IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
HBC No. 69 of 2007

BETWEEN:

JAMNADAS ASSOCIATES
Barristers & Solicitors of Level 6, FNPF Place, Victoria Parade, Suva in the Republic of Fiji Islands.
PLAINTIFF

AND:

YOGESH RAI GOKAL
of Nasese, Suva in the Republic of Fiji Islands, Businessman and Executor and Trustee of the Estate of Maganlal Gokal and Estate of Dev Chand Gokal.
DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL : Mr. Kunal Yogeshwar Singh for the Plaintiff 
Mr. Viren Kapadia for the Defendant 

Date of Hearing : 23rd March, 2012
Date of Ruling : 15th October, 2012

RULING

A.	INTRODUCTION

1.	The Plaintiff who is a solicitor filed this action against the Defendant who was a former client for alleged services he had provided. The Defendant denied the said allegation and counterclaimed the Plaintiff. The Plaintiff did not take a step in the action for more than six months and the Defendant has filed this summons seeking strike out of the Plaintiff's claim.

B.	ANALYSIS 

2.	The Plaintiff has sued the Defendant who was a former client for the fees for alleged professional services that he had rendered during a period form March 2005 to November, 2006, but the Defendant denied the claim and also counter claimed against the Plaintiff.

3.	The statement of defence was filed on 12th March, 2009 and the reply to the defence was filed on 18th March, 2009 and no further step was taken by the Plaintiff, who is a solicitor having a practicing certificate to practice as a solicitor in Fiji.

4.	Birkett v James [1978] A.C. 297 at page 319-320 Lord Diplock stated as follows

'(1) Non –expiry of limitation period

Under this head your Lordships are not concerned with cases where the purpose of dismissing the action is not because there would be risk of injustice in allowing it to be brought to trial but is to punish the dilatory plaintiff by mulcting him in costs before allowing him to proceed further with his claim. There are other ways of doing that, short of dismissing the action, in those cases where legal aid does not render the plaintiff immune to any sanctions of this kind.

Crucial to the question whether an action ought to be dismissed for want of prosecution before the expiry of the limitation period is the answer to a question that lies beyond it, viz., whether a plaintiff whose action has been so dismissed may issue a fresh writ for the same cause of action. If he does so within the limitation period, the effect of dismissing the previous action can only be to prolong the time which must elapse before the trial can take place beyond the date when it could have been held if the previous action had remained on foot. Upon issuing his new writ the plaintiff would have the benefit of additional time for repeating such procedural steps as he had already completed before the action was dismissed. This can only aggravate; it can never mitigate the prejudice to the defendant from delay.

P 320 para c-

'It is an attractive argument that if a court has power to dismiss an action already started because it considers that the time which the plaintiff has allowed to elapse since his cause of action first accrued has resulted in a substantial risk that justice may not be done to the defendant at the trial, the court by parity of reasoning should also have power to prevent a fresh action being started. But this begs the very question that your Lordships must decide. It assumes that the court has power to treat as amounting to inordinate and inexcusable delay in proceeding with an action a period shorter than that within which Parliament by a Limitation Act has manifested its intention that a plaintiff should have a legal right to commence proceeding with his action. No one has been bold enough to argue that if the plaintiff has not issued a pervious writ he could be deprived of that right at the discretion of a judge because the judge thought that in the circumstances of the particular case the statutory limitation period was too long. So, in such a case, at any rate, time elapsed before issue of the writ which does not extend beyond the limitation period cannot be treated as inordinate delay; the statue itself permits it.

Can that same period of time elapsed become inordinate delay so as to entitle the court to prevent the plaintiff from issuing his writ within the limitation period by reason of the fact that he had started previous proceedings for the same cause of action which have become abortive? In the ordinary way the prejudice caused to the defendant by lapse of time is likely to be greater where no previous proceedings had been brought to have given him more notice of what is intended to be alleged against him than if they had not been brought at all. So, there is nothing here to transform into inordinate delay time that has elapsed before the expiry of the limitation period.

There may be exceptional cases, of which Spring Grove Services Ltd v Deane (1972) 116 S.J. 844 (to which I shall be referring later) may be an example, where the plaintiff's conduct in the previous proceedings has induced the defendant to do something which will create more difficulties for him in presenting his case at the trial than he would have had if the previous proceedings had never been started. In such a case it may well be that the court, in the exercise of its inherent jurisdiction, should stay the second proceedings on the ground that, taken as a whole, the plaintiff's conduct amounts to an abuse of the process of the court. But, such exceptional cases apart, where all that the plaintiff has done has been to let the previous action go to sleep, the court in my opinion would have no power to prevent him starting a fresh action within the limitation period and proceeding with it with all proper diligence notwithstanding that his previous action had been dismissed for want of prosecution.

If this be so, it follows that to dismiss an action for want of prosecution before the limitation period has expired does not, save in the exceptional kind of case to which I have referred, benefit the defendant or improve his chances of obtaining a fair trial; it has the opposite tendency.

The court may and ought to exercise such powers as it possesses under the rules to make the plaintiff pursue his action with all proper diligence, particularly where at the trial the case will turn upon the recollection of witness to past events. For this purpose the court may make peremptory orders providing for the dismissal of the action for non-compliance with its order as to the time by which a particular step in the proceedings is to be taken. Disobedience to such an order would qualify as "intentional and contumelious" within the meaning of the first principle laid down in Allen v Mc Alpine. But where no question of non-compliance with a peremptory order is involved the court is not in my view entitled to treat as "inordinate delay" justifying dismissal of the action in accordance with the second principle in Allen v Mc Alpine a total elapsed since the accrual of the cause of action which is no greater than the limitation period within which the statue allows plaintiffs to start that action. To dismiss the action in such circumstances would, in my view, involve an error in principle in the exercise of judicial "discretion" which it is the function of the appellate court to correct. (emphasis is mine)

………….

P 322 para D

'For my part, for reasons that I have already stated, I am of opinion that the fact that the limitation period has not yet expired must always be a matter of great weight in determining whether to exercise the discretion to dismiss an action for want of prosecution where no question of contumelious default on the part of the plaintiff is involved; and in cases where it is likely that if the action were dismissed the plaintiff would avail himself of his legal right to issue a fresh writ the non-expiry of the limitation period is generally a conclusive reason for not dismissing the action that is already pending. (emphasis is mine)

5.	The claim is allegedly for the professional services rendered during the time period between March, 2005 and November, 2006. It is clear at least part of the claim is still not time barred from Limitation Act. In the circumstances I would not inclined to strike out the claim of the Plaintiff. The Plaintiff who is a lawyer should have been more diligently prosecuted the action. The Defendant was unable to point any specific prejudice other than inordinate delay. 

C.	COST FOR THE DEFENDANT.

6.	Though the summons to strike out is dismissed the Defendant should be adequately compensated for its efforts. The remedy for the Defendant lies in cost as decided in the case of Birkett v James [1978] A.C. 297 at page 319-320 Lord Diplock stated '….to punish the dilatory plaintiff by mulcting him in costs before allowing him to proceed further with his claim. There are other ways of doing that, short of dismissing the action,….' and the other ways are to order costs and also to make an unless order to compel the Plaintiff to take action in this matter without delay or to face the inevitable striking off. In Supreme Court of Western Australia, in the case of Ekat Pty Ltd & Ors v Everdure Pty Ltd & Ors [1998] WASC 279 (10 September 1998) Master Sanderson in a similar strike out application while dismissing the summons for strike out stated 'It is appropriate that the plaintiff ought to pay the defendants' cost of this application.' I fully endorse this approach which was also sanctioned by Lord Diplock since the Defendant has not contributed to the delay and the delay is entirely attributable to the conduct of the Plaintiff, who is also a solicitor having a practicing certificate to practice in this court. 

7.	The Defendant has waited for a considerable time period before filing this summons for strike out and Plaintiff who is a lawyer is clearly at an advantageous position as opposed to Defendant who lives in China and the delay of the Plaintiff has not been explained or he has not taken an attempt to explain the inordinate delay of three years. The Defendant has to incur further legal costs by filing this application. In the circumstances I order the Plaintiff to pay a cost of $1,500 to the Defendant within 7 days and also direct the Plaintiff to file and serve the summons for directions within 7 days. The Plaintiff's claim is deemed struck off if summons for direction not filed within 7 days and, or the cost of $1,500 not paid within seven days.

D.	FINAL ORDERS 

a.	The summons to strike out is dismissed.
b.	The Plaintiff is ordered to pay the cost of this application $1,500 assessed summarily, within 7 days from today, and if not the Plaintiff's claim is deemed struck off.
c.	Unless the Plaintiff file and serve the summons for direction within 7 days from today the claim of the Plaintiff is deemed struck off.

Dated at Suva this 15th day of October, 2012.

………………………………………….
Master Deepthi Amaratunga
High Court, Suva