Consolidated Realtors Ltd v Attorney General [1992] FJLawRp 16; [1992] 38 FLR 206 (27 October 1992)

[1992] 38 FLR 206

HIGH COURT OF FIJI

Civil Jurisdiction

CONSOLIDATED REALTORS LIMITED

v

ATTORNEY-GENERAL

Byrne J.

27 October 1992

Damages - interim award against the state - procedure governing - State Proceedings Act (Cap. 24) Sections 15(1)(a), 20(1) & 20(3) - High Court Rules 1988 Order 29 rr 9, 10 & 11.

Upon application being made for an interim award of damages following judgment against the State the High Court examined the relevant application procedure and HELD: that interim payments must be made in strict accordance with the High Court Rules and Section 20 of the State Proceedings Act.

No cases were cited.

H. K. Nagin for the Plaintiff
A. Cope for the Defendant

Interlocutory ruling in the High Court.

Byrne J.

This short Ruling concerns an interesting point of law relating to interim payments of damages in proceedings against the State. The Ruling is being published at the suggestion of counsel who consider that it may be of assistance to the profession.

The matter arises in this way: On the 5th of December 1989 I gave Judgment for the Plaintiff against the Defendant in the sum of $126.000 damages which I found he had suffered as a result of a breach of a duty of care owed to him, by the State. On the 7th of March 1991 after the Plaintiff had issued a Summons seeking an Interim Payment of damages pending the outcome of an appeal to the Court of Appeal by the Defendant, I ordered that the Plaintiff be paid an interim amount of $31,500.

On the 8th of October 1992 the Plaintiff issued another Summons seeking another interim payment [sic] of damages and I heard this and delivered an oral Ruling on the 27th of October ordering in effect that the Plaintiff receive a further $10,000 by way of interim damages.

I was informed by counsel that the Defendant's appeal is at present part-heard in the Court of Appeal and is expected to resume sometime in November.

On the 27th of October the parties were represented by counsel different from those who had appeared before me on the 7th of March 1991 on the previous Summons. The present Summons. as in the case of the earlier Summons, stated that the application was made pursuant to Order 29 Rules 9, 10 and 11 of the High Court Rules and I now set these out:-

"Interpretation of Part II (O.29, r. 9)

9. In this Part of this Order-

"interim payments", in relation to a defendant, means a payment on account of any damages, debt or other sum (excluding costs) which he may be held liable to pay to or for the benefit of the plaintiff, and any person who, for the purpose of the proceedings, acts as next friend of the plaintiff or guardian of the defendant.

Application for interim payment (O.29, r. 10)

10.-(1) The plaintiff may, at any time after the writ has been served on a defendant and the time limited for him to acknowledge service has expired, apply to the Court for an order requiring that defendant to make an interim payment.

(2) An application under this rule shall be made by summons but may be included in a summons for summary judgment under Order 14 or Order 86.

(3) An application under this rule shall be supported by an affidavit which shall-

(a) verify the amount of the damages, debt or other sum to which the application relates and the grounds of the application;

(b) exhibit any documentary evidence relied on by the plaintiff in support of the application.

(4) The summons and a copy of the affidavit in support and any documents exhibited thereto shall be served on the defendant against whom the order is sought not less than 10 clear days before the return day.

(5) Notwithstanding the making or refusal of an order for an interim payment, a second or subsequent application may be made upon cause shown.

Order for interim payment in respect of damages (O.29. r. 11)

11.-(1) if on the hearing of an application under rule 10 in an action for damages, the Court is satisfied-

(a) that the defendant against whom the order is sought (in this paragraph referred to as "the respondent") has admitted liability for the plaintiffs damages; or

(b) that the plaintiff has obtained judgment against the respondent for damages to be assessed; or

(c) that if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent or, where there are two or more defendants, against any of them,

the Court may, if it thinks fit and subject to paragraph (2), order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set-off, cross-claim or counterclaim on which the respondent may be entitled to rely."

Sub-rule 2 of Rule 11 is not relevant for present purposes.

Mr. Nagin who appeared for the Plaintiff presented a very simple argument. He said that eighteen months had elapsed since the Plaintiff received his last interim payment of damages; that he is entitled to the full amount of his Judgment together with interest on the principle that he is a successful litigant who is entitled to the fruits of his Judgment. He further stated that no stay of execution had been granted on the Judgment and that if the appeal by the Defendant was successful the Court could order that the Plaintiff refund any interim payment with interest to the Defendant.

Mr. Cope who appeared for the Defendant made two submissions, first that I should not hear the Plaintiffs application but should refer it to the Court of Appeal and secondly, in the alternative, that if I declined to refer the matter to the Court of Appeal I should not accede to the Plaintiffs application. Mr. Cope informed me of certain remarks made by the Court of Appeal to counsel for the parties and submitted that in the circumstances it would be unfair to ask me, the trial Judge. to make any decision on an interim payment and that it would be better to refer the matter to the Court of Appeal for decision.

I declined this invitation primarily on the ground that I had no record of the Court of Appeal before me. Mr. Cope then submitted, and counsel for the Plaintiff agreed that despite the claim made in the Plaintiffs two Summonses that an interim payment could be made to him under Order 29, this was not true. It was pointed out that under Order 29 Rule 11(1) an interim payment can be made to a Plaintiff only when, failing an admission of liability by the Defendant, the Plaintiff has obtained Judgment against the Defendant for damages to be assessed, which is not the case here. Counsel for the Defendant agreed that on the earlier application to me by the Plaintiff, which was contested, this submission had never been made but should have been.

This is true in that on the earlier application counsel for the Defendant had relied on Section 15(1)(a) of the State Proceedings Act, Cap. 24 which prohibits any orders for specific performance against the State. Counsel had argued that in Section 15 the term "specific performance" was equivalent to "enforcement of a Judgment".

I rejected this submission, correctly, as both counsel now appearing agreed.

Mr. Cope stated that Section 20 of the State Proceedings Act was the only Section of that Act which authorises any interim payment of damages against the State.

Section 20(1) states that where in any civil proceedings by or against the State any order is made by a Court in favour of any person against the State or against a Government Department the proper officer of the Court shall on an application made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order, issue to that person a certificate in the prescribed form containing particulars of the order.

Sub-section 3 states that if the order provides for the payment of any money by way of damages or costs the certificate shall state the amount so payable and the Chief Accountant shall thereafter make the necessary payment.

There is then a proviso which states that the Court by which any such order is made may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable or any part thereof shall be suspended, and if the certificate has not been issued may order any such directions to be inserted therein.

Mr. Cope submitted that as no certificate had ever been issued either before the earlier application or the present one no interim payment could lawfully be made to the Plaintiff.

Counsel for the Plaintiff accepted the position thus stated but argued that the Court could direct the Officer of the Court to issue a certificate to the Plaintiff.

Mr. Cope agreed that I could give such a direction and on the Plaintiffs application I then did so. In accordance with the proviso to Section 20(3) I then ordered that the Plaintiff is to receive a further interim payment of $10,000 and, using the form of words in the proviso, ordered that there be no payment to the Plaintiff until further order of the sum of $84,500 plus interest on the whole of the Judgment.

It is clear from the above that interim payments of damages can only be made to a Plaintiff in strict accordance with Order 29 Rules 9, 10 and 11 of the High Court Rules and that in any proceedings against the State, Section 20 of the State Proceedings Act must be followed before any interim payment can be made and I so ruled.