Orion Ltd v Kalena Timber Company Ltd [2013] SBHC 29; HCSI-CC 217 & 306 of 2010 (28 March 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 217 and 306 of 2010

BETWEEN:

ORION LIMITED
First Claimant

AND:

ALBERT LEQERE AND YALUREVO
Second Claimant

AND:

KALENA TIMBER COMPANY LIMITED
Defendant

Date of Hearing : 20 February 2013
Date of Ruling : 28 March 2013

RULING

[1] This is an application to show cause why the claim in Civil Case No. 217 of 2010 should not be struck out for failing to comply with the Directions Order of the court filed on 2 November 2012.

[2] The Directions Order relevantly states:

"It is hereby Ordered and Directed as follows:

(1) The parties to file agreed facts and issues by 16 November 2012.
(2) The parties to file by 23 November 2012:

• (a) An index of Agreed Documents including pleadings; and
• (b) An index of not Agreed Documents including sworn statements.
  

(3) Parties to file lists of witnesses and their sworn statements to be produced as evidence by 30 November 2012.
(4) Parties to file, if any, list of witnesses who have not made any sworn statements but whose evidence a party intends to rely on and copies of their proofs of evidence by 30 November 2012.
(5) Trial books of Agreed Documents and not Agreed Documents to be filed by 7 December 2012.
(6) Notice to cross examine witnesses on their statements in respect of Orders 3 and 4 filed by 14 December 2012.
(7) Costs in the Cause.
(8) Liberty to apply on 3 days' notice.
(9) Matter be adjourned for mention on 6 December 2012.

[3] This Directions Order was a consent order by the Solicitors for the parties in the claim. Although it was signed by the Solicitors and the court, it was undated. It may seem therefore it was never perfected. It is clear from paragraphs (1) to (6) of the order that both the Claimants and the Defendant are required to comply with the Order and not merely the Claimants.

[4] Counsel for the Claimants has filed a sworn statement in which he gave reasons why he did not comply with the order. The most important of them was that he was ill with gout arthritis, which caused him to rest in bed. As a consequence he wrote to his friend, who represents the Defendant to produce a draft order to be considered by them. There was no response from the Defence.

[5] The court has considered the sworn statement of the Claimants, and heard submissions from Counsels. I am satisfied that both Counsels were required to comply with the order, and should have cooperated with each to comply with it.

[6] The noncompliance with the directions order was a matter which Counsels were responsible. It does not seem right that the Claimants should be penalized by striking out their claim.

[7] In the circumstances, Counsel for the Claimant has satisfied the court that the claim should not be struck out. Order accordingly.

THE COURT