Maharaj v Mishra [1957] FJLawRp 9; [1956-1957] 5 FLR 56 (9 May 1957)

[1956-1957] 5 FLR 56

IN THE SUPREME COURT OF FIJI

Civil Jurisdiction

Action No. 115 of 1956

SURJA MAHARAJ, F/N TIRLOCK CHAND
Plaintiff

AND

KRISHNA PRASAD MISHRA,
F/N RAM NARAIN
Defendant

Compromise of action by solicitor on behalf of client suing in forma pauperis-whether consent of court necessary.

The plaintiff had been admitted to institute an action in forma pauperis, and the defendant had been assigned as his solicitor. The action was subsequently settled but the plaintiff now sued the defendant in negligence alleging that he had compromised the action contrary to the express directions of the plaintiff. Upon the facts, the court found in favour of the defendant. The question arose as to whether a settlement could be effected on behalf of a person suing in forma pauperis without the consent of the court, this being the law in England.

Held.-In Fiji, a settlement can be effected by a solicitor on behalf of a person suing in forma pauperis without the consent of the court.

Judgment for the defendant.

K. C. Ramrakha for the plaintiff.

P. Rice for the defendant.

RAGNAR HYNE, C.J. [9th May, 1957]-

The relevant portion of the judgment is as follows:-

It is convenient at this stage to consider whether a solicitor can compromise an action, and what factors govern compromise or settlement.

The a solicitor has authority to compromise is clearly set out at p. 2210 of the Rules of the Supreme Court, 1934 edition, which reads:-

"A solicitor has a general authority to compromise on behalf of his client, if he acts 'bona fide' and not contrary to express negative direction."

Stroud 3rd Edition Volume I, at p. 557 says-

"A compromise takes place when there is a question of doubt, and the parties agree not to try it out, but to settle it between themselves by a give-and-take arrangement."

It is contended on behalf of plaintiff that no settlement can be effected on behalf of a person suing in forma pauperis without the consent of the court.

That, undoubtedly, is the law in England, for Order 16 Rule 30 (1) of the Rules of the Supreme Court says-

"No poor person nor any solicitor conducting the proceedings for him shall discontinue settle or compromise such proceedings without the leave of the court, or a Judge or a committee."

Rule 30 (1) however, appears in Division 4 of Order 16 of the English Rules and this division is expressly excluded from the Fiji Rules, which by Order 16 Rule 2 makes provision for persons suing or defending in forma pauperis. There is nothing in this rule, which deals extensively with persons so suing and defending, which requires consent to a settlement or forbids a settlement.

Counsel for plaintiff contends that Order 16 Rule 30 (1) in the English Rules becomes necessary because of the wide wording of Order 16 Rule 22, which is as follows-

"Any person obtaining a certificate under this order shall be admitted to take or defend or be a party to any legal proceedings in the High Court of Justice (except bankruptcy) proceedings and criminal causes or matters as a poor person on the terms and conditions mentioned in the subsequent rules of this order. Provided that the following matters shall not be deemed to be criminal matters within the exception to this rule, viz:-

(a) Applications to the court to order a Justice or Justices in Petty or Quarter Sessions to state a case;

(b) Applications for certiorari mandamus or prohibition directed to such a Justice or Justices; and

(c) The hearing of such cases stated and applications."

He submits, therefore, that it must be assumed that our rules intended when it uses the word" sue or defend", that there could be no settlement without the consent of the court I am unable to agree. If our rule intended any prohibition against settlement, I think, it would have said so in unequivocal language. I do not think that Mr. Mishra required the consent of court to any settlement.