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Rakula v Simi [2015] FJHC 296; HBC73.2008 (13 March 2015)

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

CIVIL ACTION NO. HBC 73 of 2008

BETWEEN :

LASARUSA RAKULA of Tomuka, Lautoka, Stevedore.
PLAINTIFF

AND :

DETECTIVE CONSTABLE SIMI of Lautoka Police
Station, Police Officer.
1st DEFENDANT

AND:

MOSESE VOLAVOLA of Lautoka Police Station, Police

Officer.

2nd DEFENDANT

AND:

THE COMMISSIONER OF POLICE

3rd DEFENDANT

AND:

THE ATTORNEY GENERAL OF FIJI

4th DEFENDANT

The Plaintiff in person.
(Ms) Raumanu Georgina Pranjivan (State Counsel) for the Defendants.

Date of Hearing : - 13th February 2015
Date of Ruling :- 13th March 2015

EXTEMPORE RULING

(A) INTRODUCTION

(1) The Court issued Notice of its own motion pursuant to Order 25, rule 9 of the High Court Rules for the Plaintiff to show cause as to why the action ought not to be struck out for want of prosecution or an abuse of the process of the Court.

(2) Upon being served with Notice, the Plaintiff appeared in court in person and filed an affidavit in response.

(3) The Defendants filed submissions to oppose the Plaintiff's affidavit in response.

(B) BACKGROUND

The chronology of events is as follows;

06.05.2008 Writ of Summons was filed by Messers. Law Naivalu.

31.03.2009 Statement of Defence was filed.

10.07.2009 Reply to Statement of Defence was filed.

22.02.2010 The Notice of Change of Solicitors was filed by Messrs. Neel Shivam Lawyers.

The Plaintiff filed summons for Directions.

11.03.2010 Orders in terms of Summons for Directions

29.04.2010 The Plaintiff filed Affidavit verifying list of Documents.

21.05.2010 The Defendants filed Affidavit verifying list of Documents.

04.06.2010 The Plaintiff filed their Bundle of Documents.

16.08.2010 The Court ordered for PTC to be filed by 30.08.2010.

06.04.2011 The Plaintiff's Counsel informed the Court of her difficulty in locating the Plaintiff.

The Court granted time to locate the Plaintiff to file PTC minutes.

20.04.2011 The Plaintiff is absent.

28.04.2011 Plaintiff is absent. The Plaintiff's Counsel withdrew as Solicitor.

16.05.2011 The Plaintiff is absent.

02.06.2011 The Plaintiff is absent.

Case is taken off the cause list due to the fourth consecutive non appearance by the Plaintiff.

23.04.2012 The third and fourth Defendants filed a motion to strike out the matter pursuant to Order 25, rule 9.

16.05.2012 The Plaintiff is given 14 days to file an affidavit in response

18.06.2012 The Plaintiff is absent.

17.06.2014 The Court issued Notice of its own motion pursuant to Order 25, rule 9 of the High Court Rules.

(C) THE LAW

(1) Order 25, rule 09 provides:

"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.

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".

(2) Order 25, rule 09 expressly gives power to the court on its own motion to list any cause or matter, where no step has been taken for at least six (06) months.

(3) The Court is allowed to strike out an action on the failure of taking of steps for six (06) months on two grounds. The first ground is for want of prosecution and the second is an abuse of process of the Court.

(4) The principles for striking out for want of prosecution (first ground) 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."

(5) 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."

(6) 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.

(7) 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."

(8) 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."

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

(10) 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."

(11) 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."

(12) 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".

(13) 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"

(14) 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.

(15) 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."

(16) 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"

(17) 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) The action was instituted on 06th May 2008. This is a personal injuries claim for damages. The cause of action as pleaded in the statement of claim accrued in 2007, that is eight years ago.

(2) Between 20th April 2011 and 17th June 2014, the proceedings remained stationary. (The state of the proceedings is for the Plaintiff to file Pre-Trial Conference Minutes).

No steps were taken by the Plaintiff to advance proceedings to trial. Moreover, on 02nd June 2011, the case was taken off the cause list due to fourth consecutive non appearance by the Plaintiff. Thereafter, the matter went to sleep for three years. The action lay in abeyance until the registry on 17th June 2014, issued Notice pursuant to Order 25, rule 09.

(3) The Plaintiff is required pursuant to the "Notice" to show cause as to why the action ought not to be struck-out for want of prosecution or an abuse of process of the Court. It is paradoxical that the onus is upon the Plaintiff to provide cogent and credible explanation.

(4) When the Court issued Notice pursuant to Order 25, rule 9, the Plaintiff promptly appeared in person and subsequently filed an affidavit in response to avoid the dismissal of the proceedings.

(5) The Plaintiff in his affidavit in response explains the reasons for his inactivity for a period of three years as follows;

• (a) THAT in any event my first lawyer was Mosese V W Naivalu of then law firm Law Naivalu, Lautoka before he was called to become a Magistrate in July 2009. Then Mr Naivalu was willing to represent myself on a contingency basis.
  
• (b) THAT he told me that my file was now being handled by his friend and former Waikato University Law School colleague Mr Neel Shivam which offices I visited on three occasions in Suva. He further told me not to worry about legal fees as he had already spoken to Mr Shivam.
  
• (c) THAT while my file was there then Neel Shivam Lawyers associate and now current Supervisor of Elections Mohammed Saneem was my case-file lawyer and I met and discussed with him the progress of my file and litigation. It was during this time that the first Order 25 Rule 9 application was filed. I believe this was around 2012.
  
• (d) THAT soon after he advised me that for the firm to proceed any further they would now need a deposit of $2,000 a sum which I did not have. Upon my informing him of my inability to meet this new development they then filed a Notice of Withdrawal of Solicitors which the Honourable Court accepted. However when I asked them for my file they refused to release it until I paid a fee which amount they were not telling me.
  
• (e) THAT incidentally around this same period in 2012 I was remanded in a Lautoka Magistrates Court criminal case where I was charged for one count of "Act with Intent to Cause Grievous Bodily Harm" and it was rumoured that I was serving a prison sentence and therefore was the cause of the delay but it was not true as I was always here and was checking the Registry every two weeks upon my bail after only two months and two weeks remand in that case. I have since been acquitted in that case. If I am allowed I seek leave of the Court to summon the Registry staff, Ranjiv to confirm my contention above.
  
• (f) THAT I also then began to enquire about the whereabouts of Magistrate Mosese V W Naivalu to ask him about Neil Shivam's $2,000 demand above especially the seizing of my file and the hope of a possible continuation of the litigation and learnt that he had moved from Nadi Court to Nausori Court which was further away then I had hoped since I was not working and did not earn a regular income. I finally met him however in July 2014 at Ba Court where he now presides. With his assistance I was able to retrieve the file finally at no cost to me.
  

(6) In reply, Counsel for the Defendants, (Ms) Raumanu Pranjivan submits inter alia;

• (a) THAT on 26th October 2010 the Court ordered for PTC to be filed by 15th November 2010. To date PTC Minutes has yet to be filed.
  
• (b) THAT on 20th April 2011, Plaintiff counsel informed the court of her difficulty in locating the Plaintiff hence the delay in filing PTC and copy pleadings. She was given two weeks to locate the Plaintiff or to withdraw the matter.
  
• (c) THAT from 2nd of June 2011 till now, the Plaintiff has not reinstated the matter nor taken any action to proceed with the matter.
  

(7) According to the minute sheet, dated 06th April 2011, the Plaintiff's Solicitor sought leave to withdraw because of her difficulty in locating the Plaintiff. The Court granted further time to locate the Plaintiff.

Thereafter, on 28th April 2011, the Court granted leave to withdraw since there has been no contact by the Plaintiff with the Solicitor and the Solicitor was not aware of the whereabouts of the Plaintiff [Order 67, rule 6 (2)]

In contrast, the Plaintiff's version of what occurred is completely different.
Reference is made to paragraph 09 of the Plaintiff's affidavit in response which states;

THAT soon after he advised me that for the firm to proceed any further they would now need a deposit of $2,000 a sum which I did not have. Upon my informing him of my inability to meet this new development they then filed a Notice of Withdrawal of Solicitors which the Honourable Court accepted. However when I asked them for my file they refused to release it until I paid a fee which amount they were not telling me.

(Emphasis added)

(8) It is obvious that the Plaintiff had Notice of his Solicitor's withdrawal.

(9) To make matters worse, after his Solicitor's withdrawal, the Plaintiff did not appear in Court on 20th April 2011, 28th April 2011, 16th May 2011 and 02nd June 2011. As a result, on 02nd June 2011, the case was taken off the cause list due to the fourth consecutive non appearance by the Plaintiff.

(10) What was the reason for Plaintiff's non-attendance in Court, despite being informed of his Solicitor's intention to withdraw? It is left unexplained. The affidavit of the Plaintiff is silent on this point. The allegations (levelled against the Solicitors) contained in the Plaintiff's affidavit in response (Please see paragraph 5 above) are general in nature and insufficiently specific to give rise to credibility. Nor are they supported by independent evidence. More significantly there was no mention at all of any complaint made to a higher authority. In the circumstances, I get the distinct impression that the Plaintiff's defence was formulated and perhaps conceived as the order 25, rule 9 proceedings developed.

(11) It is noteworthy that the Plaintiff promptly appeared in person and subsequently filed his affidavit in response when the Court issued Notice pursuant to Order 25, rule 9. Therefore, what was the reason for Plaintiff's non-attendance in Court, despite being informed of his Solicitor's intention to withdraw? What was the reason for his failure to appear in person and to take steps to restore the matter to the cause list. What was he doing himself? The affidavit is silent on this point.

(12) From 02nd June 2011 to 17th June 2014, that is for three years, the Plaintiff had all the time to take steps to restore the matter to the cause list. The Plaintiff on its own volition chose not to take steps. It is my considered view that the Plaintiff had no good reason for not attending court despite being informed of his Solicitor's intention to withdraw and his failure to apply to restore the matter to the cause list.

Certainly, he has adopted a "sitting on the hands" approach and allowed the proceedings to lay dormant. Quite plainly, he had adopted a "blame storming" approach to justify his inactivity to proceed with the case and letting the "sleeping dog" lie for three years.

The Plaintiff in his affidavit in response, informed court of his inability to obtain legal counsel due to high legal fees. I feel very sorry for the Plaintiff. I sympathise with his position. But one has to consider the position of the defendants in the case. The cause of action as pleaded in the statement of claim accrued in 2007, that is 08 years ago. I am required to take into account the likely prejudice to the Defendants. Clearly the Defendants will be prejudiced by the inordinate delay in prosecuting the claim and the stress of having unresolved court proceedings hanging over their heads for 08 years. I must stress that an unrepresented litigant is not entitled to any different treatment than a litigant represented by a Counsel. The Plaintiff's inability to retain a Solicitor does not anyway absolve him from this primary obligation to get on with the case.

Therefore it is for the Plaintiff to push his action along. Had this been done the Plaintiff would not have been facing this problem to show cause as to why the action ought not to be struck out for want of prosecution or an abuse of process of the court.

(13) Fundamentally, courts are required to determine cases on merits rather than dismissing them summarily in 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 the ordinary way and after taking advantage of the usual interlocutory processes."

(14) 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 Plaintiff's non attendance in Court despite the prior Notice of his Solicitor's intention to withdraw and his failure to take steps to restore the matter to cause list does not leave a good impression. Emanating from this issue alone, the fundamental question is "whether the Plaintiff is serious about pursuing his claim when he let it sleep for three years?"

It follows, almost inevitably, that the Plaintiff slept on the matter and did not wake up at all from his slumber. To my mind, three years 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.

(15) 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. This amounts to abuse of process.

(16) The reasons adduced by the Plaintiff for his failure to proceed with due diligence to prosecute the action are devoid of any merits as such is rejected. Due to the above reasons, I entirely agree with the contention of the counsel for the Defendants.

(17) 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 Plaintiff commenced and continued the proceedings without any intention of bringing them to a conclusion.

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

(F) FINAL ORDERS

(1) The action is struck off.

(2) I make no order for costs.

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

At Lautoka
13/03/2015