IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.398 OF 1992

BETWEEN:

SURESH CHARAN
PLAINTIFF

AND

RUP NARAYAN AND
SHIU MATI
1ST DEFENDANT

HEMENDRA NAGIN AND
RAMESH PATEL
2ND DEFENDANT

SAFETY SECURITY
SERVICES LTD.
3RD DEFENDANT

Mr. S. Charan for the Plaintiff
Mr. H. Nagin for the Defendants

Date of Hearing: 2nd day of April, 1993
Date of Delivery of Ruling: 21st day of May, l993

REASONS FOR DECISION

The matter before me is an application by the First and Second Defendants to have the Plaintiffs statement of claim in Civil Action 398 of 1992 struck out pursuant to Order l8 Rule l8(1)(a) of the High Court Rules l988, as disclosing no reasonable cause of action against them.

The Second Defendants are the solicitors acting for the First Defendants and this application is brought on behalf of themselves and the First Defendants. The position of the Third Defendant is irrelevant to this application as the Plaintiff has entered judgement in default of appearance against that Defendant.

The facts of this matter are briefly as follows. The Plaintiff was the tenant of the First Defendants occupying rented premises at 145 Nailuva Road, Suva. On the 24th of April, l992 in Civil Action 32 of l992 the First Defendants obtained an order for possession of those premises pursuant to Section 169 of the Land Transfer Act Cap 131 from Mr. Justice Scott in the High Court at Suva.

At the hearing of that matter the Plaintiff argued inter-alia, that he was a protected tenant under the provisions of the Fair Rents Act Cap 269, and that he could not be evicted pursuant to Section 169 proceedings. Mr. Justice Scott held, that on the evidence adduced by the Plaintiff in that regard he had not established that he was a protected tenant under the Fair Rents Act, and accordingly gave judgement for possession to the First Defendants.

The Plaintiff has appealed against that decision and the appeal is yet to be heard. On the 2nd of July l992 the Plaintiff was granted a stay of execution of the order for possession pending the hearing of the appeal by Sir Moti Tikaram, RJA. The stay was operative upon a number of conditions being fulfilled by the Plaintiff. One of the conditions was that the Plaintiff pay the sum of $650.00 for rent and mesne profits to July l992 to the First Defendants through their solicitors (the Second Defendants) within two days of the 2nd of July l992. The Plaintiff did not fulfil that condition, and on the 7th of July l992 the First Defendants instructed the Third Defendant, a firm of Bailiffs, to evict the Plaintiff from the premises at the Nailuva Road pursuant to the Order for possession granted by Mr. Justice Scott. The First Defendants did not obtain a writ of possession, nevertheless the Third Defendant evicted the Plaintiff and his family from the premises on the 7th of July l992. After the Plaintiff was evicted the First Defendants demolished the dwelling in accordance with a previously reached agreement with the Suva City Council. 

On the 2nd of September, l992 the Plaintiff filed and served the writ and statement of claim in this action. On the 15th of September, l992 the First and Second Defendants acknowledged service of the writ and advised of their intention to defend the action. On the 29th of September, l992 the First and Second Defendants filed the summons in this application and served it on the Plaintiff on the 8th of October, l992. The First and Second Defendants have not yet filed their defences to the Plaintiff's writ and await the outcome of this application before proceeding further.

For the purpose of this application both the Plaintiff and the First and Second Defendants filed written submissions.

Before proceeding to deal with the Plaintiff's statement of claim I will address as a preliminary point, a submission by the Plaintiff that the First and Second Defendants have adopted an inappropriate course by this application, and that the question of whether the statement of claim discloses a reasonable cause of action should have been set down for determination as a preliminary issue under Order 33 Rule 3 of the High Court Rules after the Defendants had filed their respective defences.

I do not agree with this submission. Where a Defendant challenges a statement of claim under Order l8 it is quite proper that the application be made before serving a defence. See ATT-GEN OF DUCHY OF LANCASTER V L & N.W. RY (1892 3 Ch 274.)

The whole thrust of Order l8(1)(a) is to relieve a party from having to plead to a statement of claim which discloses no reasonable cause of action. A party should not be forced to plead prior to a determination being made as to whether in fact it should so plead, see SMITH V CROFT NO.2 (1988) 8 Ch 114.

The Plaintiff's statement of claim sets out the following- (I set the statement of claim out in full):-

1. That on 15th day of September, l984 the First Defendants rented out one bedroom house with sitting room and kitchen and washroom situated on the same compound as theirs at l45 Nailuva Road, Suva to the Plaintiff at a rental of $65 per month.

2. That after living on the said premises for 7 years on or about August, 1991 the First Defendants proceeded to evict the Plaintiff by harassment and which eviction was resisted by the Plaintiff.

3. That the Plaintiff instituted civil action against the Defendant Rup Narayan for harassment and the contents of the Civil Action l638/9l of the Magistrate's Court is reiterated as if there were set forth herein. The Plaintiff further obtained injunction against the said Defendant Rup Narayan restraining him from entering within 4 metres from the walls of the said premises.

4. That subsequently the First Defendants applied to dissolve the said injunction against the Defendant Rup Narayan but the application was dismissed on 3rd February, l992 by the Magistrate Mr. D. Pathik and who further extended the injunction until trial. The said injunction has not been dissolved to this date.

5. That the First Defendants then proceeded to evict the Plaintiff under l69 proceedings and the Plaintiffs herein reiterate to the contents of the civil action number 32 of l992 as if there were set forth herein.

6. That while the aforesaid l69 proceedings were pending the First Defendants applied to the Suva City Council for assessment of rent under the Fair Rents Act. The statutory valuation of the said premises was $10,275 for which no order for possession could be made except under the section l9 of the Fair Rents Act.

7. That subsequent to the decision of Scott J. dated 24.4.92 for vacant possession under the section l69 of the Land Transfer Act the Plaintiff appealed to the Court of Appeal and obtained an order for stay of the execution of the judgment of Scott J.

8. That neither the decision of the Resident Judge of the Court, Sir Moti Tikaram dated 2.7.92 granting the order for stay of the execution was sealed or entered nor the leave or writ of possession was obtained by any of the Defendants to enforce the eviction against the Plaintiff.

9. That the Defendants Rup Narayan and Shiu Mati, without first had obtained the aforesaid writ of possession, having aware of the pending appeal against the said decision of Scott J. and fully aware of fact that the Plaintiff was a protected tenant under the Fair Rents Act for which no order for possession could have been made under l69 proceedings, instructed the Second Defendants, a firm of solicitors to hire the services of the Third Defendant to evict the Plaintiff from the said premises by force.

10. That the Second Defendants, being officers of the court and contrary to the provisions of the law for eviction in collaboration with the First Defendants, instructed and/or caused the Third Defendant to evict the Plaintiff and his family from the said premises, without first had obtained writ of possession from any court and while the stay of the execution of the judgment granted by the Resident Judge of Appeal Court on 2.7.92 was in force.

11. That on 7th day of July, l992 at about l300 hours the Third Respondents, without having any right or permission to enter and/or having any perception from the Sheriff of Fiji to enforce the eviction, trespassed into the compound in possession of the Plaintiff, broke opened the doors of the said premises and entered the said premises terrifying the Plaintiff's wife and daughter, unlawfully caused the eviction of the Plaintiff removing most of the goods and chattels of the Plaintiff and his family, dumping them on the roadside of the Nailuva Road.

12. That the servants of the Third Defendant threatened the Plaintiff, his daughter and wife and forced them out of the premises after removing the roofing irons from the said premises with the help of the First Defendants and their agents and thereafter locked the front gate preventing the Plaintiff to enter.

13. That all of the Defendants were personally fore-warned by the Plaintiff of the requirements and the provisions for eviction in the absence of order from the court to enforce eviction and moreover in the face of the orders of the courts in force against the First Defendants but despite the warning the Defendants proceeded unlawfully to evict the Plaintiff by force.

14. That as the result of the unlawful eviction the Plaintiff were caused to incur expenses of $2296.92 (two thousand, two hundred and ninety six dollars and ninety two cents) for temporary hotel and apartment accommodation for himself and his family between 7th July and 10th of August, l992.

15. That in addition to the aforesaid expenses the Plaintiff had to pay $900 advance rent for the months of August and September, 1992 for which the Plaintiff was caused to pay difference of $385 per month ($450 less $65 - rent payable before eviction) totalling to $770 and as the result of the said unlawful eviction the Plaintiff is forced to pay $385 per month thereafter.

16. That in addition to rent the Plaintiff had to pay charges for removal of goods and chattels and cartage from the roadside of the Nailuva Road for storage and then to their present premises totalling to $200 (including labour) and storage charges from 7.7.92 to 10.8.92 totalling to $60.

17. That in addition to aforesaid damages the Plaintiff and his family have suffered damages to their goods and chattels. The Defendants are still holding part of the plaintiff's goods and chattels besides the plaintiff and his family has suffered humiliation, hardship, pain and anxiety, and continue to suffer the same.

18. That the Defendants actions in evicting the Plaintiff and his family, knowingly that the Plaintiff was a protected tenant under the Fair Rents Act Cap 269 for which reasons no order for possession could have been made, are malicious, forcible and arbitrary for which the Plaintiff claims damages against all of the Defendants.

19. That the Defendants' forcible entry into the compound and into the premises in possession of the Plaintiff constituted trespass to land and chattels for which the Plaintiff claims damages for trespass.

20. Wherefore the Plaintiff seek from this Honourable Court orders for declaration and award of damages against all of the Defendants as follows:-

(1) A declaration that the Defendants forcible entry into the compound and into the said premises and their subsequent eviction of the Plaintiff and his family from the said premises without first had obtained writ of possession or perception from the Sheriff of Fiji were unlawful and illegal, malicious, exemplary and trespass constituting damages;

(2) Liquidated damages of $2296.92 for temporary accommodation.

(3) Liquidated damages of $770 being the difference of rents paid.

(4) Liquidated damages of $385 per month thereafter until full damages are assessed in lieu of the premises taken.

(5) Liquidated damages of $200 for labour and cartage of goods and chattels;

(6) Liquidated damages of $60 for storage of goods and chattels;

(7) Damages for trespass to the land and to the goods and chattels;

(8) Damages for damages to the goods and chattels;

(9) Order for the return of the goods and chattels retained or their current market value in lieu of the said goods;

(l0) Exemplary damages;

(11) Damages for accumulated pain and sufferings of the Plaintiff his family;

(12) Interests;

(13) Costs.

It should be noted that the Plaintiff is a litigant in person and not a trained lawyer. I have found his pleadings to be somewhat obtuse and imprecise but this is to be expected from one who is not learned or experienced in the art of drafting pleadings. In the statement of claim the Plaintiff seeks a declaration and certain damages arising out of his eviction from the rented premises at 145 Nailuva Road Suva. The Plaintiff alleges that he is entitled to the declaration sought, and that the First and Second Defendants are liable to him in damages as the eviction pursuant to the Order of Mr. Justice Scott under Section l69 of the Land Transfer Act was both unlawful and a trespass on two grounds. Firstly, the Plaintiff alleges that the eviction was an unlawful trespass because he was a protected tenant under provisions of the Fair Rents Act, and thus not subject to eviction under Section l69 of the Land Transfer Act. Secondly, the Plaintiff alleges that the eviction was not founded on a writ of possession, and thus it was an unlawful trespass on the part of the First and Second Defendants. Also, the Plaintiff alleges malice on the part of the First and Second Defendants in this regard.

Paragraphs 9, 10, 11, 12, 13, 18, and 19 would appear to set out the Plaintiff's alleged cause of action. Do these paragraphs and the rest of the statement of claim disclose a reasonable cause of action against the First and Second Defendants?

In relation to the first ground alleged by the Plaintiff, that his eviction was an unlawful trespass because he was a protected tenant under the Fair Rents Act and could not be evicted pursuant to proceedings under Section l69 of the Land Transfer Act, the Plaintiff refers to this in paragraphs 6, 7, 9 and l8 of the statement of claim. I have read the Judgement of Mr. Justice Scott in Civil Action 32 of 1992. That Judgement was handed down some four and a half months before the Plaintiff instituted this action. In that Judgement Mr. Justice Scott held inter-alia, that on the evidence before him the Plaintiff was not a protected tenant under the provisions of the Fair Rents Act and thus not entitled to the protection afforded by that act. Accordingly, his Lordship made the order for possession against the Plaintiff in favour of the First Defendants. As mentioned previously the Plaintiff appealed against that decision and applied for a stay of proceedings pending the hearing of the appeal. The Plaintiff did not comply with a condition of the stay order and the First Defendant evicted the Plaintiff pursuant the Order for Possession.

The Plaintiff's appeal in this regard is yet to be heard. Thus, at this stage there has been a final determination by the High Court that the Plaintiff was not a protected tenant under the Fair Rents Act, with regard to the tenancy and premises which is the subject of this action. Until that decision is overturned by the Court of Appeal that issue has been finally determined and is therefore Res Judicata. It cannot be raised again between the same parties by way of this action. The Plaintiff cannot institute new proceedings and plead the same issue already adjudicated on by this court in former proceedings. The Plaintiff can only pursue that issue further in the Court of Appeal. He cannot commence a new action in the High Court pleading the same issue which has already been determined by the High Court. In this regard the Plaintiff's statement of claim does not disclose a reasonable cause of action against the First and Second Defendants.

I turn now to consider the second ground alleged by the Plaintiff to raise a cause of action against the First and Second Defendants. In his statement of claim the Plaintiff alleges that his eviction by the First and Third Defendant from the premises at Nailuva Road, without a writ of possession was an unlawful trespass in that it was not authorised in law and that the First and Second Defendants were liable for the alleged damages resulting from that unlawful eviction and trespass, in that the instructions to the Third Defendant to evict the Plaintiff had emanated from them. The Plaintiff submitted that the First and Second Defendants owed him a duty of care to comply with the rules of court in that they were lawfully bound to obtain a writ of possession before he could be evicted, and that they were liable to him in negligence for damages arising from a breach in this regard. Further, he submitted that the Second Defendants status as officers of the court in Fiji also gave rise to a duty of care owed to him by them to act in accordance with the rules of Court, and that their instructions to the Third Defendant, and the eventual eviction by the Third Defendant acting on those instructions without a writ of possession amounted to a negligent breach of that duty for which the Second Defendants were also liable to him in damages.

Order 45 R. 2(1)(a) of the Rules of the High Court provides for the obtaining of a writ of possession to enforce an order for possession. In this case the Plaintiff was evicted without a writ of possession. Did the eviction of the Plaintiff under these circumstances amount to an unlawful trespass? I think not. Order 2 Rule 1(1) of the High Court Rules l988 states:-

"(l) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form of content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein."

The eviction of the Plaintiff was irregular but not unlawful. Under these circumstances it was not a trespass. Any damage done by the Third Defendant during the eviction of the Plaintiff and his possessions would be a matter to be determined as between the Plaintiff and that Defendant. Again, it is to be noted that the Plaintiff has already entered judgment against the Third Defendant in this regard. The Plaintiff's statement of claim neither pleads, nor establishes a cause of action against the First and Second Defendants for liability as the result of any excessive actions of the Third Defendant during the course of the eviction. 

The remedy available to the Plaintiff against the First and Second Defendants under these circumstances of irregularity was to be found in the Rules of the High Court, not by way of a tortious duty of care as alleged. That remedy was for the Plaintiff to apply to have the eviction set aside under sub-rule (2) of Order 2 Rule 1. Sub-rule (2) states:-

"(2) Subject to paragraph (3), the Court may, on the ground that there has been such a failure as is mentioned in paragraph (l), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit."

The Plaintiff however did not do that but instituted the writ action. 

Did the First and Second Defendants owe a duty of care to the Plaintiff to comply with the rules of court as to his eviction for which they could be liable to the Plaintiff in damages arising from any failure thereof? Before me the Plaintiff submitted that a litigant and its solicitor owed a duty of care to an opposing party in the litigation to comply with the rules of court in the conduct of that litigation, and, that any breach of that duty by one or both of them which caused injury to the opposing party gave rise to liability in damages in the party who was in breach.

The same question came before Scott J. in England in the Court of Queens Bench, Chancery Division in 1987 in BUSINESS COMPUTERS INTERNATIONAL LIMITED v THE REGISTRAR OF COMPANIES AND OTHERS (1987) 3 WLR 1134. In that case the Plaintiff company issued a statement of claim against the First Defendant and the Second Defendant, (one Alex Lawrie Factors Limited), alleging negligence in respect of the Second Defendants presenting a petition for the winding up of the Plaintiff Company and, mistakenly serving it at an address that was not the registered office of the Plaintiff Company. The result was that when the petition came on for hearing the Plaintiff company was unaware of the application and the winding up order was made in its absence. After having the winding up order set aside the Plaintiff Company then initiated a writ action alleging that the Second Defendant in presenting the winding up petition owed a duty of care to the Plaintiff company to take reasonable steps to ensure that the registered address of the Plaintiff company was correctly stated, that the matters alleged in the petition could be conscientiously verified and that the petition was properly served on the Plaintiff company at its registered office. The Plaintiff company claimed damages in respect of loss and damage to itself as a result of the breach by the Defendants of that duty. The Second Defendant applied to have the statement of claim struck out against it as disclosing no reasonable cause of action. That application was successful. The court struck out the Plaintiff's statement of claim against the Second Defendant and held that no duty of care was owed by one litigant to another as to the manner in which the litigation was conducted whether in regard to the service of process or in regard to any other step in the proceedings between the parties. At p.1142 Scott J said:-

"Is it just and reasonable that a plaintiff should owe a duty of care to a defendant in regard to service of the originating process? I do not think that it is. The plaintiff and the defendant, the petitioner and the respondent, are antagonists. The plaintiff, or the petitioner, is seeking a legal remedy in an adversarial system. The system stipulates the rules and requirements that must be observed by the two parties. The plaintiff must issue his process and must serve it on the defendant. If there is default in service the process may be struck out. If an order is obtained without the prescribed rules or regulations having been observed, the order may be discharged or set aside, sometimes by an application at first instance, sometimes on appeal. The prosecution of the action or of the petition is subject throughout its career from institution to final judgment to judicial control. Service of process is a step, and usually an essential step, in the prosecution. It must usually be proved before an order can be obtained against an absent defendant. The proposition that a duty of care is owed by one litigant to another and can be superimposed on the checks and safeguards that the legal system itself provides is, to my mind, conceptually odd. The safeguards against ineffective service of process ought to be, and I think must be, found in the rules and procedures that govern litigation. The rules and procedures require that, save on ex parte applications, proof of service be shown before an order is made against an absent party. If the proof of service is false, be it through negligence or design, an order may be made that should not have been made. The injured party's remedy is to have the order set aside. An action for damages cannot be based on the falsity of the proof of service. Nor, in my judgment, can the adequacy of the efforts made to effect service be subjected to a tortious duty of care."

Further, at p.1143 his Lordship said when referring to dicta of Sir John Donaldson MR in ORCHARD V SOUTHERN ELECTRICITY BOARD (1987) QB 565:

"I take this passage from Sir John Donaldson M.R.'s judgment as supporting the view that I have endeavoured to express, namely, that control of litigation and of the various steps taken in prosecuting litigation lies in the court and the rules and procedures that govern litigation and cannot be sought via a tortious duty of care imposed on one party for the benefit of the other.

This view is not, in my opinion, undermined but is reinforced by the facts of the present case. Mr. Martineau has submitted forcefully that the plaintiff has been damnified, through no fault of its own, and that, on the plaintiff's pleaded case, the damage would not have happened had the second defendant exercised proper care in ascertaining the correct address of the plaintiff's registered office. All this I am prepared to accept. But the damage of which the plaintiff complains was caused by the legal process instituted by the second defendant and by the winding up order made by the court. Damage of this character is not, in my judgment, apt to be remediable in an action based on tortious negligence.

In my judgment, there is no duty of care owed by one litigant to another as to the manner in which the litigation is conducted, whether in regard to service of process or in regard to any other step in the proceedings. The safeguards against impropriety are to be found in the rules and procedure that control the litigation and not in tort. ....."

I agree with the Judgement of the Learned Judge and believe that the decision sets out good law which should be followed in Fiji. The findings in the Business Computers case as set out above are, I believe relevant and applicable to this case. The First Defendants did not accord with the rules of court in their litigation against the Plaintiff and obtain a writ of possession prior to evicting him. Such an omission was an irregularity giving rise to the Plaintiff's remedy being under the rules of the High Court, not by way of a tortious duty of care.

The Plaintiff cited a number of cases in support of his submission as to the First and Second Defendants liability in trespass for the wrongful and unlawful eviction. I have read the cases cited and find them of no assistance as they deal with the situation where the particular party and its solicitor acted either unlawfully or outside the scope of the judgment obtained. That is not the case here. The eviction was not unlawful but founded on a judgment of the High Court. The damage as alleged by the Plaintiff arose during the execution of legal process which was irregular, not unlawful. The remedy for the Plaintiff in those circumstances is provided for by the rules of court in that the Plaintiff could have had the eviction set aside. I am satisfied that neither the First nor the Second Defendants owed a duty of care to the Plaintiff to follow precisely the rules of Court in the process of enforcing the judgment for possession. The status of the Second Defendants as officers of the court does not create a duty of care in tort to an opposing party in litigation. That status gives rise to a duty in the Second Defendants to the courts of Fiji to act lawfully and to use their best professional endeavours in the practice of law. As officers of the court the Second Defendants are subject to the control of the Courts in this regard. Non compliance with the rules of court by solicitors in the conduct of litigation does not give rise to a breach of either the solicitors duty to the court as officers of the court, nor to a breach of a duty owed to the opposing party in the litigation. If the First Defendants do not owe a duty of care to the Plaintiff in the conduct of their litigation then such a duty of care could hardly be said to devolve upon the solicitors acting within the ambit of their instructions for and on behalf of the First Defendants. The fact that the Second Defendants as solicitors for the First Defendants omitted to follow certain procedural requirements as set out in the rules of court does not in my opinion give rise to a cause of action in favour of the Plaintiff against the Second Defendants. Again, the Plaintiff's remedy was to have the eviction set aside. In ROSS v CAUNTERS (1980) 1 CH 297 SIR ROBERT MEGARRY V.C., while holding that on the particular facts of that case a solicitor was liable to a third party where the instructions from the solicitors client were to specifically confer a benefit on the third party, distinguished such a case from the situation where the third party was an opposing litigant. At page 322 he said:

"..In broad terms, a solicitor's duty to his client is to do for him all that he properly can, with, of course, proper care and attention. Subject to giving due weight to the adverb "properly", that duty is a paramount duty. The solicitor owes no such duty to those who are not his clients. He is no guardian of their interests. What he does for his client may be hostile and injurious to their interests; and sometimes the greater the injuries the better he will have served his client...."

I am satisfied that the eviction of the Plaintiff without a writ of possession was not unlawful, nor was it a trespass. I am also satisfied that neither the First nor the Second Defendants owed a duty of care to the Plaintiff to accord with the procedural requirements of the rules of court in the conduct of the litigation between them. Accordingly, the Plaintiff's statement of claim in this regard does not disclose a reasonable cause of action against the First and Second Defendants.

I turn now to consider briefly the allegation of malice as alleged by the Plaintiff against the First and Second Defendants. This allegation is contained in paragraph l8 of the statement of claim. The Plaintiff makes only a bare assertion of malice without setting out any particulars. From reading the statement of claim it would appear that the Plaintiff's assertion of malice is based on the alleged unlawfulness and trespass of his eviction and the damages resulting therefrom. Given that I am of the opinion that the statement of claim as it stands does not disclose a cause of action against the First and Second Defendants on those grounds, I am also satisfied that the allegation of malice by the Plaintiff against the First and Second Defendants does not of itself disclose or establish a cause of action against them.

For the reasons set out herein I am not satisfied that the Plaintiff's statement of claim as pleaded in Civil Action 398 of 1992 has established a reasonable cause of action against either the First or Second Defendants.

I thus order that the statement of claim in Civil Action 398 of 1992 against the First and Second Defendants be struck out and that the Plaintiff pay the First and Second Defendants costs in this regard to be taxed if not agreed.

DAVID E. ASHTON-LEWIS
JUDGE

21st May, 1993
At Suva
HBC0398D.92S