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Kelton Investment Ltd v ANZ Banking Group Ltd [2014] FJHC 430; HBC134.2002S (13 June 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 134 of 2002S

BETWEEN:

KELTON INVESTMENTS LIMITED a company incorporated in the Fiji Islands having its registered office at Suva
FIRST PLAINTIFF

:KELTON MARKETING (FIJI) LIMITED a company incorporated in the Fiji Islands and having its registered office in Suva
SECOND PLAINTIFF

:PAPERCHASE LIMITED a company incorporated in the Fiji Islands and having its registered office in Suva
THIRD PLAINTIFF

:INDUSTRIAL TECHNOLOGY (FIJI) LTD a company incorporated in the Fiji Islands and having its registered office in Suva
FOURTH PALINTIFF

: NAIGANI RESORTS LIMITED a company incorporated in the Fiji Islands and having its registered office in Suva
FIFTH PLAINTIFF

:JAMES MICHAEL AH KOY of Suva, Businessman
SIXTH PLAINTIFF

:JAMES MICHAEL AH KOY of Suva, Businessman
SEVENTH PLAINTIFF

:ANTHONY EUGENE AH KOY of Suva, Businessman
EIGHTH PLAINTIFF

AND:

ANZ BANKING GROUP LIMITED a duly incorporated company having its registered office in Suva
DEFENDANT

BEFORE : Master ThusharaRajasinghe

COUNSEL : Mr. Anand Singh for the Plaintiff
Mr. Shalvin Singh for the Defendant

Date of Hearing : 14th March, 2014
Date of Ruling : 13th June, 2014

JUDGMENT

1. INTRODUCTION
   

1. The Defendant filed this Summons to strike out for want of prosecution pursuant to Order 25 rule 9 of the High Court Rules seeking following orders;
   
   1. The Plaintiff do show cause why the proceedings should not be struck out for want of prosecution,
      
   2. Such further or other order as to the Court seems fit,
      
   3. The cost of this action be paid by the Plaintiffs' on full indemnity basis.
      
2. Upon being served with this Summons, Mr. Michael James Ah Koy, a shareholder and a director of the first Plaintiff filed his affidavit in show cause for the Plaintiffs, which was followed by the reply affidavit of Mr. Vinit Singh a Solicitor of the Defendant's Solicitors' law firm. Subsequently, this Summons was set down for hearing on the 14th of March 2014, where the counsel for the parties made their oral arguments and submissions. Beside their respective oral submissions, both counsel tendered their written submissions at the hearing. Having considered the Summons and respective affidavits and submissions of the Plaintiff and the Defendant, I now proceed to pronounce my ruling as follows.
   

B. BACKGROUND,

3. The Plaintiffs have instituted this action by way of a writ of summons dated 27th of March 2002, claiming damages against the Defendant. The Claim of the Plaintiffs is founded on the allegation of a breach of contract. This action has been sailing through aprotracted period of 12 years, encountering varieties of applications and procedural steps. This matter was last called before the Hon Master Amaratunga (as his lordship then was) for the hearing of Summons for directions. The orders were granted in terms of the Summons for directions by the Hon Master on 22nd of August 2012. Messrs Singh& Singh Lawyers filed their notice of change of solicitors for the Plaintiffs on 5th of March 2013. Subsequently, the Plaintiffs filed a notice pursuant to Order 34 rule 2 requesting a pre- trial conference. After the said notice, no steps have been taken by the Plaintiffs in order to prosecute his claim. On 14th of November 2013, the Defendant filled this Summons to strike out for want of prosecution pursuant to O 25 r9.
   

B.I Plaintiffs' case,

4. Mr. Koy stated in his affidavit that their previous solicitor Muaror& Co was not granted the practicing certificate for the year 2013, wherefore they were compelled to retain another solicitor. Their present counsel Mr. Singh wanted to take sometimes to study and understand the proceedings conducted so far as the brief is voluminous and contains with lengthy evidences. The Plaintiffs then filed a notice requesting for pre trail conference on the 22nd April 2013, but the Defendant respondent negatively. The letter received by them from the Defendant in this regard was tendered as an annexure to the affidavit. The Defendant contented that the request for pre trial conference was premature and somehow need more time due to the complicated nature of this matter. Somehow, parties managed to conduct their pre trial conference on 1st of May 2013 and the minutes of the pre trial conference was forwarded to the Defendant. Mr. Koy further stated that they received the expert report of the Defendant in April 2013 in response of their expert report given to them in 2007.Plaintiff wanted further time to review and obtain opinion from their expert in overseas for this report. The Plaintiffs contended that these expert reports will assist the parties in their pre trial negotiation to reach for an agreement about the quantum of the damages and essentially important for the trial.
   
5. Meantime, the counsel of the Plaintiffs Mr. Singh had a heart attackon 6th of June 2013 and was hospitalized. He was then taken to New Zealand for medical treatment and returned to his office on 8th of January 2014. The Plaintiffs stated that the delay of taking of steps after the Summons for directions and the pre - trial conference was not an intentional. They claim that the delay was caused due to the reasons beyond theircontrol. Apart from that, the Plaintiffs allege that the delay of the Defendant to provide their expert's report was also partly contributed to the delay.
   

B.II Defendant's Case,

6. The reply affidavit of the Defendant is mainly focused on the issue of delay caused by the Plaintiff in prosecuting this claim. Mr. VinitSingh specifically deposed in his affidavit that the pre-trial conference conducted on 1st of May 2013 was a futile exercise as the counsel for the Plaintiffs came to conference without proper preparation. He further deposed that the issue of the counsel's health is not a relevant factor to be considered.
   

C. THE LAW.

7. Order 25 rule 9 states that;
   
   1. If no step has been taken in any cause or matter for six months then any party on application or the court of its own motion may list the cause or matter for the parties to show cause why it should not be struck out for want of prosecution or as an abuse of the process of the court,
      
   2. Upon hearing the application the court may either dismiss the cause or matter on such terms as maybe just or deal with the application as if it were a summons for directions.
      
8. According to O 25 r 9, the court is allowed to strike out an action for the failure of taking of steps for six months on two grounds. The first ground is for want of prosecution and the second is an abuse of the process of the court. The court must satisfy that such failure to take steps would either amount to want of prosecution or an abuse of the process of the court in order to exercise its discretionary power of strike out an action.
   
9. The applicable principles for strike out an action on the ground of "want of prosecution" and "abuse of the process of the court" have discussed in Birkett v James (1978) AC 297 at 318 ) (1977) 2 All E.R 801 where Lord Diplock held that
   

" the power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. 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".

10. The Fiji Court of Appeal in Pratap v Christian Mission Fellowship ( ABU 0093 of 2005)has approved and applied this celebrated passage of Load Diplock in Birkett v James ( supra).
    
11. The scope of the definition of abuse of the process of the court and the intentional delay in respect of the application of this nature has further discussed and elaborated in Grovit v Doctor and Others ( [1997] UKHL 13; 1997) 1 WLR 640), (1997) 2 All E.R 417 where it was held that
    

"that for the Plaintiff to commence and to continue litigation which he had no intention to bring to a conclusion could amount to an abuse of process; and that, accordingly, once the court was satisfied that the reason for the delay was one which involved an abuse of process in maintaining proceedings when there was no intention of carrying the case to trial it was entitled to dismiss the action".

D. ANALYSIS,

12. Upon careful perusal of the affidavits and submissions of the Plaintiff and the Defendant, I find that the defendant's main contention for their summons for strike out is founded on the ground of inordinate and inexcusable delay.
    
13. The Plaintiffs stated that they had to retain a new lawyer since their previous solicitor was not granted his practicing certificate in March 2013. Actually, the Plaintiffs have retained a new lawyer within a reasonable time without much delay. Indeed, I find no fault with the new counsel for taking time to study and to familiarize with the proceedings upon his retention. In fact, the counsel for the Defendant had also admitted the complex nature of this dispute in his written reply to the Plaintiffs' request for pre- trial conference.
    
14. No affidavit evidence was presented before me to confirm whether the Plaintiff has filed their affidavit verifying list of documents as per ordered by the court on 22nd of August 2012. There is no affidavit verifying list of document filed in the cause, which indicates that the Plaintiffs have failed to take appropriate steps pursuant to the orders granted on 22nd of August 2012. Under such circumstances, I concur with the Defendant's view in their reply to the Plaintiffs that the request for pre-trial conference was pre mature. This failure of the Plaintiffs may have caused due to the lack of understanding of the proceedings by their new counsel or mere ignorance. However, I do not find it as an intentional disobedience. The Plaintiffs have promptly taken steps to move the action to trail after the retention of their new counsel, though the steps taken by them were not appropriately required.
    
15. Certainly there is no dispute of a delay after the conclusion of pre-trial conference on 1st of May 2013. However, the Plaintiffs strongly claim that it was not an inordinate and inexcusable delay. According to the Plaintiffs, the health condition of their counsel where he suffered a heart attack on 6th of June 2013 and taken to New Zealand for treatment has mainly contributed this delay. The Plaintiffs stated that they wanted to retain the same counsel as it would be difficult for them to retain another new counsel and also they wanted to do that on humanitarian reasons.
    
16. Moreover, the Plaintiffs alleged that the delay of the Defendant to provide their expert report has also partly contributed this delay. I find that the parties have agreed to consult their respective experts with their respective reports in order to explore the possibility for an agreement on the quantum of damages during the cause of pre- trial conference. In view of these finding, I find the essentiality of the expert's report not only for the pre-trial negotiation, but also for the hearing.
    
17. Having considered the delay and the excuses and the reasons given by the Plaintiffs for such delay, I now turn to review the legal principles on the application of this discretionary power of the court to strike out an action on the ground of want of prosecution under O 25 r 9.
    
18. Sir Thomas Bingham MR in Costellow v Somerset County Council (1993) 1 All ER 952, at 959) extensively discuss the suitable approach for striking out of an action on the ground of procedural default, where he held that;
    

"this problem arises at the intersection of two principles, each in itself salutary. The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met. This principle is reflected in a series of rules giving the court a discretion to dismiss on failure to comply with a time limit;.....this principle is also reflected in the court's inherent jurisdiction to dismiss for want of prosecution. ...

The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate. This principle is reflected in the general discretion to extend time conferred by O 3 r 5, discretion to be exercised in accordance with the requirements of justice in the particular case........................

Neither of these principles is absolute if the first principle were rigidly enforced, procedural default would lead to dismissal of action without any consideration of whether the plaintiff's default had caused prejudice to the defendant. But the court's practice had been to treat the existence of such prejudice as a crucial and often a decisive matter. If the second principle were followed without exception, a well to do plaintiff willing and able to meet orders for costs made against him could flout the rules with impunity, confident that he would suffer no penalty unless or until the defendant could demonstrate prejudice....................

But in the ordinary way, and in the absence of special circumstance, a court will not exercise its inherent jurisdiction to dismiss a plaintiff's action for want of prosecution unless the delay complained of after the issue of proceedings has caused at least a real risk of prejudice to the defendant".

19. In view of the widely commended passage of Lord Diplock in Birkett v James (Supra) and Sir Thomas Bingham MR's observation in Costellow v Somerset County Council(supra), the court is required to consider whether this inordinate and inexcusable delay could likely to cause serious prejudice or to have caused prejudiced to the Defendant. The Fiji Court of Appeal held in The New India Assurance Company Limited v Rajesh K Singh and Arun K Singh ( 1999) FJCA69, Abu0031u.96s (26 November 1999), that;
    

"Prejudice can be of two kinds. It can be either specific that is arising from particular events that may or may not have occurred during the relevant period, or general, that is prejudice that is implied from the extent of the delay".

20. Having considered the show cause given by the Plaintiffs for not taking of any steps after the pre- trial conference held on 1st of May 2013, I am satisfied the delay was excusable. Indeed I concur with the counsel for the Defendant that the health condition of the counsel for the Plaintiff is not an essential factor to be considered, however, it should be considered as a peripheral issue in order to consider the potential difficulties of the Defendant to retain another counsel. Defendant had already compelled to obtain the service of a new counsel subsequent to the refusal of their previous counsel's practicing certificate in March 2013. It is highly unlikely for them to retain another counsel and again go through a cumbersome process of familiarization. Wherefore, the Plaintiffs' decision to wait for Mr. Singh to recover from his heart problem and to take time to consider the expert report given by the Defendant, could not be considered as an inordinate and inexcusable delay specially, in the absence of any formidable evidence of prejudice to the Defendant or that it would create a substantial risk that it is not possible to have a fair trial. Therefore, I find the delay caused by the Plaintiffs could be compensated with a reasonable cost.
    
21. In my conclusion, having considered the reasons set out above, I hold that the Plaintiffs' failure to take appropriate steps for six monthswas not an intentional and contumelies default. I further hold that the delay caused by the Plaintiff was not an inordinate and inexcusable delay. Bearing in mind the protracted nature of this proceedings, I am of the view that the interest of justice would be best served by the following orders which I now make that;
    
    1. The Summons to strike out for want of prosecution filed by the Defendant is hereby refused and dismissed,
       
    2. The Plaintiffs are hereby ordered to serve on the Defendant a list of documents relating to matters in question in this action and file an affidavit verifying such list within 21 days, if not the writ of summons filed by the Plaintiff will deem to be struck out at the expiration of 21 days from the date of this ruling,
       
    3. The Defendant is hereby ordered to serve on the Plaintiffs a list of documents relating to matters in question in this action and file an affidavit verifying such list within 21 days of the service of Plaintiff's list of documents.
       
    4. The Plaintiffs and the Defendant are hereby ordered to conduct and conclude inspection of documents and discoveries within 21 days of the service of Defendant's list of documents,
       
    5. The Defendant is awarded a cost of $ 2000 assessed summarily,
       

Dated at Suva this 13th day of June, 2014.

R.D.R. ThusharaRajasinghe
Master of High Court, Suva