Solomon Islands National Provident Fund Board v Solomon Islands Electricity Authority [2000] SBHC 47; HC-CC 055 of 2000 (23 November 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 55 of 2000

SOLOMON ISLANDS NATIONAL PROVIDENT FUND BOARD

–V-

SOLOMON ISLANDS ELECTRICITY AUTHORITY

High Court of Solomon Islands
(Kabui J)

Date of Hearing: 21st November 2000
Date of Ruling: 23rd November 2000

J Apaniai for the Plaintiff
A Nori for the Defendant

RULING

(KABUI J): The Plaintiff filed a Writ of Summons together with a Statement of Claim against the Defendant on 28 February 2000. The Plaintiff claims the sum of $16,323,058.51 plus interest at 14% per annum as being owing to it from the Defendant. This is very big money by Solomon Islands standard. Copies of the Writ of Summons and the Statement of Claim were served upon the General Manager of the Defendant on 28 February 2000. The Defendant entered a Memorandum of Appearance on 2 March 2000. A request for further and better particulars by the Defendant was filed on 6 March 2000. The Plaintiff then filed an Amended Statement of Claim on 17 March 2000. A copy of the Amended Statement of Claim was served on the Solicitor of the Defendant on that same day by leaving the copy thereof with the clerk employed by the Defendant’s solicitor. The Defendant then filed its Defence on 3 April 2000. The Plaintiff filed its response to the Defendant’s request for further and better particulars on 7 April 2000, and later filed its reply on 1 May 2000. An order for directions was made by the Registrar on 9 August 2000 and filed the same day. The Order was in the following terms –

1. Discovery by list within 14 days;

2. Inspection within 14 days thereafter;

3. Interrogatories, if any, to be served and filed in Court within 14 days of inspection and replies thereto to be filed and served 14 days thereafter;
   
4. The action be listed for trial before a Judge in Honiara upon filing of Certificate of Readiness together with:-
   

(a) the appropriate fee (if any);

(b) the Court Bundles referred to in Order 38, rule 3; and,

(c) a further Trial Bundle (to be amalgamated into the Court Bundle) containing copies of the following:-

(i) Witness Statement;

(ii) Summary of all the issues by all parties;

(iv) Authorities (if any) to be used by the parties;

(v) Agreed documents.

5. The Certificate of Readiness referred to in paragraph 4 shall be served on all parties to the action within 2 days of filing the same in Court.
   

7. Cost be in the cause.

The numbering of these directions seems to be defective as 7 should really be 6. In (c) above (iv) should become (iii) and (v) should be (iv).

The summons for Directions was served upon the Defendant on 9 August 2000. The Plaintiff by a Summons filed on 1^st November 2000 is asking the Court to strike out the Defendant’s Defence on the ground that the Defendant failed to make discovery of documents in accordance with the Order for directions above. The Plaintiff now says that since the order for directions was made, the Defendant has made no effort to comply with the terms of that order with the result that the Plaintiff’s Solicitor wrote a letter dated 20 October 2000 to the solicitor for the Defendant stating that omission on the part of the Defendant’s solicitor. In his response, the Defendant’s solicitor by letter dated 25 October 2000, informed the Plaintiff’s solicitor that he would comply with the order for directions by 27 October 2000. The Defendant’s solicitor had also on 25 October 2000 at the ANZ Bank in Honiara told the Plaintiff’s solicitor that he would file an application to add the Solomon Islands Government as the Second Defendant. By 31 October 2000, the Defendant’s solicitor still had not filed a list of documents. The Defendant’s solicitor had finally filed his client’s list of documents on 13 November 2000. By 27 October 2000, the Plaintiff’s only witness, Mr Houtatana, had resigned and gone home to Malaita.

The Plaintiff is now saying that the Defendant’s delay in filing its list of documents was inexcusable or contumelious and has prejudiced the Plaintiff’s position in that its only witness had gone to Malaita and would have to return to Honiara at the Plaintiff’s expense if the matter proceeds to trial. The Plaintiff is claiming Order 33, rule 21 of the High Court Rules as authority for requesting that the Defendant’s defence be struck out because of its inexcusable delay. Rule 21 states

“If any party fails to comply with any order to answer interrogatories, or for discovery or production or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the Court for an order to that effect, and an order may be made accordingly.”

As I pointed out in my recent ruling in Clara Rebitai –v- Francis Chow, R.E.G.s Ltd, Onaga Corporation Ltd and FC. Ltd (Civil Case No. 109/98), this Order and rule are a reminder to all legal practitioners that public policy demands that actions filed in Court must be actioned with reasonable speed. There is no room for delay in whatever form to the detriment of the other party. The Courts will act if the delay is inordinate and totally inexcusable or contumelious on the facts of the case. The power of the Court to do so is however, discretionary. At pages 370-71, Lord Denning M. R. in His Lordship’s judgment in Allen –v- Sir Alfred McAlpine & Sons [1968] 2 W.L.R 366 said,

“All through the years men have protested at the law’s delay and counted it as a grievous wrong, hard to bear. Shakespeare ranks it among the whips and scorns of time. Dickens tells how it exhausts finances, patience, courage, hope. To put right this wrong, we will in this court do all in our power to enforce expedition: and, if need be, we will struck out actions when there has been excessive delay. This is a stern measure. But it is within the inherent jurisdiction of the court. And the Rules of Court expressly permit it. It is the only effective sanction they contain. If a plaintiff fails within the specified time to deliver a statement of claim, or to take out a summons for directions, or to set down the action for trial, the defendant can apply for the action to be dismissed, see R.S.C. (Rev. 1965), Ord. 19, r. 1; Ord. 25, r. 1; Ord. 34, r. 2. It was argued before us that the court should never, on the first application, dismiss the action. Even if there was long delay, the court should always give the dilatory solicitor one more chance. The order should be that the action should be dismissed “unless” he takes the next step within a stated time.

Such has been the practice, it was said, for a great many years. It was confirmed by Sir George Jessel M.R., in Eaton v. Storer` and it should not be changed without prior notice. I cannot accept this suggestion. If there were such a practice, there would be no sanction whatever against delay. The plaintiff’s solicitor could put a case on one side as long as he pleased without fear of the consequences.

If you read Eaton v. Storerç carefully, you will see that the practice described by Sir George Jessel applies only to moderate delays to two or three months. It does not apply when “there is some special circumstance such as excessive delay.” The principle upon which we go is clear: When the delay is prolonged and inexcusable, and is such as to do grave injustice to one side or the other or to both, the court may in its discretion dismiss the action straightaway, leaving the plaintiff to his remedy against his own solicitor who has brought him to this plight. Whenever a solicitor, by his inexcusable delay, deprives a client of his cause of action, the client can claim damages against him; as, for instance, when a solicitor does not issue a writ in time, or serve it in time, or does not renew it properly. We have seen, I regret to say, several such cases lately. Not a few are legally aided. In all of them the solicitors have, I believe, been quick to compensate the suffering client; or at least their insurers have. So the wrong done by the delay has been remedied as much as can be. I hope this will always be done.

(1882) 22 Ch.D.91, 92.

ç[1882] UKLawRpCh 230; 22 Ch. D. 91. ”

In the above case before the Court of Appeal of which, Lord Denning MR was a member, there were three actions. The first was a claim for compensation by a certain widow for the death of her husband 9 years ago. The fault rested with the solicitors who due to pressure of work, put the case aside and did not proceed with it in good time. As a result of the delay, two witnesses could no longer be traced and a third party whose interest was also at stake was greatly prejudiced by the delay. The Court of Appeal dismissed the appeal and confirmed the lower Court’s order to strike out the Plaintiff’s claim. The second action concerned a nurse who complained of back ache after she had lifted a patient in her hospital. She had instructed a rogue solicitor whose office was being managed by a Clerk both of whom were later not allowed to practise by the Law Society. Through the help of the Law Society, the nurse was able to instruct another solicitor. The delay this time was the fault of the Defendant’s solicitor who never delivered their defence even after extension of time several times. The Defendant’s solicitor then asked the Court for the Plaintiff’s action to be dismissed for want of prosecution. Although it was 9 years since the accident happened to the nurse, the Court of Appeal allowed the appeal and ordered the Defendant to file its defence within 10 days after which the Plaintiff’s solicitor should take out a Summons for directions and set the case for trial. The Court of Appeal stressed that the delay would not have prejudiced the Defendant, being a hospital, whose records as evidence would still be intact unlike the nurse who had to rely upon her memory to recall everything about her accident 9 years ago. The third action concerned a man (the Plaintiff) who bought shares for £20,000 from another man (the Defendant) some 20 years ago. The Defendant subsequently died. The Plaintiff however sued the Defendant’s widow, the Defendant’s company and the Defendant’s Solicitors alleging fraud against the Defendant and negligence against the Defendant’s solicitors. The delay was inordinate on the part of the Plaintiff’s solicitors. It caused great injustice to the Defendants. The Court of Appeal dismissed the appeal and confirmed the lower Court’s decision to strike out the Plaintiff’s action on the ground of prolonged and inexcusable delay.

This case that I cite above was later cited and approved in Birkett –v- James [1977] 3 W.L.R 38 by the House of Lords. Lord Diplock at pages 46-7 and Lord Salmon at pages 56-7 in their Lordship’s respective judgements, gave approval to the remarks made by Lord Denning, M.R. in Allen –v- Sir Alfred McAlpine and Sons Ltd cited above. The only additional guideline agreed by the Law Lords is that where the delay by the Plaintiff where he has commenced his action by the first writ is still within the time limit prescribed by statute, and the Plaintiff in the meantime issues another writ a fresh for the same action, the Court would not normally exercise its discretion against the Plaintiff unless the facts of the case do present exceptional features. In the Australian jurisdiction, refinements have been developed following the decision in Birkettv James above.

There is another case but similar to the facts of this case before me. In Chipchase –v- Rosemond and Another [1965] 1 WLR 153, the Plaintiff issued a Writ claiming declarations regarding a right of way. The Statement of Claim was filed in July, 1962. The Defendant filed their defence and counter-claim on 14 November, 1962. On 9 July, 1963, the Plaintiff filed his reply and defence to the counter-claim. The Summons for directions were taken out on 16 January, 1964. No order for discovery and inspection of documents was made as those steps would be automatic under the new Rules of the Supreme Court being order 24, rule 2 (1) effective on 1^st January, 1964. The Plaintiff did not file any list of documents and so the Defendants by 9^th November 1964 applied by notice of motion to have the Plaintiff’s action struck out for want of prosecution. The Plaintiff finally filed his list of documents on 16 November, 1964. The Court did not dismiss the Plaintiff’s action but the delay was sufficient to put the Plaintiff on his terms as to the next step in the action. No order was made on the Defendant’s Motion. The matter of costs was stood over for further evidence.

In this case, the Defendant’s Counsel, Mr Nori, made no bones about admitting the delay in filing his list of documents within 14 days as directed by the Court order of 9 August 2000. He said he had no excuse but would resist the Plaintiff’s application on legal grounds. He argued that an order for direction was not a peremptory order. He argued that the order for directions in this case simply set down deadlines and did not stipulate penalties for non-compliance. The fact is that any order of this sort made by the court is a peremptory order in that such order comes to an end at the time prescribed in the order and if it is not varied by the Court on the request of the party in whose favour that order was made, that party bears the consequence of non-compliance (see Falk –v- Anthelm [1890] UKLawRpKQB 209; [1890] 24 Q.B.D. 174). There is therefore clear authority that an order for directions arising out of a summons for Directions is a peremptory order of the Court. As pointed out by Counsel for the Plaintiff, Mr Apaniai, Mr Nori filed no affidavit to explain the reasons for the delay. Also, Counsel for the plaintiff, Mr Apaniai, pointed out that Mr Nori also failed to apply for an extension of time and simply ignored the court order for directions. Mr Nori was 83 days out of time before he filed his list of documents on 13 November 2000. Mr Nori’s admission of fault from the bar table was ambigious in that he either meant that he was clearly in contempt of court or that he was simply dilatory in his attitude towards his client’s case. I do not know where the truth lies in the absence of affidavit evidence. Counsel for the Plaintiff, Mr Apaniai, had reminded Mr Nori’s obligation to file his list of documents or else the Defence entered by the Defendant would be struck out. By letter dated 25 October 2000, Mr Nori asked that he be given up to 27 October 2000 to file his list of documents. This, Mr Nori also failed to do. However, in terms of Order 33, rule 21 of the High Court Rules, the defaulting party shall be liable to attachment. The procedure in applications for attachment for contempt of court is a separate step under Order 61, rule 21 of the High Court Rules. Clearly, the Plaintiff does not wish to do this as no action has been commenced for attachment for contempt of Court in this case. I must therefore consider this application and decide it on the basis of want of prosecution as alleged by the Plaintiff. Even if I am wrong in taking this view, I find no evidence against the Defendant that it has committed intentional and contumelious conduct. This means that the Plaintiff must prove by evidence that the facts clearly point to the Defendant being guilty of inobstinate and inexcusable delay so as to entitle the Plaintiff to call for the Defendant’s defence to be struck out for that reason. In my view, this is not a case where I should exercise by discretion against the Defendant. The fact that the Plaintiff’s only witness had left Honiara and may have to be called back to Honiara as a witness if the case proceeds to trial does not in my view really prejudice the Plaintiff’s case. Certainly, it would cost the Plaintiff money to get the witness back to Honiara for the trial but such cost would be a cost in the cause. As I have said, Mr Nori was at fault but had finally complied by filing his list of documents on 13 November 2000. This is a half-way house situation where I find that the Defendant was in breach of a term of an order for directions but corrected his position though outside the prescribed time limit. Mr Nori had asked me to put the Defendant on term as to the next step to be taken and that cost of this application be home by his client, the Defendant. Taking the approach taken by Pennycuick, J. in Chipcase –v- Rosemond and Another cited above, I would make no order on the Plaintiff’s Motion but would order that the summons for directions be restored within 44 days with effect from 13 November 2000. The effect of this order is that inspection of documents began on 13 November 2000 and the rest of the steps would proceed from thereon in terms of the order for directions. The cost of this application will be borne by the Defendant.

(Kabui J)
Judge