Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Credit Corporation (Fiji) Ltd v Reddy [2013] FJHC 32; HBC436.1997 (31 January 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 436 of 1997

BETWEEN :

CREDIT CORPORATION (FIJI) LIMITED
PLAINTIFF

AND:

JAGDISHWAR REDDY [aka JACK REDDY]
1ST DEFENDANT

AND :

GLENN CUPIT.
2ND DEFENDANT

AND:

VISHWA NADAN.
3RD DEFENDANT

AND:

LYLE NORMAN CUPIT.
THIRD PARTY

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. V. Kapadia for the Plaintiff
Mr. K. Y. Singh for the 1st Defendant
Mr. A. R. Matebalavu for the 2nd Defendant

Date of Hearing: 16th June, 2011
Date of Ruling: 31st January, 2013

RULING

1. INTRODUCTION
   

1. The 2nd Defendant filed this summons for strike out for the second time in this action in terms of Order 34 rule 1(2) read with 18 rule 18(1) (d). The application is based on alleged to abuse of process due to delay. The Plaintiff has delayed finalizing of the pre-trial minutes, but before this summons was heard the Plaintiff filed the Order 34 summons and copy pleadings. The 2nd Defendant relied on the case of Govitt and Others v Doctor and Others [1997] UKHL 13, 1997 (1) All ER 417 and state that delay of nearly 17 months is an abuse of process hence the claim against 2nd Defendant should be struck off.
   

2. ANALYSIS
   

2. The 2nd Defendant filed summons in terms of Order 34 rule 1(2) on 2nd May, 2007 for strike out of the claim against 2nd Defendant and the said summons was dismissed on 19th September, 2008 and in the conclusion it was stated as follows
   

'Accordingly I dismiss the application with costs in cause. Further, it is ordered that the plaintiff do proceed with this action with due expedition to ensure this matter is finalized in the shortest possible time. I will give strict timetable for the compliance of the rules in order to get the action ready for trial before the end of this year and trial next year.'

3. Surprisingly, no such 'strict timetable' was given and I could not find any such direction from the court and 2nd Defendant never highlighted this fact to the court, and did not sought the directions for 'strict time table' which never materialized.
   
4. It is apparent from the case record that neither Plaintiff nor the Defendants took any step till 1st February, 2010 when the solicitors for the Plaintiff requested the solicitors for the Defendants for a pre trial conference and the 2nd Defendant did not comply with the said request and the Plaintiff had to obtain summons dated 10th June, 2010 for the dispensation of Pre – trial Conference and despite that being served on to the solicitors for the 2nd Defendants they did not appear in court on several adjournments of the said summons due to the failure of the Plaintiff to file an affidavit of service and once it was fulfilled on 15th November, 2010 the court made orders in terms of the said summons.
   
5. The 2nd Defendant filed the summons seeking dismissal of the claim against the 2nd Defendant for abuse of process on 16th February, 2011 without attending the pre trial conference or participating in the minutes of the pre trial conference despite certain orders of the court regarding this non compliance.
   
6. Halsbury's Laws of England 4th Ed. Vol. 37 para 434 states on 'abuse of process' that:
   

"An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or indorsement does not offend any of the other specified grounds for striking out the whole pleading or indorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court." (emphasis added)

7. This action is regarding certain finances provided by the Plaintiff to the 1st Defendant and the 2nd Defendant is the guarantor of the said arrangement between the parties. I cannot see how this action is doomed to fail and I have not been shown such a scenario by the 2nd Defendant who is seeking to dismiss their claim for abuse of process.
   
8. The main contention of the 2nd Defendant is the delay of the Plaintiff and relies on the judgment of Grovit and Others v Doctor and Others [1997] 1 All ER 417. The said judgment had not overruled the much cited judgment of Lord Diplock in Birkett v James [1978] A.C. 297.
   
9. In Grovit and Others v Doctor and Others [1997] 1 All ER 417 this was stated in no uncertain terms and held
   

"In the meantime both the court and defendants have the means to achieve greater control over delay. Defendants do not need to wait until there has been inordinate delay before apply for peremptory orders (although they are under no obligation to do this). The courts should more readily make "unless orders". That is orders that an action should be struck out unless certain steps are taken at certain times. The advantage of such an order is that it places the onus on the plaintiff to justify the action being allowed to continue whereas in the case of an application to strike out the onus is on the defendant to show the action would be struck out.

Certainly this appeal is not an appropriate vehicle for making significant inroads on the principles endorsed by Lord Diplock in Birkett v James. The respondents are not represented and so their Lordships have not had advantage of subjecting submissions by counsel in favour of such a change to the scrutiny which is a desirable condition of precedent to such a change."

10. Having analyzed the law regarding the strike out, Lord Woolf turning to the facts of the case in Grovit and Others v Doctor and Others [1997] 1 All ER 417 came to the conclusion that
    

"...In this case once the conclusion was reached that the reason for the delay was one which involved abusing the process of the court in maintaining proceedings when there was no intension of carrying the case to trial the court was entitled to dismiss the proceedings"

11. So, what is paramount consideration in terms with Grovit and Others v Doctor and Others [1997] 1 All ER 417 is the presence of abuse of process as opposed to mere delay. In the said case the solicitors for the Defendants have even written to the Plaintiff's solicitors to expedite the action which was based on a claim for lible and this is clear as it was held in Grovit and Others v Doctor and Others [1997] 1 All ER 417 as follows
    

".... While the last activity on behalf of the plaintiff had been on 20the September, 1990 over two years previously. This was despite the fact that on 21st March and again on 23rd September 1991 the defendant's solicitors had written to the plaintiff's solicitors inviting them either to proceed with or abandon the case."(emphasis added)

12. In sharp contrast to the said facts the 2nd Defendant did not participated in the pre trial conference when he was requested by the solicitors and he had repeatedly refrained from even replying to the written requests and even when the summons to dispense with the pre trial conference was served on the solicitors for the 2nd Defendant no appearance was made on behalf of the 2nd Defendant for several adjournments indicating deliberate inaction by the 2nd Defendant. Though neither party took action to prosecute this action since the ruling on first strike out application delivered on 19th September, 2008. When the plaintiff requested for pretrial conference on 1st February, 2010, the 2nd Defendant had not shown any interest to that and avoided the pre-trial conference and subsequently the 2nd Defendant even avoided the courts when it was requested to do so, on the summons filed by the Plaintiff.
    
13. What the 2nd Defendant has to establish is that Plaintiff has abused the process by its conduct. It is clear that 2nd Defendant's inaction as well as deliberate non co-operation has led to the Plaintiff to file summons seeking dispensation of the pre-trial conference. The 2nd Defendant did not appear in courts despite that it being served to them. Perusal of the case record would indicate that twice the notice was served by the Registry and affidavit in support indicate the Plaintiff had also served the summons but, 2nd Defendant refrained from attending to the said summons and after several adjournments the court had granted the orders sought by the Plaintiff on 15th November, 2010.
    
14. This summons for strike out the claim for 2nd Defendant was filed only on 16th February, 2011 after deliberately and conveniently avoiding the request of the Plaintiff's solicitors to participate in pretrial conference and also from the notice of the court in pursuant to the summons of the Plaintiff. The action taken by the 2nd Defendant is not at all satisfactory and not helpful to prosecute the action without delay. It is clear that before this inaction of the Defendant the Plaintiff had delayed for more than one year, but the delay alone is not sufficient to strike off an action.
    
15. The 2nd Defendant state that due to delay, the 3rd Party in this action had died, but how it is going to prejudice him is not addressed. This is the vital component in deciding whether there would be any prejudice to the 2nd Defendant. The action is based on certain loans granted to the 1st Defendant by the Plaintiff and the 2nd Defendant's liability is due to the guarantee that he had given. The Plaintiff is a leading financial institution and the action is mainly based on the documentary evidence and death of a third party cannot prejudice unless that party can indicate specifically how vital the oral testimony of the deceased party to its case and prejudice due to the death of that party. I have not been presented with such material to indicate the prejudice to 2nd Defendant.
    

100. CONCLUSION
     

16. The 2nd Defendant has not shown prejudice due to delay. Grovit and Others v Doctor and Others [1997] 1 All ER 417 has not changed the existed law relating to the strike out. The facts of that case supported abuse of the process by the Plaintiff and that was the reason for the strike out. The ratio of the said case cannot be applied to the present action which is based on certain finances granted to the 1st Defendant where the 2nd Defendant was the guarantor. Now the Plaintiff had filed the Order 34 summons and also copy pleadings and 2nd Defendant who did not participated in pre-trial conference, now seeks to dismiss the claim against them for abuse of process. The 2nd Defendant had by its deliberate actions delayed the proceedings and did not comply even to the notice of the court when the Plaintiff's summons was called in court. It is clear that such a person cannot seek an order against the Plaintiff for abuse of process. The 2nd Defendant has clearly abused the process to a certain extent by non co-operation. The 2nd Defendant had not indicated any prejudice due to delay and the death of 3rd party cannot by itself prejudice the 2nd Defendant considering the nature of the action and the claim against the 2nd Defendant which will be mainly based on documentary evidence.
    

4. FINAL ORDERS
   

1. The summons to strike out the claim against 2nd Defendant is dismissed.
   
2. Cost of this application is cost in the cause.
   

100. The Registry is directed to give priority to this case and list it before a judge for hearing on earliest possible date.
     

Dated at Suva this 31st day of January, 2013.

Master Deepthi Amaratunga
High Court, Suva