Rajput v Govind [2016] FJHC 62; HBC088.2013 (8 February 2016)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

Civil Action No. HBC 088 of 2013

BETWEEN :

VISHAN RAGHUVER SINGH RAJPUT t/as VISHAN
INFOTECH situated at Lot 19 at 111 Vitogo Parade, Lautoka.
PLAINTIFF

AND :

MADHU KANT GOVIND of 4641 La Mirada Avenue, Aprt
No.4 Los Angeles, CA 90029, USA.
1STDEFENDANT

AND :

SHAMENDRA KUMAR RAM of Saru Back Road, Lautoka,
2nd DEFENDANT

Mr. Victor Vishal Sharma for the Plaintiff.
(Ms) Virisila Lidise for the First Defendant.
No appearance for or on behalf of the Second Defendant.

Date of Hearing: - 06th November 2015.
Date of Ruling : - 08th February 2016.

RULING

(A) INTRODUCTION

(1) The matter before me stems from the Summons filed by the First Defendant pursuant to Order 20, Rule 05 of the High Court Rules, 1988 seeking the grant of the following Orders;

• (i) That the 1st Defendant be granted leave to further amend his

Amended Statement of Defence and include a Counter claim on the grounds as set forth in the Affidavit of Madhu Kant Govind sworn on 4th August 2015 filed herein.

(ii) That the cost of this Application be costs in the cause.

(2) The Summons is supported by an Affidavit sworn by the first Defendant.

(3) The Summons is vigorously resisted by the Plaintiff. The Plaintiff filed an Affidavit in Opposition. Regrettably, the first Defendant did not file an Affidavit in reply.

(4) The Plaintiff and the first Defendant were heard on the Summons. They made oral submissions to Court. In addition to oral submissions, the Counsel for the first Defendant filed a careful and comprehensive written submission for which I am most grateful.

(B) THE FACTUAL BACKGROUND

(1) What are the circumstances that give rise to the present application?

(2) To give the whole picture of the action, I can do no better than set out hereunder the averments/assertions of the Pleadings.

(3) The Plaintiff in his Statement of Claim pleads inter alia;

Para 1. THAT I am the Plaintiff is a software programmer and a teacher and operates the Vishan Infotech Training Institute which has been duly recognized by Fiji Higher Education Commission.

2. THAT the First Defendant is a registered owner of Crown Lease No. 13732 on LD Ref 4/7/1191 on Lot 19 at 111 Vitogo Parade, Lautoka over which a building is situated with various office spaces.

3. THAT Plaintiff had on or about the year 2004 started the Training school Vishan Infotech Computer Training Institute.

4. THAT the Plaintiff had rented the offices situated at the First Defendants premises and there was no formal and written Tenancy Agreement and / lease Agreement.

5. THAT Plaintiff's base of operation was office 1 at the First Defendant's premises.

6. THAT on the 30th of January 2013 the Plaintiff received a Demand Notice from the then Solicitors of the First Defendant Messrs. Young & Associates demanding outstanding rental in the sum of $14,851.75 and the Plaintiff emailed and notified the First Defendant that offices 3 and 4 were empty and gave an undertaking to settle the remaining rental dues which was duly settled by the Plaintiff.

7. THAT on 3rd March the Plaintiff received an email from the First Defendant claiming total rental due in the sum of $12463.00.

8. THAT on 4th of April 2013 the Plaintiff was advised via letter from the First Defendant stating that there was an increase in rental for 3 offices effective of 1st May 2013 in the sum of $517.50 and there was consent from Lands Department.

9. THAT on 12th April 2013 the Plaintiff received another demand notice from Messrs. Young & Associates the Solicitors for the First Defendant who claimed the rental dues was in the sum of $15,855.50.

10. THAT on the 24th of April 2013 the Plaintiff had written to the then Solicitors for the First Defendant and advised them that the rental payments was regular and that no rental monies were due to the First Defendant and First Defendant's Solicitors never responded the Plaintiff's letter.

11. THAT on the 16th day of May 2013 the first Defendant through his Bailiff namely the 2nd Defendant served a Notice of Distress on the Plaintiff's premises claiming unpaid rentals and threatening that the goods on the premises would be sold according to Law within 5 days from the service of the Notice.

21. THAT after receipt of the Distress Notice, the Plaintiff's Solicitors wrote to the 1st Defendant and put the Defendant on Notice that the Plaintiff was not in arrears on any rentals.

22. THAT through the said letter the Plaintiff had also put the 1st Defendant on Notice that the said Distress was illegal as there were no arrears and the subject sub leasing was illegal as there was no consent from the Director of Lands.

28. That the Notice of Distress expires on 21st May and the 1st Defendant has refused to withdraw the Notice of Distress so served on the 16th day of May 2013.

29. THAT further the Second named Defendant has without lawful authority entered unto the Plaintiff's premises and threatened, intimidated and abused the staff and students on the premises prior to the expiry of the 5 day period and also after being notified that rental monies are not owed by the Plaintiff to the 1st Defendant.

(4) Wherefore, the Plaintiff prays for the following Orders;

1. General damages for unlawful and wrongful distress.

2. Costs.

(C) The Chronology and the Status of the Substantive matter

(1) The action was instituted by the Plaintiff on 21st May 2013 by way of Writ of Summons and Statement of Claim.

(2) The Defendants appeared in person and filed the Statement of Defence on 23rd May 2013.

(3) On 22nd, July 2013, Messers Young and Associates filed an Acknowledgement of Service of the Writ of Summons on behalf of the first Defendant.

(4) On 19th February 2014, Messers Young and Associates filed an Amended Statement of Defence for the First Defendant.

(5) On 24th February 2014, the Plaintiff filed the Reply to the Amended Statement of Defence of the first Defendant and Reply to Defence of the Second Defendant.

(6) On 24th April 2014, the Plaintiff filed Summons for directions and on 07/05/2014 obtained Orders in terms of Summons for directions.

(7) On 12th November 2014, the Plaintiff filed Summons to enter action for trial and obtained Orders in terms of Summons. The Court on 25th November 2014, referred the matter to the Deputy Registrar for allocation before a Judge.

(8) I note that the case was mentioned before Hon. Justice S.Sapuvida on 13/05/2015, 03/06/2015, 23/6/2015 and 7/7/2015. The following is the long and unhappy history of the proceedings

The Court record reads as follows:

Date 13/05/15

Counsel's Submission

First Defendant's Counsel seek 21 days to get instructions from his principal for a Hearing date.

Order

Mention on 3/6/15 at 9.00 in Court No. 3

Date 3/6/2015

Counsel's Submission

First Defendant seeks further time to file an amendment to the pleading, since parties were discussing a settlement.

Plaintiff has no objection for granting time.

Order

Final date is given for the 1st Defendant to set a date for Hearing.

Mention -23/06/2015.

Date 23/6/2015

Counsel's Submission

Counsel for the 1st Defendant, informs that they have been unable to file an amendment to the statement of Defence and seeks further 14 days to file the same.

Plaintiff and the 2nd Defendant do not oppose to the application but urge a final date.

Order

First Defendant must file the Amended Statement of Defence 14 days from now. If they are unable to file the same within 14 days, the trial will be proceeded.

Mention on 07/07/2015 at 9.00 am, Court No. 3.

Date 7/7/2015

Counsel's Submission

1st Defendant seeks further time for Amended Statement of defence.

Order

The matter to be mentioned before the Master on 29/7/15 at 8.30 am.

(D) The First Defendants Summons to further Amend the Amended Statement of Defence

(1) The Summons to further amend the Amended Statement of Defence is supported by an Affidavit sworn by the first Defendant, which is substantially as follows;

(as far as relevant)

Para 2 I am the registered proprietor of Crown Lease No. 13732 on

LD Ref 4/7/1191 on Lot 19 at 111 Vitogo Parade, Lautoka (hereinafter referred to as "the property") to which the Plaintiff's claim for damages for alleged unlawful distress for rent relates. Annexed hereto and marked with the letter "A" is a copy of the said lease.

3. I had instructed the 2nd Defendant to effect distress for rent against the Plaintiff on the basis of monies owed to me in respect of the Plaintiff's use and occupation of Offices 1, 2 and 3 within the property from about January 2010.

4. My Statement of Defence filed on 23 May 2013, was filed in person and at the time, without having had the benefit of legal advice. I was not aware that I could also include a Counterclaim to recover the monies owed to me by the Plaintiff for the benefit the Plaintiff received in the form of the use and occupation of the three offices in the property.

5. When I subsequently instructed Young & Associates to act for me in these proceedings, I also instructed them to attempt to negotiate an out of court settlement with the Plaintiff which reflected my claim for the monies owed to me by the Plaintiff.

6. Unfortunately, although I have continued to instruct my solicitors to pursue settlement, I am informed by my solicitors that no settlement has been reached.

7. In light of the failure to achieve the settlement of this matter, I now wish to further amend my Amended Statement of Defence to incorporate a Counterclaim to recover the money the Plaintiff owes me for the benefit he received, being the use and occupation of my property. Annexed hereto and marked with the letter "B" is a copy of my proposed Further Amended Statement of Defence & Counterclaim.

8. To date a Counterclaim has never been included as part of my Statement of Defence as I had genuinely expected that this matter would be settled out of Court.

9. I verily believe that the issues raised in the proposed Further Amended Statement of Defence & Counterclaim reflect the real issues in controversy between the Plaintiff and I, and are also central also to the Plaintiff's claim against me and the 2nd Defendant.

(2) The Plaintiff filed an Affidavit in Opposition which is substantially as follows; (as far as relevant )

Para 3. THAT I agree with paragraph 2 of the Affidavit of the Defendant.

4. THAT I deny paragraph 3 in respect of owing the Defendant any monies.

5. THAT I agree that the 1st Defendant filed a Statement of Defence in person, however, the 1st Defendant also filed an amended Statement of Defence on the 19th of February, 2014. In the previous amended Statement of Defense the 1st Defendant had not sought a Counter claim as an issue. The amended Defence filed on the 19th of February, 2014 was filed by the 1st Defendant's Solicitors.

6. THAT I agree that settlement talks were on going, however, the settlement was being pursued on a without prejudice basis. The matter was at all times taking its normal course.

7. THAT upon perusal of the Counter claim it is obvious that the 1st Defendant is now, inter alia, seeking remedies from January, 2010. The proceedings were instituted on the 21st of May, 2013. The 1st Defendant cannot deny having information of potential Counter-claims.

8. THAT Copy Pleadings have been filed on the 24th of April, 2014. The summons to Enter Trial was filed on the 12th of November, 2014. The matter is ready for Trial. The filing of this application has caused substantial delay.

9. THAT I seek that this application be struck off with costs.

(E) THE LAW

(1) Against this factual background, it is necessary to turn to the applicable law and judicial thinking in relation to the principles governing the exercise of the discretion to make the Order the first Defendant now seeks.

(2) Rather than refer in detail to the various authorities, I propose to set out, with only important citations, what I take to be the principles of the play.

(3) This is the first Defendants application to further amend his Amended Statement of Defence pursuant to Order 20, 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 of the High Court Rules 1988.

Order 20, Rule 5, of the High Court Rules 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."

(4) 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 a well-established principle that the object of the court is to decide 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 right 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)."

(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 further stated as follows:

"In Tildesley v. Harper [1878] UKLawRpCh 284; (1878) 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, he had 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 if 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] UKLawRpKQB 161; (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 (1837) 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 per Esher 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 a 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 Communities Act 1972, so as to become disentitled to their claim for an injunction (Application des Gaz SA v Falks Veritas Ltd [1974] Ch. 381; [1974]3 All E.R. 51 CA). In a copyright action, leave may be given to amend the statement of claim to include allegations of similar fact evidence of the defendant having copied the products of other persons (Perrin v Drennan [1991] F.S.R. 81).

Where a proposed amendment is founded 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 claim endorsed 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 Assicuraniona Spa 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)."

(6) Hon. Justice D.Wickramasinghe stated in Colonial National Bank v Naicker [2011] FJHC 250; HBC 294. 2003 (6 May 2011) by direct reference to the Supreme Court Practice 1988 (White Book) as set out under Order 20/5-8/6 as:

"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 error in any proceedings." (see per Jenkins L.J. in R.L Baker Ltd v Medway Building &Supplies Ltd [1958] 1 W.L.P 1216, p 1231; [1958] 3 All E.R 540, p. 546)."

Hon. Justice Pathik in Rokobau v Marine Pacific Ltd Hbc0503d.93s said:

"We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so."

(7) Lord Keith of Kinkel in Ketteman and others v Hansel Properties Ltd (1988) 1 All ER 38 observed that;

"Whether or not a proposed amendment should be allowed is a matter within the discretion of the judge dealing with the application, but the discretion is one that falls to be exercised in accordance with well-settled principles. In his interlocutory judgment of 10 December 1982, allowing the proposed amendment, Judge Hayman set out and quoted at some length from the classical authorities on this topic. The rule is that amendment should be allowed if necessary to enable the true issues in controversy between the parties to be resolved, and if allowance would not result in injustice to the other party not capable of being compensated by an award of costs. In Clarapade& Co v Commercial Union (1883) 32 WR 262 a 263 Brett MR said:

The rule of conduct of the court in such a case is that, however negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by cost: but if the amendment will put them into such a position that they must be injured it ought not to be made".

(8) LORD KEITH OF KINKEL in KETTEMAN v HANSEL PROPERTIES (supra) states further that;

"The effect of these authorities can, I think, be summarised in the following four propositions. First, all such amendments should be made as a necessary to enable the real questions in controversy between the parties to be decided.

Secondly, amendments should not be refused solely because they have been made necessary by the honest fault or mistake of the party applying for leave to make them: it is not the function of the court to punish parties for mistakes which they have made in the conduct of their cases by deciding otherwise than in accordance with their rights. Thirdly, however blameworthy (short of bad faith) may have been a party's failure to plead the subject matter of a proposed amendment earlier, and however late the application for leave to make such amendment may have been the application should, in general, be allowed, provided that allowing it will not prejudice the other party. Fourthly, there is no injustice to the other party if he can be compensated by appropriate orders as to costs."

Speight J. in Reddy Construction Company Ltd v Pacific Gas Company Limited (1980) 26 FLR 121 held;

"The primary rule is that leave may be granted at any time to amend on terms if it can be done without prejudice to the other side."

(F) ANALYSIS

(1) Before I pass to consideration of the substance of the application to further amend the Amended Statement of Defence, let me make this preliminary comment.

The first Defendant's Summons to further amend the Amended Statement of Defence is vigorously resisted by the Plaintiff. The Plaintiff filed an Affidavit in Opposition.

The sole ground upon which the Plaintiff opposed the application for leave to amend is that it is far too late. To counter this, the first Defendant adduced no evidence. The first Defendant filed no Affidavit in Reply. Despite the skillful advocacy of Counsel for the first Defendant, the conduct of the first Defendant in deliberately deciding not to file an Affidavit in Reply is still not clear to me. It is difficult for me to speculate.

In the context of the present case, I would prefer to adopt the robust approach of the Court of Appeal in "Jay Prakash v Savita Chandra" (Civil Appeal No; ABU 0037/1985.) and allow my doubts to be submerged in what I think I may just call current of authority.

In the Court of Appeal judgment in "Jay Prakash v Savita Chandra" Civil Appeal No: ABU 0037/1985, It was held;

"Of course he did have to respond in our view the cause of events have taken and the consequences, if did not respond, rendered it as matter of prudence that he should reply if indeed he had a reply. And in the circumstances of the case in the absence of a reply, we hold the inference inescapable what the respondent had said to be true."

(Emphasis Added)

On the strength of the rule of law enunciated in the aforementioned judicial decision (as I understand those last words), it is enticing to accept the evidence of the Plaintiff in toto.

(2) Leave all that aside for a moment. Let me approach the facts of this case and the submissions made to Court with the following principles uppermost in my mind.

• ❖ The basis of an amendment is to ensure that the real issue is tried and the court should deal with the whole matter in contest between the parties.
  
• ❖ Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy.
• ❖ 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 (Ketteman v Hansel Properties Ltd), (supra).
  

(3) What concerns me is whether the first Defendant should be allowed to further amend the Amended Statement of Defence?

The Court is here to administer justice. It is essential to bear in mind that the concept of justice is not confined to the interests of particular litigants; it embraces and extends to the protection of the public veil.

"Whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lies. Many and diverse factors will bear on the exercise of this discretion. I do not think it possible to enumerate them all or wise to attempt to do so. But justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other. Furthermore, to allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence.

Another factor that a judge must weigh in the balance is the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of whole community, legal business should be conducted efficiently. We can no longer afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age. There will be cases in which justice will be better served by allowing the consequences of the negligence of the lawyers to fall on their own heads rather than by allowing an amendment at a very late stage of the proceedings." (Per Lord Keith of Kinkel in "Ketteman v Hansel properties Ltd", (supra)

I ask myself, what is the rule of conduct of this Court in an application such as
this?

"With regard to the principles on which the discretion to allow or refuse the applications to amend should be exercised, the judge referred to the notes to RSC Ord 20, r 5 in the Supreme Court Practice 1982 and to the authorities there cited. The effect of these authorities can, I think, be summarised in the following four propositions.

First, all such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided.

Second, amendments should not be refused solely applying for leave to make them: it is not the function of the Court to punish parties for mistakes which they have made in the conduct of their cases by deciding otherwise than in accordance with their rights.

Third, however blameworthy (short of bad faith) may have been a party's failure to plead the subject matter of a proposed amendments earlier, and however late the application for leave to make such amendments may have been, the application should, in general, be allowed, provided that allowing it will not prejudice the other party.

Fourth, there is no injustice to the other party if he can be compensated by appropriate orders as to costs. The Plaintiff to continue with the matter and also directed":

(Per Lord Keith of Kinkelin"Ketteman v Hansel properties Ltd", supra)

I now turn back to the present case bearing the aforementioned principles uppermost in my mind.

(4) The first Defendant in this case sought to further amend the Amended Statement of Defence by the addition of fourteen (14) new paragraphs thus incorporating a Counter claim against the Plaintiff for mesne profits, restitution or compensation for unjust enrichment. It is of interest to note that the application to further amend the Amended Statement of Defence was made to Court about 10 months after the matter was referred to Deputy Registrar for allocation to a Judge. I should add that the matter was mentioned before Hon. Justice S.Sapuvida on four (04) instances to fix for trial and on the 04th instance the first Defendant sought leave to further amend the Amended Statement of Defence.

The sole ground upon which the Plaintiff opposed the application for leave to amend is that it is far too late. In the same breath the Plaintiff argues that this is a clear delaying tactic to prolong the early resolution of the matter with consequent indefensible inconvenience and expense to the Plaintiff. The Plaintiff does not allege that the first Defendant is acting mala fide. The Plaintiff does not allege that the application to amend is "fraudulent or intended to overreach."

There is no doubt that the pleadings can be amended at any stage. However in the instant case, the amendment was sought 2½ years after the institution of the proceedings, two years and four months after the original Statement of Defence was filed and 1 ½ years after the Amended Statement of Defence was filed. But all the facts relating to the Counter claim were available and known to the first Defendant at the time of filing the Original Statement of Defence.

What is the reason for the belated application?

Reference is made to paragraph eight (08) of the Affidavit in Support.

Para 8. To date a Counterclaim has never been included as part of my Statement of Defence as I had genuinely expected that this matter would be settled out of Court.

I cannot accept this. I do not agree at all. It is common knowledge that all negotiations for a Settlement proceeds on without prejudice basis.

I must confess that I remain utterly unimpressed by the first Defendant's reason/explanation for the belated application seeking leave to amend. I think that I am not only at liberty, but bound, to look at the probability or improbability of the excuse/explanation for the delay which the first Defendant relies. His story is very extraordinary and very improbable.

The impression produced on my mind by the first Defendant's explanation for the delay (see paragraph (08) of the Affidavit in Support) is that I have here the evolution of a myth, and not a gradual unfolding of real facts. Anything more shadowy, anything more unsatisfactory, anything more unlikely to produce persuasion or conviction on the mind of the Court, I can scarcely imagine. The Affidavit, not only by what he does say but by what he does not say, confirm my conclusion that the first Defendant has no reasonable and possible explanation for his belated application. I completely reject the excuse presented by the first Defendant.

The Writ of Summons was served on the first Defendant on 21st May 2013. The application seeking leave to incorporate a Counter claim was made on 23rd September 2015.

From 21st May 2013 to 23rd September 2015 that is for two (02) years and four (04) months the first Defendant had all the time to incorporate a Counter claim.

Despite the skillful advocacy of the Counsel for the first Defendant, it is still not clear to me how it came that a thoroughly competent Counsel who was employed to draw the amended Statement of Defence omitted from it that which he is obliged to say now is the very foundation of the whole Defence.

I get the distinct impression that the first Defendant slept on the matter on 21st May 2013 and did not wake up at all from the slumber until 23rd September 2015.

The first Defendant has been neglectful in not raising the matter initially in the existing Statement of Defence or Amended Statement of Defence. However, the Court out to give all reasonable indulgence with regard to amending and I am bound by the rule of law, viz.. .' that, however negligent or careless the first omission and however late the proposed amendment, the amendment should be allowed if it can be allowed without injustice to the other side.

At this juncture, I echo the sentiments of Staughton LJ in "British Gas Plc v Green Elms Ltd" (1998) CA,

"It is a well-established principle that the object of the 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."

"In Tildesley v. Harper [1878] UKLawRpCh 284; (1878) 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, he had 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 if 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] UKLawRpKQB 161; (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 (1837) 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 per Esher 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).

Although I recognize that there is undoubtedly some hardship inconvenience and expense to the Plaintiff who has to face a prolongation of litigation, the disruption and inconvenience caused to people involved in running a business being something that cannot be wholly compensated in costs, an appropriate order for costs in my judgment substantially protects the Plaintiff from any injustice.

There is a factor which has to be considered on the other side of the scale. Unless the first Defendant is permitted to amend to add this counter claim, he would be unable to bring a separate action to pursue the claim. This is because of the doctrine in Henderson v Henderson [1843] EngR 917; [1843] 3 Hare 100, that save in special circumstances the Court will not permit the same parties to re-open the same subject of litigation in respect of matters that might have been brought forward, only because they have from negligence, inadvertence or accident, omitted this part of their case, (see also Talbot v Berkshire County Council [1993] 3 WLR 708). In my judgment, it would be a considerable injustice to the first Defendant, if he is not permitted to advance the counter claim. As far as possible in any proceeding all questions between the parties should be decided so as to prevent multiplicity of actions. I ought to see that the Plaintiff does not suffer any loss or expense.

(5) The next issue for consideration is costs.

Let me see what authority there is on this point?

'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 in mine)

The Court of Appeal in Pita Sajendra Sundar and Another –v- Chandrika Prasad (unreported Civil Appeal No.22 of 1997), delivered on 15th May 1998) held;

"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 expedition's 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."

The Counsel for the first Defendant contended that the application ought to be granted without costs. Her argument proceeds thus:

"Taking into account the circumstances at hand and in particular the absence of any evidence of the prejudice the 1st Defendant has suffered, it is respectfully submitted that the application ought to be granted without costs. Alternatively, it is submitted that the costs be in the cause, or reserved."

At this juncture I cannot resist in saying that her proposition wholly ignores the reality of the situation or the difficulty in which the Plaintiff was placed. I recognise that there is undoubtedly some hardship to the Plaintiff who has to face a prolongation of litigation, the disruption and inconvenience caused to people involved in running a business (Training Institute) that cannot be wholly compensated by costs. This Court is well aware of the enormous expense involved in prolongation of litigation. The Counsel furthermore submitted that costs should not be granted since the Plaintiff does not assert that he will be prejudiced if the application is granted. I cannot resist in saying that this puts flesh on the bones of her first proposition and makes plain the unfairness of it.

She relies substantially on the ruling in this Court in "Abdul Rahiman Ali & Mohammed Imtiaz & Mohammed Haroon vs Mohammed Jamal, Civil Action No:- HBC 64 of 2014.

In the aforementioned case, this Court granted leave to amend the Statement of Claim and made no Order as to costs since the Defendants had not submitted any evidence of costs they had incurred.

I do not overlook the passing reference in the said Judgment Abdul Rahiman Ali & Mohammed Imtiaz & Mohammed Haroon vs Mohammed Jamal, Civil Action No:- HBC 64 of 2014. There is no doubt that Abdul Rahiman Ali & Mohammed Imtiaz & Mohammed Haroon vs Mohammed Jamal, Civil Action No: - HBC 64 of 2014 is a case of different character from the case before me. That case bears a superficial reference to this case to the extent that there, as here, the leave is sought to amend the pleadings.

But I do not wish to rest the matter there. I must confess that I wish to depart from the opinion I have previously expressed in the aforementioned case, in relation to costs of the application.

In the context of the present case, I would prefer to adopt the robust approach of the Court of Appeal in New Indian Assurance Company Ltd v Singh 1999, FJCA 69
and allow my doubts as to the issue of costs submerged in what I think I may just call current of Authority.

"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.

I can see no reason why the rule of law enunciated in the following judicial decisions should not be applied in this case.

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).

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 recognised 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.

What should be the result in this case? As I understand, a party who seeks to amend belatedly and whose lax conduct has caused the other side inconvenience or expense should pay costs. The late 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 expeditious conduct of trials.

I can see no reason to deprive the Plaintiff of the costs down to the date of the amendment.

I could see nothing to change my opinion even on the basis of exhaustive work contained in,

❖ "Commentary on Litigation", by Cokes
❖ "A practical approach to Civil Procedure", by Stuart Simen, Thirteenth Edition
❖ "Pleadings and Practice" by Ogers, 13th Edition
❖ "Precedents of Pleadings" by Bullean and Lecke

I do not see that the Plaintiff can be prejudiced by allowing this amendment, if I give him the costs which have been incurred and wasted.

Essential that is all I have to say!!!

(G) CONCLUSION

Having had the benefit of written submissions and as well as argument from Counsel, for which I am most grateful, and after having perused all the pleadings by the parties, this court concludes that, there does exist basis to grant the first Defendant's application to further amend the Amended Statement of Defence.

(H) FINAL ORDERS

(1) The First Defendant is hereby granted leave to further amend the Amended Statement of Defence.

(2) The first Defendant is ordered to file the further amended Statement of Defence within 14 days from the date hereof.

(3) The first Defendant is ordered to pay costs of $1000.00 (summarily assessed) to the Plaintiff within 14 days hereof.

I do so order.

.......................................
Jude Nanayakkara
Master of the High Court

At Lautoka
06th February 2016