Between:
SOUTHERN TRANSPORT LIMITED
Plaintiff
TEBARA TRANSPORT LIMITED
Defendant
Ms. S. Sen for the Plaintiff
H.K. Nagin for the Defendant
ION
On 25 February 00 I delivered written reasons for dismissing the Plaintiff’s claim 3 days earlier and for giving judgment for the
Defendant on the counter-claim. In my reasons I detailed the Plaintiff’s persistent failure to prosecute his action and his repeated
non attendance on various days set down for interlocutory applications or for the hearing of the trial.
On 14 March 00 a notice of change of soors was filed by the Plaintiff and on 21 March the present application was taken out. It isIt
is principally an application to set aside the Judgment entered against him on the counter-claim and an application to set aside
the dismissal of his own claim. The application is supported by an affidavit of Vulavou Colaivalu, a Director of the Plaintiff Company.
Ms. Sen also filed a careful and comprehensive written submission for which I am most grateful.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Both Mr. Colaivalu and Ms. Sen say that the Plaintiff’s failure to attend on the day e trial and its failure to e to appear on the
previous occasions was not the fault of the Plaintiff but was the fault of the its previous solicitors, Messrs. G.P. Shankar. It
is said that the Plaintiff, through no fault of its own was not represented at the date of the trial, did not know that the trial
was to take place on that date and, as a result, has suffered “great injustice and prejudice”.
In answer to this submission Mr. Nagin contented himself by suggesting that the whole conduct of the case by the Plaintiff from start
to finish was designed to frustrate the Defendant from benefitting from the agreement reached between the parties in 1998 and was
such that “no indulgence” should be granted to it.
The leading authority on the setting aside of Judgments after trial is Shocked v. Goldschmidt [1998] 1ER 372, to which I was help helpfully referred by Ms. Sen. After considering a number of earlier authorities Leggatt LJ,
with whom the other members of the Court of Appeal agreed, concluded that the predominant consideration ‘is the reason why the party
against whom the Judgment was given absented himself” (381j).
In weighing this consideration it is essential to bear in mind the nature of the relationship be a Legal Practitioner and hand his
client and the importance of understanding that relationship is even greater when, as here, the Plaintiff is a limited company.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> When a legal practitioner is retained the legal practitioner becomes the retaining party’s agent while under the provisions of RHC
Order 67 the legal practitioner is considered to be the party’s legal representative until the final conclusion of the cause.
