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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 206 OF 2016
| BETWEEN SANT RAJ formerly of Nalovo, Nadi but now of Auckland, New Zealand. |
| PLAINTIFF |
| A N D KRISHNA SAMI of Nalovo, Nadi, Salesman. |
| DEFENDANT |
Appearances : Ms S. Ravai for the plaintiff
Mr D. S. Naidu for the defendant
Date of Hearing : 1 November 2018
Date of Written
Submission : Plaintiff (11 February 2019), defendant (26 February 2019)
Date of Judgment: 27 February 2019
J U D G M E N T
Introduction
[01] On 4 October 2016, Mr Sant Raj, the plaintiff filed this action by way of writ of summons with statement of claim indorsed on it to have the consent judgment of 8 March 2005 entered in a previous civil action (No. HBC 210 of 1989) between the same parties set aside. The plaintiff alleges that he was not given any opportunity by the Court or his then counsel to ratify or comment on the consent Judgment and that consent judgment was irregular in that it was entered into without his knowledge and without any valid authority from him and the 1989 action was statute barred. The relief sought by the plaintiff is as follows:
[02] At the trial, both parties gave evidence and they tendered their respective written submissions. I was greatly assisted by the submission. I am grateful to both counsel and their team for their work.
Background
[03] The background facts, as gleamed from the pleading, are as follows.
[04] Mr Krishna Sami (the plaintiff in the earlier action (HBC 210 of 1989) (‘the first action or 1989 action”), the defendant in the current action brought a personal injury claim against Mr Sant Raj, the defendant in first action and the plaintiff in the current action.. The first action arose out of an accident that occurred on 12 July 1986.
[05] The first action went to trial. At the trial, Mr Krinshna Sami (then plaintiff) gave evidence and was cross examined by the defendant’s counsel Dr Sahu Khan. However, on 8 March 2005, in the mid of the trial, the matter was settled between the parties for $55,000.00. The plaintiff (then defendant) now alleges that:
“On or about 8 March 2005, during the course of an open court trial, the then plaintiff’s counsel and the defendant’s counsel without the plaintiff’s knowledge, consent and/or authority compromised the plaintiff’s case by entering into a consent Judgment with the defendant’s counsel before His Lordship, Justice D.D. Finnigan in Chambers in the following terms:
[06] The defendant, according to the plaintiff, has received the following sum from the plaintiff as a result of the consent judgment:
[07] The current action is brought to set aside the consent judgment entered in the 1989 action on the premises that the plaintiff has suffered loss and damages.
Defendant’s case
[08] The defendant’s case as stated in the statement of defence is as follows.
[09] Both parties’ vehicle sustained damages from the collision as a result and consequences of the plaintiffs negligent, careless and dangerous driving the defendant, his wife (Premila Devi Swamy) and child (Ronesh Rahul Swamy) also sustained personal injuries and the plaintiff was sued in Civil Action Numbers 194 of 1989 and 195 of 1989 and the same was settled in favour of the claimants.
[10] The 1989 action was not beyond the limitation period and in any event the plaintiff had submitted to the Jurisdiction of the Lautoka High Court and failed to plead the same.
[11] When the consent judgment was announced both the plaintiff and defendant were present and were part of the settlement talks as the matter was for trial and the defendant had taken the witness stand and was in the process of giving evidence when the plaintiffs counsel’s preliminary application that the claim was outside the limitation period was dismissed that the plaintiff and his counsel:
[12] The plaintiff and the defendant were at all times parties to the consent/compromise talks but it appears that the plaintiff is using the absence of his then counsel who has been struck off the roll in Fiji to benefit from the same.
[13] The Court in Civil Action No. HBC 210 of 1989L held against the plaintiff and the plaintiff was provided with sufficient opportunity within the last twelve (12) years to challenge the ruling on the question of the statute of limitations but failed to do so but has instead adopted deceptive and conniving measures to avoid the payment of the judgment debt over the years.
[14] The defendant states that he had, as a result of the plaintiff’s fraudulent, deceitful and dishonest conduct, suffered loss and damages due to the failure by the plaintiff to pay the defendant the sum of $55,000.00 as per the consent judgment dated 8 March 2005.
[15] The defendant prays that the plaintiff’s be dismissed and struck out with costs on solicitor/client indemnity basis.
Agreed facts
[16] The following facts were agreed between the parties at Pre-Trial Conference (‘PTC’):
The principles applicable in setting aside a consent judgment or order
[17] In de Lasala v. de Lasala [1979] UKPC 10; [1980] AC 546, 561, the Privy Council held that:
“the setting aside of a consent order which is a final order on the grounds of fraud or mistake requires the bringing of a fresh action for this purpose”.
[18] In Sharma v Caldwell [1975] FJLawRp 12; [1975] 21 FLR 85 (25 July 1975), McMullin J.A. said:
“A settlement or compromise in an action in which money or damages is or are claimed by or on behalf of an infant is invalid without the sanction of the court—Halsbury's Laws of England, 3rd Edition, Volume 9, Page 234, Para. 536. Nor does it matter that the settlement or compromise has been made the subject of a judgment by consent. Such a judgment would appear to be no better than the source from which it springs, viz; the settlement or compromise made between the parties. A judgment given or an order made by consent may, in a fresh action brought for the purpose, be set aside on any ground which would invalidate a compromise not contained in a judgment or order — Haisbury's Laws of England, 3rd Edition, Volume 22, Page 792, Para. 1672. In Wilding v Sanderson [1897] UKLawRpCh 120; [1897] 2 Ch. 534 at 544 Bryan J. Said
"And just as a consent order may be set aside upon any of the grounds upon which an agreement can be set aside, so it appears to me to follow that such an order may be set aside if it can be clearly proved that there is no agreement, and consequently, no true consent to the order made".
Vaughan Williams J. made the point more forcibly in Huddersfield Banking Cnnpany[sic] Ltd. v Henry Lister & Son [1895] UKLawRpCh 64; [1895] 2 Ch. 273 at 276 when he said:—
"The real truth of the matter is that the Order is a mere creature of the agreement, and to say that the Court can set aside the agreement but that it cannot set aside an order which was the creature of that agreement seems to me to be giving the branch an existence which is independent of the tree".
Whatever the inadequancies [sic] of the affidavit filed in support of the application to set aside the consent judgment, there can be no dispute that respondent is an infant and, as such, a person under disability. Order 80, Rule 10 of the Rules of the Supreme Court (The White Book 1967), as amended by the Fiji Supreme Court Rules 1968, provides:
"10. Where in any proceedings money is claimed by or on behalf of a person under disability, no settlement, compromise or payment and no acceptance of money paid into court, whenever entered into or made, shall so far as it relates to that person's claim be valid without the approval of the Court".
The rule corresponding to Rule 10 and in force at the time the settlement was effected and judgment entered, viz; Order 22 Rule 14(1) was to the same effect. Clearly, subject to the setting aside of the judgment by consent, respondent is not bound by the settlement, the approval of the court not having been obtained.
Evidence
Plaintiff’s evidence
[19] Sant Raj, the plaintiff (‘PW1’) gave evidence on his own behalf. His evidence was that:
[20] During the cross examination PW1 stated:
Defendant’s evidence
[21] Krishna Sami, the defendant (‘DW1’) also gave evidence on his behalf. He in his evidence states:
[22] Under cross examination DW 1 stated:
Discussion
[23] In this action, the plaintiff seeks to set aside the consent judgment entered by the Court and pronounced in the presence of the parties and their counsel in the 1989 action between the same parties. The consent judgment that was entered by Finnigan J on 8 March 2005 reads as follows:
“CONSENT JUDGMENT
During the hearing of the above matter Counsel came to see me in Chambers and asked me to record the following consent judgment.
Judgment is entered for the Plaintiff in the following terms:
[24] It will be noted that the setting aside of the consent judgment is being sought some 11 years after it was made and having acted upon the consent judgment by making payment of $20,000.00 to the defendant (then plaintiff) on 6 September 2016, about a month before filing the current action.
[25] The plaintiff had a right of appeal the consent judgment within 14 days from the date on which it was entered (8 March 2005) on the issue of limitation. The plaintiff did not exercise this right. Moreover, the execution of the consent judgment was suspended for six months from the date on which it was entered. The plaintiff did not raise any objection during this period or thereafter until he filed this action on 4 October 2016.
[26] The alleged ground for seeking an order setting aside the consent judgment is that his (plaintiff) solicitor in the 1989 action Dr. M. S. Sahu Khan had entered the consent judgment without his consent and it was not explained to him by the Court.
[27] It is true that counsel agreed to settle the matter for $55,000.00 for all damages and costs in favour of the plaintiff (now defendant) in Chambers in the 1989 action. However, the consent judgment was pronounced in open court in the presence of both parties and their counsel. In the course of the evidence, the plaintiff stated that both the plaintiff (him) and the defendant appeared in open court before with their counsel when Finnigan J. announced the consent judgment.
[28] The plaintiff now says consent judgment was not explained to him. The plaintiff is a retired principal and he was ably represented by counsel. There is no legal requirement that a consent judgment must be explained to the parties, especially when the parties are represented by solicitors. In this particular case, the plaintiff was able to understand the meaning of the consent judgment as he is a well-educated litigant. In any event, the consent judgment, according to the defendant, was explained in Hindi, both parties were asked if they agree to the terms of settlement and it was agreed by both parties.
[29] The plaintiff said in evidence that Dr. M. S. Sahu Khan, his solicitor in the 1989 action was his family lawyer, he is in good terms with him and executed a few documents through him even after the consent judgment was entered.
[30] In fact, the plaintiff did not take any action against his solicitor for entering the consent judgment without his instruction or approval. Instead, he was dealing with the same solicitor for his other legal matters. In the circumstances, I find that there was “very strong possibility”, if not probability that the plaintiff had given his consent or instruction to his then solicitor, Dr. Sahu Khan to settle the 1989 action, which was brought by the defendant (then plaintiff) claiming damages for personal injuries sustained by him, his wife and his son in an accident allegedly caused by the plaintiff’s (then defendant) negligent driving.
[31] A consent judgment or order entered by the Court should be simply set aside. A consent order which is a final order on the grounds of fraud or mistake requires the bringing of a fresh action for this purpose (see de Lasala’s case (above)).
[32] In Sharma v Caldwell (above), McMullin J.A. said that a consent order may be set aside upon any of the grounds upon which an agreement can be set aside, so it appears to me to follow that such an order may be set aside if it can be clearly proved that there is no agreement, and consequently, no true consent to the order made.
[33] A true consent order is based on a contract between the parties. As such, the contract is arrived at by bargaining between the parties, perhaps in correspondence, and the consent order is simply evidence of that contract (Wentworth v Bullen [1829] EngR 253; (1840) 9 B & C 840).
[34] In Siebe Gorman and Co. Ltd v Pneupac Ltd [1982] 1 WLR 185, Lord Denning MR said at p. 189:
“It should be clearly understood by the profession that, when an order is expressed to be made ‘by consent’, it is ambiguous ... One meaning is this: the words ‘by consent’ may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words ‘by consent’ may mean ‘the parties hereto not objecting’. In such case there no real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without the consent of the parties."
[35] A consent order can act as an estoppel which can be raised if fresh proceedings are brought alleging matters encompassed by the compromise (Keith v Walcott [1929] AC 482).
Conclusion
[36] A consent judgment or order may be set aside in a fresh proceeding on the grounds as a contract could be set aside, especially, on the ground of fraud or mistake.
[37] On the evidence, I find that the consent judgment entered in the 1989 action was a real contract between the parties.
[38] The plaintiff in this action seeks to set aside the consent judgment on the ground that his solicitor entered it without his consent and he was not explained the terms of the consent judgment. The plaintiff blames his former solicitor for entering the consent judgment without his consent after some 11 years at the execution stage.
[39] It is of note that the plaintiff had transferred his property to his daughter and placed a caveat on the property through the same solicitor who represented him in the 1989 action, Dr. Sahu Khan after the consent judgment was entered.
[40] I am not satisfied with the plaintiff’s evidence that the consent judgment was entered by his counsel without his (plaintiff) consent and he was not explained the consent judgment. He was not coherent and consistent in his evidence. He answered the cross-examination question hesitantly. I would, therefore, place little reliance on his evidence. On the other hand, the plaintiff gave forthright evidence and his evidence was not shaken by the cross-examination. I accept the defendant’s evidence.
[41] On the evidence, I find that the consent judgment in the 1989 action was entered with the consent of the plaintiff (then defendant), it was pronounced in open court in the presence of both parties and their counsel, it was explained to both parties and the plaintiff agreed to the consent judgment having fully understood the terms of settlement. In the result, the consent order is valid and enforceable.
[42] For the foregoing reasons, the plaintiff had failed to clearly prove that there is no agreement, and consequently, no true consent to the order made in the 1989 action. The consent judgment operates as an estoppel in this action. This follows that the plaintiff action should be dismissed with costs, which I summarily assess at $4,500.00 and the defendant shall be free to enforce the consent judgment.
[43] As for counterclaim, Mr Naidu of counsel for the defendant informed the court that the defendant does not wish to pursue his counterclaim. I would, therefore, dismiss the counterclaim.
The result
DATED THIS 27TH DAY OF FEBRUARY 2019 AT LAUTOKA.
..................................
M. H. Mohamed Ajmeer
JUDGE
Solicitors:
For the plaintiff: M/s Fazilat Shah Legal, Barristers & Solicitors
For the defendant: M/s Pillai Naidu & Associates, Barristers & Solicitors
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