R & R Engineering Limited v The Ship Sri Ganga I and the Ship Sri Ganga II [2003] SBHC 101; HC-CC 043 of 1997 (9 May 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 43 of 1997

R & R ENGINEERING LTD

V.

THE SHIP “SRI GANGA I” AND THE SHIP “SRI GANGA II”

High Court of Solomon Islands
(Palmer J.)

Hearing: 22^nd April 2003
Judgment: 9^th May 2003

A. Radclyffe for the Applicant/Defendants
B. Upwe for the Respondents/Plaintiffs

PALMER J.: This is an application of the Defendants by Summons filed 8^th April 2003 for inter alia the Plaintiff’s claim to be struck out for want of prosecution. Apart from a notice of change of advocate filed 22^nd May 2002 and a notice of intention to proceed filed 26^th March 2003 the Plaintiffs and its solicitors have taken no steps to prosecute this action since the Plaintiff’s affidavit of documents was filed on 15^th March 1999, a period of over 4 years. No application has been made to set the matter down for trial.

The Plaintiffs on the other hand submit that the matter should be allowed to proceed despite the four years delay. They rely on the affidavit of Barnabus Upwe filed 22^nd April 2003.

Mr. Radclyffe, Counsel for the Defendants rely on (a) the inherent jurisdiction of the Court and (b) Order 38 rule 2(2) of the High Court (Civil Procedure) Rules 1964 (“the Rules”) for orders to have the Plaintiff’s claim struck out where it had failed to apply to set the case down for trial.

Order 38 rule 2(2) of the Rules reads:

“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.”

The principles upon which the discretion to dismiss for want of prosecution may be exercised had been considered by the House of Lords in Birkett v. James^[1] (“Birkett’s Case”), and approved and applied in this jurisdiction in Tang v. Lo (No. 1)^[2]. At pages 46 and 47 of Birkett’s Case, 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.”

Mr. Radclyffe submits that paragraph (2)(a) and (b) above of the principles enunciated by Lord Diplock apply to this case, that there had been inordinate and inexcusable delay and 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 that it will cause serious prejudice to the Defendants. Learned Counsel also cited in support South Pacific Marketing (N.Z) Ltd v. Daniele Maile^[3], which involved an appeal from an order of the Registrar of High Court striking out an action for want of prosecution, the Plaintiff having delayed for eight months to take out a summons for directions. One of the matters considered by Ward CJ related to the question where the limitation period had not expired by the time the application to dismiss for want of prosecution was heard. His Lordship held that in such circumstances, it was necessary for clear evidence to be shown of substantial risk that a fair trial was not possible or that serious prejudice might be caused to the defendants. In the absence of clear evidence, the case should not be struck out. Lord Diplock in Birkett v. Jones (supra) stated the position clearly as follows: “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 case however is distinguishable in that the limitation period had expired. The cause of action had accrued prior to 17^th February 1997, which was more than six years ago.

Has there been inordinate and inexcusable delay on the part of the plaintiff or his lawyers or is a delay of four years inordinate and inexcusable?

Mr. Upwe had deposed at paragraph 11 of his affidavit filed 22^nd April 2003, that a representative of the Plaintiff had collected the file of the Plaintiff from their firm (A & A Legal Service) on 27^th May 2002. It appears that Mr. Ashley perceived this action negatively and implying that the Plaintiff who had just recently instructed him sometime on or about 22^nd May 2002 was now only a couple of days later withdrawing its instructions from his firm. I do not think anyone should blame Mr. Ashley unnecessarily for taking such view. Such action, a fortiori where no explanation is provided, can cause confusion or misapprehension. Mr. Upwe adverted to this at paragraph 12 of his affidavit that some misunderstandings between Mr. Ashley and the Plaintiffs appear to have been engendered and accounting for the refusal of Mr. Ashley to respond to any correspondences from John M. O’Connor & Company (a law firm in Australia which appears to have been the new solicitor instructed by the Plaintiff) seeking to engage his services as agent in Solomon Islands. It was only well after some six months or so had lapsed before Mr. Solosaia also from A & A Legal Service, responded. The explanation gleaned from Mr. Solosaia’s response referred to some misunderstanding between the parties as to whether A & A Legal Service, that is Mr. Ashley, was still expected to act for the Plaintiffs.

Unfortunately I fail to find any satisfactory explanation in this exchange of correspondences accounting for the delay in taking further action in this case. The explanations are unsatisfactory and inexcusable and the cause for the delay must lie with both the Plaintiff and its Counsel.

Further, that delay only accounted for the period from 24^th May 2002 to 24^th March 2003. What happened from March 1999 to 24^th May 2002? Regrettably, no explanation has been given to account for that period of delay of three years. In the absence of any explanation, that can only be described as inordinate and inexcusable delay.

The second issue for consideration is whether there is a substantial risk that it is not possible to have a fair trial of the issues or that it is likely to cause serious prejudice to the Defendants or as between themselves and the Plaintiff or between each other or between them and a third party? Mr. Radclyffe relies in support on what was said by Ward CJ in South Pacific Marketing (N.Z.) Ltd v. Daniel Maile (supra) regarding delay:

“Delay always carries the risk of prejudice – witnesses may die or disappear and memories will fade making it more difficult or even impossible for the court to reach a fair conclusion. The delays that caused the judges in the English Courts to adopt a more stringent approach over the last decade and half were frequently exceedingly long and had been allowed to grow because of the problems of increasingly long civil cause lists. Such cases cannot and will not be acceptable as a measure of what would be considered reasonable in this jurisdiction where listing of all matters, both interlocutory and final, can be achieved promptly.”

To determine whether or not it is possible after four years of delay to have a fair trial of the issues and the likelihood of prejudice as against the defendants, it is pertinent that the Statement of Claim of the Plaintiff and the Defence and Counter-Claim of the Defendant are considered in some detail.

Plaintiff’s claim is based on a written contract for the construction of a tugboat (“Sri Ganga I”) and a barge (“Sri Ganga II”) (hereinafter referred to as “the Vessels”) and from which it is claimed monies were due (unpaid). The Plaintiff says it has not been paid in full and final satisfaction for those agreements. They also say that during the construction period, additional works were performed and additional equipment supplied but were not paid for; the total due as recorded in the invoices pleaded in the Statement of Claim came to $235,866.88.

In contrast, the Defendants aver in their Defence that they do not owe the Plaintiff any outstanding monies for construction work of the Vessels. They say they had paid the Plaintiff in full for the contract price for the Vessels as well as monies due for the additional works and supplies of equipment that had been requested by the Plaintiffs and accepted by them. They deny however the various additional work and additional supplies of equipment enumerated in the invoices and pleaded in the Statement of Claim of the Plaintiff. The Defendants also counter-claim for loss of use of the vessels due to failure to complete the vessels on the agreed dates, as well as claiming repayment of certain sums overcharged and hire charges for use of the barge by the Plaintiff.

The significance of the matters pleaded in the Statement of Claim and the Defence and Counter-Claim is that they do go to show to a certain extent the type of evidence that will be adduced at trial. These in turn can assist the court to reach the crucial decision whether there is a substantial risk that a fair trial may or may not be held and the likelihood of a serious prejudice occurring or not. It is obvious from the pleadings that much of the evidence that will be relied on by the parties will be dependent on the ability of their witnesses’ recall of past events, transactions and dealings, including requests for work, by whom, when, how and what. Some evidence will be dependent on the availability of documents and witnesses recall of events in relation to them and in the case where documents are not available then it will be dependent on witnesses’ recall of past events.

The significance of all these is that the possibilities referred to by Ward CJ in South Pacific Marketing (N.Z.) Ltd v. Daniel Maile (supra), that is that “Delay always carries the risk of prejudice – witnesses may die or disappear and memories will fade making it more difficult or even impossible for the court to reach a fair conclusion.” are a very real concern in this case. A delay of four years undoubtedly will not only be detrimental to the ability of the potential witnesses of the parties to recall past events, memories do fade over a period of time (a lapse of four years is quite significant), but that it must give rise to a real likelihood of serious prejudice to the parties, more so for the Defendants. The risk that it will not be possible after more than four years delay to have a fair trial is greatly enhanced in this case. In the circumstances, the inevitable orders this court is obliged to make is to grant the order sought in the summons of the Defendant filed 8^th April 2003 for the Plaintiff’s claim to be struck out for want of prosecution.

Orders of the Court:

1. Strike out claim of the Plaintiff for want of prosecution.
   
2. The sum of $190,000-00 plus interest held in the National Bank of Solomon Islands Limited trust account pursuant to the consent order dated 4^th March 1997 to be released to the Defendants or their Solicitor.
   
3. The Plaintiff to pay the Defendant’s costs.
   

The Court.

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^[1] (1977) 3 WLR
^[2] (1982) SILR 41 at 47
^[3] (1987) SILR 81