IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: 659 of 1998S.

BETWEEN:

MOHAMMED SAHIK KHAN
of Nadi, Businessman.
1ST PLAINTIFF

AND:

SHEIK'S RENT A CAR LIMITED 
a limited liability company having its registered office at Raggs Street, Martintar, Nadi.
2ND PLAINTIFF

AND:

HABIB BANK LIMITED of Suva.
1ST DEFENDANT

AND:

MOHAMMED AFZAL KHAN of Suva, Solicitor.
2ND DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. A. J. Singh for the Plaintiff 
Ms. B. G. Narayan for the 1st Defendant
Ms. Radhika Naidu for the 2nd Defendant 

Date of Hearing : 29th November, 2011, 22nd February, 2012 and 7th September, 2012.
Date of Decision : 6th February, 2013

DECISION

A.	INTRODUCTION

1.	The plaintiff filed this action against 1st Defendant for damages due to alleged misrepresentation in financial dealings and also against the 2nd Defendant who was a lawyer for negligence in executing and arranging the said financial dealings with the 1st defendant. The Plaintiff after failing to obtain interim injunction to stay the sale of the mortgaged properties did not proceed with the action for more than 5 years. The conduct of the Plaintiff was commented when Justice Jitoko delivered the decision regarding the said injunction where pertinent adverse comments were made as to the conduct of delay and the methods utilized by Plaintiff for such delay. Even after such adverse comment being made the Plaintiff did not take any action for more than 5 years and the 1st Defendant filed this application for strike out. The conduct of the Plaintiff is an epitome of abuse of process where even Justice Jitoko commented on the plethora of interim applications being made to court at that time to delay. The Plaintiff's conduct in this action coupled with 5 year long dormacy, in this case established abuse of process which is sufficient to strike out this action in terms of the ratio in Grovit and Others –v- Doctor and Others [1997] 2 All ER 419. Without prejudice to that the 1st Defendant had also indicated prejudice due to non availability of the witnesses. So, even if I am wrong in the first ground of strike out for abuse of process which stands alone, I can still strike off this action as vital oral evidence is needed considering the nature of allegation and those witnesses cannot be found due to 15 year delay from the institution of the action and more than 18 years from the date of alleged financial transactions. 

B.	FACTS 

2.	The brief chronology of the action is as follows

i.	The writ of summons was filed on 22nd January, 1998 seeking damages for alleged false representation against the 1st Defendant bank and also damages for negligence against the 2nd Defendant who acted as the solicitor for the financial transaction. The Plaintiff allege the Defendants alluded him to obtain loans from the 1st Defendant on certain assurances given to him regarding his other loan commitments with other banks and other financial obligations.

ii.	Statement of the defence for the 1st Defendant was filed on 22nd January, 1999 and 2nd Defendant filed the statement of defence filed on the same day.

iii.	Reply to the statement of Defence was filed on 11th February, 1999

iv.	11th May, 1999 the summons for directions was filed and order in terms of that summons was made on 21st July, 1999

v.	On 18th August, 1999 a summons was filed seeking the pretrial conference.

vi.	On 15th November 2000 the matter was adjourned sine die by the Court since the Plaintiffs were not showing any further interest to move the matter

vii.	There was inaction on the part of the Plaintiffs for one year until on 19th December 2001 he 1st Plaintiff filed a Notice to Act in Person.

viii.	On 4th January 2002 the Plaintiffs filed a Summons seeking the matter to be restored to the cause list and for the Pre – Trial Minutes to be dispensed with and the action entered for trial.

ix.	The said Summons was heard on 4th February 2002 whereby the action was restored to the cause list and the Court directed that the Pre – Trial Minutes was to be filed and not to be dispensed with.

x.	On 11th February 2002 a Notice of Appointment of Solicitors was filed whereby Messers G.P. Shankar & Co were once again appointed to act for the Plaintiffs together with a Notice of intention to proceed.

xi.	On 13th August 2002 the Plaintiffs through their Solicitors filed a Summons to strike out the Statement of Defense of the 2nd Defendant for failure to co-operate to finalise the Minutes of Pre – Trail Conference. The Summons was heard on 22nd August when the 2nd Defendant sought leave to amend his Statement of Defence and the Plaintiffs also sought leave to file an amended Statement of Claim which was allowed.

xii.	The Amended Statement of Claim was subsequently filed into Court on 29th October 2002. 

xiii.	On 21st November 2002 the Plaintiffs filed a Summons and Affidavits in Support seeking an interlocutory injunction to restrain the 1st Defendant from exercising its powers of sale under the Mortgage securities in issue in this action. The Plaintiffs also sought to further amend their Statement of Claim. The 1st Defendant opposed both the applications. All the necessary Affidavits and submissions by the parties were filed by 14th August 2003anf Justice. Jitoko is to deliver a Ruling on notice.

xiv.	On 14th August 2003 the Plaintiffs filed another Summons seeking an order for detailed account to be provided by the 1st Defendant of the monies lent and advanced to the Plaintiffs and payments received. The 1st Defendant consented to the application and provided all the required details to the Plaintiffs' Solicitors.

xv.	The Decision of Justice Jitoko on the Plaintiff's Summons dated 21st November 2002 was delivered on 29th April 2005 wherein he dismissed both the said applications for injunction and further amendment of the Statement of Claim with costs and stated at page 7

 '…..There is certainly some credence in believing that the application is deliberately made with the view of delaying further the case and at the same time thwarting the 1st Defendant's exercise of its rights to mortgagee sale.'

xvi.	On 18th May, 2005 the Plaintiffs filed a Notice of Appeal in the Court of Appeal against the Decision of Justice Jitoko dated 29th April 2005, but was not successful. The Plaintiffs did not proceed further with their said Appeal.

xvii.	On 23rd August 2005 the 1st Defendant filed an Amended Statement of Defence and Counterclaim against the Plaintiffs.

xviii.	On 1st September 2005 the Plaintiffs again filed a Summons in the High Court for a third time seeking similar reliefs for injunction against mortgagee sale and detailed accounts as in the said two previous applications. The 1st Defendant opposed the Summons on the basis that the same had already been previously dealt with by the High Court and the Court of Appeal and also on the basis that by then the mortgaged properties had already been sold.

xix.	On 17th October 2005 the Plaintiffs filed a Notice to seek additional prayers to their earlier Summons dated 1st September 2005 wherein the Plaintiffs once again sought leave to yet further amend their Statement of Claim together with which they filed the proposed Amended Statement of Claim into Court without such leave been granted.

xx.	On 20th October 2005 the earlier Summons filed on 1st September 2005 was heard before Justice Jitoko whereby the Plaintiffs' Solicitors withdrew the said Summons on the basis that since the mortgaged properties had been sold it was futile proceeding with the Summons.

xxi.	On 5th December 2005 the Plaintiffs' said Notice to seek additional prayers filed on 17th October 2005 was heard before Justice Jitoko and it was held that the application to amend the Statement of Claim was an attempt to include new causes of action and the application was dismissed with costs.

xxii.	On 21st December 2005 after the Plaintiffs' several attempts to further amend their Statement of Claim were unsuccessful, the 1st Plaintiff filed a new Writ of Summons and Statement of Claim in Civil Action No. 601 of 2005.

xxiii.	On 23rd December 2005 the 1st Defendant through its solicitors filed an Acknowledgment of Service notifying of its intention to defend the proceedings.

xxiv.	On 16th January 2006 the 1st Defendant filed a Summons and Affidavit in Support to strike out the said new action on the basis that the same was scandalous, frivolous and vexatious or otherwise an abuse or otherwise an abuse of process of the Court.

xxv.	The 1st Defendant's Summons to strike out was heard before Justice Jitoko and he delivered his Decision on 23rd March 2006 whereby he ordered that the Plaintiffs' Statement of Claim in the said Civil Action No. 601 of 2005 be struck out with costs awarded in favour of the 1st Defendant.

xxvi.	On 4th March 2006 the Plaintiffs filed a Summons seeking an order that the Minutes of Pre – Trail Conference be dispensed with (which application had also been made earlier in the proceedings and dismissed).

xxvii.	On 6th April 2006 the Plaintiffs filed another Copy Pleadings together with another Affidavit Verifying Plaintiffs' List of Documents.

xxviii.	The said Summons dated 4th March 2006 for dispensation of Pre – Trial Conference Minutes was called before Justice Jitoko on 25th April 2006whereby another Counsel, Mr. T. Sharma appeared for the Plaintiffs on instructions of Messers G.P. Shankar & Co. and sought an adjournment on the basis that the principal of the said firm and the Plaintiffs' Counsel, Mr. G. P. Shankar had passed away and the Plaintiffs had to find another lawyer to represent them. The matter was accordingly adjourned to 7th June 2006.

xxix.	On 7th June 2006 when the matter was next called before Justice Jitoko, Messrs Chan Law represented the Plaintiffs and directions were made inter-alia for Messrs Chan Law to file a Notice of Change of Solicitors and for the matter to take its normal course. Since then till this summons for strike out was filed by the 1st Defendant no action was taken in this matter.

C.	LAW AND ANALYSIS

3.	Applicable law in striking out application adopts approach of English House of Lords in Birkett and James [1977] 2 All ER 801, 805; [1978] A.C. 297, 318, per Lord Diplock

"The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, eg. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party."

4.	Birkett and James [1977] 2 All ER 801, 805; [1978] A.C. 297, very clearly stated that in an application for strike out in terms of Order 25 rule 9 for want of prosecution can be granted, if the conduct of the Plaintiff is such that it had amounted to an abuse of process. This ground of strike off is mutually exclusive ground which does not depend on any other ground or grounds laid down in the said decision. So, the applicant does not need to satisfy the court any prejudice due to delay if the ground for abuse of process is established. It is pertinent to note that abuse of process can be established due to the totality of the conduct of the Plaintiff in the action and delay is also a factor in such circumstances among other things and this is the ratio in the decision of the House of Lords 20 years after the Birket (supra) was decided, in Grovit and Others –v- Doctor and Others [1997] 2 All ER 419, 

5.	In Grovit and Others –v- Doctor and Others [1997] 2 All ER 419, the House of Lords considered the Birkett and James [1977] 2 All ER 801, 805; [1978] A.C. 297, 318, and thought, that though there were criticisms over said judgment Birkett (supra), that it was not appropriate time to overrule it, but used the ratio of Brikett (supra) judgment to strike off a matter with was inactive for two years. 

6.	The Grovit and Others –v- Doctor and Others [1997] 2 All ER 419 was penetrative in its treatment of the Birkett and James [1977] 2 All ER 801, 805; [1978] A.C. 297. It was a case of defamation where the claimant did not take any step for two years and Defendants sought to strike out the action for want of prosecution, taking conduct of the claimant in that case as a whole held that 'To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process' and struck off the action. 

7.	In Grovit and Others –v- Doctor and Others [1997] 2 All ER 419 held,

"This conduct on the part of the appellant constituted an abuse of process. The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires (which will frequently be the case) the courts will dismiss the action. The evidence which was relied upon to establish the abuse of process may be the plaintiff's inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution. However, if there is an abuse of process, it is not strictly necessary to establish want of prosecution under either of the limbs identified by Lord Diplock in Birkett v. James [1978] A.C. 297. 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 intention of carrying the case to trial the court was entitled to dismiss the proceedings. (emphasis is mine)

8.	Justice Jitoko in his reasoning for refusal of the injunction and also dismissing the summons for further amendment of the statement of claim delivered on 29th April 2005 stated as follows

'There is certainly some credence in believing that the application is deliberately made with the view of delaying further the case and at the same time thwarting the 1st Defendant's exercise of its rights to mortgagee sale.'

9.	Conduct of the Plaintiff is an epitome of abuse of process. Even after such adverse comments being made by a Judge in the said decision Plaintiff did not take any action for more than 5 years and conduct of the Plaintiff is an abuse of court process. The action for Plaintiff should be struck off for abuse of process.

10.	Plaintiff states that he could not find a lawyer after the death of his previous solicitor. Then how could he promptly file affidavits in opposition when application was made to Strike off. I do not accept this lame excuse for delay of more than 5 years till this strike out summons was served to the Plaintiff. If not for this summons the Plaintiff could have even waited longer, making the death of solicitor as an excuse!

11.	When there are inordinate delay of over 18 years from the institution, lawyers may invariably die or not available and this cannot be a valid excuse for further delay and it was also clear that after the demise of his solicitor there were more than two instances where lawyers have appeared and even the court had directed to such lawyers to file the change of solicitors on record.

D.	PREJUDICE

12.	When the abuse of process is established, it is unnecessary to prove prejudice in order strike out the action. Without prejudice to what was stated I would consider the prejudice to the 1st Defendant as an additional ground to strike off the Plaintiff's action.

13.	The Plaintiff's action is based on misrepresentation by the 1st Defendant which is an international bank, which is no longer in operation in Fiji. The statement of claim do not indicate that there were any written misrepresentations, and if there were such material those would have been produced at the injunction inquiry or would have sought summary judgment upon such evidence of written misrepresentations. Since none was produced so far, I can safely assume that the alleged misrepresentations were based on the oral evidence of the Plaintiff and or any other witness that will be called at the trial. The 1st Defendant which is an international Bank which is no longer operational in Fiji and has also stated some of the employees named in the affidavits of the Plaintiff have even left the Bank and also nonresidents of Fiji and cannot be found, quite apart from all of them not available to give evidence. This is understood in such international organization and the inordinate delay of more than 18 years. If the action is mainly based on documentary evidence this will not be an issue. So, the 1st Defendant is greatly prejudiced due to inordinate delay since the employees who were involved with this financial transaction cannot be located to give oral evidence against any alleged verbal assurances or misrepresentations that will be alleged by the Plaintiff at the trial. It is pertinent to call the said employees who were involved in the alleged transaction and test their evidence under cross examination to counter the evidence of the allegation of misrepresentation by the 1st Defendant.

E.	CONCLUSION

14.	The conduct of the Plaintiff is an abuse of process in this case and the excuse of death of solicitor cannot be accepted for such a long delay of over 5 years inaction in this case. This long dormancy was after the failure to obtain injunctive relief. The 1st Defendant had also indicated prejudice due to the delay of over 18 years from the date of alleged incident. Since the allegation is misrepresentation which mainly evidence from oral evidence, the delay and invariable loss of evidence as well as the fading of memory of a routine act as opposed to a special event (e.g. accident) is another factor that makes fair trial impossible which would be an additional ground for strike out. The statement of claim of the Plaintiff is struck off. The cost of this application is assessed summarily at $1,000 for the 1st Defendant.

F.	FINAL ORDERS

a.	The Plaintiff's action is struck off.

b.	The 1st Defendants is granted a cost of $1000 each. 

Dated at Suva this 6th day of February, 2013.

Master Deepthi Amaratunga
High Court, Suva