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Pacoil Fiji Ltd v Attorney-General of Fiji [1997] FJHC 228; Hbc0496o.92s (2 September 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 496 OF 1992

Between:

PACOIL FIJI LIMITED
Plaintiff

and

1. ATTORNEY GENERAL OF FIJI and
MINISTER FOR JUSTICE

2. FIJI TRADE AND INVESTMENT BOARD
Defendants

Mr. G.P. Shankar for Plaintiff
Mr. D. Singh for Defendants

ORDER
(Assessment of Damages - Order for Interim Payment)

This is the Plaintiff's application by Summons for an order for interim payment of four and a half million dollars or such other sum as the Court may Order.

The Plaintiff had through its Director ROHIT RAM LATCHAN filed an Affidavit on 1 August 1997 in support of the Summons followed by an affidavit filed 5 August 1997 by MR. DANIEL SINGH (State Solicitor) opposing the application.

The background to the case is set out in LATCHAN'S affidavit. After trial judgment was entered against the defendants with damages to be assessed and costs. The defendants' appeal to Fiji Court of Appeal being Civ. App. No. ABU014 of 1996 was dismissed on 29 November 1996 but the Plaintiff's cross-appeal was allowed.

As a result that left standing the said judgment in favour of the Plaintiff "for damages to be assessed for negligence in giving assurances to the company about the provision of tariff or equivalent protection for its business" (F.C.A. Judgment p.1 supra).

The hearing of assessment of damages was to take place on 27th and 28th days of February 1997 but it was adjourned to allow Mr. Singh for the Defendants to apply to the President of Fiji Court of Appeal to appeal out of time. The learned President ruled and stated, inter alia, "...In these circumstances, I see no reason why the Respondent (Plaintiff) should be denied the fruits of its success."

Further on 15 May 1997 the Fiji Court of Appeal dismissed the defendant's application for stay as well as leave to appeal to Supreme Court.

It is the Plaintiff's contention that the cause of delay in having the assessment done is by the defendants. It says that even on 31 July 1997 the day of hearing Mr. Singh sought an adjournment as he intended to get a "witness from overseas".

The Plaintiff says that the longer it takes to complete the assessment it is suffering loss and damages. It has submitted a bound copy of its claim together with annexures to the defendants although not required to do so.

Mr. Singh says in his affidavit filed 5 August 1997 that the bundle of documents in support of Plaintiff's claim that has been given to him "is in issue" and that is why an expert witness is "being engaged to examine the documents and to testify in Court on its accuracy." He says that the claim for "interim payment of four and half million is wildly exaggerated" and he asks that the application be adjourned till damages are "accurately assessed".

Mr. Singh submits that Or 29 r9 under which the application is made has not been fully complied with by the Plaintiff particularly as to documents to be filed with the application.

Mr. Shankar has referred the Court to a number of authorities in support of his application. Mr. Singh does not dispute the law in this regard except that he is objecting to such an interim order being made in this case for the reasons he has given. I have already set the hearing of Assessment of Damages for 3rd to 6th November 1997.

In view of the fact that there is already a judgment against the defendants and the appeal on that judgment has been disposed, there is every likelihood that damages when finally assessed will be considerable. As I see it, the only possible appeal after assessment would be on quantum.

The question that arises in the circumstances of this case is whether it is proper to make an Order for interim payment under Or 29.

Order 29 makes provision for interim payments. "Interim payments" is defined in Or 29 r 9 as:

"interim payments", in relation to a defendant, means a payment on account of any damages, debt or other sum (excluding costs) which he may be held liable to pay to or for the benefit of the plaintiff; and any person who, for the purpose of the proceedings, acts as next friend of the plaintiff or guardian of the defendant.

And under Or 29 r 11 there is provision for order for interim payment in respect of damages and this is relevant here. It states, inter alia:

"11. - (1) If, on the hearing of an application under rule 10 in an action for damages, the Court is satisfied -

(a) that the defendant against whom the order is sought (in this paragraph referred to as "the respondent") has admitted liability for the plaintiff's damages; or

(b) that the plaintiff has obtained judgment against the respondent for damages to be assessed; or

(c) that if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent or, where there are two or more defendants, against any of them,

the Court may, if it thinks fit and subject to paragraph (2), order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set-off, cross-claim or counterclaim on which the respondent may be entitled to rely."

The subject of interim payments was dealt with by the Court of Appeal in BRITISH and COMMONWEALTH HOLDINGS plc v QUADREX HOLDINGS INC (1989) 3 All E.R. 492. That was a case where defendant was given conditional leave to defend. The facts in the case before me are different as already stated above, namely, the Court is satisfied that judgment for damages to be assessed has been obtained. Hence the Court is empowered to assess a reasonable sum for interim payments.

In SHEARSON LEHMAN BROS INC and Others v MACLAINE WATSON & CO. LTD and Others (1987) 2 All E.R. 181 it was held that:

"...Where a plaintiff made alternative claims in debt and damages and sought an interim payment, the court could order an interim payment to be made if it was satisfied that the plaintiff would recover a substantial amount under one or other of the two alternative claims."

Here the case is completely different in that judgment has already been obtained and affirmed on Appeal.

There is one other case I would like to refer to and that is SHANNING INTERNATIONAL LTD v GEORGE WIMPEY INTERNATIONAL LTD (1989) 1 W.L.R. 981 which dealt with Or 29 in respect of interim payments. It stated that the court had to approach the matter in two stages. There it was held:

"that on a proper construction of Ord.29, r. 12(c) the court had to approach an application for interim payment in two stages; that, in the first stage, the court had to satisfy itself that if the action proceeded to trial the plaintiff would obtain judgment for a substantial sum taking into consideration the likelihood of a set-off or any other defence succeeding; that only if the court were satisfied at the first stage would it then proceed to consider at the second stage whether, in the exercise of its discretion, it should order an interim payment and of what amount taking again into consideration any set-off claimed by the defendant."

Here there is no dispute that the damages once assessed would be in a substantial sum of money.

In the outcome, for the above reasons and bearing in mind that I have already given an early hearing date for Assessment of Damages, I consider that the application for the amount claimed as interim payment is unreasonable and excessive. However, in the circumstances the defendants are ordered under Or 29 to make an interim payment on account of damages in the sum of $500,000.00 (Five hundred thousand dollars) within 14 days from the date of this decision with costs to be taxed if not agreed.

D. Pathik
Judge

At Suva
2 September 1997

HBC0496O.92S