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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
Civil Action No. HBC 162 of 2012
BETWEEN
ABDUL YAMEN HAROON
Plaintiff
AND
HERMANT KUMARI
1st Defendant
AND
VINAY LATA
2nd Defendant
AND
RAMANJALU NAICKER
3rd Defendant
Appearances: Messrs Babu Singh & Associates for the Plaintiff
M/S Rams Law for the Defendant
R U L I N G
“both proceedings rely substantially on the same alleged facts of both the actions and the Court could have to deliberate on the same issues raised in the pleadings to make a determination”
Consolidation of Proceedings
Where two or more causes or matters are pending, then, if it appears to the Court –
(a) that some common question of law or fact arises in both or all of them, or
(b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or
(c) that for some other reason it is desirable to make an order under this rule the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until the determination of any other of them.
(i) the main purpose of consolidation is to save costs and time.
(ii) where there is "some common question of law or fact bearing sufficient importance in proportion to the rest" of the subject matter of the actions – an order for consolidation will usually be made.
(iii) but – where the plaintiff in one action is the defendant in another, an Order for consolidation may be refused, unless one action can be ordered to stand as a counterclaim or third party proceedings in another action.
(iv) and where different solicitors have been instructed to appear for the different plaintiffs (Lewis v. Daily Telegraph (No. 2) [1964] 2 Q.B 601), an Order for consolidation –generally – will not be made.
(v) but where one firm of solicitors has been given the conduct of the consolidated action on behalf of all plaintiffs, an Order for consolidation has been made.
So, for example, where there are several actions by different plaintiffs (represented by different solicitors) in which damages are claimed for personal injuries occasioned in the same accident, it may be possible to consolidate the actions up to the point where the issue as to liability is decided, giving the conduct of the action up to that point to one plaintiff's solicitors, and leaving the actions separate upon the issue as to the quantum of damages (see Healey v. Waddington & Sons Ltd ([1954] I. W.L.R 688 [1954] 1 All E.R. 861, C.A.). But more commonly an order would be made staying the latter actions pending the decision of the action which is nearer trial and, which may perhaps be expedited in the hope and expectation that the decision of liability in the test action will be accepted in the other actions (see e.g. Amos v. Chadwick [1877] 4 C.D. 869: [1878] UKLawRpCh 241; [1878] 9 Ch. D 459............But no order for consolidation will be made without hearing all parties affected, and therefore it will only be made on the hearing of applications in all actions (Daws v. Daily Sketch). Apart from these difficulties an order for consolidation may be refused where it would be likely to cause embarrassment at the trial. For example, where the actions are by different plaintiffs, based on the same libel, and the defences are different it would often be likely to embarrass the jury to consolidate them (ibid).
Where consolidation must be refused for one reason or another an order will often be made that one action shall follow the other in the same list and be heard before the same Judge for (or the same Judge or jury). In this way common witnesses are saved the expense of two attendances, and the Judge will be in a position to try the actions in such order as may be convenient or even at the same time. Consolidated actions may be deconsolidated (Lewis v. Daily Telegraph (No. 2) [1964] 2 Q.B 601. C.A).
"Although the parties are the same they are in different capacities in the two actions and in such cases the Courts have always been averse to consolidation. To the extent that the issue was the same in both cases difficulties must arise as to onus of proof where a party is the Plaintiff in one case and a Defendant in another"
ORDERS
....................................
Anare Tuilevuka
JUDGE
Lautoka
31 October 2018
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URL: http://www.paclii.org/fj/cases/FJHC/2018/1053.html