IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No. HBC 331 of 2011

BETWEEN	: 	SHALENDRA SINGH
	PLAINTIFF

AND	:		PACIFIC BEACH INVESTMENTS LIMITED
1stDEFENDANT

AND	:	JOSEPHINE KIRONE SINGH a.k.a JOSEPHINE KIRON SINGH
	2nd DEFENDANT

Appearances	:		Nands Law for the Plaintiff
Prem Narayan for the Defendants
Before	:		Acting Master S. F. Bull
Ruling	:	11 April 2017

RULING
1.	This is the Court’s notice pursuant to Order 25 Rule 9 of the High Court Rules (the HCR), requiring the Plaintiff to show cause why this matter ought not to be struck out for want of prosecution.  

2.	I set out the history of these proceedings as follows:

31/10/11	- 	Writ of Summons and Statement of Claim filed
-	Plaintiff’s notice of motion and supporting affidavit for injunction to restrain the Defendants from operating their restaurant.
09/11/11 	-	Acknowledgment of service
16/11/11 	- 	Plaintiff’s supplementary affidavit in support with undertaking as to damages.
14/12/11	- 	Statement of Defence
15/12/11	- Defendants’ answering affidavit to injunction application
02/02/12	- 	Notice of change of solicitors for Plaintiff filed by Shah & Associates.
24/02/12	- 	Plaintiff’s application for injunction withdrawn.
02/05/12	- 	Amended writ and statement of claim filed
10/05/12	- 	Amended defence
20/06/12	- 	Plaintiff’s reply to amended defence
23/07/12	- 	Notice of change of solicitors for Plaintiff filed by Nands Law
14/08/12	- 	Defendant’s summons for security for costs
23/08/12	- 	Summons for directions
05/11/12	-	Order on summons for directions
05/10/12 	- 	Plaintiff’s affidavit in opposition to security for costs
05/11/12	- 	Defendant’s application for security for costs struck out.
21/01/13 	- 	Plaintiff’s affidavit verifying list of documents
05/11/13	- 	Court’s notice under O.25 r.9
14/11/13	-	Court’s Order 25 r.9 notice served on Plaintiff’s and Defendants’ counsel
15/11/13	- 	Plaintiff files notice of intention to proceed
18/11/13	-	Court’s O.25 r 9 notice treated as a summons for directions
09/01/14	- 	Plaintiff’s Notice of Motion for substitution of 2nd Defendant 
05/02/14	- 	Order in terms of application for substitution
14/02/14	- 	Order for substitution sealed
20/06/14	- 	Amended writ filed 
21/07/14	- 	Affidavit for service of amended writ on 2nd Defendant on 14/04/14
23/07/14	- 	Defendants acknowledge service of amended writ 
20/04/15 	- 	Court’s second notice under O.25 r 9 
22/04/15	- 	O.25 r.9 notice served on both parties
18/05/15	- 	Defendants’ ex-parte summons to make copy of documents in Court file
01/06/15	- 	Order in terms of Defendants’ application to make copy of documents in Court file
14/09/15	- 	Plaintiff counsel’s summons to withdraw as counsel for Plaintiff 
26/01/16	- 	Leave granted for Mr. Nand to withdraw as counsel for the Plaintiff
27/01/16	- 	Parties inform Court of attempts to settle.  Court orders parties to file deed of settlement.
19/02/16	- 	Notice of appointment of solicitors for Plaintiff, filed by Nands Law
23/02/16	- 	Plaintiff’s affidavit to show cause 
02/03/16	- 	Defendants’ answering affidavit to Plaintiff’s affidavit showing cause.
30/03/16 	- 	Plaintiff’s affidavit in reply
25/04/16	- 	Plaintiff’s summons for affidavit in reply to be expunged from the Court Record
16/05/16	- 	Order in terms of Plaintiff’s application to expunge affidavit in reply from record
20/05/16	- 	Plaintiff’s affidavit in reply to answering affidavit (for Court’s Order 25 rule 9 notice)
17/05/16	- 	Plaintiff’s written submissions filed
20/05/16	- 	Defendant’s submissions filed

The law
3.	Order 25 Rule 9 provides:
	Strike out for want of prosecution (O.25, r.9)

(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 may be just or deal with the application as if it were a summons for directions.

4.	The principles to be applied by the Court in applications to strike out for want of prosecution are settled.  The Court’s power to strike out is to be exercised only if it 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. (Birkett v. James [1978] A.C. 297, 318F-G, per Lord Diplock)

5.	The Court has inherent jurisdiction to “allow the Plaintiff to proceed with his claim even if it concludes that there has been excessive delay.” (Harakh v Fiji Public Service Association [2000] FJHC 262; [2000] 1 FLR 78 (5 May 2000) per Gates J, citing Finnegan v Parkside Health Authority [1997] EWCA Civ 2774; [1998] 1 All ER 595 at 604) 

6.	The first limb of the test in Birkett requires proof that the default was 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. 

7.	In Deo v Sharma [2007] FJCA 23; ABU0041U.2006S (23 March 2007) (per Ward P, Scott, McPherson JJA), the Court, at [12], referred to the Shorter Oxford Dictionary definition of contumely as

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.

Analysis 
8.	It is not disputed that at the time the Court had issued its notice under Order 25 rule 9, the matter had not progressed for more than six months.  

9.	The issues for the Court to decide are whether to:

(i)	strike out this matter for want of prosecution, or as an abuse of the process of the Court

10.	I keep in mind that the test is whether the default has been intentional and contumelious, or that there has been inordinate and inexcusable delay on the part of the plaintiff such that a fair trial is no longer possible, or such that serious prejudice is likely or has been caused to the Defendants.

Was the default intentional and contumelious?
11.	The Plaintiff says the delay was because the Defendants had failed to file their affidavit verifying list of documents.  On the other hand, the Defendants say that the Plaintiff had filed its verifying affidavit late and in breach of the 5 November 2012 Order on the summons for directions.  To date, the Plaintiff has yet to furnish further and better particulars requested by the Defendants on 20 August 2014.

12.	The Court file shows that the last action before the issuance of the Court’s notice under Order 25 Rule 9 was the filing of the Defendant’s acknowledgement of service to the Plaintiff’s amended writ filed 20 June 2016.  As far as the substantive matter is concerned, the next step after the Defendants acknowledged service, should have been the filing of the defence to the amended writ of 20 June 2016, to reflect the substitution of the 2nd Defendant for the deceased, and a defence to the amendments to the claim.  That, the Defendant has not done.

13.	The Defendant says it had sought from the Plaintiff further and better particulars on 20 August 2014 but to date, the Plaintiff has yet to reply.  The Plaintiff says in reply that the Defendant should have raised all issues in the pleadings which have now closed.  It also says if the Defendant had been sincere in filing a proper defence, it should have made a formal application to the Court for copies of documents.

14.	If I may say so, this is no answer for the Plaintiff’s protracted delay in replying to the Defendant’s request for further and better particulars.  The filing of a defence is no bar to the Defendant seeking further and better particulars.  Odgers on High Court Pleading and Practice 23rd Edition, (Sweet & Maxwell) at page 94 has this to say on this point:

The mere fact that the defendant has already served his defence is no waiver of his right to particulars of the allegations in the statement of claim.  And where the pleadings contain sufficient particulars to raise issues which ought to be investigated by the court, neither further particulars nor discovery will be ordered before defence.  Accordingly, unless such particulars are necessary in order to enable him to plead, the proper time for his application is upon the first hearing of the Summons for Directions.  If he makes a separate application earlier or later, as he may so long as he is not guilty of unreasonable delay, he will probably have to bear the costs, unless there was some very good reason for taking this course.  

15.	Order 18 Rule 11 (6) requires an application for further particulars to be first made by letter and that is what the Defendant did on 20 August 2014.

16.	The order on the summons for directions was granted on 5 November 2012.The Plaintiff’s affidavit verifying list of documents was filed more than 2 months later, on 21 January 2013.  In addition, though the Order for substitution of the 2nd Defendant was sealed on 14 February 2014, the amended writ was not filed until 4 months later.  

17.	On the material before me, I am not satisfied that it has been shown that the default in the Plaintiff replying to the Defendant’s request for further and better particulars was either intentional, contumelious, or amounted to an abuse of the process of the Court.  The change of Plaintiff’s counsel does not of itself indicate lack of interest in the prosecution of the Plaintiff’s claim.  Indeed, apart from the request of 20 August 2014, the Defendant also failed to do anything thereafter, even though the Plaintiff filed its affidavit verifying list of documents.  It could have followed up on its request for particulars, file a formal application to the Court for an order for the Plaintiff to provide further and better particulars, or even file its affidavit verifying list of documents, but did not.  The 2nd Defendant says she has not “diligently prosecuted the defence of this case” owing to financial difficulties the 1st Defendant found itself in after the death of Yajbal Singh (the deceased).  

Has there been inordinate and inexcusable delay?
18.	In Birkett (supra), the Court stated that inordinate delay was delay which is 
…materially longer than the time which is usually regarded by the courts and the profession as an acceptable period. (Birkett, supra)

19.	Inexcusable delay
… ought to be looked at primarily from the defendant’s point of view or, at least, objectively; some reasonable allowance, for illness and accident may, be made.  But the best excuse is usually the agreement of the defendant or difficulties created by him. (The Supreme Court Practice 1999 at 25/L/6)

20.	From the history of this matter, there can be no doubt that the unexplained delay of more 2 months to file an affidavit verifying list of documents;more than 4 monthsto file an amended writ following the Order for substitution of the 2nd Defendant;and now more than 2 years to reply to the Defendant’s request for further and better particulars, is“materially longer than the time usually regarded by the courts and the profession as an acceptable period.”  I hold the delay to be inordinate.

21.	The Plaintiff’s only excuse given for the delay in prosecuting his claim is that the Defendant had not filed their affidavit verifying list of documents.  It downplays its failure to reply to the Defendants’ request for further particulars, saying the Defendant should have included all the issues in the pleadings which have since closed.  The Plaintiff fails to appreciate that the request for particulars was especially important in light of the fact that the original 2nd Defendant had died and had been substituted in the amended writ of 20 June 2014 with the sole executrix and trustee of his estate, who may or may not have known of the factspleaded in the claim.  I hold the delay to be inexcusable.

Risk of an unfair trial or serious prejudice to the defendant
22.	Finally, it must be determined whether there is a risk of an unfair trial or serious prejudice to the defendant.  The onus of proving prejudice lies with the defendants. (Department of Transport v Chris Smaller Ltd[1989] 1 A11 ER 897 at 904, per Lord Griffiths)

23.	The 2ndDefendant deposes that the deceased, Yajbal Singh who was the original 2nd Defendant, was the only witness who could say what had happened between him and the Plaintiff.  Reference is made to an affidavit by the deceased which, it is said, shows the existence of a dispute as to whether there was an agreement between the Plaintiff and the deceased.  

24.	The 2nd Defendant does not say which affidavit is being referred to, but the affidavit sworn by the deceased on 14 December 2011 and filed in reply to the Plaintiff’s notice of motion for an injunction against the deceased, states that the monies were lent by the Plaintiff to him personally and not to the 1st Defendant Company.  He denies approaching the Plaintiff to invest in the 1stDefendant company, or even agreeing for the transfer of 50% of the shares to the Plaintiff in exchange for the monies lent to him personally.  The deceased says that he had agreed to sign a personal acknowledgment of debt as annexed to and marked SS14 in the Plaintiff’s affidavit dated 27 October 2011, to record the amount lent to him by the Plaintiff.

25.	In reply to the 2nd Defendant’s allegation of prejudice, the Plaintiff says that the original 2nd Defendant has been substituted by Order of the Court “and any objection now in relation to the evidence of the deceased ought to be made in Court during trial with any documentary evidence.” 

26.	From the pleadings, the main issues seem to be whether the deceased had offered the Plaintiff 50% equity partnership in operating the restaurant and bar at Fringing Reef;whether the Plaintiff had paid to the deceased the sum of $87,5000 for 50% equity partnership in the Fringing Reef; whether the deceased had subsequently refused to transfer the 50% equity shares to the Plaintiff; whether the deceased had signed an acknowledgment of debt and undertaking on 16 September 2011, to pay the Plaintiff $87,500 in lieu of the Plaintiff claiming 50% equity share in the business. 

27.	The issues indicate that there would likely be reliance on both oral and documentary evidence at trial.  While the 2nd Defendant says that the deceased was the only witness capable of giving evidence on what had transpired between him and the Plaintiff, she does not say whether any documentary evidence is available in support of its defence.  

28.	On the evidence before me, I am not satisfied the Defendants have discharged the onus on them to show serious prejudice.  In Prasad v Estate of Ram DeiCivil Case No. HBC0043d.1995s, Pathik J stated:

Detailed reasons with particulars ought to be given to prove how the defendant will be prejudiced.  There is no such evidence before the Court.  Just a bare statement that the first and second defendants are dead is an unconvincing reason.

29.	Though the Defendants in this case have adduced some evidence to show prejudice, I do not consider they have discharged the burden to the Court’s satisfaction.  

Conclusion

30.	In light of all of the above, I am of the view that notwithstanding inordinate and inexcusable delay, I am not satisfied that it is not possible to hold a fair trial in this matter.  Accordingly, I treat the Court’s notice under Order 25 Rule 9 as a summons for directions.

31.	Given the delay in progressing this matter, I consider it just that a peremptory order be made to compel the Plaintiff to comply with the orders of the Court, and to henceforth progress this matter with all diligence and without further delay.

32.	Orders
1.	Unless the Plaintiff replies to the Defendants’ request for further and better particulars on or before 21 April 2017, the statement of claim and writ of summons will be wholly struck out with costs to both defendants to be assessed.

2.	Both parties are in some way responsible for the delay in this matter.  I consider it just that parties bear their own costs.

3.	Case adjourned to 25 April 2017 for further directions.  

S.F. Bull
Acting Master