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South Pacific Fertilizer Ltd v CBM Shipping Corporation Ltd [2004] FJHC 412; HBC0404.1995L (26 April 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0404 OF 1995L

BETWEEN:

SOUTH PACIFIC FERTILIZER LIMITED
Plaintiff

AND:

CBM SHIPPING CORPORATION LIMITED
1st Defendant

AND:

INTER-PORTS SHIPPING CORPORATION LIMITED
2nd Defendant

Counsel for the Plaintiff: Mr. A. Patel
Counsel for the Defendants: Mr. H. Lateef

Date of Hearing & Judgement: 26 April 2004

EXTEMPORE JUDGMENT

The defendant by Summons dated 15^th August 2001 seeks an order that this action be struck out for want of prosecution. In support of its application the defendant relies upon an affidavit of Justin Smith sworn on 7^th August 2001.

The plaintiff opposes the application and relies upon an affidavit of Mohini Prasad sworn on 11^th February 2002.

A brief chronology of events with respect to these proceedings is as follows: -

1. 25^th December 1994 - Cause of Action
   
2. 12^th December 1995 - Writ of Summons filed;
   
3. 8^th February 1996 - Acknowledgment of Service filed by the defendants solicitors;
   
4. 5^th April 2000 - Notice of Intention to Proceed filed by the plaintiff’s solicitors;
   
5. 12^th June 2001 - Notice of Intention to Proceed filed by the plaintiff’s solicitors;
   
   6. 15^th August 2001 - Summons to strike out filed by the defendants.
      

It is apparent from the chronology that after service of the Writ of Summons in February 1996, the plaintiff took no action whatsoever with respect to the matter until the 5^th of April 2000 and then took no action with respect to the matter until the 12^th of June 2001 and then took no action until such time as the Summons before the court was filed.

As is apparent from the chronology no statement of claim or statement of defence has been filed. The plaintiff changed solicitors and a Notice of Change of Solicitors was filed on the 22^nd of January 2002.

The Fiji Court of Appeal and the High Court of Fiji have considered the issues with respect to striking out applications on numerous occasions in recent years. Perhaps, the starting point is the decision of the Fiji Court of Appeal in Merit Timber Products Limited v Native Land Trust Board – 40 FLR 279. In its decision the Fiji Court of Appeal considered the laws as it was at that time including the decision of the Queens Bench Division in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 Q.B. 229 and the decision of the Court of Appeal in Birkett v James [1978] A.C. 297 relevantly the court also considered what it had earlier said in Owen Clive Potter v Turtle Airways Ltd [FCA] Civil Appeal 49/92.

The general principles applicable as detailed in Merit Timber Products are those which originated in Allen’s case with the modification imposed by the court in Potter’s case.

The test therefore as it is therein expressed is: -

1. That there has been inordinate delay;
2. That this ordinate delay is inexcusable;
3. That the defendants are likely to be seriously prejudiced by the delay;
4. And arising from Potter’s case that prejudice to the plaintiff must be considered.
   

In Allen’s case Diplock LJ. said and I quote: -

“The application is not usually made until the period of limitation for the plaintiff’s cause of action has expired. It is then a draconian order and will not be lightly made. It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default had been intentional and contumelious, or that an excusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that the fair trial of the issues in the litigation will not be possible at the earlier stage of which, as a result of the delay, the action would come to trial if we were allowed to continue.”

There is no suggestion in this matter that the default has in anyway be contumelious. There are no submissions that any orders of the court have been ignored by the parties or in particular by the plaintiff.

The issue was further considered by the High Court in Stephen Candell-Jones v Carpenters Fiji Limited – Action No. 643 of 1998 (unreported) 9^th July 2003 where Pathik J. in addition to considering the principles to which I have referred also considered Grovit v Doctor & Others [1997] UKHL 13; [1997] 1 WLR 640 at 641 and he there said and I quote: -

“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 not entitle to dismiss the action.”

In the present proceedings, as I have said, there is no failure to comply with any orders of the court but as the chronology indicates there has been an extreme unexplained delay on the part of the plaintiff.

Pathik J. also referred to Lownes v Babcock Power Ltd 18.2.98 TLR at 84 and he quoted: -

“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 this action had to be balanced against the prejudice to the other party, other litigants and the administration of justice in general.”

He then went on to quote the Master of the Rolls Lord Wolf in Lownes at page 85 where he said and I quote: -

“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 defendant’s solicitors and client. Additional costs were incurred.

And he later said: -

“Delay is also had an effect on the administration of justice by taking up court time and putting other cases further back in the queue damage the reputation of civil justice.”

For perhaps most relevantly to the present case Lord Wolf in Lownes said and I quote: -

“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 scenes of the solicitor on the client and should not let the desire to discipline the solicitor into 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 injury’s case had to be responsible for the conduct of his solicitor. Consideration had to be given to the position of parties to other litigation.”

Similar views were expressed by Scott J. in Johnny Abdul v Carpenters Fiji Limited HBC0013 of 1997S (unreported) 21 December 2001. In addition to the cases to which I have referred, counsel has also inter alia referred me to Chandra Bali Prasad and the estate of the late Ram Dayal & Ors, Civil Action HBC0043 of 1995 (unreported) 12 September 2003 and Arvind Harakh v Fiji Public Service Association HBC0347 of 1994 (unreported) 5 May 2000.

The evidence that is before the court is as I said earlier limited to the affidavit of Justin Smith sworn on 7^th August 2001 on behalf of the defendant and the affidavit of Mohini Prasad sworn on 11^th February 2002 on behalf of the plaintiff.

In attempting to apply the tests as they have been expressed above and looking to the evidence to see the prejudice that might be cast upon the defendant by the plaintiff’s delay, the only evidence is that contained in paragraphs 9 and 10 of the affidavit of Justin Smith. Those paragraphs state and I quote: -

“9. That the cause of action referred to in Endorsement of Claim occurred on the 25^th December 1994, some 6 ½ years ago and the ship’s captain, engineer and senior crew members have since left the defendants’ employment.

10. That the defendants would be prejudiced in defending this action due to the reason stated in paragraph 9 of this affidavit.”
    

It is trite that the delay between the 25^th December 1994 and the date at which this matter might come to trial must make any available oral evidence unreliable.

There is no specific evidence before the court that the ship’s captain is unavailable to give evidence or that the engineer and senior crew members are unavailable but as I have said even if they are available then one would anticipate their recollections would certainly be somewhat dulled in the 10 years or more that would elapse before the matter comes to trial.

The plaintiff relying upon the affidavit of Mohini Prasad states that the detailed statement of claim has not been filed and says that they are unable to depose as to the reason why that is so. They do however suggest that there is a good cause of action and that is supported by expert reports annexed to the affidavit.

As I said earlier, the plaintiff’s current solicitors came on to the record by Notice of Change of Solicitors filed on 29^th January 2002 and thereafter caused the affidavit in opposition to this Summons to be filed on 11^th February 2002 but have not caused any statement of claim to be filed nor have they filed any documents with respect to seeking leave or taking any other action in that regard.

It is submitted on behalf of the plaintiff that the plaintiff paid its solicitor, chased up its solicitor and ultimately removed the file from its solicitor and therefore the plaintiff itself is not guilty of delay but its solicitor is. Even if that be so the words of the Master of the Rolls provide little solace for the plaintiff.

As I understand the law as expressed in the authorities to which I have referred, the failure of the plaintiff’s solicitor to act in a timely manner is indeed the failure of the plaintiff and not something that the court can properly consider when dealing with an application of this type.

It is clear therefore that there has been an inordinate delay. There will in fact be a delay of in excess of 10 years by the time the matter comes for trial from the date of the cause of action arose. This inordinate delay is inexcusable and has not in accordance with the law been excused nor has any excuse been made out by the plaintiff.

Whilst the evidence on behalf of the defendants as to prejudice is indeed Spartan, I think it is clearly apparent that the delay of 10 years must create a serious prejudice to the defendants and put at risk the ability for there to be a fair and proper trial of the issues and accordingly I am of the opinion that the application must succeed.

The Orders of the Court will be: -

1. Application granted;
   

2. The plaintiff to pay the defendants’ costs.

JOHN CONNORS
JUDGE

AT LAUTOKA
26 APRIL 2004