IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 73 of 2008

BETWEEN:

MAHENDRA PAL CHAUDHRY 
of 3 Hutson Street, Suva, the Minister of Finance, National Planning, Sugar Industry and Public Utilities of the Interim Government of the Republic of the Fiji Islands.
PLAINTIFF

AND:

FIJI TIMES LIMITED
the owner of the Fiji Times of 177 Victoria Parade, Suva.
FIRST DEFENDANT

EVAN HANNAH
the Publisher, Fiji Times, C/- Fiji Times, 177 Victoria Parade, Suva.
SECOND DEFENDANT

NETANI RIKA
the Editor, C/- Fiji Times, 177 Victoria Parade, Suva.
THIRD DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL : Mr. G. O’Driscoll for the Plaintiff 
Mr. Haniff F and Mr. A. Prasad for the Defendants

RULING

A.	INTRODUCTION

1.	On 15th July 2008, the Plaintiff applied to amend its Claim and to discontinue the action against the Third, Fourth, Fifth, Sixth and Eight Defendants of the first statement of claim. On 22nd October 2008, the court granted an order in terms of the Plaintiff’s application to amend its Claim. The Defendants sought costs for the amendment of the Claim and discontinuation of the action against the 5 Defendants as the counsel for the Defendants had indicated the defects in the statement of claim from the inception of the action, but the Plaintiff did not heed to the request and insisted for the continuation of the action in the said form, but later realising the faults in the said statement of claim, sought to amend the plaint. The Defendants did not object to the amendment, but sought costs as their earlier requests were not considered and as a result unnecessary costs incurred to the Defendants. The issue of costs on the amendment and discontinuation was reserved. The present application is for determination of the issue of cost and considering the circumstances it is an exceptional circumstances and full indemnity costs should be granted.

B.	FACTS

2.	The parties have filed the following affidavits in support of and in opposition to the costs application:

(a)	affidavit of Richard Krishnan Naidu dated 16th March 2009 and
(b)	affidavit of Ashneel Sudhakar in reply to the Affidavit of Richard Krishnan Naidu dated 8th April 2009 .

3.	On 13th March 2008, the Defendants were served with a Writ of Summons and a Statement of Claim. The Claim contained in voluminous details of the alleged cause of actions which contained 125 paragraphs and 432 pages. The Claim contained six identifiable causes of action – defamation, negligence and ‘gross negligence’, malicious falsehood, breach of Fiji Media Council Code of Ethics, Conspiracy and privacy and conspiracy, but the identification of them and reply to that was not an easy task. 

4.	On 27th March 2008, the Defendants solicitors, Munro Leys, wrote to the Plaintiff’s solicitor, G P Lala & Associates. This letter is produced at annexure 1 of the affidavit in support of this application for cost. Munro Leys sought an extension of time within which to file the defence. Munro Leys sought an extension on the basis that the Claim was “unfocused and embarrassing” hence it intended to strike out the claim. 

5.	The Defendants also informed the Plaintiff that it would be asking for costs if the application to strike out resulted in either the striking out of the claim or an amendment to the Claim. The letter said:

“If you do not consent, we will of course file a Statement of Defence to this 125 paragraph Statement of Claim; but if our striking-out action is successful in any material respect and the result is a new or amended claim, we would be asking for costs to reflect the wasted effort in filing a defence to a Claim that we had correctly identified as defective.” (emphasis added)

6.	The Plaintiff did not consent to the extension of time to file a defence and instead, threatened to enter judgment by default ‘at the first available opportunity’ by its letter of 28th March 2008. This letter is annexure 2 in the affidavit in support. 

7.	On 31st March 2008, the Defendants’ solicitors wrote to the Plaintiff’s solicitors detailing the defects in the Claim. The letter is annexure 4 in the affidavit in support and in detail deals with the issue. The Defendants again requested that the time for filing the Defence be suspended until the matters raised in respect of the claim is responded. The letter said:

“Defects in the statement of claim

4.	You make the fair point that we have not identified to you any defects in the Statement of Claim. Refer to the attached schedule. Please advise if you intend to respond to these matters by way of amended Statement of Claim and if you will suspend the time for filing a Statement of Defence meanwhile. If we have not heard from you by midday on 2 April 2008 we will file a defence (as best we can). We draw your attention to paragraph 5 below. 

Costs
5.	We have previously indicated that if we are put to the time and trouble of responding to this voluminous (albeit defective) Statement of Claim we will seek costs, on an indemnity basis for having done so if we are successful in any subsequent proceedings based on its defects. Our cost estimate, based on the collaborative work of the lawyers involved, at their respective hourly rates, is F$7-8,000 for reviewing the Statement of Claim, analyzing its contents and preparing what we consider to be an unnecessary Statement of Defence (other costs of application, hearing, etc. being a matter for separate account).”(emphasis is mine)

8.	No response to the said letter and failure to have received a response, Defendants filed a defence on 2nd April 2008. The Defendants responded to each paragraph of the defence. (i.e. to all 125 paragraphs which contained more than 400 pages).

9.	On 21st April 2008, the Defendants filed an application to strike out the Claim and or sought better particular of the Claim. The application was substantial and it included a 24 page table detailing the orders sought for each paragraph. 

10.	After the said application for strike out on 15th July 2008, the Plaintiff filed an application seeking the following orders:

“(1)	THAT leave be granted to the Plaintiff to file an Amended Writ of Summons and Statement of Claim in terms of annexure “RV-1” to the Affidavit of Romanu Vananalagi filed in support hereof.

(2)	THAT leave be granted to discontinue the action against the Third, Fourth, Fifth, Sixth and Eighth Defendants.

(3)	THAT personal service of the Amended Writ of Summons and Statement of Claim be dispensed with by service on the Defendant’s Solicitors.

(4)	THAT costs of this application be costs in the cause.”

11.	On 22nd October, the court made the following orders in respect of the application filed by the Plaintiff:

“1.	That leave is granted to the Plaintiff to file an Amended Writ of Summons and Statement of Claim in terms of annexure “RV-1” to the Affidavit of Romanu Vananalagi filed in support hereof.

2.	That leave is granted to discontinue the action against the Third, Fourth, Fifth, Sixth and Eighth Defendants.

3.	That personal service of the Amended Writ of Summons and Statement of Claim be dispensed with by service on the Defendant’s solicitors.

4.	Question of costs is reserved for hearing when Counsels are ready to proceed.

5.	Adjourned to 3rdFebruary, 2008 at 8.30am.

6.	Amended Writ to be filed by 7thNovember, 2008.

7.	Statement of Defence to be filed by 15th December, 2008.”

12.	The Defendants state that it is unreasonable for the Defendants to have incurred costs in excess of $20,000.00 before the Plaintiff amended its Claim

C.	LAW

13.	The Attorney General of Fiji v Tupou Tokaiwa Senirewa Draunidalo Fiji Court of Appeal No ABU0006 of 2008, at paragraph 9 held 

‘The award of indemnity costs would only be considered in exceptional cases where the conduct of a party (or, possibly, its legal representatives) was reprehensible to a significant degree”. (emphasis added)

14.	I cannot think of better example of the circumstances described in the above decision than this! The Defendants have first sought extension of time to reply to the statement of defence since it contained over 400 pages, but it was flatly denied by the Plaintiff and also warned that a default judgment would be entered against all the Defendants if there was a delay on the part of Defendants. The Defendants explained the defects in the detailed and unambiguous manner, but the Plaintiff did not take serious note of it, till an application for strike out was made where an application to amend the statement of claim was made which drastically reduced the verbose and vague statement of claim which comprised more than 400 pages. The grievance of the Defendants mainly are

a.	Unnecessary parties were named (i.e. five defendants were left in the amended statement of claim)

b.	Despite the warning of the Defendants the Plaintiff did not amend clearly untenable statement of claim hence extra effort was made to reply to the statement of claim which comprised 439 pages incurring unnecessary costs to them, before it was amended.

15.	Order 18 rule 6 deals with Facts, not evidence, to be pleaded

‘6(1) Subject to the provisions of this rule, and rules 9, 10, and 11, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defences, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.’ (emphasis is added)

16.	In Supreme Court Practice (1988) at page 269 it was stated under the “Material facts, not evidence” 18/7/3 state as follows

‘Material facts, not evidence’- Every pleading must contain only a statement of the material facts on which the party pleading relies, and not the evidence by which they are to be proved (per Farwell L. J in N. W. Salt Co Ltd v Electrolytic Alkali C Ltd [1913] 3K.B. 422,425). “The distinction is taken in the very rule itself between the facts on which the party relies, and the evidence to prove those facts (per Brett L.J. in Philipps v Philipps (1878) 4 Q. B. D. 133). All facts which tend to prove the fact in issue will be relevant at the trial, but they are not “material facts” for pleading purposes. “It is an elementary rule in pleading that, when a statement of facts is relied on, it is enough to allege it simply without setting the allegation” (per Lord Denman C.J. in Williams v Wilcox (1838) 8 A& E 314, p 331; and see Stuart v Gladstone (1879) 10 Ch. D. 644)…..’ (emphasis is added)

17.	The facts that can be averred in a statement of claim cannot be strictly defined, but when one examines the pleadings one can see very clearly if it does not conform to the requirements contained in Order 18 and one cannot think of a better example of non compliance than the statement of claim which contain 439 pages and 125 paragraphs and more than five defendants who were unnecessarily joined to the action as all of them were correctly deleted in the amended statement of claim. The important thing to remember is that amendment was sought only as the last resort and when an opportunity was given the Plaintiff did not consider amending it. The Pleadings are very important as it is what the other party has to answer and if that is not properly understood it cannot be answered adequately or formulate the defence properly and the process is abused causing unnecessary delay and costs to all parties thus inconvenience to all.

18.	In Supreme Court Practice (1999) at page 314 under the heading ‘Need for compliance’ it was stated as follows

‘Need for compliance- These requirements should be strictly observed (per May L. J. in Lipkin Gorman v Karpnale Ltd [1989] 1 W.L.R 1340 at 1352). Pleadings play an essential part in civil actions, and their primary purpose is to define the issues and thereby to inform the parties in advance of the case which they have to meet, enabling them to take steps to deal within it, and such primary purpose remains and can still prove of vital importance, and therefore it is bad law and bad practice to shrug off a criticism as a “mere pleading point” (see per Lord Edmund Davis in Farrell v Secretary of state for Defence [1980] 1 W.L.R 172 at 180, [1980]1 All E.R. 166 at 173)’. (emphasis is added)

19.	The Plaintiff has not adhered to the accepted principles of law in drafting of a statement of claim, thus put the Defendants to unnecessary difficulty and compelled them to reply to a statement of claim which comprised more than 400 pages and also later discarded the whole of said 400 page statement of claim by amending it entirely which resulted the five of the original Defendant being deleted in the amended statement of claim and the remaining defendants had to file an amended statement of claim. This is clearly an exceptional case as the wrong parties were brought to the court and they were compelled to reply to a statement of claim which comprised more than 400 pages when the defects in pleadings were clearly pointed out by the Defendants. The action of the Plaintiff is reprehensive and it is a clear abuse of the process and Defendants were harassed utilising the process of the court. 

20.	When the Defendants’ lawyers informed the defects the Plaintiff did not take any step to correct them and this is gross negligence and or total disregard to the rules accepted by the court and this is another form of abuse of court.

21.	The Plaintiff jettisoned the 439 page statement of claim, and amended the statement of claim thus put the Defendants to undue strain and costs. In my mind this is a fit and proper case to award indemnity costs to Defendants including the Defendants who were deleted in the amended statement of claim.

22.	I have not been presented with any details to assess the indemnity costs. The affidavit in support only state the hourly rates of Mr. Richard Naidu and a senior associate. I fully agree with the Plaintiff’s contention that this is not sufficient to assess the indemnity costs, but that should not be a reason to deny what the Defendants are entitled upon this ruling.

23.	The Defendants including the Defendants who were left by the amendment are entitled to full indemnity costs and this should be done once all the details of the indemnity costs are revealed to the costs.

D.	FINAL ORDERS

a.	The Defendants including the defendants who were left out in the amended statement of claim are granted indemnity costs till the amendment of the statement of claim including costs for this application.

b.	Defendants are directed to file and serve their detail costs for the assessment of the indemnity costs within 21 days.

c.	If the Defendants fail to file and serve a detailed costs within 21 days the matter should take normal cause.

Dated at Suva this 29th day of October, 2012.

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