wasted in respect of the trial date being vacated. I fix the costs of the application summarily in the sum of $350.00 and costs wasted in the sum of $400.00.

I make the following orders

1. The Plaintiff is ordered to file and serve further and better particulars as outlined in this decision and agreed to by Counsel at the hearing within 14 days from the date of this decision.

2. The First Defendant is given leave to file and serve an amended defence within 21 days from the date of this decision.

3. Thereafter the action is to proceed in accordance with the Rules.

4. The Defendant is ordered to pay a total of $750.00 costs within 28 days from the date of this decision.

W D Calanchini
Judge

27 January 2012
At Suva