Lal v Pillai [2005] FJMC 13; Civil Case No 117 of 2004 (6 July 2005)

IN THE FIRST CLASS MAGISTRATES’ COURT
IN THE WESTERN DIVISION, LAUTOKA

CIVIL CASE NO: 117 OF 2004

BETWEEN:

ISHWAR LAL, father’s name Kissun Lal of Matei, Taveuni.
1ST PLAINTIFF

TINPATHI GOUNDER, father’s name Perisami Gounder, Lomolomo, Lautoka.
2ND PLAINTIFF

AND:

ANAND PILLAI, father’s name not known of Lautoka, Land Transport Authority Officer
1ST DEFENDANT

UDAY SINGH, father’s name not know of Lautoka, Land Transport Authority Officer
2ND DEFENDANT

LAND TRANSPORT AUTHORITY, a body duly incorporated under the Land Transport Act 1998.
3RD DEFENDANT

Counsel for the Plaintiffs: Mr F. Khan
Counsel for the Defendants: Mr K. Qoro

Date of Hearing: 06/07/05
Date of Ruling: 06/07/05

RULING

I delivered the judgment of this case this morning in which I ordered that the plaintiffs are entitled to the costs in this matter and I also stated that before I make the orders for costs I want both parties to make submissions.

Mr Khan for the plaintiffs’ has submitted that this is an appropriate case where an order should be made on solicitor/client basis. He has submitted that he first wrote to the defendants’ solicitors on 07/01/05 and made certain without prejudice offers. He tendered them a letter dated 07/01/05 in which he made an offer of $12,500.00 inclusive of all costs. He further submitted that that letter was not responded to and also even after issuing the writ and right up to the date of hearing no offers for settlement was forthcoming as the defendants’ took the view that this matte should be determined by the court. He further submitted that the statement of defence at paragraph 3(a) the defendants pleaded that:

"The said motor vehicle did not have a wheel tax sticker on."

Paragraph 3(a) was amended by consent at the completion of the defence case to read as follows:

"That the said motor vehicle did have the red sticker but the writing on it had faded."

Mr Khan is asking for indemnity cost in the sum of $5,000.00 which is made up of as follows:

1. The trial was spread over two days, 11/05 /05 and 14/06/05 and is asking for $1,500.00 for each day.
   
2. He is asking for $2,000.00 for the preparation and for getting all his witnesses and the 1st plaintiff travelled all the way from Taveuni.
   

Mr Qoro has submitted that this is not an appropriate case for solicitor /client costs and he submitted that the cost should be made on party/party basis and he has conceded that a sum of $1,500.00 would be adequate costs.

In determining as to whether I should make an order for costs on solicitor/ client basis or otherwise I have to take into account the conduct of the parties. In this case the defendants despite admitting that it made an error on 30/03/04 has not written any letters of apology to date leave alone responding to the plaintiff solicitor’s letter of 07/01/05. I said in my judgment that the conduct of the defendants was extremely high-handed and that conduct continued right through. The defendants did not respond to the letters of 07/01/05 and subsequently had the audacity of pleading that the car did not have a registration sticker. The defendant's whole attitude was one of being difficult in the hope that the plaintiff may give up her claim. It’s the case of the strong trampling upon the rights of the weak.

In all the circumstances I am persuaded that this is an appropriate case where I should make and order for costs on solicitor/client basis and I order the defendants to pay the plaintiffs costs in the sum of $3,500.00.

[Mohammed Shafiullah Khan]
Resident Magistrate