IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0643 OF 1998

Between:

STEPHEN KENDALL-JONES
Plaintiff

and

CARPENTERS FIJI LIMITED
Defendant

Mr. K. Muaror for the Plaintiff
Ms. B. Narayan for the Defendant

DECISION

This is the defendant’s summons dated 17 October 2002 to strike out this action for want of prosecution.

An affidavit in support was filed by Satya Chandra, a law clerk, stating, inter alia, that the Writ of Summons in this action was filed on 7 December 1998 and the last of the ‘pleadings’ being Affidavit Verifying Plaintiff’s List of Documents was filed on 8 March 1999 and Defendant’s Affidavit Verifying List of Documents was filed on 7 July 1999. The plaintiff took no further action in this matter.

Background facts

In the writ the plaintiff claims, inter alia, ‘a declaration that he Defendant terminated the Plaintiff’s employment without giving him the required 3 months notice as per the Agreement.’

The Statement of Claim filed herein sets out in the first four paragraphs the background facts regarding termination of employment. It is stated, inter alia:

1.	On 10th February, 1998 the Plaintiff entered into the employment of the Defendant as a Merchandise Manager in the Defendant’s Morris Hedstrom Division upon certain terms and conditions as contained in a written Agreement dated 10th February, 1998.

2.	It was a term of the Agreement, and the Plaintiff did in fact comply, that the Plaintiff was to commence work on 16th March, 1998.

3.	It was a term of the Agreement that it was terminable at any time in its duration and operation by not less than three (3) months’s notice in writing by either the Defendant or the Plaintiff or three months the Plaintiff’s salary in lieu thereof. 

4.	It was a term of the Agreement that the Plaintiff was to be paid the sum of one hundred and thirty eight thousand Fiji dollars (FJD$138,000-00) per annum by the Defendant or, in other words, FJD$11,500-00 per month (FJD$378-08 per day).

The plaintiff seeks the following relief:

(a)	A Declaration that the Defendant terminated the Plaintiff’s employment without giving him the required 3 months notice as per the Agreement;

(b)	A Declaration that the Defendant has unlawfully withheld wages owing to the Plaintiff for services already rendered to the Defendant;

(c)	An Order that the Defendant pay to the Fiji National Provident Fund on behalf of the Plaintiff the sum of $2,112.00;

(d)	The sum of $40,549.32;

(e)	Damages for distress;

(f)	Interest;

(g)	Costs.

Plaintiff’s submission

The Plaintiff deposed in his affidavit in response that he instructed Messrs. Jamnadas Jalal & Associates, Solicitors, in particular Mr. Wylie Clarke, to formally represent him and institute action. This Writ of Summons was issued on 4 December 1998 but he did not hear from his solicitors until 19 November 2002 when they sought instructions in relation to the striking out in the present application. Details of how the Solicitors let him down so badly is stated in his said affidavit. They refused to act for him any longer and wanted him to collect his case ‘file’ in the matter for them. He then instructed his present solicitor Mr. Kafoa Muaror to act for him in this case.

The plaintiff stated that he was disappointed for ‘lack of communications/update of my matter which left me with the firm belief that my matter was progressing well’. He said that at present he is seeking legal advice on whether to take action against his previous firm of solicitors or to initially lodge a formal complaint with the Fiji Law Society for the negligent manner in which they dealt with his matter.

Defendant’s contention

The defendant company says that the Writ of Summons herein was filed on 7 December 1998 and the last, of the ‘pleadings’ was the Defendant’s Affidavit Verifying List of Documents filed 7 July 1999. No further action was taken by the plaintiff thereafter.

The defendant says that this action has caused and would cause prejudice to it. The former Chief Executive Officer of the defendant, who was the principal player in these proceedings has left the employment of the Company and has gone overseas.

Consideration of the issue

The issue for Court’s determination is whether on the facts and circumstances of this case, the action should be struck out for want of prosecution or not.

I have before me for my consideration affidavits from both parties and counsels’ written submissions as ordered. The submissions in law on principles governing the exercise of Court’s jurisdiction to strike out for want of prosecution were helpful.

It is quite clear from the affidavit evidence before me that there has been a considerable delay in proceeding with the action since the filing of the last of the ‘pleadings’ on 7 July 1999. In fact no further steps were taken by the plaintiff after that when the ball was in his Court so to say. He and his solicitors both slept on it and did not wake up at all from their slumber.

For this inaction the plaintiff lays the blame squarely on the shoulders of his former solicitors and is thinking of taking action against them. 	In my view on the facts both are to be blamed for this state of affairs. As far as the defendant is concerned four years is certainly a long time to be sleeping on a matter. It is four and a half years since the action commenced.

The High Court Rules 1988 have been flouted and the only reason given by the plaintiff for the action lying dormant for four years is that his solicitors did not do their duty.

How far will this reason assist the plaintiff in this application, I will discuss a little later in this decision.

The Law

I have considered this application in the light of the principles governing the dismissal of an action for want of prosecution.

In Grovit v Doctor and Others (1997 1 WLR 640 at 641 H.L) it was held in a situation such as the present:

“That for a plaintiff to commence and to continue litigation which he had no intention to bring to a conclusion could amount to an abuse of process; and that, accordingly, once the court was satisfied that the reason for the delay was one which involved an abuse of process in maintaining proceedings when there was no intention of carrying the case to trial it was entitled to dismiss the action.” (emphasis mine)

In the leading House of Lords decision on the principles governing dismissal for want of prosecution, namely Birkett v James [1978] AC 297 at 318, Lord Diplock declared:

“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.” 

The following statement of Lord Parker in Culbert v Stephen Westwell Co. Ltd (1994) PIQR 55 on ‘contumelious conduct’ is worth noting as it fits in well with the facts of this case.

“There is however in my view another aspect of this matter. An action may also be struck out for contumelious conduct, or abuse of the process of the Court or because a fair trial in action is no longer possible. Conduct is in the ordinary way only regarded as contumelious where there is a deliberate failure to comply with a specific order of the court. In my view however a series of separate inordinate and inexcusable delays in complete disregard of the Rules of the Court and with full awareness of the consequences can also properly be regarded as contumelious conduct or, if not that, to an abuse of the process of the court. Both this and the question of fair trial are matters in which the court itself is concerned and do not depend on the defendant raising the question of prejudice.

In my judgment the way in which the action has been conducted does amount to an abuse of the process of the court and it would be a further abuse of the process if the action were allowed to proceed. In my judgment also, a fair trial is no longer possible.” (emphasis added)

In this case, although there has been inordinate and inexcusable delay, this alone, to use the following words of Lord Justice Nourse in Choraria (Girdharimal) v Sethia (Nirmal Kumar) Supreme Court of Judicature Case No. 96/1704/B C.A. 15.1.98 are worth noting:

“However great, does not amount to an abuse of process, delay which involves complete, total or wholesale disregard, put it how you will, of the rules of the court with full awareness of the consequences is capable of amounting to such an abuse, so that, if it is fair to do so, the action will be struck out or dismissed on that ground.”

It has been further stated by Nourse J:

“That is the principle on which the court must now act. Whether it is identified as being comprehended within the first limb of Birkett v James or as one having an independent existence appears to be a point of no importance. I have already said that it is clear that the relevant ground of decision in Culbert was based on the first limb of Birkett v. James. In other words, it was there effectively held that the plaintiff’s conduct had been intentional and contumelious. 

In my view that conclusion was well justified on the facts of the case, which demonstrated not only the plaintiff’s complete disregard of the rules but also his full awareness of the consequences. He had, at the least, been reckless as to the consequences of his conduct and, on general principles, that was enough to establish that the defaults had been intentional and contumelious.”

There has been an ‘inordinate’ and ‘inexcusable’ delay in prosecuting the claim. The meaning attributed to these words have been stated by the Fiji Court of Appeal in Owen Clive Potter v Turtle Airways Limited (Civ. Appeal No. 49 of 1992 at p3) as follows:

“(Inordinate) …means so long that proper justice may not be able to be done between the parties. When it is analyzed, it seems to mean that the delay has made it more likely than not that the hearing and/or the result will be so unfair vis a vis the Defendant as to indicate that the court was unable to carry out its duty to do justice between the parties”.

And at page 4, their Lordships stated:

“…Inexcusable means that there is some blame, some wrongful conduct, some conduct deserving of opprobrium as well as passage of time. It simply allows the Judge to put into the scales the Plaintiff’s conduct or reasons for not proceeding, as well as the lapse of time and the prejudice that would result to him from denying him opportunity from pursuing his action or perhaps any action against the defendant”.

To allow the plaintiff to proceed with this action in the circumstances stated hereabove after a lapse of 4 years will certainly be prejudicial to the defendant for the reason stated by it in its affidavit in support of this application. The plaintiff’s action seems to depend heavily on the allegations against Mr. Ken Clemens, in particular the alleged meeting between the plaintiff and Clemens which the plaintiff alleges constituted wrongful termination of his employment with the defendant (vide paragraph 7 and 8 of the plaintiff’s Statement of Claim). This is the crux of the plaintiff’s case against the defendant.

Actions arising out of dismissal from employment should be pursued according to the Rules of the Court and with the least possible delay, otherwise there is a great risk of the action not being fairly tried for various obvious reasons.

On this aspect the following statements of Diplock L.J in Allen v Sir Alfred McAlpine and Sons Ltd 1968) 2 Q.B. 229 at 299 are pertinent:

“Where the case is one in which at the trial disputed facts will have to be ascertained from oral testimony of witnesses recounting what they can recall of events which happened in the past, memories grow dim, witnesses may die or disappear. The chances of the Courts being able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard.” 

Solicitor’s fault

This case warrants the dismissal particularly on the grounds of abuse of the process of the Court irrespective of whether any prejudice has been caused or will be caused. In this regard the following paragraph from the House of Lords judgment in Grovit (supra) at 401 is apt:

“The Court had power under its inherent jurisdiction to strike out or stay actions on the grounds of abuse of process irrespective of whether the test for dismissal for want of prosecution was satisfied. Accordingly, since the commencement and continuation of proceedings with no intention of bringing them to a conclusion was itself sufficient to amount to an abuse of process which entitled the court to dismiss the action, it was not strictly necessary in such a case to establish want of prosecution by showing that there had been inordinate and inexcusable delay on the part of the plaintiff which had prejudiced the defendant. It followed, on the facts, that the deputy judge had been fully entitled to strike out the action. The appeal would therefore be dismissed.”

Now that an application has been made to strike out for want of prosecution, the plaintiff is thrusting all the blame on to his former solicitors after four years. What was he doing himself? Did he ascertain what was being done by his solicitors? He himself did nothing. The excuse that he has given will not help him at all in preventing an order being made against him.

In a similar situation when it was the plaintiff’s solicitor’s fault in not complying with the Court order within a specified time, the Court of Appeal in Lownes v Babcock Power Ltd 18.2.98 TLR 84 held:

“Inordinate and inexcusable delay in civil litigation caused by default on the part of solicitors was totally unacceptable. Prejudice to the client resulting from the striking out of his action had to be balanced against the prejudice to the other party, other litigants and the administration of justice in general.” (emphasis added)

The Master of Rolls, Lord Woolf there stated at 85 that:

“It was in the interests of solicitors to handle cases in the business-like way. Delay had an effect in extra work on the plaintiff’s solicitors, the defendants’ solicitors and client. Additional costs were incurred.”

He further stated:

“Delays also had an effect on the administration of justice by taking up court time and putting other cases further back in the queue. That damaged the reputation of civil justice.

The message to the profession, which should be read and understood, was that the standard of diligence in this case was totally unacceptable. In balancing the prejudice to the plaintiff against the prejudice to the defendants, account had to be taken of prejudice to other litigants and the administration of justice generally.”

In a similar situation, it was alleged that it was solicitor’s fault with the delay extending over a period of 3½ years in Johhny Abdul v Carpenters Fiji Limited (Civil Action No. HBC0013 of 1997S) Scott J, with whom I agree, refused to entertain the reason advanced by the plaintiff for the delay and relied on Lownes (supra).

Putting the blame on to solicitors was not accepted in Lownes (supra) where Lord Woolf M.R. said:

“The person who suffered because the action was dismissed was not the plaintiff’s solicitors but the plaintiff personally therefore it could be said that the judge was visiting the sins of the solicitor on the client and should not let the desire to discipline the solicitor injure the plaintiff personally.

His Lordship was very conscious of the force of that point but it was wrong to give way to it. The plaintiff, even in a personal injuries case, had to be responsible for the conduct of his solicitor. Consideration had to be given to the position of parties to other litigation.”

For these reasons, on the authorities, I do not accept the plaintiff’s argument that the delay of four years was due to his former solicitors and therefore he be allowed to proceed with this action. Like in Lownes (supra) I do not accept this as a good enough reason. The rules of the Court are there to be obeyed and the Court will not condone such a delay. It will make a mockery of the Rules if I were to do so and I conclude with the following words of Woolf M.R. (supra) at 84 when he said:

“The case dramatically demonstrated that the manner in which personal injuries litigation was sometimes conducted was not in the interests of the parties, the courts or justice. It also showed that it could be extremely damaging to the reputation of lawyers.”

Conclusion

To conclude, for the reasons given hereabove, on the authorities and on the facts and circumstances of this case I allow the defendant its application to dismiss this action for want of prosecution. To do otherwise would not only make a mockery of the High Court Rules in so far as they relate to the conduct of an action but also as stated in Lownes (supra) damaging to the ‘reputation of the lawyers’, will cause injustice to parties, will be prejudicial to the defendant, other litigants and ‘the administration of justice generally’.

The application is therefore allowed and the action is dismissed with costs to the defendant in the sum of $450.00 to be paid within 14 days.

D. Pathik
Judge

At Suva
9 July 2003.