Prakash v Hassan [2017] FJHC 658; HBC25.2015 (4 September 2017)

IN THE HIGH COURT OF FIJI

WESTERN DIVISION

AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 25 of 2015

BETWEEN : AMRIT PRAKASH of Rarawaia, Ba, Fiji School Teacher

Plaintiff

AND : MOHAMMED HASSAN of Rarawai, Ba, Farmer.

1^st Defendant

AND : DIRECTOR OF LANDS of Nasova, Suva.

2^nd Defendant

Before : Acting Master U.L. Mohamed Azhar

Counsel : Mr. Padarath for the Plaintiff

Ms. Vasantika Patel for the 1^st Defendant

No appearance for the 2^nd Defendant

Date of Ruling: 04^th September 2017

RULING

(On striking out under Or 25 r 9)

Introduction

01. This court issued a notice on its own motion on 23.09.2016 pursuant to Order 25 rule 9 of the High Court Rules to the plaintiff to show cause why this matter should not be struck out for want of prosecution or as an abuse of the process of the court. The plaintiff filed his affidavit sworn by himself. The 1^st defendant also filed an affidavit supporting court’s motion. To put it briefly, both the plaintiff and the defendant are the lessees of the Crown Lease for sugarcane farming and having their lease property adjacent to each other. The main dispute between them relates to the common boundary of their respective lease properties. The plaintiff claimed that, the defendant on several occasions removed the boundary pegs and placed them several meters towards plaintiff’s farm. The dispute then developed to the access road to the farm and finally ending up with the alleged damages and the injuries as per the writ filed by the plaintiff. The writ was filed on 13.02.2015 and the defence was filed on 22.04.2015. The plaintiff did not take any steps thereafter though the pleadings were deemed to be closed on or about 02.05.2015. Having observed the inaction of the plaintiff for more than six months, this court on its own motion issued the notice as mentioned above to show cause.

The law

02. The Order 25 rule 9 provides for the jurisdiction of the court to strike out any cause or matter for want of prosecution or as an abuse of process of the court if no step has been taken for six months. The said rule reads;

"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 may be just or deal with the application as if it were a summons for directions".

03. The grounds provided in the above rule are firstly, want of prosecution and secondly, abuse of process of the court. This rule was introduced to the High Court Rules for the case management purpose and is effective from 19 September 2005. The main characteristic of this rule is that, the court is conferred with power to act on its own motion in order to agitate the sluggish litigation (see; Trade Air Engineering (West) Ltd v Taga [2007] FJCA 9; ABU0062J.2006 (9 March 2007). Even before the introduction of this rule, the courts in Fiji exercised this power to strike out the cause for want prosecution following the leading English authorities such as Allen v. McAlpine [1967] EWCA Civ 4; [1968] 2 QB 299; [1968] 1 All ER 543 an0;Birkett v. James [1978] AC 297;7] 2 R 801. Justice Scce Scott, striking out of plaintiff’s action in Hussein v Pacv Pacific Forum Line Ltd [2000] Fiji Law Report 24; [2000] 1 FLR 46 (6 March 2000), stated that;

“The principles governing the exercise of the Court's jurisdiction to strike out for want of prosecution are well settled. The leading English authorities are Al. McAlpine [1967] EWCA Civ 4; [1968] 2 QB 299; [1968] 1 All ER 543 and Birkett v. James [1977] 2 All ER 801 and these have been followed in Fiji in,i in, for for exampexample, Merit Timber Products Ltd v. NLTB (FCA Reps 94/609) a60;OwOwen Potter v. Turtle Airways Ltd (FCA Reps 93/20221;.

04. The Court of Appeal of Fiji in Trade Air Engineering (West) Ltd v Taga (supra) reiterated that, the new rule (Or 25 r 9) does not confer any additional or wider power to the court except the power to act on its own motion. It was held in that case that;

“In our view the only fresh power given to the High Court under Order 25 rule 9 is the power to strike out or to give directions of its own motionle this powerpower may very valuably be employed to agitate sluggish litigation, it does not in our opinion confer any additionawidersdiction on the Court to dismiss or strike out on grounds which differ from thosethose alre already established by past authority”.

05. The above decision of the Court of Appeal made it abundantly clear that the principles set out in Birkett v. James (supra) are still applicable to strike out any cause where no step is taken for six months, despite the introduction of new rule (Or 25 r 9). Lord Diplock, whilst articulating the principles for striking out the actions for want of prosecution and abuse of the court process in Birkett v. James (supra), explained the emerging trend of English courts in exercising the inherent jurisdiction for want of prosecution. His Lordship held that;

“Although the rules of the Supreme Court contain express provision for ordering actions to be dismissed for failure by the plaintiff to comply timeously with some of the more important steps in the preparation of an action for trial, such as delivering the statement of claim, taking out a summons for direction and setting the action down for trial, dilatory tactics had been encouraged by the practice that had grown up for many years prior to 1967 of not applying to dismiss an action for want of prosecution except upon disobedience to a previous peremptory order that the action should be dismissed unless the plaintiff took within a specified additional time the step on which he had defaulted.

To remedy this High Court judges began to have recourse to the inherent jurisdiction of the court to dismiss an action for want of prosecution even where no previous peremptory order had been made, if the delay on the part of the plaintiff or his legal advisers was so prolonged that to bring the action on for hearing would involve a substantial risk that a fair trial of the issues would not be possible. This exercise of the inherent jurisdiction of the court first came before the Court of Appeal in Reggentin vs Beecholme Bakeries Ltd (Note) [1968] 2 Q.B. 276 (reported in a note to Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 Q.B. 229) and Fitzpatrick v Batger & Co Ltd [1967] 1 W.L.R. 706

The dismissal of those actions was upheld and shortly after, in the three leading cases which were heard together and which, for brevity, I shall refer to as Allen v McAlpine [1968] 2 Q.B. 229, the Court of Appeal laid down the principles on which the jurisdiction has been exercised ever since. Those principles are set out, in my view accurately, in the note to R.S.C, Ord. 25, R. 1 in the current Supreme Court Practice (1976). The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party”.(emphasis added)

06. As Lord Diplock clearly explained in his judgment, the above principles were set out in the note to Ord 25 rule 1 of Rules of Supreme Court 1976 which is equivalent to our Order 25 rule 4 under the Summons for Directions. However those principles of prophesy had caused to the development of the new rule such as Order 25 Rule 9. The first limb in the above case is the intentional and contumelious default. Lord Diplock in his wisdom did not leave the first limb unexplained, but, His Lordship gave two examples for that first limb. One is disobedience to a peremptory order of the court and the other is conduct amounting to an abuse of the process of the court. Thus the second ground provided in Order 25 Rule 9, which is ‘abuse of the process of the court’, is a good example for ‘the intentional and contumelious default’ as illustrated by Lord Diplock in Birkett v. James (supra). According to Lord Diplock abuse of the process of the court falls under broad category of ‘the intentional and contumelious default’ However, Lord Diplock did not explain what act does exactly amount to an abuse of the process of the court.

07. There is a latest judgment by the House of Lords in "Grovit and Others v Doctor and Others" (1997) 01 WLR 640[1997] UKHL 13; , 1997 (2) ALL ER, 417, where Lord Woolf held that, commencing an action without real intention of bringing to conclusion amounts to an abuse of the process of the court. It was held as follows;

“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 was no intention of carryiarrying the case to trial the court was entitled to dismiss the proceedings".

08. The Fiji Court of Appeal in Thomas (Fiji) Ltd –v- Frederick Wimheldon Thomas & Anor, Civil Appeal No. ABU 0052/2006 followed the principles of "Grovit and Others v Doctor and Others" (supra) and held that;

“During the course of his careful and comprehensive ruling the judge placed considerable emphasis on the judgment of the House of Lords in G and Ors v Doctor [ 2 ALL ER 417. That was anas an important decision and the judge was perfectly right to take it into account. It should howbe nohat Felix Grovit's action was struck out not beca because the accepted tests for striking oing out established in Birkett es&#1b> [1977] 2 ALL ER #160; [1978] AC 297 had been satisfatisfied, 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 coas entitled to strike out the action as being an abuse of t 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"

09. Both the The Grovit case and Thomas (Fiji) Ltd (supra) which follows the former go on the basis that, “abuse of the process of the court” is a ground for striking out, which is independent from what had been articulated by Lord Diplock in Birkett v James (supra). However, it is my considered view that, this ground of “abuse of the process of the court” is part of ‘the intentional and contumelious default’, the first limb expounded by Lord Diplock. The reason being that, this was clearly illustrated by Lord Diplock in Birkett v. James (supra). For the convenience and easy reference I reproduce the dictum of Lord Diplock which states that; “...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...” (Emphasis added). According to Lord Diplock, the abuse of the process of the court falls under broad category of ‘the intentional and contumelious default’. In fact, if a plaintiff commences an action and has no intention to bring it to conclusion it is an abuse of the process of the court. Thus the default of a plaintiff intending not to bring it to conclusion would be intentional and contumelious. Accordingly, it will fall under the first limb of the principles expounded in Birkett v. James (supra). This view is further supported by the dictum of Lord Justice Parker who held in Culbert v Stephen Wetwell Co. Ltd, (1994) PIQR 5 alows;

"There is however, in my view another aspect of this matter. An action may also be struck out ontumelious conduct, or abuse of the process of the Court or because a fair trial in actionction 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."

10. Though it is traditionally understood that, Birkett v. James (supra) deals with the ground of ‘want of prosecution’ only, it is evident from the illustrations given in that case that, it deals both the grounds of ‘abuse of the process of the court’ and ‘want of prosecution’ as well. In any event, the defendant is under no duty to establish the prejudice in order to strike out an action if he can prove the abuse of the process of the court. Suffice to establish plaintiff’s inactivity coupled with the complete disregard of the Rules of the Court with the full awareness of the consequences.
    
11. The second limb of the Birkett v. James (supra) is (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants. In short, inordinate and inexcusable delay and the prejudice which makes the fair trial impossible.
    
12. Their Lordships the Justices of Fiji Court of Appeal in New India Assurance Company Ltd v Singh [1999] FJCA 69; Abu0031u.96s (26 November 1999) unanimously held that, “We do not consider it either helpful or necessary to analyse what is meant by the wo#8216;inordinate’ and ‘inexcusable’. They They have their ordinary meaning. Whether a delay can be described as inordinate or inexcusable is a matter of fact to be determined in the circumstances of each individual case”. However, in Deo v Fiji Times Ltd [2008] FJCA 63; AAU0054.2007S (3 November 2008) the Fiji Court of Appeal cited the meaning considered by the court in an unreported case. It was held that;
    

“The meaning of "inordinate and inexcusdela delay" was considered by the Court of Appeal in Owen Potter v Turtleurtle Airways Limited v Anor CAppeal No.f 1992 (unreporteported) where the Court held that inordinate meant "so long that that proper justice may not be able to be betwhe parties" #160;and "inexce" meant that there were was no reasonable excuse for for it, so that some blame for the delay attached to the plaintiff”.

13. The Order 25 Rule 9 by its plain meaning empowers the court to strike out any cause either on its own motion or an application by the defendant if no steps taken for six months. The acceptable and or tolerable maximum period for inaction could be six months. The threshold is six months as per the plain language of the rule. It follows that, any period after six months would be inordinate and excusable so long that proper justice may not be able to be done between the parties and no reasonable excuse is shown for it. Therefore, whether a delay can be described as inordinate or inexcusable is a matter of fact which to be determined in the circumstances of each and every case. As established by courts delay of itself, without being shown that the delay is seriously prejudicial to the defendant, is not sufficient to strike out of an action. The Fiji Court of Appeal in New India Assurance Company Ltd v S[1999] FJCA FJCA 69; Abu0031u.96s (26 November 1999) has reaffirmed the burden of the defendant to establish that serious prejudice would be caused to it by the delay. It was held that;
    

“Where principle (2) is relied on, both grounds need to be established before an action is struck out. There must be both delay of the kind described and a risk of an unfair trial or serious prejudice to the defendants. In Departme Transport v Smallemaller (Transport) Limited [1989] 1 All1 All ER 897 the House of Lords didaccepaccept a submission that the decision in Birkett shoulreviewed by holding thng that where there had been inordinate and inexcusable delay, the acshould be struck out, even if there can still be a fair trir trial of the issues and even if the defendant has suffered no prejudice as a result of the delay. Lord Griffiths, after a review of the authorities and relevant principles, said at 903 that he had not been persuaded that a case had been made out to abandon the need to show that post-writ delay will either make a fair trial impossible or prejudice the defendant. He went on to affirm the principle that the burden is on the defendant to establish that serious prejudice would be caused to it by the delay”.

14. In Pratap v Christian Mission Fellowship [2006] FJCA 41; ABU0093J.2005 (14 July 2006) the Fiji Court of Appeal cited the dictum of Eichelbaum CJ in Lovie v. Medical Assurance Society Limited [1992] 2 NZLR 244. It was heldhat case at page 248 by Eichelbaum CJ that;

"The applicant must show that that the Plaintiff has been guilty of inordinate delay, that such delay is inexcusable and that it has seriously prejudiced the defendants. Although these considerations are not necessarily exclusive and at the end one must always stand back and have regards to the interests of justice. In this country, ever since NZ Indus Gases Limited vted v. Andersons Limited [1970] NZLR 58 it has been acceptat if thef the application be successful the Applicant must commence by proving the tthe three factors listed."

15. The >The above analysis of law on striking out of an action clearly shows that, the courts in Fiji had, before the introduction of Order 25 rule 9, exercised the jurisdiction to strike out following the principles expounded in Birkett v. James (supra). Even after the introduction of the above rule the same principles apply as confirmed by the superior courts. The ground of ‘abuse of the process of the court advanced by the recent case of Grovit v. Doctor (supra) too comfortably falls into the first limb of Birkett v. James as Lord Diplock cited ‘the abuse of the process of the court’ as one of the two examples for the first limb expounded by him. The rationale is that, commencing an action without the intention of bringing it to conclusion amounts to an abuse of the process of the court and in turn it is an intentional and contumelious default. 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 be regarded as contumelious conduct or, an abuse of the process of the court under the second limb of Or 25 r 9. On the other hand the inordinate and inexcusable delay together with the prejudice should be established in order to succeed in an application under first limb of Or 25 r 9.

Analysis

16. Since the notice was issued by this court on its own motion pursuant to Or 25 r 9, it is the plaintiff who has to show cause why his action should not struck out under that rule. As briefed above, the statement of defence was filed by the 1^st defendant on 22.04.2015. The plaintiff did not take any steps thereafter though the pleadings were deemed to be closed on or about 02.05.2015. There has been a delay of 1 year and 4 months (initially the counsel for the plaintiff had wrong calculation of this period and it was corrected by the court during the hearing). The plaintiff flailed to take any step during this period. The only reason the plaintiff has mentioned in his affidavit is that, his solicitor Mr. Nacolawa was charged by the Director of Public Prosecution in relation to an allegation of sedition around the time the defendant filed the defence and he (the solicitor) was in remand. The plaintiff further elaborated that, Mr. Nacolawa’s law firm was closed by the office of the Chief Registrar pending the outcome of the charge against him. The plaintiff waited patiently outcome of that case and subsequently engaged the services of Samuel K Ram, the present solicitor. The plaintiff further stated that he managed to uplift his file form Mr. Nacolawas’s office only on or about 05.12.2016. Plaintiff’s affidavit is notable for its omission of details relating to the cancelation of Practicing License of his former solicitor, period of his remand and assumption of his practice, steps taken by the new solicitors and the plaintiff himself in uplifting the file for the former solicitors etc. Affidavit has an annexure marked “AP 1” which is a letter issued by the Divisional Land Manager of West. The said annexure is about the dispute on the access road between the parties and has no any relevance whatsoever to the notice issued by the court under this rule.
    
17. On the other hand, the affidavit filed by the defendant supporting the court’s motion has an annexure marked as “MH 1”. It is the true copy of the e-mail correspondence between the solicitor of the defendant and the Legal Practitioners’ Unit of the Chief Registrar’s Office. That correspondence clearly indicates that, the Practicing License of Mr. Nacolawa was suspended from 14.08.2015 and the suspension was uplifted on 12.10.2015. The suspension was in place only for two months and the Chief Registrar was appointed as the provisional receiver. The inaction of the plaintiff started from May 2015 at least 03 months before the suspension of plaintiff’s former solicitor. The pleadings were deemed to be closed by 02.05.2015 as per the Order 18 rule 19. The plaintiff should have taken the summons for direction within a month from 02.05.2015 and proceeded with the subsequent steps to diligently move the matter forward. The former solicitor’s Practicing License was not suspended during this period. Thus the suspension of the Practicing License of former solicitor cannot be an excuse for failing to take the summons for direction as it had taken place after three months from the date the summons for direction was due. There is nothing in the affidavit of the plaintiff to show that he, at any time, attempted to contact the office of his solicitors or the office of the Chief Registrar to get his file uplifted during the period of suspension.
    
18. The new solicitor was appointed on 18.09.2015. The affidavit of the plaintiff does not say anything about any single attempt made by the new solicitors to uplift the file from the office of the Chief Registrar – the provisional receiver pending the suspension, or from the office of the former solicitor, as the suspension was uplifted on 12.10.2015. The affidavit of the plaintiff is notably silent on the reason for his failure to take summons for direction and other steps both before and after the suspension of the Practicing Certificate of former solicitor despite; the new solicitor had been in record during the suspension of former. The plaintiff, as admitted by him in his affidavit, had uplifted his file from the office of his former solicitor only on 05.12.2016. This is after one year and four months from the suspension of former solicitor. The affidavit of the plaintiff again lacks the reason for this delay, though he stated in his affidavit that, he managed to uplift his file on 05^th December 2016. In the meantime, the Notice under Order 25 rule 9 was issued by the court on 23.09.2016. This clearly shows that, the plaintiff wanted to uplift his file from former solicitor’s office only after receiving the notice issued by the court on its own motion. He never bothered about his case until then. The above analysis of total inaction of the plaintiff in this case results in following conclusions; firstly, the plaintiff failed to take the summons for directions though the pleading were deemed to be closed in 02.05. 2015; secondly, he had enough time before the suspension of his former solicitor to take all the steps as required by the rules; thirdly, the suspension was for a short period and did not have any bearing on the delay; fourthly, he neither attempted to contact the office of former solicitor nor did contact the office of the Chief Registrar to uplift his file during the suspension of former solicitor; fifthly, no attempt made by the new solicitor either to contact the office of Chief Registrar to uplift the file or to take any step in the matter and sixthly, the plaintiff was aware and or could not have been unaware of the rules, their requirements and the consequences as he was well represented by the respective solicitors well before and after the suspension of his former solicitors. This clearly indicates that, the plaintiff intentionally failed to take any steps for 1 year and four months, having had the knowledge of the rules, their requirement and the consequences of default. Lord Justice Parker who held in Culbert v Stephen Wetwell Co. Ltd, (1994) PIQR 5ollows;

"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." (Emphasis added).

19. In other words, the plaintiff instituted this action against the defendants. However, it seems from his conduct as described above that, he did not have any intention to bring it to conclusion. This amounts to an abuse of the process of the court. The House of Lords in "Grovit and Others v Doctor and Others" (1997) 01 WLR 640[1997] UKHL 13; , 1997 (2) ALL ER, 417, held that, commencing an action without real intention of bringing to conclusion amounts to an abuse of the process of the court. It was held as follows;

“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;<160; [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 thas no intention of carryingrying the case to trial the court was entitled to dismiss the proceedings".

20. The only step taken by the new solicitors since their appointment in September 2015 was filling of ‘Notice of intention to proceed’. The Court of Appeal in Singh v Singh [2008] FJCA 27; ABU0044.2006S (8 July 2008) held that the filling of notice of intention to defend buys no immunity from exercising the courts inherent power. In that case the court further elaborated that;
    

“For the avoidance of doubt, the fact that there was a Notice of Intention to Proceed under Order 3 Rule 5 of the Rules of the High Court does not prevent an application to dismiss a case for want of prosecution. It buys no immunity from the exercise of the Court's inherent powers. The application of this rule could not be used for the perpetration of an action where such a perpetration was, as here, an abuse. Further, Order 25 Rule 9 does not prevent such a course from being taken. Order 25 Rule 9(1) provides:

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.

The only step that was taken was the filing of the Notice of Intention to Proceed. That predated the application to dismiss a case for want of prosecution by a few days. We do not think that Order 25 Rule 9 provides the only circumstances in which the High Court could use its inherent powers. In the exercise of the discretion of the court, the inactive period which predated the filing of the Notice of Intention to Proceed was available for the Court to consider. In any event, well over the minimum 6 months had elapsed. It could not seriously be contended that the Respondents would have had to wait for another 6 months after the filing of the Notice of Intention to Proceed upon the basis that this was a step taken within the meaning of Order 25 Rule 9”.

21. This total failure on part of the plaintiff to take any step, since the filling of statement of defence by the defendant, itself amounts to an abuse of the process of the court as expounded above and warrants the striking out of his action, without the prejudice, to the defendant, being shown and or established. The reasons being that, the abuse of the process of the court is one of the two examples illustrated by Lord Diplock in Birkett v James (Supra) for the first ground of dismissing an action that is the default has been intentional and contumelious.
    
22. For the above reasons, the action of the plaintiff ought to be dismissed for abuse of the process of the court. However, the counsel for the plaintiff during argument of this matter pointed out that, the defendant is under duty to prove that, the delay was inordinate and inexcusable delay on the part of the plaintiff and it is prejudicial to the defendant. Basically what plaintiff’s counsel argues is that, the onus is on the defendant to prove the second limb expounded by Lord Diplock in Birkett v James (Supra) which is (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party. In fact, the counsel for the defendant urged this ground as well during the hearing of this matter. However, I should, at this point, express my view on the onus of the parties in the proceedings under the Order 25 Rule 9. According to the plain meaning of this rule, the proceedings for striking out any cause for abuse of the process of the court or want of prosecution can be initiated by two ways. One is the application of any party and the other is court’s own motion. When any party makes such an application, that party has to show to the court either of the grounds that, there is want of prosecution or it is an abuse of the process of the court. This is the positive burden on the party who moves for the court to exercise its power to strike out any particular cause. That is to say the applicant, most likely the defendant, has to positively prove either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party. In that event, the other party probably, the plaintiff has to rebut what is proved by the defendant in order to get the motion by the defendant dismissed. However, the situation would differ when it comes to the court’s own motion. If the court issues a notice, it would require the party, most likely the plaintiff, to show cause why his or her action should not be struck out under this rule. In such a situation, it is the duty of the plaintiff to show to the court negatively that, there has been no intentional or contumelious default, there has been no inordinate and inexcusable delay and no prejudice is caused to the defendant. This is the burden of negative proof. In this case, the defendant does not, even, need to participate in this proceeding. He or she can simply say that, he or she is supporting court’s motion and keep quiet, allowing the plaintiff to show cause to the satisfaction of the court not to strike out plaintiff’s cause. Even in the absence of the defendant, the court can require the plaintiff to show cause and if the court is satisfied that the cause should not be struck out, it can give necessary directions to the parties. Generally, when the notice is issued by the court, it will require the defendant to file an affidavit supporting the prejudice and other factors etc. However, this will not relieve the plaintiff from discharging his or her duty to show cause why his or her action should not be struck out. In the instant case, it was the notice issued by the court on its own motion. Thus the plaintiff has burden of negative proof and or to show cause why his action should not be struck out for want of prosecution or abuse of the process of the court. For these reasons, I am of the view that, the argument of plaintiff’s counsel is misconceived.
    
23. The acceptable and or tolerable period of inaction in any matter is 6 months as per the plain meaning of the Order 25 Rule 9. The threshold is six months and any delay thereafter would be inexcusable and inordinate so long as no reasonable excuse is provided and justice may not be able to be done between the parties. The plaintiff argued that the delay in this case is excusable. The reason adduced for this argument, as stated above, is that, the Practicing License of plaintiff solicitor was suspended. It was clearly examined in the preceding paragraphs that the suspension of Practicing License of former solicitor did not have any bearing on the delay on part of the plaintiff. Therefore, I conveniently hold that, there is no reasonable excuse for the delay of one year and four months. Thus the delay becomes inexcusable.
    
24. There are litigants who pursue their cases according to the timetable set out by the rules or within the reasonable time, diligence and expeditions. On the other hand there are some who pursue their cases sporadically or make default with the intention to keep the matters pending against the defendants forever. The courts should not ignore the second category of practice. It should be disallowed for several reasons. Firstly, it is an abuse of the process of the court. Secondly, it is the waste of court’s time and resources which are not infinite. ‘The more time that is spent upon actions which are pursued sporadically, the less time and resources there are for genuine litigants who pursue their cases with reasonable diligence and expedition, and want their cases to be heard within a reasonable time’ (see; Singh v Singh -supra). Thirdly, it violates the fundamental rights guaranteed by the sections 15 (2) and (3) of the Constitution which read;
    

(2) Every party to a civil dispute has the right to have the matter determined by a court of law or if appropriate, by an independent and impartial tribunal.

(3) Every person charged with an offence and every party to a civil dispute has the right to have the case determined within a reasonable time.(Emphasis added)

Fourthly, it constitutes as a serious prejudice to the other party as justice may not be able to be done between the parties since the matter is pending idle without any steps being taken by the relevant party.

25. In this case, the matter has been idle in the registry for one year and 4 months from May 2015 till September 2016 when the notice was sent by the registry under Order 25 rule 9. The plaintiff did nothing after filling of the statement of defence. He did not even bother to uplift his file from his former solicitor’s office until the notice of the court. He uplifted the same only after nearly three months from receipt of the notice. On the other hand, the defendant who is 75 years old, waiting the case against him determined by this court within reasonable time as guaranteed by the Constitution. This shows that there is serious prejudice to the defendant and it seems that the justice may not be able to be done between him and the plaintiff.

Conclusion

26. For the reasons expounded above, I am fully entitled to say that, the very existence of an action which the plaintiff has no interest at all in pursuing it, is inexcusable and intolerable. There is no reason why the Sword of Damocles should be hanging over the defendant when the plaintiff has, absolutely, been inactive and lethargic. Thus I decide that the plaintiff failed to show cause as to why his action should not be struck out for abuse of the process of the court or for want of prosecution and therefore I strike out the same. Since this notice was issued on the own motion of the court, I make no order as to cost.
    
27. In result, the final orders are;
    
    1. Plaintiff’s cause is struck out and
       
    2. The parties to bear their own cost
       

U.L. Mohamed Azhar

Acting Master

At Lautoka

04/09/2017