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Singh v Kumar [2015] FJHC 199; Probate Action 20.2012 (18 March 2015)

IN THE HIGH COURT OF FIJI
PROBATE JURISDICTION
WESTERN DIVISION
AT LAUTOKA

Caveat No. 16 of 2012
Probate Action No. 20 of 2012

IN THE ESTATE of JASODA aka
JASODA PRASAD late of Namaka Park,
Namaka, Nadi in the Republic of Fiji
Islands, Retired, Deceased, Testate

BETWEEN :

ASHIKA SINGH of Namaka, Nadi but now residing in Brisbane, Australia, Accountant, and RATTAN aka RATTAN SING of Namaka, Nadi but now residing in New Zealand, Quarrantine Officer
PLAINTIFFS

AND :

PUSHPA WATI KUMAR of Namaka, Nadi, Domestic Duties
DEFENDANT

(Ms) Salote Vakaotia Veitokiyaki for the Plaintiffs
(Ms) Miriama Latianara for the Defendant

Date of Hearing :- 18th February 2015
Date of Ruling :- 18th March 2015

EXTEMPORE RULING

(A) INTRODUCTION

(1) This is an application for reinstatement of the Plaintiffs action, which was taken off the cause list on 07th March 2014, due to non-appearance of the Plaintiffs or their Solicitors.
(2) The Plaintiffs filed "inter-partes" Notice of Motion on 22nd July 2014, to restore and reinstate the Plaintiff's claim.

(3) The Plaintiffs Notice of Motion is supported by an affidavit sworn by "Krishneel Kunal Kumar", the Legal Clerk of Messrs Pillai, Naidu & Associates, Solicitors for the Plaintiff.

(4) The application is vigorously opposed by the Defendant.

(5) The Defendant filed an affidavit in opposition.

(6) The Plaintiffs did not file an affidavit in reply.

(7) At the hearing, both parties made oral submissions to Court.

(8) In addition to oral submissions, the Plaintiffs and the Defendant filed written submissions for which I am grateful.

(B) BACKGROUND

(1) The action was instituted on 07th September 2012. The Defendant is the sister of the second named Plaintiff.

(2) The Plaintiffs statement of claim alleges that the Defendant had applied for a probate under a false will of the deceased "Jasoda Prasad". Moreover, the Plaintiffs allege fraud, forgery and misrepresentation at the time of making of the Will.

(3) The chronology of events is as follows:

(C) THE LAW

(1) The principles for striking out for want of prosecution are well settled. Lord "Diplock" in "Birkett v James" (1987), AC 297, succinctly stated the principles at page 318 as follows:

"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;

(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 it 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."

(2) The test in "Birkett vs James" (supra) has two limbs. The first limb is "intentional and contumelious default". The second limb is "inexcusable or inordinate delay and prejudice."

(3) In, Pratap v Chirstian Mission Fellowship, (2006) FJCA 41, and Abdul Kadeer Kuddus Hussein V Pacific Forum Line, IABU 0024/2000, the Court of Appeal discussed the principles expounded in Brikett v James (Supra).

Those principles were discussed by the Court of Appeal in its decision of Pratap v Christian Mission Fellowship [2006] FJCA 41; ABU0093J.2005 (14 July 2006) as follows;

[19] We think it appropriate to begin our consideration of this question by reminding ourselves that while the High Court undoubtedly has the power to dismiss or permanently stay proceedings before it which it finds to be an abuse of its process (see e.g. the often quoted passage from Metropolitan Bank Limited v. Pooley (1885) 10 App. Cas 2010 at 220, 221) it is a power which must be exercised with considerable caution.

[20] In Dey v. Victorian Railways Commissioners [1949] HCA; (1949) 78 CLR 62, 91 Dixon J said:

"A case must be very clear indeed to justify the summary intervention of the court ... once it appears that there is a real question to be determined whether of fact or of law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

[23] The correct approach to be taken by the court in Fiji to an application to strike out proceedings for want of prosecution has been considered by this court on several occasions. Most recently, in Abdul Kadeer Kuddus Hussein v. Pacific Forum Line IABU 0024/2000 – FCA B/V 03/382 the court, readopted the principles expounded in Birkett v. James [1978] AC 297; [1977] 2 All ER 801 and explained that:

"The power should be exercised only where the court is satisfied either (i) 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 (ii) (a) that there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers, and (b) that such delay would give rise to a substantial risk that 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 Defedants either as between themselves and the Plaintiff or between each other or between them and a third party."

[24] In New Zealand, the same approach was adopted in the leading case of Lovie v. Medical Assurance Society Limited [1992] 2 NZLR 244, 248 where Eichelbaum CJ explained that:

"The applicant must show that the Plaintiff has been guilty of inordinate delay, that such delay is inexcusable and that it has seriously prejudiced the defendants. Although these considerations are not necessarily exclusive and at the end one must always stand back and have regards to the interests of justice. In this country, ever since NZ Industrial Gases Limited v. Andersons Limited [1970] NZLR 58 it has been accepted that if the application is to be successful the applicant must commence by proving the three factors listed.."

[25] In New Indian Assurance Co. Ltd. V. Rajesh Kumar Singh (ABU 0031/1996 - FCA B/V 99/946 this court emphasized that while inordinate and inexcusable delay might be established, these factors were not, on their own, sufficient to warrant the striking out of the action. What additionally had to be clearly demonstrated (and could not be presumed) was that the Defendant had been or would be materially prejudiced by the delay that had occurred. Although the categories of prejudice are not closed (see, for example, remarks by Lord Denning in Biss v. Lambeth Southwark and Lewisham Health Authority [1978] 2 All ER 125) the principal consideration is whether, in view of the delay, a fair trial can still be held (Department of Transport v. Chris Smaller (Transport Ltd)

[31] In our view, the circumstances in which the Defendant's right to seek to have the actions stayed or struck out on the ground of abuse of process are not established by inordinate delay alone.

[32] In the present case the judge found that the Plaintiff had been responsible for inordinate delay. He also found prejudice to the Defendant. Unfortunately, however, there was no finding that the delay (which was clearly inordinate) was in fact inexcusable. As has been noted, the Plaintiff offered indigence as a ground for failing to prosecute his action. And neither did the judge make any findings of fact relating to the consequences of the absence of witnesses or the limited usefulness of the documentary evidence as steps towards coming to a conclusion not only that the defendant had suffered prejudice but that the prejudice was of such a nature and degree that a fair trial could no longer be held.

(4) The question that arises for consideration is what constitutes "intentional and contumelious default" (First Limb). The term "Contumely" is defined as follows by the Court of Appeal in Chandar Deo v Ramendra Sharma and Anor, Civil Appeal No, ABU 0041/2006,

"1. Insolent reproach or abuse, insulting or contemptuous language or treatment; despite; scornful rudeness; now esp. such as tends to dishonour or humiliate.

2. Disgrace; reproach."

(5) In Culbert v Stephen Wetwell Co. Ltd, (1994) PIQR 5, Lord Justice Parker succinctly stated,

"There is however, in my view another aspect of this matter. An action may also be struck out for contumelious conduct, or abuse of the process of the Court or because a fair trial in action is no longer possible. Conduct is in the ordinary way only regarded as contumelious where there is a deliberate failure to comply with a specific order of the court. In my view however a series of separate inordinate and inexcusable delays in complete disregard of the Rules of the Court and with full awareness of the consequences can also properly be regarded as contumelious conduct or, if not that, to an abuse of the process of the court. Both this and the question of fair trial are matters in which the court itself is concerned and do not depend on the defendant raising the question of prejudice."

Lord Justice Nourse in Choraria [Girdharimal] v Sethia (Nirmarl Kumar) Supreme Court of Judicature Case No. 96/1704/B, C.A. 15.1.98 said;

"However great does not amount to an abuse of process, delay which involves complete, total or wholesale disregard, put it how you will, of the rules of the court with full awareness of the consequences is capable of amounting to such an abuse, so that, if it is fair to do so, the action will be struck out or dismissed on that ground."

It has been further stated by Nourse J:

"That is the principle on which the court must now act. Whether it is identified as being comprehended within the first limb of Birkett v James or as one having an independent existence appears to be a point of no importance. I have already said that it is clear that the relevant ground of decision in Culbert was based on the first limb of Birkett v.James. In other words, it was there effectively held that the plaintiff's conduct had been intentional and contumelious.

In my view that conclusion was well justified on the facts of the case, which demonstrated not only the plaintiff's complete disregard of the rules but also his full awareness of the consequences. He had, at the least, been reckless as to the consequences of his conduct and, on general principles that was enough to establish that the defaults had been intentional and contumelious."

(6) Therefore, the failure to comply with peremptory orders and/or flagrant disregard of the High Court Rules amount to contumaciousness.

(7) The next question is what constitutes "inexcusable or inordinate delay and prejudice".

In Owen Clive Potter v Turtle Airways LTD, Civil Appeal No, 49/1992, the Court of Appeal held,

"(Inordinate)....means so long that proper justice may not be able to be done between the parties. When it is analysed, it seems to mean that the delay has made it more likely than not that the hearing and/or the result will be so unfair vis a vis the Defendant as to indicate that the court was unable to carry out its duty to do justice between the parties."

And at page 4, their Lordships stated:

"Inexcusable means that there is some blame, some wrongful conduct, some conduct deserving of opprobrium as well as passage of time. It simply allows the Judge to put into the scales the Plaintiff's conduct or reasons for not proceeding, as well as the lapse of time and the prejudice that would result to him from denying him opportunity from pursing his action or perhaps any action against the defendant."

In Tabeta v Hetherigton (1983) The Times, 15-12-1983, the court observed;

"Inordinate delay means a delay which is materially longer that the time which is usually regarded by the courts and the profession as an acceptable period."

(8) The Court of Appeal, in "New India Assurance Company Ltd, V Rajesh k. Singh and Anor, Civil Appeal No, ABU 0031/1996, defined the term "prejudice" as follows,

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

(9) Lord "Woolf" in "Grovit and Others v Doctor and Others" (1997) 01 WLR 640[1997] UKHL 13; , 1997 (2) ALL ER, 417, has discussed the principles for striking out for "Abuse of process" (Second ground in Order 25, rule 9) as follows,

"This conduct on the part of the appellant constituted an abuse of process. The court exists 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 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 where there was no intention of carrying the case to trial the court was entitled to dismiss the proceedings".

(10) The Court of Appeal in Thomas (Fiji) Ltd –v- Frederick Wimheldon Thomas & Anor, Civil Appeal No. ABU 0052/2006 affirmed the principle of Grovit –v- Doctor as ground for striking out a claim, in addition to, and independent of principle set out in Brikett v James (see paragraph 16 of the judgment). Their Lordships held:-

"It may be helpful to add a rider. During the course of his careful and comprehensive ruling the judge placed considerable emphasis on the judgment of the House of Lords in Grovit and Ors v Doctor [1997] UKHL 13; [1997] 2 ALL ER 417. That was an important decision and the judge was perfectly right to take it into account. It should however be noted that Felix Grovit's action was struck out not because the accepted tests for striking out established in Birkett v James [1977] 2 ALL ER 801; [1978] AC 297 had been satisfied, but because the court found that he had commenced and continued the proceedings without any intention of bringing them to a conclusion. In those circumstances the court was entitled to strike out the action as being an abuse of the process of the Court.

The relevance of the delay was the evidence that it furnished of the Plaintiff's intention to abuse the process of the Court"

(11) It seems that under "Grovit and Others v Doctor and Others" (supra) there is no need to show prejudice any more for it says that maintaining proceedings without a serious intention to progress them may amount to "abuse of process" which justifies for want of prosecution without having to show prejudice.

(12) In Halsbury's Laws of England Vol 37 page 322 the term "abuse of process" is described as follows:

"An abuse of 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 endorsement does not offend any of the other specified grounds for striking out, the facts may show it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or endorsement 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 an 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."

(13) The term "abuse of process" is summarized in Walton v Gardiner (1993) 177 CLR 378 as follows:

"Abuse of process includes instituting or maintaining proceedings that will clearly fail proceedings unjustifiably oppressive or vexatious in relation to the defendant, and generally any process that gives rise to unfairness"

(14) In Stephenson –v- Garret [1898] UKLawRpKQB 22; [1898] 1 Q.B. 677 it was held:

"It is an abuse of process of law for a suitor to litigate again over an identical question which has already been decided against him even though the matter is not strictly res judicata."

Domer –v- Gulg Oil (Great Britain) (1975) 119 S.J 392;

"Where proceedings which were viable when instituted have by reason of subsequent events become inescapably doomed to failure, they may be dismissed as being an abuse of the process of the court"

Steamship Mutual Association Ltd -v- Trollope and Colls (city) Ltd (1986) 33 Build L.R 77, C.A;

"The issue of a writ making a claim which is groundless and unfounded in the sense that the plaintiff does not know of any facts to support it is an abuse of process of the Court and will be struck out"

(D) ANALYSIS

(1) On 07th March 2014, the case was taken off the cause list as there was no appearance by the Plaintiffs or their Solicitors.

(2) Nearly 04 months and 15 days later, on 22nd July 2014, the Plaintiffs filed "inter-partes" Notice of Motion to restore and reinstate the claim.

(3) The Notice of Motion is supported by an affidavit of "Krishneel Kunal Kumar", the legal clerk of Messrs Pillai, Naidu & Associates, Solicitors for the Plaintiff, in which he deposes as follows;

1. THAT I am employed by Messrs Pillai, Naidu & Associates, Solicitors for the Plaintiffs as a legal clerk and have knowledge of this action under the supervision of my principal.
   
2. THAT on the 7th day of March 2014 this matter was listed for mention before the Master for the Plaintiffs to file an Affidavit Verifying List of Documents.
   
3. THAT our office had instructed Mrs Arti Swamy to appear on our behalf and seek final 21 days to file and serve the document as we did not receive the signed copy yet.
   
4. THAT despite Mrs Arti Swamy appearing and explaining the situation, the Master ordered that this action be taken off the cause list and if not proceeded within six months than the matter will be struck out.
   
5. THAT we received signed Affidavit Verifying Plaintiff's list of documents from the Plaintiff (which was sworn before a Justice of Peace on 20th December 2013) on 10th March 2014 and the same was filed on the same day.
   
6. THAT on 28th March 2014 we received another signed Affidavit verifying List of Documents from the Plaintiff (sworn before A Notary Public on 14th March 2014) and the same was filed in Court on 1st April, 2014.
   
7. THAT there is no inordinate delay in making this application to this Honourable Court.
   
8. THAT in the premises I humbly pray to this Honourable Court that this action be restored to the cause list.
   

(4) The application is vigorously opposed by the Defendant.

(5) The Defendant in her affidavit in opposition, sworn on 10th November 2014, deposes as follows;

1. THAT on the last occasion, being 7th of March 2014, the Plaintiffs did not appear before this Honourable Court, however, I did appear and advised Court that my Solicitor at that time, Mr. Iqbal Khan had been disbarred and that I was looking for a Solicitor. The Master of this Court then took this matter off the cause list.
   
2. THAT the Plaintiffs filed their Notice of Motion to reinstate this matter to the cause list on the 22nd of July, 2014, approximately 4 months and 15 days after this matter was struck out.
3. THAT from the Plaintiff's Affidavit in Support of their Notice of Motion, they clearly state that they were again trying to seek time to file and serve their Affidavit Verifying List of Documents.
   
4. THAT the Order for Summons for Directions was made on 6th February, 2013, however, over one year later and the Plaintiffs are still seeking time to file and serve their Affidavit Verifying List of Documents. They are the Plaintiffs and have shown lack of interest in filing their documents within the timeframe stipulated by this Honourable Court.
   
5. THAT Plaintiffs in the Affidavit of Krishneel Kunal Kumar filed herein, does not even give this Court a reason as to the delay in filing their Application for reinstatement.
   
6. THAT the Plaintiffs have not shown any reasonable grounds for the delay in their Application for reinstatement.
   
7. THAT I believe and am informed by Young & Associates that the Plaintiffs have abused the Court process by filing this Application.
   
8. THAT I humbly request and pray that the Plaintiff's Notice of Motion and Affidavit in Support of Krishneel Kunal Kumar filed on 22nd July, 2014 be wholly struck out.
   

(6) The Notice of Motion to reinstate has been filed pursuant to inherent jurisdiction of the Court.

(7) The issue to be considered in this matter is as to whether the reason for non-appearance is justifiable or as to whether any prejudice will be caused to the Defendant by reinstating the matter to the cause list.

(8) Reference is made to paragraph 04 of the Plaintiffs affidavit in support which states;

"THAT despite Mrs Arti Swamy appearing and explaining the situation, the Master ordered that this action be taken off the cause list and if not proceeded within six months then the matter will be struck out."

This is factually incorrect. The case record reflects that on 07th March 2014, there was no appearance by the Plaintiffs or their Solicitors.

Therefore, I must stress here that the case was taken off the cause list solely due to non-appearance by the Plaintiffs or their Solicitors.

(9) The application for reinstatement was filed 04 months and 15 days after the Order was made. The Plaintiffs in their affidavit in support do not explain why it took them 04 months and 15 days to file the application. The delay is inordinate, to say the least. The delay of around 04 months and 15 days could not possibly be described as "reasonable" even on the most generous minded and indulgent view.

(10) What is also of concern is there is an absence of an explanation in the Plaintiffs affidavit in support for non attendance in court on 07th March 2014.

(11) It is incumbent upon the Plaintiffs to provide cogent and credible explanation in the affidavit in support as to delay in filing the application for reinstatement and also for non-attendance in court. This has not been done at all.

(12) To make matters worse, the Plaintiffs have shown lack of interest in filing their documents within the time frame stipulated by the Court. The Order for Summons for Directions was made on 06th February 2013. But between 06th February 2013 to 07th March 2014, that is for 13 months the Plaintiffs had all the time to file the Affidavit verifying list of Documents. This has not been done at all. What were they doing themselves? The Plaintiffs Affidavit in Support is silent on this point.

(13) Therefore, I conclude that the Plaintiffs cannot establish that they had a good reason for;

• ➢ Not filing the Affidavit verifying list of Documents (that is for 13 months)
• ➢ Not attending the court on 07th March 2014.
• ➢ Not filing an application for reinstatement promptly
  

(14) I am required to take into account the likely prejudice to the Defendant. Clearly the Defendant will be prejudiced by the inordinate delay in prosecuting the claim and the stress of having unresolved court proceedings hanging over her head.

(15) Fundamentally, courts are required to determine cases on merits rather than dismissing them summarily on procedural grounds.

It is a fundamental principle of any civilised legal system that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing at which they or their representative are present and heard.

At this juncture, I bear in mind the "caution approach" that the court is required to exercise when considering an application of this type.
I remind myself of the principles stated clearly in the following decisions.

In Dev. v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 91 Dixon J said:

"A case must be very clear indeed to justify the summary intervention of the court ... once it appears that there is areal question to be determined whether of fact or of law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

In Agar v. Hyde [2001] HCA 41; (2000) 201 CLR 552 at 575 the High Court of Australia observed that:

"It is of course well accepted that a court ... should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in theordinary way and after taking advantage of the usual interlocutory processes."

(16) With all of the above in my mind, I think it is quite possible to say that the standard of diligence in this case was totally unacceptable. The Plaintiffs failure to establish that they had a good reason for;

• ➢ Not filing the Affidavit verifying list of Documents (that is for 13 months)
• ➢ Not attending the court on 07th March 2014.
• ➢ Not filing an application for reinstatement promptly
  

does not leave a good impression. Emanating from this issue alone, the fundamental question is "whether the Plaintiffs are serious about pursuing their claim when they let it sleep for 13 months?"

It follows, almost inevitably, that the Plaintiffs slept on the matter and did not wake up at all from their slumber. To my mind, 13 months is a long time to sleep on a matter. The dilatory and protracted manner in which the litigation has been conducted is a clear abuse of the court process. The limited resources of this court will not be used to accommodate such sluggish litigation.

(17) After reviewing the history of the litigation, I interpose the view that there is either the inability to pursue the claim with reasonable diligence and expedition or lack of interest in bringing it to a conclusion.

(18) This amount to abuse of process of the court. Due to the above reasons, I entirely agree with the contention of the counsel for the Defendant.

(19) Certainly, this case falls within the category of "abuse of process" held in "Grovit and Others v Doctor and Others" (supra). I echo the words of Lord "Woolf" " in "Grovit and Others v Doctor and Others" (supra)

"This conduct on the part of the appellant constituted an abuse of process. The court exists 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 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 where there was no intention of carrying the case to trial the court was entitled to dismiss the proceedings".

(Emphasis added)

It has further stated by Lord Woolf:

"The Court had power under its inherent jurisdiction to strike out or stay actions on the grounds of abuse of process irrespective of whether the test for dismissal for want of prosecution was satisfied. Accordingly, since the commencement and continuation of proceedings with no intention of bringing them to a conclusion was itself sufficient to amount to an abuse of process which entitled the court to dismiss the action, it was not strictly necessary in such a case to establish want of prosecution by showing that there had been inordinate and inexcusable delay on the part of the plaintiff which had prejudiced the defendant. It followed, on the facts, that the deputy judge had been fully entitled to strike out the action. The appeal would therefore be dismissed."

(Emphasis added)

Similar sentiment was raised in Thomas (Fiji) Ltd –v- Frederick Wimheldon Thomas & Anor, Civil Appeal No. ABU 0052/2006

"It may be helpful to add a rider. During the course of his careful and comprehensive ruling the judge placed considerable emphasis on the judgment of the House of Lords in Grovit and Ors v Doctor [1997] UKHL 13; [1997] 2 ALL ER 417. That was an important decision and the judge was perfectly right to take it into account. It should however be noted that Felix Grovit's action was struck out not because the accepted tests for striking out established in Birkett v James [1977] 2 ALL ER 801; [1978] AC 297 had been satisfied, but because the court found that he had commenced and continued the proceedings without any intention of bringing them to a conclusion.

In those circumstances the court was entitled to strike out the action as being an abuse of the process of the Court. The relevance of the delay was the evidence that it furnished of the Plaintiff's intention to abuse the process of the Court"

(E) CONCLUSION

Having regard to the facts of this case, I apply the legal principles laid down in the case of Grovit and Others v Doctor and others (Supra). Accordingly, I conclude that the Plaintiffs commenced and continued the proceedings without any intention of bringing them to a conclusion.

This conduct on the part of the Plaintiffs constituted an abuse of process.

(F) FINAL ORDERS

(1) The Plaintiffs application for reinstatement filed on 22nd July 2014 is dismissed.

(2) The whole action is struck out.

(3) The Plaintiffs are ordered to pay costs of $1000.00 (summarily assessed) to the Defendant which is to be paid within 14 days from the date hereof.

.......................................
Jude Nanayakkara
Acting Master of the High Court

At Lautoka
18/03/2015