Harakh v Fiji Public Service Association [2000] FJLawRp 31; [2000] 1 FLR 78 (5 May 2000)

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Striking out - non prosecution of claim - whether delay inordinate and inexcusable - whether risk of serious prejudice - defendant's prejudice, public interest prejudice - HCR O.18 r .18(1)(c) and O.25 r. 1

Member of defendant association sought reimbursement of medical expenses. The defendant sought to strike the action out for want of prosecution for an unexplained 3 year delay, and relying on the fact that 2 officers, likely witnesses were no longer in the association's employ, and that the plaintiff was no longer a financial member of the association. The Court found that the plaintiff’s claim and the Defence were sparsely pleaded. Oral evidence of events 9 years ago would be critical and case is unlikely to be heard in the current calendar.

Held - (1) The Court can exercise its inherent jurisdiction to allow a plaintiff to proceed with his claim even if there was excessive delay.

(2) It was not in the public interest for cases to languish in the registries unresolved. Further, a judge's decision would inevitably be less sound and confident if based on diminished recollections of witnesses or lacking determinative evidence, thus there was a substantial risk that the court will not be able to do justice at the trial -to the defendant's prejudice and in the public interest. Such prejudice cannot be cured by the making of an "unless" order.

Cases referred to in Ruling
appl Finnegan v Parkside Health Authority [1998]1 All ER 595
foll Birkett v James [1978] AC 297
cons Allen v McAlpine [1968]2 QB 229
ref Studio Glamour v A.S. Farebrother & Co Limited (1974) 20 FLR 120
Foll Merit Timber Products Limited v NLTB [1995] CBV0008/94 24 November 1995
cons Costellow v Somerset County Council [1993] 1 All ER 952
cons Rath v Lawrence [1991] 3 All ER 679
cons Owen Potter v Turtle Airways & Anor [1993] ABU 49/92 FCA Reps 93/205 20 August 1993
cons New India Assurance Company Limited v Rakesh Singh & Anor FCA [1999] ABU0031/96S 26 November 1999
cons Beachley Property Ltd. v Edgar [1996] TLR 436
appl Bremer Vulkan v South Pacific Shipping Corporation Ltd. [1981] AC 909
appl Dept. of Transport v Chris Smaller (Transport) Ltd. [1989] 1 All ER 897
cons Grovit v Doctor [1997] UKHL 13; [1997] 2 All ER 417
cons Westminster City Council v Clifford Culpin & Partners (a firm) (1987) NLJ 736

The plaintiff had been a member of the Defendant Association. The Association provided a Medical Benefits Scheme for its members. Whilst on holiday in New Zealand in 1992 the Plaintiff fell sick.

On 4 June 1992 he was admitted to the Middlemore Hospital. He had substantial medical and surgical treatment costing $18,500. He seeks re-imbursement from the Defendant in accordance with its Scheme.

By a Summons dated 5 November 1998, the Defendant seeks an order of dismissal of this action for want of prosecution. The ground relied on is that there will be prejudice to the fair trial of the action. Order 25 r. 1 and Ord. 18 r.1(c), which must mean Ord.18 r.18(1)(c), are referred to in the Summons as founding jurisdiction for the application in that the default "may prejudice, embarrass or delay the fair trial of the action".

The Supreme Court Practice (Eng) deals with this jurisdiction under Ord.25 r. 1 although the court has both inherent jurisdiction to prevent abuses of its procedure, and specific power under the Rules [see also Ord. 34 r.1(2) and Ord. 78 r.5(2)] to strike out actions where there has been excessive delay.

In support the Defendant filed the affidavit of Jitendra Singh, its Finance and Administration Officer, which affidavit was sworn on 19th March 1998 but filed only on 5 November 1998. In it, Mr. Singh refers to the course of proceedings which can be summarised:

14	December 1994	Writ of Summons
15	February 1995	Defence filed
17	March 1995	Defendant's Summons [Order sealed
		incorrectly stated "Plaintiffs"] for
		Transfer of proceedings to Suva
		refused.
3	March 1998	Service upon Defendant of filed
		Notice of Intention to Proceed,
		Reply to Defence and Summons for
		Directions

There was a gap therefore of 3 years between 1995 and 1998 when the Plaintiff took no step in the action. Mr. Singh deposed that the Defendant, lost the services of two of its officers in late 1995, likely witnesses for the Defence who were familiar with the Plaintiffs claim. Mr. Singh added that at the time of the claim the Plaintiff was no longer a financial member of the Defendant Association, and for this reason he says the Plaintiff does not have a good and substantial cause of action.

The Plaintiff filed an affidavit in opposition sworn by him on 24 March 1999 and filed on 7 April 1999. He stated he now resided in New Zealand. He provided a chronology, stated that there had not been inordinate or inexcusable delay, and gave an undertaking to proceed with due diligence and without delay.

The court can exercise its inherent jurisdiction to allow the Plaintiff to proceed with his claim even if it concludes that there has been excessive delay. Additionally, it has discretionary powers conferred by Ord. 3 r.4, powers allowing "the widest measure of discretion" (per Hirst LJ in Finnegan v. Parkside Health Authority [1997] EWCA Civ 2774; [1998] 1 All ER 595 at 604j).

In Birkett v. James [1978] AC 297 at 318 Lord Diplock said that an action could be struck out where the court is satisfied:

(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.

Such principles were first set out in Allen v. McAlpine [1968] 2 QB 229, and adopted in Studio Glamour v A.S. Farebrother & Co. Ltd [1974] 20 FLR 120 at 123A. This approach has often been applied in Fiji, and more recently confirmed by the Supreme Court in Merit Timber Products Ltd. v. N.L.T.B. (unreported) Supreme Court Civil app. CBV0008 of 1994, 24 November 1995.

The next step after receiving the Defendant's Defence was for the plaintiff to issue a Reply to Defence or a Summons for Directions. The Plaintiff did not take either of these steps for a period of 3 years.

There can be no mechanistic approach to what amounts to "inordinate" delay; see observations of Bingham MR in Costellow v. Somerset County Council [1993] 1 All ER 952 at 959h. In the case before me, a one page Statement of Claim was issued, for a simple contract case, which attracted a one and a half page Defence. In the circumstances I find the 3 year delay to be inordinate; see Rath v. Lawrence [1991] 3 All ER 679 at 691f (where the inactivity was for 4 years); Birkett v. James (supra) 2 years inactivity after order to set down.

What was the reason for the delay here? It is left unexplained. The affidavit of the plaintiff does not deal with this issue. The delay should have been explained see Clough v. Clough [1968] 1 WLR 525 at 528A; Allen v. McAlpine (supra); and Potter v. Turtle Airways & Anor. (unreported) Court of Appeal 20 August 1993 Fiji Civil App. 49/1992. However that omission is not necessarily fatal to the plaintiff’s position for as Lord Woolf MR said in Beachley Property Ltd. v. Edqar [1996] TLR 436, he "would reject the argument that the absence of a good reason was always, and in itself sufficient to justify the court in refusing to exercise its discretion." In the absence of any explanation and in considering the surrounding circumstances, I conclude the delay in this case was inexcusable.

In spite of an inordinate and inexcusable delay by a plaintiff as here, Defendants pressing for a striking out need to show "that there was a substantial risk that justice between the parties could not be done at the trial" (Bremer Vulkan v. South Pacific Shipping Corporation Ltd. [1981] AC 909 at 985A. It was necessary also to show that the limitation period had already expired, as here, otherwise a fresh writ could always be issued Birkett v James (supra). Invariably Defendants concentrated on likely prejudice to their own cases. This type of prejudice might be regarded as the first category of prejudice to be considered. But the prejudice could apply equally to the cases of any of the litigants. The onus is on the Defendant to demonstrate that likely prejudice Dept. of Transport v. Chris Smaller Transport; Ltd. [1989] 1 All ER 897. It has been held that specific instances of prejudice must be set out in the affidavit of the applicant Merit Timber Products Ltd. v. N.L.T.B.’ (supra). Whilst distinguishing between prejudice that can be implied from the extent of the delay itself from prejudice arising from particular events that may have occurred during the relevant period, the Court of Appeal in New India Assurance Company Ltd. v. Rakesh Singh & Anor. (unreported) Court of Appeal, Fiji 26 November 1999 ABU0031 of 1996S required of the Defendants considerably more detail of prejudice in regard to the non-availability of witnesses than had been provided in the applicant's affidavit. For instance the court wanted to have before it evidence of enquiries made to trace the witnesses, of when they went away, of the general nature of their evidence, and in what way prejudice had been caused. The case involved an insurance claim and has some similarity therefore to this case.

In the present case the plaintiff’s claim is sparsely pleaded. So is the Defence. The Reply served on 3 March 1998 fills in some of the gaps of the Statement of Claim. The main issues appear to be whether the plaintiff was a financial member of the Defendant at the relevant time, and whether the fact that he became sick in New Zealand was an insured event under the policy. But the Reply also deals with an allegation of misrepresentation by one of the Defendant's agents concerning membership fees once a member becomes sick, policy documents not supplied, and limitations not drawn to the plaintiff’s attention.

The oral evidence drawn from the witnesses recollections therefore is likely to be more significant than the letters and insurance documents themselves. Obviously the loss of the employ of witnesses and the need for the witnesses accurate recollections of conversations is crucial here. The events to be recollected will not be so memorable as in Birkett v. James (whether or not a party had promised to pay 1 million pounds to the other). This case’ is unlikely to be heard this year which means witnesses will have to recollect matters going back 9 years, a situation far from ideal.

This brings me to consider a second category of prejudice which could be called the public interest prejudice. This occurs when cases do not move through the courts system with smooth and steady progression from writ to trial and judgment, from commencement to disposal. It is not in the public interest for cases to languish in court registries unresolved. No doubt solicitors report to their clients that it is the courts who cannot hear their cases. At the Lautoka High Court this has often been the reason for delay. However that is no reason for litigants or their solicitors to allow their cases to go to sleep. The supply of judges may soon be cured. Case management is even more imperative therefore for the High Court at Lautoka than it is for other court centres.

A further factor to be weighed in the public interest category of prejudice is the added difficulty cast upon the trial judge. He or she has to hear from witnesses with diminished recollections, and not to hear from witnesses who may have been able to supply the determinative evidence upon which the judge might with confidence have rounded his decision. He is left instead with less than the originally available evidence, such remainder being less convincing than it could have been if it had been recollected and heard earlier. The Judge's decision is inevitably less sound and less confident. None of this is in the public interest for the operation of a fair system of justice. It would result said Lord Diplock in the Bremer Vulkan Case (supra) at 984 in "substantial risk that at the hearing the court would be unable to do justice." "And finally the judge's task would be well nigh impossible" Birkett v. James (supra) at 304H. The mischief perceived by the courts was the inordinate delay in bringing actions on for trial." (per Lord Diplock op. cit at 984-5). This became a problem in England in the late 1960s, and early 1970s with the advent of generous Legal Aid when the courts had to take a strong line in order to discipline dilatory solicitors. The remedy "was introduced mainly for the protection of plaintiffs against the negligence of their own solicitors." (Lord Diplock at 985). The remedy was later confined to the showing of prejudice to one of the litigants, usually the Defendant. In the late 1990s the courts returned to a less tolerant approach (see Beachley Property Ltd. v. Edgar" it was very important that the court's resources should be used as efficiently and effectively as possible"; Costellow v Somerset County Council; Mortgage Corporation Ltd. v. Sandoes [1996] TLR 751; Finnegan v. Parkside Health Authority).

Criticisms of the authorities taking a weaker line were amply set out in the speech of Lord Woolf in the House of Lords case of Grovit v. Doctor [1997] UKHL 13; [1997] 2 All ER 417 at 419-410:

"The requirement laid down by the second principle that the delay has to cause serious prejudice to the defendants can and has been the subject of criticism. It is suggested:

(1) The effectiveness of the court's power to strike out proceedings as a sanction against delay is undermined by the need to show prejudice to the defendants.

This requirement prevents the court taking into account the adverse effect which delay can have on the reputation and efficiency of the civil justice system as a whole. Defendants (for reasons which will be explained later) find it difficult to establish prejudice, so the requirements of the Rules of the Supreme Court and the County Court Rules as to time can usually be ignored with a reasonable degree of confidence that nothing very serious will happen in consequence. Actions therefore take much longer to come to trial than they should and the general impression given to the public is that litigation is a very long drawn-out process with which they should try to avoid becoming involved.

(2) What is regarded as capable of amounting to prejudice is too restricted. Normally little regard is paid to the anxiety caused to litigants as a result of litigation. The fact that a defendant will normally recover his costs if he succeeds is regarded as providing a sufficient protection to the defendant for the consequence of being involved in the proceedings. This is far from being the position, the costs payable do not usually indemnify the defendant for the cost actually incurred and their recovery is delayed.

(3) In order to establish prejudice a defendant is required usually to show that the delay has prejudiced him in the conduct of his defence. This will involve him in having to demonstrate, for example, that his witnesses’ recollection has been adversely affected. Relying on this sort of ground is all right from the defendant's point of view if the action is struck out but can be unfortunate if the action is not struck out since he has undermined his own case by his comments about his witnesses."

Lord Griffiths' speech in the earlier case of Dept. of Transport v. Chris Smaller (Transport) Ltd (supra) was revisited. The court had approved of Kerr LJ's statement in Westminster City Council v Clifford Culpin & .Partners (a firm) (1987) 137 NLJ 736:

"that our law needs to be changed both in substance and procedurally and that the principles laid down in Birkett v. James are unsatisfactory and inadequate. They are far too lenient to deal effectively with excessive delays. Moreover they then breed excessive further delays and costs in their application. Similar misgivings were expressed by Mustill L.J."

"I, for my part, recommend a radical overhaul of the whole civil procedural process and the introduction of court controlled case management techniques designed to ensure that once a litigant has entered the litigation process his case proceeds in accordance with a timetable as prescribed by rules of court as modified by a judge:"

"The period which has elapsed since Lord Griffith's speech has not seen any improvement in the problems caused by delay in the conduct of civil proceedings."

It is not suggested that the plaintiff in the instant case has deliberately not proceeded with his claim (as was the case in Grovit) or that he has been guilty of contumelious conduct.

Grovit's case does not appear to have been drawn to the attention of our Court of Appeal at the hearing of the New India Assurance case (supra).

In the result I find there to have been established a substantial risk of prejudice to the defendant in resisting the plaintiff’s claim caused by the delay. Additionally I find there to exist a substantial risk that the court will not be able to do justice at the trial. For this reason I believe the matter cannot be cured simply by the making of an "unless" order and ordering costs. I also find that the unexplained delay of 3 years here to be unsatisfactory and a matter against which the High Court at Lautoka must set its heart Grovit v. Doctor (supra). The action is struck out for want of prosecution.

I order the Plaintiff to pay the Defendant's costs of this application which I summarily assess at $400 inclusive of disbursements.

Fiji Law Reports

Harakh v Fiji Public Service Association [2000] FJLawRp 31; [2000] 1 FLR 78 (5 May 2000)