Subamma v Fantasy Company Fiji Ltd [2015] FJHC 799; HBC111.2003 (23 October 2015)

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ANITA SUBAMMA as the Executrix and Trustee of the ESTATE OF UMENDRA JIT CHAUDARY, JAI PRASAD and EDWARD HENRY THOMPSON all of Nadi, Company Shareholders.
PLAINTIFFS

THE FANTASY COMPANY FIJI LIMTED a limited liability Company having its registered office at Waqadra, Nadi
1st DEFENDANT

ABBAS ALI, SAIYAD HUSSEIN, MASATOSHI KAYANO, FUMIYO KAYANO and APISAI DERE NAEVO all of Nadi, Company Directors/Shareholders.
2nd DEFENDANTS

Mr. Roopesh Prakash Singh for the Second Plaintiff.
Mr. Gyanendra Adish Kumar Narayan for the Defendants.

No.	PARTICULARS	DATE FILED
1	Ex-Parte Summons For Injunction Restraining Disposal of Subject Matter of Action Before Trial	26/03/03
2	Affidavit Supporting Summons For Injunction restraining Disposal of Subject Matter of Action Before Trial	26/03/01
3	Originating Summons Claiming Declaration of Ownership	26/03/03
4	Acknowledgement of Service of Originating Summons	05/06/03
5	Order (Ex Parte & Originating Summons made on 6/06/03	12/06/03
6	Notice of Intention to Defend	08/11/05
7	Summons In Application By 3rd Named Plaintiff (Order for 3rd named Plaintiff to proceed by way of Writ & Statement of Claim)	08/11/05
8	Affidavit in Support	08/11/05
9	Motion for Dismissal of Action	08/11/05
10	Affidavit of Abbas Ali in Support	08/11/05
11	Affidavit of Edward Henry Thompson	27/01/06
12	Affidavit In Reply To The Affidavit of Edward Henry Thompson Filed Herein on 27/01/06	14/02/06
13	Affidavit of Edward Thompson	07/04/06
14	Summons (to strike out 1st & 2nd named Plaintiffs, instant claim)	20/04/06
15	Affidavit in Support (Abbas Ali)	21/04/06
16	Affidavit in Reply And In Opposition To Originating Summons Dated 27th March, 2003 and File Herein on 26th March 2003	20/04/06
17	2nd Plaintiff's Affidavit in Support (opposing Summons to Strike Out)	21/04/06
18	Order dated 21/04/16 (on Ex parte Motion by 3rd named Plaintiff dated 21/04/06	21/04/06
19	Affidavit in Reply To The Affidavit of Edward Thompson Sworn on 3rd April And Filed Herein On 7th April 2006	21/04/06
20	Affidavit in Support (Abbas Ali – 3rd named Plaintiff's Ex Parte motion dated 21/04/16)
21	2nd Plaintiff Affidavit in Support	03/05/06
22	Affidavit In Reply To The Affidavit Of Jai Prasad On 25th April, 2006 And Filed Herein on 3rd May, 2006	10/05/06
23	Notice of Motion (substitution of 1st named Plaintiff)	22/05/06
24	Affidavit of Anita Subbamma	22/05/06
25	Summons (Ex-Parte Injunction Orders against 2nd named Plaintiff)	25/05/06
26	Affidavit in Support (Abbas Ali)	25/05/06
27	Affidavit in Support (Poate Rakanace)	25/05/06
28	Affidavit of Service And Supplementary Affidavit (Poate Rakanace)	01/06/06
29	Affidavit In Reply To The Affidavit of Poate Rakanace and Abbas Ali (Edward Thompson)	16/06/06
30	Affidavit In Reply To The Affidavit Of Edward Thompson Sworn on 14/06/06 and filed on 16/06/06	03/07/06
31	Affidavit In Reply To The Affidavit Of Abbas Ali (Edward Thompson)	31/07/06
32	Order on Ex-Parte Summons Filed on 25th May, 2006 (made on 25/08/06)	30/08/06
33	Summons For Direction (Pursuant To The Orders Of Her Ladyship Madam Justice Phillips on 27th September 2006)	02/10/06
34	Summons for Leave For Extention Of Time (Filing of Statement of Claim by 1st named Plaintiff)	19/10/06
35	Affidavit In Support	19/10/06
36	3rd Named Plaintiff Affidavit Verifying List of Documents	25/10/06
37	2nd Named Plaintiff Affidavit Verifying List of Documents Order 24 Rule 5	30/10/06
38	Affidavit Verifying List Of Documents (defendants)	01/11/06
39	Summons (seeking that Defendant's provide to the 3rd named Plaintiff proper Accounts)	16/11/06
40	Affidavit of Edward Thompson	16/11/06
41	Affidavit in Opposition to 3rd Plaintiff's Application dated 16th November, 2006	23/11/06
42	Affidavit of Edward Thompson in Response To The Affidavit of 1st Named 2nd Named Defendant	27/11/06
43	2nd Plaintiff's Affidavit in Support	29/11/06
44	Supplementary Affidavit	10/01/07
45	Supplementary Affidavit Verifying List Of Documents (Defendants)	29/03/07
46	Order (made on 23/03/07)	29/03/07
47	Summons (to vacate trial dates)	16/04/07
48	Affidavit In Support of Summons	16/04/07
49	Ex-Parte Motion	21/04/07
50	Summons (2nd named Plaintiff seeking Orders that Defendants file Supp LOD to verify accounts
51	Affidavit In Support	30/07/07
52	Affidavit In Opposition To Summons dated 30/07/07	07/09/07
53	Ruling On Discovery	25/09/07
54	Further Supplementary Affidavit Verifying List Of Documents (Defendants)	10/10/07

Para (2) The Plaintiffs commenced proceedings on 26th March, 2003 seeking declaration and claiming for damages and transfer of Lots 10, 13 and 18 on Crown Lease No. 13523 held by the 1st Defendant to the Plaintiffs. An Amendment Statement of Claim was filed on 24th November, 2006.

(3) Upon instructions from the Defendants AK Lawyers took over the matter from Suresh Maharaj & Associates and duly filed a notice of change of Solicitors on 6th October, 2014.

(4) AK Lawyers then did a search at the Lautoka High Court to determine the status of the matter. The search revealed that a Notice of Discontinuance was filed by the 1st named Plaintiff on 13th February, 2013 and the Lautoka High Court had archived the file.

(5) Since the proceedings commenced in 2003, the matter has not been prosecuted by the Plaintiffs with any real interest to put it before the Court. This lack of interest has caused delay which is inordinate and inexcusable and as such is an abuse of the process of this Court and/or has created a substantial risk that there will not be a fair trial on the issues thereby causing prejudice to the Defendants.

(6) Since the filing of the Notice of Discontinuance in 2013, the 2nd and 3rd named Plaintiffs have showed no interest to move the matter.

(7) The Defendants are desirous of closing their file in the matter to avoid the costs of it having to maintain a contingency reserve fund in the event of an adverse judgment at trial. The 2nd and 3rd named Plaintiffs have not provided any or any valid excuse for the delays.

(8) The said Defendants are being put to the inconvenience and cost of having to retain Solicitors to defend the action, not knowing whether the 2nd and 3rd named Plaintiffs intend to prosecute the action with any certainty.

(9) The 2nd and 3rd named Plaintiffs are under a duty to the Court and the Defendants to progress the action without undue delay and given the premises, their failure to prosecute the matters with due diligence and any real interest, is an abuse of the process of the Court and poses a substantial risk of a fair trial and/or prejudice to the Defendants.

(10) Witnesses for the Defendant will be required to recall events which occurred in 1998. Their recollection of events due to the passage of time will affect their reliability.

(11) In the premises, pursuant to the Inherent Jurisdiction of this Honourable Court, the Defendants pray for an Order that the action be struck out and dismissed on the grounds that the 2nd and 3rd named Plaintiffs have failed to prosecute the proceedings expeditiously without any real interest in bringing this matter to trial and have abused the process of this Honorable Court thereby causing the substantial risk of an unfair trial and/or prejudice to the Defendants and that the 2nd and 3rd named Plaintiffs pay the cost of this application.

Para 4.1 I am a shareholder in the first named Company holding 20,000 shares. I am a minority shareholder in the Company.

4.4 I understand that the second Plaintiff still remains a shareholder of the second Defendant Company.

5. THAT as to paragraph 4 of the said Affidavit I say that the discontinuance only relates to the first Plaintiff's claim,

6. THAT I don't agree with the contents of paragraph 5 of the said Affidavit and say that there has been various interlocutory applications in this matter filed by the Plaintiff and will rely on the Court record in response to the contention in the said Affidavit.

7. THAT as to paragraph 6 and 9 of the said Affidavit I say that the second Plaintiff's Solicitors were attempting to settle this matter out of Court with the Defendants Solicitors. Letters were exchange on a without prejudice basis between the Solicitors for settlement of the second Plaintiffs claim on the basis of payment of a monetary sum and withdrawal of this action. I further say that there is no prejudice to the Defendant as the second plaintiff remains a shareholder of the first Defendant.

8. THAT the matter is at pre-trial conference stage and discovery and disclosure of documents took some time as the Court records will indicate.

9. THAT we are instructed to proceed with the present proceedings. There was delay in receiving instruction as the Second Defendant had migrated to New Zealand after his retirement from teaching.

10. THAT in the event this matter is struck out the second Plaintiff will be prejudiced with it's claim and right of claim for damages.

Para 6 I deny paragraph 6 of the Muni Affidavit and say that there has been no interlocutory application in this matter since 2007. The last document was filed on 10th October, 2007 by the Defendants. The Defendants repeat the contents of paragraph 5 in the Affidavit of Elizabeth Saverio filed in support of this application.

7 The Defendants deny the contents of paragraph 7 of the Muni Affidavit and say that there have never been any attempts by the Defendants to settle this matter as there is a pending claim for damages against the 2nd named Plaintiff in Action No. 48 of 2010. There was however a proposal regarding the sale of shares from the 2nd Plaintiff to me. This did not eventuate and no further discussion took place since December 2008.

8 As to paragraph 8 and 9 of the Muni Affidavit the 2nd Plaintiff has shown no interest to move the matter, until this application was filed by the Defendants. The 2nd Plaintiff is under a duty to the Court and the Defendants to progress the action without undue delay and on the sworn premise, his failure to prosecute the matters with due diligence and any real interest, is an abuse of the process of the Court and poses a substantial risk of a fair trial and/or prejudice to the Defendants.

"If no step has been taken in any cause or matter for six months then any party on application or the court of its own motion may list the cause or matter for the parties to show cause why it should not be struck out for want of prosecution or as an abuse of the process of the court.

Upon hearing the application the court may either dismiss the cause or matter on such terms as maybe just or deal with the application as if it were a summons for directions".

"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; (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 it 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."

The Fiji Court of Appeal in "Pratap V Chrisitian Mission Fellowship" (supra) held;

The correct approach to be taken by the courts in Fiji to an application to strike out proceedings for want of prosecution has been considered by this court on several occasions. Most recently, in Abdul Kadeer Kuddus Hussein v Pacific Forum Line –ABU0024/2000 – FCA B/V 03/382) the court, readopted the principles expounded in Birkett v James [1978] A.C. 297; [1977] 2 All ER 801 and explained that:

'The power should be exercised only where the court is satisfied either (i) 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 (ii) (a) that there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers, and (b) that such delay would 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'."

(9) The question that arises for consideration is what constitutes "intentional and contumelious default" (First Limb). The term "Contumely" is defined as follows by the Court of Appeal in Chandar Deo v Ramendra Sharma and Anor, Civil Appeal No, ABU 0041/2006,

"1. Insolent reproach or abuse, insulting or contemptuous language or treatment; despite; scornful rudeness; now esp. such as tends to dishonour or humiliate.

(10) In Culbert v Stephen Wetwell Co. Ltd, (1994) PIQR 5, Lord Justice Parker succinctly stated,

"There is however, in my view another aspect of this matter. An action may also be struck out for contumelious conduct, or abuse of the process of the Court or because a fair trial in action is no longer possible. Conduct is in the ordinary way only regarded as contumelious where there is a deliberate failure to comply with a specific order of the court. In my view however a series of separate inordinate and inexcusable delays in complete disregard of the Rules of the Court and with full awareness of the consequences can also properly be regarded as contumelious conduct or, if not that, to an abuse of the process of the court. Both this and the question of fair trial are matters in which the court itself is concerned and do not depend on the defendant raising the question of prejudice."

Lord Justice Nourse in Choraria [Girdharimal] v Sethia (Nirmarl Kumar) Supreme Court of Judicature Case No. 96/1704/B, C.A. 15.1.98 said;

"However great does not amount to an abuse of process, delay which involves complete, total or wholesale disregard, put it how you will, of the rules of the court with full awareness of the consequences is capable of amounting to such an abuse, so that, if it is fair to do so, the action will be struck out or dismissed on that ground."

"That is the principle on which the court must now act. Whether it is identified as being comprehended within the first limb of Birkett v James or as one having an independent existence appears to be a point of no importance. I have already said that it is clear that the relevant ground of decision in Culbert was based on the first limb of Birkett v. James. In other words, it was there effectively held that the plaintiff's conduct had been intentional and contumelious.

In my view that conclusion was well justified on the facts of the case, which demonstrated not only the plaintiff's complete disregard of the rules but also his full awareness of the consequences. He had, at the least, been reckless as to the consequences of his conduct and, on general principles that was enough to establish that the defaults had been intentional and contumelious."

(11) Therefore, the failure to comply with peremptory orders and/or flagrant disregard of the High Court Rules amounts to contumaciousness.

(12) The next question is what constitutes "inexcusable or inordinate delay and prejudice".

In Owen Clive Potter v Turtle Airways LTD, Civil Appeal No, 49/1992, the Court of Appeal held,

"(Inordinate)....means so long that proper justice may not be able to be done between the parties. When it is analysed, it seems to mean that the delay has made it more likely than not that the hearing and/or the result will be so unfair vis a vis the Defendant as to indicate that the court was unable to carry out its duty to do justice between the parties."

"Inexcusable means that there is some blame, some wrongful conduct, some conduct deserving of opprobrium as well as passage of time. It simply allows the Judge to put into the scales the Plaintiff's conduct or reasons for not proceeding, as well as the lapse of time and the prejudice that would result to him from denying him opportunity from pursing his action or perhaps any action against the defendant."

"Inordinate delay means a delay which is materially longer that the time which is usually regarded by the courts and the profession as an acceptable period."

(13) The Court of Appeal, in "New India Assurance Company Ltd, V Rajesh k. Singhand Anor, Civil Appeal No, ABU 0031/1996, defined the term "prejudice" as follows,

"Prejudice can be of two kinds. It can be either specific that is arising from particular event that may or may not occur during the relevant period or general, and prejudice that is implied from the extent of delay."

(14) Lord "Woolf" in "Grovit and Others v Doctor and Others" (1997) 01 WLR 640 [1997] UKHL 13; , 1997 (2) ALL ER, 417, has discussed the principles for striking out for "Abuse of process" (Second ground in Order 25, rule 9) as follows,

"This conduct on the part of the appellant constituted an abuse of process. The court exists to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires (which will frequently be the case) the courts will dismiss the action. The evidence which was relied upon to establish the abuse of process may be the plaintiff's inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution. However, if there is an abuse of process, it is not strictly necessary to establish want of prosecution under either of the limbs identified by Lord Diplock in Birkett v James [1978] A.C 297. In this case once the conclusion was reached that the reason for the delay was one which involved abusing the process of the court in maintaining proceedings where there was no intention of carrying the case to trial the court was entitled to dismiss the proceedings".

(15) The Court of Appeal in Thomas (Fiji) Ltd –v- Frederick Wimheldon Thomas & Anor, Civil Appeal No. ABU 0052/2006 affirmed the principle of Grovit –v- Doctor as ground for striking out a claim, in addition to, and independent of principle set out in Brikett v James (see paragraph 16 of the judgment). Their Lordships held:-

"It may be helpful to add a rider. During the course of his careful and comprehensive ruling the judge placed considerable emphasis on the judgment of the House of Lords in Grovit and Ors v Doctor [1997] UKHL 13; [1997] 2 ALL ER 417. That was an important decision and the judge was perfectly right to take it into account. It should however be noted that Felix Grovit's action was struck out not because the accepted tests for striking out established in Birkett v James [1977] 2 ALL ER 801; [1978] AC 297 had been satisfied, but because the court found that he had commenced and continued the proceedings without any intention of bringing them to a conclusion. In those circumstances the court was entitled to strike out the action as being an abuse of the process of the Court. The relevance of the delay was the evidence that it furnished of the Plaintiff's intention to abuse the process of the Court"

(16) It seems to me perfectly plain that under "Grovit and Others v Doctor and Others" (supra) there is no need to show prejudice any more for it says that maintaining proceedings without a serious intention to progress them may amount to "abuse of process" which justifies for want of prosecution without having to show prejudice.

The Defendants argument runs essentially as follows; [Counsel in his submissions writes ....]

Para 4.2 We submit that the Affidavit of Muni Singh in Reply sworn on 16th June, 2015 is defective and tantamount to being false because in paragraphs 4 (4.1) of the said Affidavit the deponent has sworn that he is the shareholder of the First Defendant, when in fact he is a law clerk at the Plaintiff's Solicitors office.

4.3 We further submit that the entire Affidavit should be thrown out as the law clerk, Muni Singh has basically deposed to contentious matters.

The Counsel for the Second Plaintiff admitted the error in paragraph 4.1 of the Affidavit in Opposition. The Counsel for the Second Plaintiff contends that the Defendants application to strike out the claim is supported by an Affidavit of a litigation clerk from their Solicitors firm and it is not appropriate for a clerk to depose in support of it.

I am of course mindful of the rule of law enunciated by Hon. Justice Gerad Winter in
"Rupeni Silimuana Momoivalu v Telecom Fiji Ltd", Civil Action No:- HBC 527 of 1997, Hon. Justice held;

"The habit of supporting or opposing applications to decide the rights of parties based on the information and belief of law clerks is an embarrassment to the clerk, her firm and the court file. Justice Madraiwiwi (as he then was) had this say about the practice of using law clerks in this way:

"It is being made to clear to counsel that affidavits by law clerks were not being entertained other than in non contentious matters such as service of documents where not disputed. The most appropriate person to have sworn the affidavit in these proceedings was Mr.JojiBoseiwaqa who appeared on instructions from the plaintiff at the relevant time. The court respectfully endorses the general thrust of dicta by Lyons J in Michael Harvey v Michael Kelly & Ray McGill, Civil Action No. HBC 323 of 1977 about the propriety of law clerks deposing affidavits".
(Emphasis Added)

Nevertheless, I am at a substantial loss to understand why the second Plaintiff and the Defendants chose to offer response to the Affidavits of the law clerks.

Consequently, I leave open the issue of the admissibility of the Affidavits of law clerks.

If as I understand, the argument of the Defendants run essentially as follows [The Counsel in his submission writes ...]

Para 5.1 We submit that the delay is inordinate. We rely on and refer your Lordship to the chronology earlier. The 2nd Plaintiff has taken no steps since the Further Supplementary Affidavit Verifying List of Documents was filed on 10th October, 2007. The 2nd Plaintiff has failed to take the following steps:-

5.2 One would have thought that in view of the application by the Defendants the 2nd Plaintiff would have moved quickly to file a Notice of Intention to Proceed as there had been a delay of more than a year since the last formal step in the proceedings.

In adverso, the Counsel for the Second Plaintiff forcefully submits [The Counsel in his submission writes ...]

Para 11. The second Plaintiff has never been paid any dividends and the first Defendant still remains in operation. The Court will note that there had been substantial activity in the proceedings in respect of interlocutory matters. The record will speak for it's self.

13. There has been delay, there is no doubt, but we submit that this delay does not warrant that the action be struck out on the premises as there is no prejudice offered or shown by the delay. The affidavit in support makes a statement.

On 31st March 2015, the Defendants issued Summons pursuant to Order 25, rule (9) to strike out the claim.

Between 10th October 2007 to 31st March 2015, no steps were taken by the Second Plaintiff to advance proceedings to trial. The action has been laying in abeyance until the Defendants issued Summons on 31st March 2015, pursuant to Order 25, rule (9) of the High Court Rules.

From 10th October 2007 to 31st March 2015, that is for 7 ½ years, the Second Plaintiff had all the time to take the following steps;

I must stress here that no steps were taken by the Second Plaintiff to advance proceedings to Trial.

The onus is upon the Second Plaintiff to provide a cogent and credible explanation for not taking any step to advance the litigation. What is the reason for failure on the part of the Second Plaintiff to proceed with due diligence to prosecute the action?

The Second Plaintiff in his Affidavit to show cause explains the reason for not taking any step to advance the litigation as follows;

Reference is made to paragraph (6), (7), (8) and (09) of the Affidavit of "Munil Singh".

Para 6. THAT I don't agree with the contents of paragraph 5 of the said Affidavit and say that there has been various interlocutory applications in this matter filed by the Plaintiff and will rely on the Court record in response to the contention in the said Affidavit.

8. THAT the matter is at pre-trial conference stage and discovery and disclosure of documents took some time as the Court records will indicate.

9. THAT we are instructed to proceed with the present proceedings. There was delay in receiving instruction as the Second Defendant had migrated to New Zealand after his retirement from teaching.

At this juncture, I cannot resist in saying that, the Second Plaintiff has adopted a "scatter gun" approach to justify his inactivity in the action for a period of 7 ½ years. He has adduced multiple reasons in the hope that one or more of the reasons might hit home.

I must confess that I remain utterly unimpressed by the Second Plaintiff's explanations/reasons as to why he let his claim sleep for 7 ½ years and his failure to prosecute the action with due diligence. I completely reject the excuse presented in the Affidavit due to the following reasons;

In the result, I certainly agree with the sentiments which were expressed inferentially in the Defendant's submissions.

Finally, with breathtaking disingenuousness, Counsel for the second Plaintiff submits that the second Plaintiff had migrated to New Zealand and therefore there was delay in receiving instructions. I must confess that I sympathized with the proposition advanced by the Counsel for the second Plaintiff. As correctly pointed out by the Defendants, this is not a sufficient excuse since in this day and era technology has become so advanced for people to stay in touch, be they in any part of the world.

I cannot regard the second Plaintiff's submission as of any weight. I desire to emphasize that there is no cogent and credible explanation in the Affidavit of "Muni Singh" as to second Plaintiff's failure to prosecute the action with due diligence.

Therefore, I conclude that the second Plaintiff cannot establish that he had a good reason for;

The second Plaintiff's failure to establish that he had a cogent and credible reason for;

Emanating from this issue alone, the fundamental question is "whether the second Plaintiff is serious about pursuing his claim when he let his claim sleep for 7 ½ years?"

After reviewing the long and unhappy history of the litigation and in view of the Second Plaintiff's failure to file "Notice of intention to proceed", I interpose the view that there is either the inability to pursue the claim with reasonable diligence and expedition or lack of interest in bringing it to a conclusion.

It is a fundamental principle of any civilised legal system that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing at which they or their representative are present and heard.

At this juncture, I bear in mind the "caution approach" that the court is required to exercise when considering an application of this type.

In Dev. v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78CLR 62, 91 Dixon J said:

"A case must be very clear indeed to justify the summary intervention of the court ... once it appears that there is areal question to be determined whether of fact or of 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 Agar v. Hyde [2001] HCA 41; (2000) 201 CLR 552 at 575 the High Court of Australia observed 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 Second Plaintiff on his own volition chose not to do so. Broadly speaking, the Second Plaintiff has adopted a "sitting on the hands" approach and allowed the proceeding to lay dormant. The Second Plaintiff by his conduct has clearly demonstrated that he has no regard to the primary policy of the High Court Rules.

It is worth remarking that, a delay of 7 ½ years in any Civil Action in the High Court, constitutes both inexcusable and inordinate.

The delay of around 7 ½ years could not possibly be described as "reasonable" even in the most generous minded and indulgent view. To my mind, 7 ½ years is a long time to sleep on a matter. It seems to me perfectly plain that the second Plaintiff slept on the matter and did not wake up at all from his slumber.

Already 7 ½ have elapsed since the last formal step in the proceedings. To allow the action to be without a single step of any kind being taken for 7 ½ years, resulted in a delay that is both inordinate and inexcusable.

I am required to take into account the likely prejudice to the Defendants. Clearly the Defendants will be prejudiced by the inordinate delay in prosecuting the claim and the stress of having unresolved court proceedings hanging over their heads for 7 ½ years.

In adverso, the second Plaintiff simplistically submits that; [Counsel in his submission writes ...]

Para (13) There has been delay, there is no doubt, but we submit that this delay does not warrant that the action be struck out on the premises as there is no prejudice offered or shown by the delay.

I must confess that I am not impressed at all by the effort of the Second Plaintiff. It is wrong to say that in order to strike out the action for want of prosecution, the Defendants should show specific prejudice. I interpose to mention that the proposition advanced by the second Plaintiff demonstrates a clear misconception on his part as to the scope and width of doctrine of "prejudice". Having said that I wish to emphasize that prejudice is generally regarded as inherent in substantial delay.

In the context of the present case, I cannot help but recall the rule of law enunciated in the following judicial decision;

"Prejudice can be of two kinds. It can either specific, that it is arising from particular events that may or may not have occurred during the relevant period or general, that is prejudice that is implied from the extent of the delay"; per Hon. Sir Maurice Casey, New India Assurance Company Ltd v Singh, (1999) FJCA 69.

The prejudice will generally be regarded as inherent in substantial delay: Green v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105 and Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176 (10 August 2011).

In an era when the need to ensure the efficient use of judicial resources has become increasingly important, delay may also be significant in that regard. Town & Fencott & Associates Pty Ltd v Eretta Pty Ltd [1987] FCA 102; (1987) 16 FCR 497, 514, and Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176 (10 August 2011).

"We now turn to consider whether prejudice should be inferred from the extent of the delay. It has long been recognized that the longer the delay the more difficult it can be for witnesses accurately to remember events that may have occurred years before. Such events may be forgotten, and there may be an increased possibility that a witness may, by virtue of the passage of time, come to believe an event or a happening that in fact did not occur, or did not occur in the manner he or she now believes." per Hon. Sir Maurice Casey, New India Assurance Company Ltd v Singh, (1999) FJCA 69.

Lord Denning summed up prejudice in Biss v. Lambeth, Southwark & Lewisham Health Authority, [1978] 2 All E.R. 125, as follows:

"The prejudice that might be suffered by a defendant as a result of the Plaintiff's delay was not to be found solely in the death or disappearance of witnesses, or their fading memories, or in the destruction of records, but might also be found in the difficulty experienced in conducting his affairs with the prospects of an action hanging indefinitely over his head in the circumstances, by having the action suspended indefinitely over their heads, the defendants have been more than minimally prejudiced by the Plaintiff's inordinate and inexcusable delay and contravention of rules of court as to time since the issue of the Writ, and that, added to the Plaintiff's great and prejudicial delay before the issue of the Writ, justified the court in dismissing the action for want of prosecution."
(Emphasis Added)

At this point, I cannot resist in saying that the proposition advanced by the Second Plaintiff in relation to "prejudice" flies on the face of the rule of law enunciated in the aforementioned judicial decisions.

It is clear beyond question that the witnesses for the Defendants will be required to recall events which occurred in 1998. Their recollection of events due to the passage of time will affect their reliability. There is no evidence to the contrary. In the result, I venture to say beyond a per-adventure that the delay of 7 ½ years will give rise to a substantial risk that it is not possible to have a fair trial of the issues.

After reviewing the history of the litigation and specifically in view of the second Plaintiff's failure to file "Notice of intention to proceed", it seems to me perfectly plain that, there is either inability to pursue the claim with reasonable diligence and expedition or lack of interest in bringing it to a conclusion.

I must stress here that it is an abuse of Court process if actions are commenced or maintained without the intention to pursue them with reasonable diligence and expedition.

Certainly, this case falls within the category of "abuse of process" held in "Grovit and Others v Doctor and Others" (supra). As earlier mentioned, it seems to me perfectly plain that under "Grovit and Others v Doctor and Others" (supra) there is no need to show prejudice any more for it says that maintaining proceedings without a serious intention to progress them may amount to "abuse of process" which justifies for want of prosecution without having to show prejudice. I echo the words of Lord "Woolf" " in "Grovit and Others v Doctor and Others" (supra)

"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 the defendant. It followed, on the facts that the deputy judge had been fully entitled to strike out the action. The appeal would therefore be dismissed."
(Emphasis Added)

Similar sentiment was expressed in Thomas (Fiji) Ltd –v- Frederick Wimheldon Thomas & Anor, Civil Appeal No. ABU 0052/2006;

Having regard to the facts of this case, I apply the legal principles laid down in the case of Grovit and Others v Doctor and others (Supra). Accordingly, I conclude that the Second Plaintiff maintained the action in existence notwithstanding that he had no interest in having it heard.

This conduct on the part of the Second Plaintiff constituted an abuse of process. Having said that, I wish to emphasize that the limited resources of this Court will not be used to accommodate sluggish litigation.

High Court of Fiji

Subamma v Fantasy Company Fiji Ltd [2015] FJHC 799; HBC111.2003 (23 October 2015)