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Chand v Goundar [2010] FJHC 519; HBC50.2008L (24 November 2010)

IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 50 of 2008/L

BETWEEN

RONALD AVIKASH CHAND father's name Mukesh Chand of Nacaci, Ba, Fiji, Labourer in his personal capacity and as the Administrator of the Estate of Mukesh Chand also known as Mukesh Chand father's name Jai Karan late of Nacaci, Ba, Fiji, Cultivator and as the Administrator of the Estate of Roshni Devi daughter of Shiu Ram late of Nacaci, Ba, Fiji, Domestic Duties.
1st Plaintiff

AND

RONALD AVIKASH CHAND father's name Mukesh Chand of Nacaci, Ba, Fiji, Labourer.
2nd Plaintiff

AND

SANJAY GOUNDAR father's name Davendra Goundar of Moto, Ba, Fiji, Electrician.
1st Defendant

AND

SANJAY GOUNDAR father's name Davendra Goundar of Moto, Ba, Fiji, Electrician and NILESHNI NEENA NAICKER father's name not known to the Plaintiff's of Moto, Ba, Fiji respectively.
2nd Defendant

AND

MAHENDRA PRASAD father's name not known to the Plaintiff's of Vatusui, Ba, Fiji, Driver.
3rd Defendant

Before: Master A. Tuilevuka

Counsel: Mishra Prakash & Associates for the Plaintiffs
Suresh Maharaj & Associates for the Defendants

Date of Ruling: 24th November 2010

RULING

[1]. Before me are two applications. First is the application of Mishra Prakash & Associates for the plaintiff filed on 16th of October 2009 to consolidate this action with civil action HBC 276 of 2009. Second is the application of Suresh Maharaj & Associates filed on 27th of October 2009 seeking an order that Mishra Prakash & Associates disqualify themselves from acting and or that they cease to act for and on behalf of the plaintiffs in this matter. The background of the case is as follows. On the 15th day of January 2006, an accident occurred along Moto Road in Tailaya in Ba involving three vehicles namely ET 649, D 2848 and BK 818. ET 649 was travelling out of Ba while D 2848 was travelling towards Ba. Meanwhile, BK 818 was trailing D 2848 towards Ba.

[2]. I gather from the statement of claim that a head-on collision between ET 649 and D 2848 happened first. This was followed instantaneously by BK 818 hitting D 2848 from the back so that D 2848 became sandwiched between the other two vehicles. The collision resulted in the death of one Mukesh Chand and his wife Roshni. Their sons, Ronald Avikash Chand who is first and second plaintiff in this case (in different capacities) and Krishneel Ravinesh Singh were also travelling in D 2848 but they survived the accident. ET 649 was being driven by one Sanjay Goundar who is the first defendant in this case. BK 818 was being driven by one Mahendra Prasad who is the third defendant.

[3]. The plaintiff claims for damages for personal injuries on an allegation of negligence.

[4]. In civil action HBC 276 of 2007, the plaintiffs in this case (50 of 2008) are named as Third Parties. The defendants in HBC 276 of 2007 are the same as the defendants in 50 of 2008. Mishra Prakash & Associates has filed the statement of claim and still acts for both plaintiffs in HBC 276 of 2007 and in HBC 50 of 2008 and for the third party in HBC 276 of 2007.

[5]. There is no doubt that both claims arise from the same vehicle accident. Order 4 of the High Court Rules 1988 states as follows:

Commencement of Proceedings

ORDER 4

Consolidation of Proceedings

1. Where two or more causes or matters are pending, then, if it appears to the Court –

(a) that some common question of law or fact arises in both or all of them, or

(b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or

(c) that for some other reason it is desirable to make an order under this rule

the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until the determination of any other of them.

[6]. The Supreme Court Practice 1988 Volume 1 at footnote 4/9/1 discusses in detail the principles that the Courts have applied in considering whether or not to consolidate actions. The following emerge on a review of the case law authorities cited therein:

• (i) the main purpose of consolidation is to save costs and time.
  
• (ii) where there is "some common question of law or fact bearing sufficient importance in proportion to the rest" of the subject matter of the actions – an order for consolidation will usually be made.
  
• (iii) but – where the plaintiff in one action is the defendant in another, an Order for consolidation may be refused, unless one action can be ordered to stand as a counterclaim or third party proceedings in another action.
  
• (iv) and where different solicitors have been instructed to appear for the different plaintiffs (Lewis v. Daily Telegraph (No. 2) [1964] 2 Q.B 601), an Order for consolidation –generally – will not be made.
  
• (v) but where one firm of solicitors has been given the conduct of the consolidated action on behalf of all plaintiffs, an Order for consolidation has been made.
  

[7]. The Supreme Court Practice then gives the following example which seems relevant to this case now before me:

So, for example, where there are several actions by different plaintiffs (represented by different solicitors) in which damages are claimed for personal injuries occasioned in the same accident, it may be possible to consolidate the actions up to the point where the issue as to liability is decided, giving the conduct of the action up to that point to one plaintiff's solicitors, and leaving the actions separate upon the issue as to the quantum of damages (see Healey v. Waddington & Sons Ltd ([1954] I. W.L.R 688 [1954] 1 All E.R. 861, C.A.). But more commonly an order would be made staying the latter actions pending the decision of the action which is nearer trial and, which may perhaps be expedited in the hope and expectation that the decision of liability in the test action will be accepted in the other actions (see e.g. Amos v. Chadwick [1877] 4 C.D. 869: [1878] UKLawRpCh 241; [1878] 9 Ch. D 459............But no order for consolidation will be made without hearing all parties affected, and therefore it will only be made on the hearing of applications in all actions (Daws v. Daily Sketch) Apart from these difficulties an order for consolidation may be refused where it would be likely to cause embarrassment at the trial. For example, where the actions are by different plaintiffs, based on the same libel, and the defences are different it would often be likely to embarrass the jury to consolidate them (ibid).

Where consolidation must be refused for one reason or another an order will often be made that one action shall follow the other in the same list and be heard before the same Judge for (or the same Judge or jury). In this way common witnesses are saved the expense of two attendances, and the Judge will be in a position to try the actions in such order as may be convenient or even at the same time. Consolidated actions may be deconsolidated (Lewis v. Daily Telegraph (No. 2) [1964] 2 Q.B 601. C.A).

[8]. In Housing Authority v Penioni Bulu FCA No. 26/01, the Fiji Court of Appeal echoed the same principles in the following words:

"Although the parties are the same they are in different capacities in the two actions and in such cases the Courts have always been averse to consolidation. To the extent that the issue was the same in both cases difficulties must arise as to onus of proof where a party is the Plaintiff in one case and a Defendant in another"

[9]. In this case now before me, there are different plaintiffs represented by the same firm of Solicitors, Mishra Prakash & Associates. The defendants are the same. Neither of the plaintiff's is defendant in the other – though the plaintiff in one is 3rd party in the other. And both actions arise out of the same transaction. What the witnesses say in one case no doubt will be relevant in the other case.

[10]. In their submissions, Mishra Prakash & Associates submit that it makes sense that the two cases be tried together but in the alternative, this case (i.e. High Court civil action HBC 50 of 2007) may be tried first.

[11]. I prefer the alternative option suggested by Mr. Mishra that one of the two be tried first. However – I depart from Mr. Mishra's suggestion that civil action HBC 50 of 2007 be tried first. In my view, it would be logical that civil action HBC 276 of 2008 be tried first as it involves all the parties (including the plaintiff in HBC 50 of 2007 who is joined as 3rd party). And accordingly, I so order.

[12]. Now the next question is – whether Messrs
Mishra Prakash and Associates are in a position of conflict on account of the fact that one of the plaintiffs it represents in one case is named third party in the other.

[13]. Mr. Maharaj submits as follows:

CONFLICT OF INTEREST

7.3 It is submitted that Messrs Mishra Prasad & Associates are in actual conflict of interest by representing the Plaintiff herein and the Third Party in Action No. 267/07.

1. That under the Legal Practitioner Decree 2009, and the rules of Professional Conduct & Practice attached to the decree, a Legal Practitioner is not permitted to represent for more than one party in the same matter without the prior consent of all the parties. (Section 81, 82 & 83 of the Decree & Rules 1.2 of the Rules of Professional Conduct & Practice).
   
2. That in action No. 276/07 Messrs Mishra Prakash are acting for the plaintiff and have also filed defence on behalf of the Third Party prompting an application by the defendants that Mishra Prakash cease to act for the Third Party.
   

100. That there is no consent produced by the Plaintiff herein and the Plaintiffs in action number HBC 276/07 that they have consented for Messrs Mishra Prakash & Associates to represent them both
     

4. That furthermore Rule 1.2 of the Rules of Professional Conduct & Practice are in mandatory terms, which require strict compliance by Messrs Mishra Prakash & Associates. That is also submitted that Rule 1.2 not only requires consent from the Plaintiff herein and Plaintiffs in action No. 276/07 but also require consent of the defendants herein and in Action 276/07.
   
5. That in Action No. 276/07, the defendants have by Summons dated 25/05/09 sought for an order that Messrs Mishra Prakash & Associates cease to act for the Third Party who is also the Plaintiff in this action. That will be only logical that Messrs Mishra Prakash & Associates also ceased to act for the Plaintiff herein.
   
6. That in the case of "RC Manubhai & Company vs Herbert Construction HBC Action No. 75 of 2009" his Lordship Mr. Justice Inoke has clearly stated the circumstance when a Solicitor can act for both the parties and the issue of conflict was determined at length.
   

That when applying the established principles and guidelines as set out by his Lordship, Mr. Justice Inoke, it is also improper and unprofessional for Messrs Mishra Prakash & Associates to represent the Plaintiff herein and the Third Party in Action No. 276/07. That it must be noted that they are one and the same person in both actions but are parties to the actions in different capacities.

7. That furthermore, his Lordship Mr. Justice Inoke in his Judgment in the case of R.C. Manubhai –v-s Herbert Construction had said:
   

"that there was no need for forensic and detailed analysis of facts. He went on to say that irrebutable presumption of fact and Law was sufficient to hold a counsel acting in conflict"

8. That it is also interesting to note that the Plaintiff herein has not denied in his affidavit filed on 17/00/09 the following facts pleaded in paragraph 6 of the affidavit of Thomas Naua fileds on 27/10/09:
   

"That I have been further informed by our Solicitor and verily believe that the Plaintiff and or their solicitors seeking for the following Order in the Summons:-

"...and/or alternatively that this action be tried and/or heard first and the action number 276/07 be tried thereafter".

Is an obvious and deliberate attempt by the Plaintiffs herein, the Plaintiffs in action no. 276 of 2007 and their solicitors to stifle and or oppress the Defendants application in Action No. 276 of 2007 that Messrs Mishra Prakash & Associates cease to act for the Third Party."

That the plaintiff and his Solicitor have clearly admitted that the present application was "to stifle and or oppress the defendant's application in action No. 276/07 that Messrs Mishra Prakash & Associates cease to act for the third party in that action.

1. That in view of all matters stated under this subheading, it is only proper and a good exercise of jurisdiction by this Court to order that Messrs Mishra Prakash & Associates cease acting for the Plaintiff herein d Third Party Action 276/07
   

[14]. All plaintiff's in this case and in HBC 276 of 07 are suing the same defendants. All plaintiffs were in fact travelling in the same car, D2848 as highlighted by Mr. Mishra in his submissions. In paragraphs 3.5 to 3.14 of his submissions, Mr. Mishra highlights as follows:

[15]. The plaintiffs in both actions are represented by Mishra Prakash & Associates. They all say that it is the first and the third defendant drivers who are at fault and not the late Mukesh Chand. One of the plaintiffs is in fact the administrator of the estate of Mukesh Chand. All the plaintiffs were travelling in the car driven by the late Mukesh Chand.

[16]. One of the defendants, in HBC 276 of 2007 say that it was the late Mukesh Chand who was negligent and has joined the Administrator of Chand's estate (the plaintiff in HBC 05 of 2008) as Third Party.

[17]. Mr. Maharaj's submission that there is in fact a potential conflict on the part of Mishra Prakash & Associates acting for the plaintiff as well as the third party in HBC 276 of 2007 and also for the third party in HBC 50 of 2008 has some merit. The potential conflict may arise in the following scenario.
[18]. Supposing if, at the trial of HBC 276 of 2007 (which will proceed first), the evidence appears to sway in favour of the defendants that it was the late Mukesh Chand (whose estate is joined as Third Party) it would appear that the potential conflict will arise when Mishra Prakash & Associates starts to defend the third party proceedings.

[19]. I say that because, while normally, a plaintiff is expected to be neutral in a third party proceeding in the sense that a judgement against a third party favors the plaintiff nonetheless, in this case, the plaintiff's in HBC 276 of 2007 have gone to the extent of swearing an affidavit pledging their support for the third party and making conclusions of fact and law that effectively absolve the late Mukesh Chand from any negligence.
[20]. For example in paragraphs 3 and 4 of the affidavit of Anita Devi, the first plaintiff in HBC 276 of 2007, she deposes as follows:

4. I do not have any case against Ronald Avikash Chand or his father late Mukesh Chand who was driving the vehicle as there was no negligence by him.

5. The accident occurred on the 15th day of January 2006 when my family was travelling in vehicle No. D2848 towards Ba Town and the First Defendant's car came and collided with our vehicle. As a result of the collision the Third Defendant's car came and hit us from behind.

6. I do not have any adverse interest against Ronald Avikash Chand, either personally or as the Administrator of Estates of Mukesh Chand and Roshni Devi"

[21]. The affidavit of Salesh Prasad (third plaintiff in HBC 276 of 2007) filed on the 24th of September 2009 deposes as follows in paragraphs 5-6:

5. As far as I am concerned when the vehicle ET 649 had hit us from front. There was negligence and our driver late Mukesh Chand did his best to save accident. Some further damages was caused when the other vehicle hit us from the back.

6. I am aware that my lawyers represent the Estate of Mukesh Chand who was the driver and his wife Roshni Devi who were in the vehicle with us. I want them to continue.

[22]. Clearly, the plaintiffs in HBC 276 of 2007 prefer Mishra Prakash & Associates as solicitors. They have that right to a counsel of their choice.

[23]. Having said that, one might be excused for thinking that – had the plaintiffs in HBC 276 of 2007 instructed a different firm of solicitors, the net would most certainly have been cast much wider than it is now so to speak to include the Ronald Avikash Chand (plaintiff in HBC 50 of 2008) as defendant in HBC 276 of 2007 case.

[24]. That would appear to be the logical thing to do for a lawyer acting for the plaintiffs in HBC 276 of 2007. This at least appears to be acknowledged by Mishra Prakash & Associates in paragraph 4.16 of their submissions. And certainly, the plaintiffs themselves appear to be cognizant that their net would be cast much wider if Ronald Avikash Chand (plaintiff in HBC 50 of 2008) was included as defendant in HBC 276 of 2007 case.

[25]. Of course, as things stand now, Mishra Prakash's clients in HBC 276 of 2007 need not join the plaintiff in 50 of 2008 as defendant as they are already joined as Third Party by the defendants in that case who are also defendants in the other.

[26]. But will the plaintiff's in HBC 276 of 2007 give evidence in chief mindful of the third party proceedings in favour of the 3rd party? What if they change their mind (which they are perfectly entitled to by the way) shortly before or during trial and do give evidence adverse to the third party. Will Mishra Prakash & Associates then be conflicted?

[27]. I should think so. I that the interest of justice would be best served if Mishra Prakash & Associates were to be ordered to cease acting either for the plaintiff either in 276 of 2007 or for the plaintiff in 50 of 2008.

DIRECTIONS

(i) In respect of the application by Mishra Prakash & Associates for consolidation, I adopt the alternative suggested by Mr. Mishra but direct that Civil Action 276 of 2007 be tried first followed consecutively by Civil Action 50 of 2008 before the same judge to reduce the duplication of counsel's fees and witnesses expenses.

(ii) In respect of the application by Suresh Maharaj & Associates that Mishra Prakash be disqualified from acting for the plaintiff in Civil Action 50 of 2008, based on my reasoning above, I hereby direct that this case be adjourned to the 15th day of December 2010 for mention.

(iii) In light of my comments above, Mishra Prakash & Associates is to reconsider its position and advise the Court on 15th of December 2010 as to which of the two plaintiffs it will cease acting for. The appropriate Notice under Order 67 is then to be filed and served by the 14th of December 2010.

(iv) Costs in the cause.

Anare Tuilevuka
Master

At Lautoka
24th November 2010.