1982 SILR 41

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 8 of 1981

TANG

v

LO (NO.1)

High Court of Solomon Islands
(Daly C.J.)
Civil Case No.8 of 1981

17th March 1982

Civil action - issue of letters of request – discretion - principles for exercise - affidavit evidence - where unsatisfactory.

Civil action - application for dismissal for want of Prosecution - principles - within limitation period - effect on discretion (O. 38 r. 2) Public Solicitor - whether when one solicitor is acting other solicitors in the office also act (O. 40 r. 16).

Facts:

In a civil action the Plaintiff sought relief by writ of summons issued in February 1981. A defence was delivered. The original Defendant died on 8th April, 1981. The issues involved consideration of a transaction which took place in 1970. Fraud was alleged against the original Defendant. In March 1981 Solicitors for the Plaintiff were aware of the existence in Australia of a witness to the 1970 transaction. On 26th November 1981 the Registrar ordered that the action be set down by the Plaintiff within 60 days. On 18th February, 1982 the Plaintiff applied for letters of request to issue in relation to the witness in Australia. The Registrar refused the application. The Plaintiff appealed. On 8th March 1982 the Defendant applied to strike out for want of prosecution relying upon failure to comply with the Registrar’s order of 26th November, 1981 under O. 38 r. 2(2).

Held:

1. The issue of letters of request was a discretionary matter and required the court to be satisfied:

(a) that the witness was unable or unwilling to travel;

(b) the application is bona fide and made without unreasonable delay; and

(c) that the witness can give substantial material evidence.

Although (c) was satisfied the Registrar was not satisfied as to (a) and his finding that there was serious delay was supported by the facts. As there would be considerable further delay before trial if the application was granted the appeal would be dismissed.

2. Per incuriam, affidavit evidence is not desirable where there is an issue on the facts as to who is telling the truth.

3. Applications to dismiss for want of prosecution should only be granted if the court is satisfied:

(a) that the default is intentional or contumelious; or

(b) that there has been inordinate and inexcusable delay and that delay will give rise to substantial risk that there can be no fair trial of the issues (Birkett v. James (1977) 3 W.L.R. 38 applied)

As the limitation period had not expired it would not benefit the Defendant to strike out. In any event on the facts inordinate and inexcusable delay had not been made out.

4. Where one solicitor of the Public Solicitor’s Office was acting for a person that did not result in all the solicitors in that office becoming ‘an advocate’ within O. 40 r. 16.

Appeal dismissed and application to strike out refused.

Cases also referred to:

Re Boyse (1882) 20 Ch. D. 760
Langen -v- Tate (1883) 24 Ch. D. 522
Ehrmann -v- Ehrmann (1896) 2 Ch. 611

For the Plaintiff: F. Waleilia
For the Defendant: A. Radclyffe

Daly C.J: These are two matters which I heard initially in chambers but in view of the general aspect of the points discussed, I adjourned to open court for judgment.

Both matters arise from Civil Case No.8 of 1981, Lo Shiu TANG v. John LO. This action was commenced by a writ of summons dated 3rd February 1981 in which the Defendant was Ng Chow KIN. However that Defendant died on 8th April 1981 and the action is continued against her personal representative, the present Defendant. The writ was said in its heading to be specially endorsed. It claimed in its endorsement a declaration that a half share in certain land was held by the Defendant on trust for the Plaintiff, rectification of the Land Register and possession of the land. Although the endorsement is elliptical as to dates, subsequent pleadings show that the registration of which complaint is made took place on 29th May 1979.

The Defendant from the early stages took an aggressive stance on the question of progress of the action. On 5th March 1981 an application by her to strike out for want of prosecution was heard based on the failure of the Plaintiff to deliver a statement of claim. Whether such a statement of claim was necessary in view of the fact that the writ was said to be specially endorsed was not raised at that hearing and the Registrar made an order that unless the statement of claim was delivered within 8 days the action be dismissed.

The Statement of Claim when delivered claimed that the Plaintiff purchased an interest in the property in dispute from a person now deceased in 29th December, 1970. The Defence, delivered 18th March 1981 denied such a purchase. A counterclaim for possession and damages was made. It was therefore apparent at that date that one of the crucial issues in the case would be as to the existence of a transaction on 29th December 1970. Solicitors for the Plaintiff were, indeed, already aware of the importance of that issue because they had been trying to trace witnesses to the alleged transaction. By letter dated 4th March 1981 they had been informed that a Mr YIP SING who now resides in New South Wales had given details of such a transaction to a firm of New South Wales Solicitors.

Pleadings continued and then matters once more slowed down. On 26th Nov 1981 a further application by the Defendant to strike out for want of prosecution was before the learned Registrar. This application was based on the Plaintiff’s failure to take out a Summons for Directions. The learned Registrar did not exercise his powers to strike out but treated the hearing as a hearing on a Summons for Directions and made a number of orders one of which was as follows:-

"Action to be set down for trial by Plaintiff within 60 days accompanied by certificate of agreed dates and estimated length of hearing."

It will be noted that this is not a peremptory order or an "unless order" as orders requiring certain action to be taken in default of which the action will be struck out, are sometimes called.

On 18th February 1982 a summons was taken out by the Plaintiff applying that a letter of request be issued to examine Mr Yip Sing in New South Wales. The letter to which I have earlier referred and which was dated 4th March 1981 was exhibited to the affidavit in support. On the 25th February 1982 the learned Registrar refused to make the order sought. That refusal is the basis of an appeal at present before this court.

On 8th March 1982 the defendant filed a further summons seeking an order that the Plaintiff’s action be dismissed for want of prosecution on the ground that the action had not been set down for trial as required by the Registrar’s order of 26th November 1981. I heard this application immediately after I had heard argument on the Plaintiff’s appeal. These then are the two matters at present before the court.

I shall consider each in turn:

Appeal against Refusal to issue Letters of Request

The Plaintiff’s original summons sought simply that a Letter of Request be issued. At the hearing before the leaned Registrar it was also suggested that the evidence could be taken on affidavit. The learned Registrar in his ruling restricted himself to the issue of letters of request. He referred to the note to the similar English Rule of the Supreme Court Order 39 r. 2. Note 3/1 at page 356 of the Supreme Court Practice 1970 reads:

"As regards other witnesses a party cannot compel a witness in a foreign country to attend the trial and therefore if the court is satisfied (1) he is unwilling or unable to be present (2) the application is made bona fide (Re Boyse 1882 20 Ch. D 760) and with such promptness as not to cause unreasonable delay (see Langen v. Tate 1883 24 Ch. D 522) and (3) the witness can give substantial evidence material to the issue (Ehrmann v. Ehrmann 1896 2 Ch. 611) an order is often made".

The learned Registrar observed, entirely correctly, that the exercise of his power was discretionary. He found that it was for the plaintiff to satisfy him as to all three criteria. There was no doubt in the Registrar’s mind that the evidence sought was highly material to the issues. However the learned Registrar found that serious delay had taken place as the Plaintiff’s Solicitors had received the letter upon which the application was based about a year before the application. He also found that there was no material from which he could infer that the witness was not prepared to come to Honiara. The learned Registrar expressed surprise that no comparison of costs had been made between bringing the witness to this jurisdiction and the cost of a hearing following issue of letters of request.

The Notice of Appeal, however, concerns itself entirely with other methods of acquiring the evidence sought. Paragraph (a) suggests the Registrar should have permitted it to be adduced by interrogatories; paragraph (b) suggests an order permitting evidence by affidavit.

As far as paragraph (a) is concerned the type of interrogatory to which reference is made is inappropriate to these circumstances. Order 33 rule 24 refers to interrogatories administered by one party to another in the pre-trial procedure. As the Defendant denies all knowledge of the transaction in issue clearly she, or her representative, cannot be expected to provide evidence as to it.

Affidavit evidence is a theoretical possibility (see order 39 rule 2). However the proper course would have been to include this possibility in the original summons. It is difficult to conclude that it is formally before the court on the present documents. The Defendant opposes the suggestion. De bene esse I shall consider it on its merits.

Affidavit evidence suffers from three distinct disadvantages. One is that the court does not have a chance to observe the witness; the second is that there can be no cross examination of the witness; and the third is that the affidavit is often drafted for him and the words are not his own. Thus where an issue is in dispute and depends upon who is telling the truth, it is to be regarded as most unsatisfactory for evidence in that issue to be given on affidavit. This approach is supported by the note to the similar English Rule (Order 38 r 2): See p. 519 of the 1970 Supreme Court Practice. In this case the issue concerning the 29th December 1970 agreement is strongly disputed. There are allegations of fraud. It does not seem to me, therefore, to be a proper case for the court to direct that evidence on this issue by given by affidavit.

To return to the letters of request. Although counsel in his notice of appeal and his submissions did not appear to press for letters of request, I must say something then. Counsel suggested that the age of the authorities on this subject rendered them of less persuasive value than if they were recent. However we are here considering the exercise of discretion and all the authorities do is embody common sense applied by previous courts to that exercise. Common sense is a lasting commodity which, if anything, tends to mature with age as long as it is remembered that each time it is used it must be moulded to fit the situation before the court. Thus the criteria of commonsense embodied in the cases must be applied to the facts of each case and to the changing circumstances of the world. To that extent, when considering the exercise of discretion, earlier cases can provide helpful assistance but not the answer. All the learned Registrar did was to take advantage of the assistance.

In this case it seems to me that the most decisive feature is the delay in making the application. Solicitors for the Plaintiff were aware of the existence of the witness and the nature of his possible testimony in March 1981. They did not apply for letters of request until the case was due to be set down in February, 1982. Even the scantiest knowledge of the time scale to which most diplomatic and judicial authorities work when dealing with routine matters enables one to infer that there would be considerable further delay before the case was ready for trial. On that basis I, too, would refuse the application for letters of request to issue. The Registrar exercised his discretion on a proper consideration of all aspects of the matter. The appeal is dismissed.

Application to dismiss for want of Prosecution

This application is brought under Order 38 Rule 2(2) which reads:-

"(2) Where the plaintiff does not, within the period fixed under the preceding paragraph, set the action down for trial, the defendant may himself set the action down for trial, or may apply to the Court to dismiss the action for want of prosecution, and on the hearing of any such application, the Court may order the action to be dismissed accordingly or may make such other order as to the Court may seem just."

It is also said to be within the inherent jurisdiction of the court to dismiss the action. Counsel for the Plaintiff took a preliminary point on the affidavit in support. This affidavit was sworn by the Solicitor for the Defendant who works in the Public Solicitor’s Office before Mr Gordon Strang, who also works in the Public Solicitor’s Office. Counsel relies upon Order 40 rule 16 which reads:-

"No affidavit shall be sufficient if sworn before the advocate acting for the party on whose behalf the affidavit is to be used, or before any agent or correspondent of such advocate, or before the party himself."

"Advocate" is defined in the rules as "any legal practitioner entitled to practice in the High Court ….." (Order 1). Thus on a strict interpretation any individual lawyer could swear an affidavit for any other lawyer as long as the former was not "acting for the party on whose behalf the affidavit is to be used." Can it be said that all the lawyers in the Public Solicitors Office are so acting for a person when one of their numbers is advocate for that person? I think not. Each lawyer in that office must be regarded as acting personally for the clients from whom he has taken instruction. The Public Solicitors Office is not a partnership with joint and several liabilities nor is it a corporate entity. Therefore there is no reason to say that when one lawyer from that office appearing for a client then the other lawyers in the office have any formal responsibility towards him. On that basis Mr Strang was not an "advocate acting" for the Defendant in this action and the affidavit could properly be sworn before him.

To turn to the merits of the application. The House of Lords considered the principles upon which the discretion to dismiss for want of prosecution should be exercised in Birkett v. James (1977) 3 WLR Birkett’s case). At pages 46 and 47 Lord Diplock said:-

"The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (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."

I consider that this passage embodies useful tests to apply to both the exercise of the inherent jurisdiction and the powers contained in the rules. Initially Counsel for the Defendant suggested that (1) applied and that the default Plaintiff had been intentional and contumelious. However the order which has not, on this occasion, been observed was not a peremptory order in the sense that it was an "unless order" and I am not prepared to hold that there is conduct here amounting to an abuse of the powers of the court. I should observe that failure to comply with a peremptory order will not be treated with sympathy by this court.

There remain (2). Counsel for the Defendant relied upon the general delays over the past year. He suggests that as a result of the death of the original Defendant there maybe difficulties caused by such delays. I do not entirely follow that reasoning in so far as it is contained in an argument seeking to lay those difficulties at the door of the Plaintiff. But generally the difficulty the Defendant faces with his application is that discussed in Birkett’s case that is, that, as the limitation period has not expired, dismissal of the action at this stage could not benefit the Defendant as there would be nothing to prevent the Plaintiff issuing a further writ.

As Lord Diplock said in Birkett’s case at page 49:-

"If this be so, it follows that to dismiss an action for want of prosecution before the limitation period has expired does not, save in the exceptional kind of case to which I have referred, benefit the defendant or improve his chances of obtaining a fair trial; it has the opposite tendency.

The court may and ought to exercise such powers as it possesses under the rules to make the plaintiff pursue his action with all proper diligence, particularly where at the trial the case will turn upon the recollection of witness to past events. For this purpose the court may make peremptory orders providing for the dismissal of the action for non-compliance with its order as to the time by which a particular step in the proceedings is to be taken. Disobedience to such an order would qualify as "intentional and contumelious" within the meaning of the first principle laid down in Allen v. McAlpine. But where no question of non-compliance with a peremptory order is involved the court is not in my view entitled to treat as "inordinate delay" justifying dismissal of the action in accordance with the principle in Allen v. McAlpine a total time elapsed since the accrua1 of the cause of action which is no greater then the limitation period within which the statute allows plaintiffs to start that action. To dismiss the action in such circumstances would in my view, involve an error in principle in the exercise of judicial "discretion" which it is the function of the appellate court to correct."

This is, of course, of the strongest persuasive authority in this court and one must, albeit with some reluctance, accept that it is the only conclusion compatible with the logic of the situation. I say "with some reluctance" as such acceptance must mean that in the majority of cases the jurisdiction of the court to dismiss for want of prosecution under (2) is distinctly limited. If anything this should lead courts to make, in cases where it looks as though plaintiffs are dragging their feet, more stringent peremptory orders. As the Plaintiff is not at present in default of such an order and the limitation period has not expired, it follows that the orders sought in this summons should not be granted.

I should perhaps add, in fairness to the Plaintiff that, even were this not so I would be reluctant to find on the facts that there has been "inordinate and inexcusable delay on the part of the Plaintiff or his lawyer" such as to "give rise to a substantial risk that it is not possible to have a fair trial of the issues in this action or is such as is likely to cause or to have caused serious prejudice to the Defendants ... as between themselves and the Plaintiff ...". The delay in applying to set down for trial may in part be explained by the application for letters of request to be issued; clearly were that application to be successful the setting down would be delayed. It cannot be said that the action has "gone to sleep". As the death of the previous defendant took place shortly after the commencement of the action, the delay by the Plaintiff thereafter cannot be said to have increased the prejudice to the present Defendant arising from the fact that his main evidence must have died with the previous Defendant. Delays in issuing proceedings, so far as the Plaintiff remains within the limitation period, are not in themselves to be regarded as justifying a dismissal for want of prosecution. If however that delay, coupled with inordinate delays in prosecuting the action after issuance, results in prejudice to the Defendant it may be a different matter. In this present instance the Defendant has been unable, in my judgment, to establish that the conjunction of delays brings this case within the principle I have referred to as principle (2) in Birkett’s case.

In all the circumstances I propose to make a peremptory order that this action be dismissed unless it is set down for trial within 28 days.

Orders

1. That the Plaintiff’s appeal against the Registrar’s decision dated 26th February 1982 be dismissed with costs.

2. That the application for orders by the Defendant as set out in his summons of the 8th March 1982 be refused with no order as to costs.

3. That the Plaintiff’s action be dismissed unless it is set down for trial within 28 days.