Biumaiwasa v Prasad [2012] FJHC 850; HBC237.2010 (1 February 2012)

IN THE HIGH COURT OF FIJI
IN SUVA
CIVIL JURISDICTION

Civil Action HBC No. 237 of 2010

BETWEEN:

NIKO BIUMAIWASA, of Lot 36. Caubati Road, Nasinu, Watchman/Security Guard
PLAINTIFF

AND:

MATHURA PRASAD, of Lot 9, Caubati Road, Nasinu, Businessman
1ST DEFENDANT

AND:

AVRAN KRISHNA PRASAD, s/o Mathura Prasad, Lot 9, Caubati Road, Nasinu
2ND DEFENDANT

AND:

ALVIN BISHAN PRASAD, s/o Mathura Prasad, Lot 9, Caubati Road, Nasinu
3RD DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. Tabuya of Reddy & Nandan Solicitors for the Plaintiff
Ms. R. Naidu of Sherani & Co. for the Defendants

Date of Hearing : 17th January, 2012
Date of Ruling : 1st February, 2012

RULING

1. INTRODUCTION
   

1. The Plaintiff seeks to amend the statement of claim and the Defendant objects to the amendment of the statement of claim. The action has not proceeded beyond the stage of discoveries and there were summons for summary judgment filled by the Plaintiff which was struck off and subsequent to that the Defendants filled summons for interrogatories which was granted subject to certain restrictions. Now the Plaintiff is seeking to amend their statement of defence. The claim is based on damages for wrongful assault (battery) and the criminal offence is being tried in the Magistrates Court.
   

2. LAW AND ANALYSIS
   

2. The objections to the proposed amendment are bases on one, several or all of the following and they are;
   
   1. The Delay in the application for amendment and prejudice.
      
   2. The amended paragraphs are not being marked indicating the amendments from the existing statement of claim.
      
   100. The proposed amendments are done in Bad faith
        
   4. The proposed amendments do not crarfy the issues of the matter.
      
   5. New cause of action is raised in the amendment.
      
3. This is the Plaintiff's application to amend his Statement of claim pursuant to Order 25 rule 5 of the High Court Rules 1988. The law relating to grant of leave to amend pleadings is set out under Order 20 rule 5 off the Supreme Court Practice 1999.
   

Order 20 Rule 5 of the High Court Rules which provides:

"5-(1) Subject to Order 15, Rule 6, 8 and 9 and the following provisions of this rule, the Court may at any stage of the proceedings allow the Plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct."(emphasis is added)

4. The court is granted a discretion to allow any amendment at any time of proceedings, but this discretion has to be exercised in accordance with the accepted norms and principles of law.The Defendant is objecting to the said amendment on the one, several or all the above mentioned grounds.
   
5. Under Order 20/ 8/6 of the Supreme Court Practice of 1999 under the heading 'General principles for grant of leave to amend' at page 379 it is stated that:
   

"General principles for grant of leave to amend (rr5,7 and 8)-It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made "for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defects or errors in any proceedings." (see per Jenkins L. J. in R. L. Baker Ltd v Medway Building & Supplies Ltd [1958] 1 W.L.R. 1216; [1958] 3 All E.R. 540, p.546)." (Emphasis added)

It is well established principle that the object of the amendment after the closing of the pleading Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace.It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of rights on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right"(per Bowen L.J. in Cropper v. Smith [1884] UKLawRpCh 91; (1883) 26 Ch. D. 700, pp. 710 – 711, with which observations A.L. Smith L.J., expressed "emphatic agreement" in Shoe Machinery Co. v. Cultam (1896) 1 Ch. 108. P. 112)."

6. What is paramount in the exercise of the discretion of the court in determining an application for amendment is whether the amendments will lead to a decision of the real matters in controversy and if so to allow the pleading to be corrected with necessary amendment. In this case the damage is claimed for alleged assault to the Plaintiff by the Defendants and the issue should be whether the Defendants have done the said act of assault and the statement of claim filled with the writ of summons is verbose and also contains evidence which is not necessary for a pleading.
   
7. Under Order 20/ 8/6 of the Supreme Court Practice of 1999 under the heading 'General principles for grant of leave to amend' at page 379further stated as follows
   

"In Tildesley v. Harper [1878] UKLawRpCh 284; (1876) 10 Ch. D. 393, pp 396, 397, Bramwell L.J. said:

"My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by this blunder, hehad done some injury to his opponent which could not be compensated for by costs or otherwise." "However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs" (per Brett M.R. Clarapede v. Commercial Union Association (1883) 32 WR 262, p263; Weldon v. Neal (1887)19 QBD 394 p.396. Australian Steam Navigation Co. v. Smith [1889] UKLawRpAC 12; (1889) 14 App. Cas. 318 p 320; Hunt v. Rice & Sons (1937) 53 TLR 931, C.A and see the remarks of Lindley L.J. Indigo Co. v. Ogilvy (1891) 2 Ch. 39; and of Pollock B. Steward v. North Metropolitan Tramways Co.(1886) 16 QBD.178, p.180, and perEsher M.R. p.558, C.A.). An amendment ought to be allowed if thereby "the real substantial question can be raised between the parties," and multiplicity of legal proceedings avoided (Kurtz v. Spence (1888) 36 Ch, D. 774; The Alert (1895) 72 L.T. 124).

On the other hand it should be remembered that there is a clear difference between allowing amendments to clarify the issues in dispute and those that provide a distinct defence or claim to be raised for the first time(see, per Lord Griffiths in Kettma v Hansel Properties Ltd[1987]A.C 189 at 220).

Leave to amend will be given to enable the defendant to raise a defence arising from a change in the law since the commencement of the proceedings affecting the rights of the parties or the relief or remedy claimed by the plaintiff, even though this might lead to additional delay and expense and much longer trial, e.g. that the plaintiffs have acted in contravention of Art. 85 (alleging undue restriction of competition) and Article 86 (alleging abuse of dominant market position) of the treaty establishing the European Economic Community (the "Treaty of Rome") which became part of the law of the United Kingdom by the European Community Act 1972, so as to become disentitled to their claim for an injunction (Application des Gaz SA v FalksVeritas Ltd [1974]Ch. 381;[1974]3 All E.R. 51 CA)...

Where a proposed amendment is found upon material obtained on discovery from the defendant and the plaintiff also intends to use if for some purpose ulterior to the pursuit of the action(e.g. to provide such information to third parties so that they could bring an action), the plaintiff should not be allowed to amend a statement of claimendorsed on the writ and so it the public domain but instead the amendment should be made as a statement of claim separate from the writ and thus not available for public inspection (Mialano AssicuranzionaSpA v Walbrook Insurance Co Ltd [1994] 1 W.L.R 977 see too Omar v Omar [1995] 1 W.L.R. 1428, use of documents disclosed in relation to Mareva relief permitted to amend claim and at trial.

The Court is entitled to have regard to the merits of the case in an application to amend if the merits are readily apparent and are so apparent without prolonged investigation into the merits of the case (King's Quality Ltd v A.J. Paints Ltd [1997] 3 All E.R. 267)."

8. From the above quoted principles of law that contained intheSupreme Court Rules (1999) it can be safely deduced that an amendment generally is granted though it was sought in the late in the day if the said amendment was actually done in good faith to resolve the matters in issue. If the other party is not prejudiced it is allowed. If the cost can be a remedy for compensation the amendment should be allowed subject to a cost even though it was due to the negligence of the party seeking amendment.
   
9. The Plaintiff is seeking damages for alleged wrongful assault and the said incident happended on or around 18th December, 2008 and the matter has not proceeded to trial and even the pretrial conference has not taken place.
   
10. The White Book (Supreme Court Rules 1999) states under Order 20/8/10 at p 382 state under the heading "Before the trial or hearing" state as follows
    

"Before the trial or hearing (rr5,7 and 8)- Leave is readily granted, on payment of the costs occasioned, unless the opponent will be placed in a worse position than he would have been if the amended pleading had been served in the first instance (Steward v North metropolitan Tramways Co (1885) 16 Q.B. D 178) or some injury caused to him for which he cannot be compensated by payment of costs B (See "Costs no remedy", para20/8/20)..........

Under the same heading "Before the trial or hearing" it further state at p 382

"There will be difficulty however, where there is ground for believing that the application is not made in good faith. Thus, it either party seeks to amend his pleading, by introducing for the first time allegations of fraud, or misrepresentation or other such serious allegation, the Court will ask why this new case was not presented originally; and may require to be satisfied as to the truth and substantially of the proposed amendment (Lawrance v. Norreys [1888] UKLawRpCh 116; (1890) 39 Ch. D. 213; see judgment of Stirling J. p.221, and of Bowen L.J. p. 235).

Though the Plaintiff is accused of bad faith there is no evidence of bad faith in regard to the proposed amendment. Prima facie the statement of claim filled on ... is verbose and contains evidence as opposed to the emphasis on the claim and needs to be corrected, though it would have been realized much earlier as there were two interim applictions which resulted two rulings before this summons for the amendment was made."

11. In White Book (2011) at page 488 it states under heading Need to show some prospect of success as follows
    

'Need to show some prospect of success

An application for permission to amend a defence will be refused if it is clear that the proposed amendment has no prospect of success (Oil & Minerals Development Corp v Sajjad December3, 2001 unrep., QBD; Groveholt Ltd v Hughes [2010] EWCA Civ Group Inc v T & N Ltd December 19, 2001, unrep, QBD).

Given the purpose of the statement of truth verifying an amendment (see para 17.1.2 above) a party will not be permitted to raise by amendment an allegation which is unsupported by any evidence and is therefore pure speculation or invention (Clarke v Marlborough Fine Art (London)Ltd [2002] EWHC 11)

12. The allegation of assault needs to be proved through evidence I cannot decide on the success of the claim since the claim is based on an alleged criminal offence of assault that needs to be established in a court of law. The burden of proof in civil action is on preponderance of evidence and not beyond reasonable doubt as in criminal action. The criminal action is yet to be decided and even if that results an acquittal the civil action can proceed, because of the lower burden of proof needed in the Civil Action. The amendment has left many unnecessary evidential materials pleaded in the statement of claim filed along with the writ of summon. This will not only streamline the issues before the court, but also would help the Defendant in finalizing the pretrial conference much easier than with the existing statement of claim which is vague and incoherent considering the rules of the pladings. Though bad faith is alleged as regards to the amended statement of claim, there is no proof of bad faith upon the evidence before me.The amendment deals with the issues before the court in this matter and there is no new cause of action as the cause of action is the alleged assault to the Plaintiff as pleaded in the statement of claim. The proposed amendment does not plead new cause of action this is evident from the identical prayers being incorporated in to the proposed statement of claim. The amendments will helped the parties and would certainly help the court at the hearing to determine the issues before the court.
    

100. COSTS
     

13. The Defendant should be allowed costs of this action as there is a delay in this application and it could have been avoided if proper rules of drafting a claim was adhearded by the Plaintiff. I have discussed this in issue earlier in this ruling. What is the reasonable cost under the circumstances, has to be decided in application of the relevant law on similar applictions.
    
14. 'As a general rule, where a plaintiff makes a late amendment, as here, which substantially alters the case the defendant has to meet and without which the action will fail, the defendant is entitled to the costs of the action down to the date of the amendment (per Stuart-Smith L.J. in Beoco Ltd v Alfa Laval Co Ltd [1995] Q.B. 137). (emphasis is mine)
    
15. The Defendant is encountered with a complete overhaul of the statement of claim and also has not indicated the amendments separately which would require more time than it would have been if the amendments were indicated in some form from the existing statement of claim.
    
16. The Plaintiff relied on a case of Lenton Vs Loyds Bank 1960 1 All ER 65 and state that such distinct indication of the amendments is not fatal. I do agree that such failure is not a fatal irregularity, though in calculation of the cost this would be a factor that needs to be taken in to consideration as the Defendant had to spend more thime in distinguishing the amendments from the existing pleadings. The above mentioned case relied upon by the Plaintiff can be easily distinguished from the case befor me as it was a case where a pearson seeking amendment was appearing in person and the requirement of indication of the amenments separately by a specified colour was a practice direction in UK and courts would be reluctant to impose such a requirement mandatory when the person is not represented by a lawyer. In any event I do agree that such irregularity cannot be fatal and if this was raised by the Defendant earlier, this could have been rectified much earlier. I need not say more than to refer to Order 2 rule 2 which clearly states that any irregularity should be brought to notice with in a reasonable time and if a step has been taken after said irregularity that irregularity should not be considered fatal.
    
17. In calculating the cost, one has to consider the nature of the action and the stage of the proceedings and the nature of the amendment. It is clear the amendment is substantial and this will require the Plaintiff to file a fresh statement of defence. The trial is at the pretrial stage and Plaintiff will incur additional expenses due to the negligence of not adhearing to the rules of pleadings. Considering the nature of the amendment the Plaintiff will be incurring a similar cost as now.
    
18. "As a general rule, where a plaintiff makes a late amendment, as here, which substantially alters the case the defendant has to meet and without which the action will fail, the defendant is entitled to the costs of the action down to the date of the amendment" (per Stuart-Smith L.J. in Beoco Ltd v Alfa Laval Co Ltd [1995] Q.B. 137). The Defendant has not submitted any evidence of cost that was incurred to its client, but obviously with already two hearings of interim applictions being concluded before this application being made and considering that the extra time expended on this application due to clearly not indicating the proposed amendments from the existing statement of claim, and considering all the circumstances including the claim of the Plaintiff which is based on the alleged assault, I will assess a cost up to this stage summarily at $1,500 and would award the said amount as costs for delay.
    

4. CONCLUSION
   

The Defendant is objecting to the proposed amendment. There is no evidence of bad faith as alleged by the Defendant in regard to the proposed amendment. The amendment would lead to easy resolution of the issues before the court. The claim is based on battery and it needs to be proved through evidence. The pleadings needs to adhear to the rules relating to drafting and if not needs to be corrected. The Plaintiff in the proposed statement of claim has made the same calim for damages for assault. So, no bad faith or new claim included. The identical prayers have been included in the proposed statement of claim. The proposed amendment is allowed subject to a cost of $1,500 assessed summarily considering the nature and the time of application and other circumstances of the case.

5. FINAL ORDERS
   
   1. The summons for amendment of the statement of claim is allowed and the proposed statement of claim is allowed subject to payment of cost of $1,500.
      
   2. The cost of 1,500 is to be paid by the Plaintiff to the Defendant with in 21 days.
      
   100. The Plaintiff is ordered to file and serve the amended statement of claim within 21 days.
        
   4. The cost of this application will be cost in the cause.
      
   5. The Defendants to file and serve an amended statement of defence within 14 days of service of the amended statement of claim.
      
   6. The matter will take normal cause there after
      

Dated at Suva this 1st day of February, 2012.

Mr. Deepthi Amaratunga
Master of the High Court
Suva