Andrew v National Insurance [2001] SBHC 9; HC-CC 245 of 1997 (1 March 2001)

HIGH COURT OF SOLOMON ISLANDS Civil Case No: 245 of 1997

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NATIONAL INSURANCE & POTI WALE

High Court of SolIslands

Before: F. O. Kabui, J
Civil Case No: 245 of 1997

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Hearing: 27^th February, 2001
Judgment: 1st

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Mrs. M. Samuel for the Plaintiff
Mr. A. Radclyffe for the 1^st Defendant

p class="MsoNoMsoNormal" align="center" style="text-align: center; margin-left: 194.4pt; margin-right: 201.6pt; margin-top: 1; m-bottom: 1"> JUDGMENT

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(Kabui, J): The 1 Defendant came to t to the Court on Monday 20^th November, 2000 by way of Summons filed that day seeking the following orders:-

1. that the Writ filed on 9^th October 1997 be struck out on the grounds that it has not been served on the First Defendant within 1 months of issue and discloses no cause of action against the First Defendant;

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2. alternatively that service, if effected, be set aside on the grounds that:

(a) the First Defendant being a limited company, is not correctly named and has not been validly served in accordance with the High Court Rules and the Companies Act;

(b) the writ and statement ofm disclose no cause of acti action against the First Defendant.

3. such further or other orders as thas the Court thinks fit.

The hearing of the 1^st Defendant’s Summons had been adjourned twice previously due to the Plaintiff not being able to contact his Solicitor. The hearing of the 1^st Defendant’s Summons took place before me on 27^th February, 2001.

The Facts

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The Plaintiff commenced his action by a Writ of Summons filed on >th October 1997 agai against National Insurance, the 1^st Defendant and Poti Wale, the 2^nd Defendant of White River, Honiara. The Plaintiff’s Statement of claim was also filed on that same day.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The Plaintiff aken no further action to prosecute his claim in Court since 9^th October ber 1997. This fact caused the 1st Defendant to come to Court to ask that the Plaintiff’s Writ of Summons be struck out on the grounds set out in the 1st Defendant’s Summons filed on 20^th November 2000.

The 1^st Defendant’s Summons

In the first place the 1^st Defendant sought to strike out the Plaintiff’s Writ of Summons on two grounds. First, the Writ of Summons had not been served within 12 months of its issue. Second, the Writ of Summons disclosed no cause of action against the 1^st Defendant. As to the first ground, Order 8, rule 1 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules) states –

“No original writ of summons shall be in force for more than twelve months from from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may, before the expiration of the twelve months, apply to the Court for leave to renew the writ; ...”

In this case, the service of Wf Summons upon the 1^st Defendant is in dispute. ute. Whilst the 1^st Defendant denied being served with the Writ of Summons, the Plaintiff’s Solicitor said the Writ of Summons had been served upon the 1^st Defendant. The rules governing service are set out in Order 9, rule 14 of the High Court Rules. Rule 14 states -

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“(1) Service of a notice, summons, order or other dher document, shall wherever it is practicable, be effected personally on the person to be served and service thereof shall be completely effected by the delivery of a duplicate or attested copy of any such notice, summons, order or document without the exhibition of any original:

Provthat where service as aforesaid cannot be effected thed the provisions of Rule 2 of this Order as to substituted service shall, mutatis mutant is, apply.

(2) Service on the advocate cate or recognised agent of the person to be served shall be deemed to be effective service on such person.”

The application of these rules wercussed in Leslie Allison v Monique Medlin by the Coue Court of Appeal (Civil Appeal No. 7 of 1996). I also quoted these rules and cited Leslie Allinson v Monique Medlin in Allan Qurusu v Manaseh Sogavare (Civil Case No. 190 of 1999). These rules should now be known by lawyers inside out. They are basic rules of practice. In this case, the evidence of service was by affidavit filed by the Plaintiff’s Solicitor and Counsel on 27th February 2001. The relevant paragraphs are these –

“1.............…............ 2. ............................

3. I could remember that the then Office Clerk, one Francis Loea Loea had served the Summons in these proceedings on the First Defendant at their Anthony Saru Building in Honiara. I could not now recall the date service was done.

4. I could also remember that an AffidAffidavit of Service was prepared but was not filed in Court.

las class="MsoNormal" style="text-indent: .55pt; line-height: 13.2pt; margin-left: 35.45pt; margin-top: 1; margin-bottom: 1"> 5. We have tried to locate the wherewhereabouts of the said Francis Loea but have not been successful to date.

6. If we were able to to locate him then he would be in a position to confirm the position as stated above.”

Apart from these paragr there is no evidence of service in this case. The Office Clerk, Mr. Loea, has has not filed a Certificate of Service as proof of service. There is no record of any Certificate of Service in the Court File. This confirms the fact that no affidavit of service has ever been filed in the High Court. This fact leads me to conclude that the Plaintiff’s Writ of Summons has never been served upon the 1^st Defendant up to date. It has not been done for a period of over 3 years since the Writ was filed in the High Court. In terms of Order 8, rule 1 of the High Court Rules cited above, the Plaintiff’s Writ of Summons has now become stale and is no longer in force. Whilst a stale Writ is not a nullity, it is irregular and does entitle the Defendant to argue that the Writ should not be renewed. The matter of renewal of a stale Writ is another and separate matter to be taken up by the Plaintiff if he so wishes. Its renewal would of course not be automatic but may be granted depending upon the facts of the case. As to the second ground, I must look at the Plaintiff’s Writ of Summons to decide it. As I have said, the Plaintiff’s Writ of Summons was filed on 9^th October 1997.

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I do not think the Writ of Summons was defective in any way at all. The Statement of claim was attached to the Writ of Summons and filed on the same day. This is unlike the case of Pontin v Wood [1962] 1 WLR 258 where the Plaintiff issued a Writ indorsed with the words “the plaintiffs’ claim is for damages for personal injuries” by reason of which the Writ was defective. The proper Statement of Claim was filed about 3 months later which correctly stated the cause of action. The Defendant took out a Summons to set aside the Writ and its service etc on the ground that the Writ disclosed no cause of action. The Court of Appeal held that though the Writ was defective, it was not a nullity because its defect was subsequently corrected by a proper Statement of Claim. This is not the case here.

In this case, the Statement of Claim in this case is as follows -

2. The First Defendant is thurer and the Second span>

Defendant is the driver of vehicle registration number 5775.

3. On the 9^th Octo1991 the Plaintiff was trav travelling along the Kola’a Ridge road when he was hit by vehicle registration number 5775. He sustained injuries as a result.

lass="MsoNoMsoNormal" style="text-indent: .55pt; margin-left: 35.45pt; margin-top: 1; margin-bottom: 1"> 4. It is alleged that the nd defendant was negligent gent whereby causing the accident in which the Plaintiff had sustained the injuries.

5. The Second Defendant was negligent in that: -

(i) He had driven the vehicle at highd.

(ii) He had failed to exercise due care tor road users.

(iii) He had f to take extra care ware when approaching a bend on the road.

6. Upon the claim for negligence, nce, the Plaintiff seeks an order for damages, interest and costs.”

In my view, there is a cause of action disclosed. The cause of action clearly lienegligence. I do not think the Plaintiff’s Writ of Summons can be struck out on this basis of there being no cause of action. A Writ can only be set aside which discloses no cause of action if the indorsement shows that the action is an abuse of the Court process (See Pontin v Wood cited above). In this case, whilst the Writ of Summons and the Statement of Claim may lack procedural correctness, if any, the Writ itself is not a nullity because if it is so, there can be no cause of action. For example, in Marchioness of Huntly v Gaskell [1905] UKLawRpCh 122; [1905] 2 Ch 656, the Court struck out a Writ because it disclosed no cause of action. In that case, the Plaintiff had lost twice in the Courts in Scotland on the same issue and her attempt to invoke the jurisdiction of the Court of Chancery in England was an abuse of the Court process. The filing of the Writ was therefore an abuse of the Court process and therefore was struck out.

However, the point as set out in the 1^st Defendant’s Summons and argued by Counsel for the 1^st Defendant is that the Writ of Summons disclosed no cause of action against the 1^st Defendant as the third party insurer. Supporting this stand is the allegation by the 1^st Defendant that the insured were Dick Oli and Harold Mamatekwa and not Poti Wale. In other words, the Plaintiff should not have cited the National Insurance as the 1^st Defendant. In my view, this point is not fatal to the Plaintiffs case. The 1^st Defendant could have applied to the Court to strike out National Insurance as the 1^st Defendant at any time. This would be the appropriate remedy than attacking the validity of the Plaintiff’s Writ of Summons.

It would be misleadin allege that there is no cause of action because to do so would also have the ef effect of absolving the 2^nd Defendant from liability. Extrication process by Summons is the appropriate method of remedy for the 1^st Defendant in this case. I do not now need to consider the 1^st Defendant’s alternative relief of setting aside service on the ground set out in the 1^st Defendant’s Summons. I have already found in favour of the 1^st Defendant on this matter. The correct treatment of these sort of cases is stated by Holroyd Pearce L.J. in Pontin v Wood cited above at page 264 in these terms

“I accept as correct a passrom the notes to Order 3, rr. 2 and 3, in the erstwhile yeae yearly Practice of the Supreme Court (known as the Red Book): “A writ cannot be set aside on the ground that the indorsement does not disclose a cause of action (Auster Ltd. v. London Motor Coach Works Ltd.[11]. But if the indorsement shows that the plaintiffs case is unfounded or that the action is an abuse of the process of the court it may be struck out and the action dismissed. It then quotes the Marchioness of Huntly’s case [12] and refers to Order 25, r. 4: “If the indorsement on a writ is irregular or informal the defendant may apply to set aside the service of the writ ... but not to set aside the writ itself. ...

[11] (1914) 112 L.T.99;31 L.R. 26 CA.<

[12] [1905] 2 ch. 656.”

las class="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Applying the principles in the above passage to this case, I can see no reason for me to set aside or strike out the Plaintiff’s Writ of Summons. The Plaintiff's Claim in negligence may be a genuine one and must not be defeated by reasons of technicalities. I would refuse to set aside or strike out the Plaintiff’s Writ of Summons as sought by the 1^st Defendant. The 1^st Defendants’ Application is therefore refused. I would however rule that the Plaintiff's Writ of Summons has now become stale and is no longer in force.

This case is a sad one. The ntiff had put his case in the hands of his Solicitor for acor action. His Solicitor acted by filing a Writ of Summons and a Statement of Claim on 10^th October 1997. It is more than 3 years ago. The Plaintiff’s Writ and Statement of Claim were never served upon the 1^st and 2^nd Defendants. The 1^st and 2^nd Defendants never knew that the Plaintiff had sued them for damages on the ground of negligence. Who was at fault? I do not think the Plaintiff was at fault because he was not responsible for service of the Writ and the Statement of Claim. Nothing was done about this case for more than 3 years. No wonder the Plaintiff became frustrated and took up his frustration against Mr. Radclyffe in October 2000 who was acting for the 1^st Defendant in this case. It is unfortunate that this happened. But this incident left a clear message. The message was that the Plaintiff’s Solicitor had failed to effect service and so was not doing enough to prosecute the Plaintiff’s claim within a reasonable time. I reach no conclusion here but certainly something was amiss between the Plaintiff and his Solicitor. In this regard, I would like to echo part of the remarks of Lord Denning, M.R. in Allen v Sir Alfred McAlpine & Sons [1968] 2 WLR 366 at 370 - 71 cited in my ruling in Solomon Islands National Provident Fund v Solomon Islands Electricity Authority (Civil Case No. 55/2000). The relevant part is this

... “Whenever a Soli, by his inexcusable delay, deprives a client of his cause ause of action, the client can claim damages against him; as, for instance, when a Solicitor does not issue a Writ in time, or serve 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.”

This is the risk that Solicitors muard themselves against in the course of their practice.

As to this case, the omission to serve the 1^{st nd} Defendants ints in time by the Plaintiffs Solicitor in 1997 is the cause of the delay in the Plaintiff’s case. The 1^st Defendant, its Solicitor, Mr. Radclyffe and the 2^nd Defendant played no role in the delay in the Plaintiff’s case. They are innocent of any wrong doing. I have considered the matter of cost in this case. I feel that the Plaintiff should pay the cost of this Application but recognising also that this Application arose because the Plaintiff’s Solicitor had failed to serve the Writ of Summons and never attempted to correct this error until the 1^st Defendant’s Solicitor spotted it more than 3 years later and came to Court to challenge the Writ of Summons. How the 1^st Defendant came to know about the existence of the Writ and so instructed its Solicitor, Mr. Radclyffe, to enter conditional appearance on 19^th October 2000 remains a mystery. It may be that the 1^st Defendant had in fact received service of the Writ although to say so would be nothing more than speculation. Or, it may be that the Plaintiff had been making inquiry of the 1^st Defendant privately as to the payment of his claim. To do so, the Plaintiff must have been told by someone that the 1^st Defendant was responsible for his claim and should pay. All in all, the fault would seem to lie in the failure of the Plaintiff’s Solicitor to properly serve the Writ of Summons in time. I can understand why the 1^st Defendant choose to come to Court. The Plaintiff had tried to obtain payment from the 1^st Defendant outside of the Court process by being aggressive towards the 1^st Defendant’s Solicitor, Mr. Radclyffe. The only way to bring an end to this matter was for the 1^st Defendant to come to Court and challenge the validity of the Plaintiff’s Writ of Summons so that the 1^st Defendant would no longer be troubled by the Plaintiff’s claim for damages. The 1^st Defendant was forced to come to Court because of the behaviour of the Plaintiff caused by his frustration over the delay of his claim which in turn had been caused by his own Solicitor’s delay. I feel that the cost of this application should be paid by the Plaintiff or his Solicitor. For this reason, I would like to put to the Plaintiff’s Solicitor to show cause why Order 65, rule 8 of the High Court (Civil Procedure) Rules 1964 should not be applied to her in this case. That is to say, why I should not disallow cost between herself and her client and why she should not reimburse the Plaintiff's cost in meeting the 1^st Defendant’s cost.

F. O. Kabuin>

Judge