IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 197 of 2016

BETWEEN	:	RAJESH CHAND as next friend of PRASHNIL PRANAY 	CHAND Sabeto, Nadi, Farmer.

Plaintiff

AND			:	M R KHAN BROTHERS TRANSPORT COMPANY  a limited 				liability company having its registered office at Dravuni Street, 					P.O.Box 547, Lautoka.

1st Defendant

AND			:	PRANESH CHAND c/- M R Khan Brother Transport Company,
Lautoka, Driver.

2nd Defendant

Before			:	Acting Master U.L. Mohamed Azhar

Counsels		:	Ms. Swamy for the Plaintiff
                                                       Ms. Nadan for the 1st Defendant

Date of Ruling		:	19th September 2017

RULING
[Default Judgment & Setting Aside]

The Cause

01.	The first defendant filed this summons pursuant to Order 13 rule 10 of the High Court Rule and the inherent jurisdiction of this court to set aside the interlocutory judgment entered against it on 02nd October 2016. The summons is supported by the affidavit sworn by the third director of the first defendant company.  The plaintiff Rajesh Chand, as the next friend of Prashil Pranay Chand, filed the Writ of Summons on 26.09.2016 claiming damages for the personal injuries sustained by the said Prashil Pranay Chand due to a road traffic accident. The first defendant is the registered owner of bus bearing registration no. HBQ 75, the second defendant was the driver at the time of alleged accident and the third defendant is the insurer of the first defendant. On 13th of October, 2016 the acknowledgment of service was filed for the defendants by Faiz Khan Lawyers. On the following day i.e. on 14th of October 2016, again an amended acknowledgement of service was filed by the same solicitors only for the third defendant, followed by the statement of defence of the third defendant, which was filed on 20th of October 2016. Though the plaintiff filed the reply to the defence filed by the third defendant, he discontinued the action against the third defendant on 23rd November 2016. Thereafter, the plaintiff sealed the interlocutory judgment against the first and second defendants. This is the interlocutory judgment that the first defendant now seeks to set aside.

02.	The summons is opposed by the plaintiff and he filed the affidavit in opposition which was replied by an affidavit of the same director of first defendant company. At the hearing of the summons both counsels made oral submission and then filed the written submission highlighting the authorities on setting aside the default judgment and facts of the instant case.

The default judgment 

03.	It is very common in civil suits that, the default judgments being entered against either party when such party fails to take appropriate steps as required by the Rules or ordered by the court. The Rules of the courts whilst, making provisions to enter the default judgments against the defaulting parties, provide for the procedure too, to set aside or vacate those judgments so entered. However, neither the Rules nor the case law defined the term ‘default judgment’. Considering the rules, the term ‘default judgment’ may, conveniently, be defined as “a judgment entered in favour of either party after hearing or without hearing, based on some failure to take action by other party”. According to this definition, a default judgment not necessarily is entered against the defendant only in any civil suit. It can also be entered against the plaintiff and a third party as well. In addition, the court may enter the default judgment in favour of either party after hearing the claim or the defence or may be entered without hearing.

04.	The High Court Rules provide for entering default judgment whether it is final or interlocutory in four instances. First instance is under Order 13. Under this Order the default judgment may be entered against the defendant without hearing for default of notice of intention to defend except under rule 6 where the plaintiff to enter the judgment against the defendant with the leave which should be sought by a summons to be served on the defendant unless the court otherwise orders. This order will apply only in a situation where the defendant fails to give Notice of Intention to Defend within the prescribed period after acknowledgement of service of Writ. Under this Order there are several rules which provide for the entering default judgments depending on the nature of the claim filed by the plaintiff. The classifications are the claim for liquidated demand (O.13, r.1); the claim for unliquidated damages (O.13, r.2); the claim for detention of goods (O.13, r.3); the claim for possession of land (O.13, r.4); the mixed claims (O.13, r.5) and the other claims (O.13, r.6). However, the judgment shall not be entered against a defendant under this Order unless (a) the defendant has acknowledged service on him of the writ; or (b) an affidavit is filed by or on behalf of the plaintiff proving due service of the writ on the defendant; or (c) the plaintiff produces the writ indorsed by the defendant’s solicitor with a statement that he accepted service of the writ on the defendant’s behalf. The rule 10 provides that, without prejudice to rule 8(3) and (4), the court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order. The rule 8 (3) and (4) provide for an application by the plaintiff himself to set aside the judgment so entered or to seek direction from the court when the post is undelivered for the addressee if the Writ has been served by post under Order 10, rule 1(2) (a).

05.	The second instance is under Order 16 rule (5) (1) (b) and rule (5) (2). The Order 16 provides for the Third Party and Similar Proceedings and rule 5 deals with the default of a third party. If a third party does not give notice of intention to defend or, having been ordered to serve a defence, fails to do so, the defendant by whom the third party notice was issued may, if judgment in default is given against him in the action, at any time after satisfaction of that judgment and, with the leave of the Court, before satisfaction thereof, enter judgment against the third party in respect of any contribution or indemnity claimed in the notice, and, with the leave of the Court, in respect of any other relief or remedy claimed therein. Under this rule, failure of a third party to give notice of intention to defend will not automatically allow the defendant who issued third party notice to enter the default judgment. The condition precedent is that the defendant should have satisfied the judgment against him and if not satisfied so, he should have obtained the leave of the court. In any event this is an indemnity process and he is entitled for the contribution he made towards satisfying the judgment against him or the indemnity claimed by him. If he wants to enter judgment for any other remedy or claim, then the leave of the court must be obtained. The rule 5 (2) provides for the entering judgment against the third party or against the defendant by whom a third party notice was issued, for default of serving of any pleading. The difference between rules 5 (1) (b) and 5 (2) is that under the former the judgment is entered against the third party for default of notice of intention to defend and whereas under the later, the judgment is entered against the third party or the defendant by whom a third party notice was issued and the reason is default of pleadings.

06.	The third instance is under Order 19. Like Order 13, this Order too classifies (rules 2 to 7) the claims depending on their nature and allows the plaintiff to enter the judgment against the defendant for default of pleading.  However under rule 7, the plaintiff has to apply to the court for judgment and the court, after hearing such application, shall give judgment as the plaintiff appears entitled to on his statement of claim. A notable rule under this Order is the rule 8 which treats the defendant who has counterclaims against a plaintiff as the plaintiff for the purpose of rule 7. The fourth instance is under Order 35 rule 1 (2) when the trial of an action is called on, one party does not appear; the judge may proceed with the trial of the action or any counterclaim in the absence of that party. This rule however, does not directly provide for entering judgment in default. However, it is implied from the rule 2 which provides that, any judgment, order or verdict obtained where one party does not appear at the trial may be set aside by the Court, on the application of that party, on such terms as it thinks just. 

07.	The comparison among those instances reveals that, the difference between the Orders 13 and 19 are that, under the former, the judgment is entered for the default of notice of intention to defend and whereas under later, the judgment is entered for default of pleadings. In the meantime, the Order 16 rule 5 provides for both default of notice of intention to defend and default of pleadings as well. The default judgment is entered without hearing under Order 13 except under rule 6 where it is entered with the leave of the court against the defendant and whereas under Order 19 rule 7, the judgment is entered on application against the defendant and against the plaintiff as well, when the defendant has counterclaims by operation of Order 19 rule 8. On the other hand the judgment may be entered against either the defendant or the plaintiff for counterclaims in the absence of the other party under Order 35 rule 1 (2). Now I turn to discuss the underlying principle in setting aside the judgments so entered for the default.

Principles of setting aside

08.	The rules give discretion to the court, in all four instances, to set aside the judgment so entered for the default of any party on such terms as the court thinks just (see: Or 13 r 10, Or 16 r 5 (2), Or 19 r 9 and Or 35 r 2). However, two different approaches are followed when setting aside the regular judgments and irregular judgments.  This distinctive approach is clearly stated by Fry L. J. in Anlaby v. Praetorius (1888) 20 Q.B.D. 764. His Lordship held that: 

"There is a strong distinction between setting aside a judgment for irregularity in which case the Court has no discretion to refuse to set it aside, and setting it aside where the judgment though regular, has been obtained through some slip or error on the part of the defendant in which case the Court has a discretion to impose terms as a condition of granting the defendant relief".

09.	Accordingly, if the judgment was obtained irregularly, the applicant is entitled to have it set aside ex debito justitiae, but, if regularly, the Court is obliged to act within the framework of the empowering provision (see:Mishra v Car Rentals (Pacific) Ltd [1985] FJCA 11; [1985] 31 FLR 49 (8 November 1985). Thus, the defendant against whom an irregular judgment was entered in default has the right to have it set aside and the courts have no discretion to refuse to set aside. The rationale behind this is that, such irregular judgments are considered as ‘void orders’ resulting from a ‘fundamental defect’ in proceedings (Upjohn LJ in Re Pritchard (deceased) [1963] 1 Ch 502 and Lord Denning in Firman v Ellis [1978] 3 WLR 1). Such judgments also considered as resulting from a ‘without jurisdiction’ or ultra vires act of a judicial office (Lord Denning in Pearlman v Governors of Harrow School [1978] 3 WLR 736). A ‘fundamental defect’ includes a failure to serve process where service of process is required (Lord Greene in Craig v Kanssen Craig v Kanssen [1943] 1 KB 256); or where service of proceedings never came to the notice of the defendant at all (e.g. he was abroad and was unaware of the service of proceedings); or where there is a fundamental defect in the issuing of proceedings so that in effect the proceedings have never started; or where proceedings appear to be duly issued but failed to comply with a statutory requirement (Upjohn LJ in Re Pritchard [1963]). Failure to comply with a statutory requirement includes rules made pursuant to a statute (Smurthwaite v Hannay [1894] A.C. 494). In Craig v Kanssen [1943] 1 KB 256, [1943] 1 All ER 108, there had been a failure to serve process where service of process was required. The result was that the order made based upon that process was irregular. It was held by Lord Greene MR that: 

“In the exercise of its inherent jurisdiction, the Court was entitled to set it aside without the need for an appeal. A person, who is affected by an order of the Court which can properly be described as a nullity, is entitled ex debito justitiae to have it set aside. There is an inherent jurisdiction to set aside a determination made where there has been a failure to observe the principle that a person against whom a charge or claim is made must be given a reasonable opportunity of appearing and presenting his or her case”. 

Lord Greene MR further held that:

Those cases appear to me to establish that an order which can properly be described as a nullity is something which the person affected by it is entitled ex debito justitiae to have set aside. So far as the procedure for having it set aside is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order; and that an appeal from the order is not necessary.

10.	In O’Shannessy v Dasun Hair Designers Ltd [1980] 2 NZLR 762 Greig J said at 654: The authorities are plain that where a default judgment is irregularly obtained the defendant is entitled ex debito justitiae to a setting aside. It is to be noted further that it is an irregularity in obtaining the judgment rather than the irregularity in the judgment itself. 

11.	On the other hand, if the judgment is regular, it is an almost inflexible rule that the application must be supported by an affidavit of merits stating the facts showing that the defendant has a defence on the merits. For this purpose it is enough to show that there is an arguable case or a triable issue. The Halsbury's Laws of England sets out the basic principles applicable to setting aside the regular judgments in the exercise of Court’s discretion in Vol 37 4th Ed. Para 403 as follows; 

“In the case of a regular judgment, it is an almost inflexible rule that the application must be supported by an affidavit of merits stating the facts showing that the defendant has a defence on the merits,... For this purpose it is enough to show that there is an arguable case for a triable issue.”

“There is no rigid rule requiring the applicant to explain why he allowed judgment to go by default, but nevertheless, at least in the case of a regular judgment, such explanation is obviously desirable to enable the court to exercise its discretion, especially as to any and if so what terms should be imposed.”

12.	There are several cases which set out the common law principles of setting aside the regular judgment that are entered in default. To avoid any lengthy narrations, some of the leading authorities are mentioned here. Among those leading authorities Evans v Bartlam [1937] 2 All E.R. 646 is an important one.  In that case, Lord Atkin explained the primary consideration that the court should pay heed. His Lordship held that;

"The primary consideration is whether he has merits to which the Court should pay heed; if merits are shown the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication........... 

The Court might also have regard to the applicant's explanation why he neglected to appear after being served, though as a rule his fault (if any) in that respect can be sufficiently punished by the terms as to costs or otherwise which the Court in its discretion is empowered by the rule to impose."

It was further held that:

“The discretion is in terms unconditional. The courts, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that, where the judgment was obtained regularly, there must be an affidavit of merits, meaning that the application must produce to the court evidence that he has a prima facie defence. It was suggested in argument that there is another rule that the applicant must satisfy the court that there is a reasonable explanation why judgment was allowed to go by default, such as mistake, accident, fraud or the like. I do not think that any such rule exists, though obviously the reason, if any, to set it aside is one of the matters to which the court will have regard in excising its discretion. If there were a rigid rule that no one could have a default judgment set aside who knew at the time and intended that there should be a judgment signed, the two rules would be deprived of most of their efficacy. The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any of the rules of procedure."

13.	Lord Denning, MR in Burns v. Kondel [1971] 1 Lloyds Rep 554,  very briefly explained the principle and sated that; 

‘We all know that in the ordinary way the Court does not set aside a judgment in default unless there is an affidavit showing a defence on the merits. That does not mean that the defendant must show a good defence on the merits. He needs only show a defence which discloses an arguable or triable issue’.

14.	The Supreme Court Practice 1997 known as the White Book in Volume 1 and at p.143. referring to the case law, provides the summery of principles upon which the court should act in setting aside the default judgment; 

"Regular judgment -If the judgment is regular, then it is an (almost) 13/9/5 inflexible rule that there must be an affidavit of merits, i.e. an affidavit stating facts showing a defence on the merits (Farden v. Richter (1889) 23 Q.B.D. 124. "At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason," per Huddleston, B., ibid. p.129, approving Hopton v. Robertson [1884] W.N. 77, reprinted 23 Q.B.D. p. 126 n.; and see Richardson v. Howell (1883) 8 T.L.R. 445; and Watt v. Barnett (1878) 3 Q.B.D. 183, p.363).

For the purpose of setting aside a default judgment, the defendant must show that he has a meritorious defence. For the meaning of this expression see Alpine Bulk Transport Co. Inc. v. Saudi Eagle Shipping Co. Inc., The Saudi Eagle [1986] 2 Lloyd's Rep. 221, C.A., and note 13/9/14, "Discretionary powers of the court," below.

On the application to set aside a default judgment the major consideration is whether the defendant has disclosed a defence on the merits, and this transcends any reasons given by him for the delay in making the application even if the explanation given by him is false (Vann v. Awford (1986) 83 L.S.Gaz. 1725; The Times, April 23, 1986, C.A.) The fact that he has told lies in seeking to explain the delay, however, may affect his credibility, and may therefore be relevant to the credibility of his defence and the way in which the court should exercise its discretion (see para. 13/9/14, below)."

15.	The position in Fiji is not an exception to the above principles. These principles have been constantly applied by our higher courts as well, in exercising the appellate jurisdiction in relation to setting aside the default judgments. His Lordship the Chief Justice Gates (as His Lordship then was) set out the principles applicable to setting aside  default judgment , in  Eni Khan v. Ameeran Bibi & Ors (HBC 3/98S, 27 March 2003), after referring to Burns v. Kondel [1971] 1 Lloyds Rep 554; Evans v. Bartlam [1937] AC 473; Vann v. Awford (1986) LS Gaz 1725; The Times LR (23 April 1986); and Fiji National Provident Fund v Datt [1988] FJHC 4; (1988) 34 FLR 67 (22 July 1988). His Lordship held that:

“The determination of this issue involves the exercise of the court’s unfettered discretion, or as Lord Atkins described it in Evans v Bartlam [1973] AC 473 “The discretion is in terms unconditional” (p480). In FNPF Board v Shri Datt [1988] 34 Fiji LR 67 Fatiaki J set out three judicially recognized tests. They were:

(a)	Whether the defendant has a substantial ground of defence to the action;

(b)	Whether the defendant has a satisfactory explanation for his failure to enter an appearance to the writ; and

(c)	Whether the plaintiff will suffer irreparable harm if the judgment is set aside

His Lordship also included delay in seeking to set aside the default judgment as perhaps a fourth consideration. Though on this point Dillon LJ in Vann v Awford (1986) the Times LR April 23rd 1986 observed “The major consideration was whether there was a defence on the merits; that transcended any reason given by a Defendant for his delay”.

16.	The Fiji Court of Appeal in Wearsmart Textiles Limited v General Machinery Hire limited and Shareen Kumar Sharma( 1998) FJCA26; Abu 0030u.97s (29 May 1998) while explaining the applicable principles for setting aside a default judgment entered regularly, had cited paragraphs appearing at page 143 of the White Book, which is cited above. Justice D Pathik, referring to Pankaj Bamola & Anor v. Moran Ali (FCA 59/90), has explained these principles in Pravin Gold Industries Ltd v. The New India Assurance Company Ltd [2003] FJHC 298; HBC0250d.2002s (4 February 2003). His Lordship finally summarized the preconditions that to be fulfilled to enable the court to exercise its discretion to set aside the default judgment. Accordingly, they are; (a) reasons why judgment was allowed to be entered by default, (b) application must be made promptly and without delay and (c) an affidavit deposing to facts that show that the defendant has a defence on the merits.

17.	Fatiaki J in Fiji National Provident Fund v Datt [1988] FJHC 4; [1988] 34 FLR 67 (22 July 1988 )held that:

“The discretion is prescribed in wide terms limited only by the justice of the case and although various "rules" or "tests" have been formulated as prudent considerations in the determination of the justice of a case, none have been or can he elevated to the states of a rule of law or condition precedent to the exercise of the courts unfettered discretion.

These judicially recognized "tests" may be conveniently listed as follows:

(a)	whether the defendant has a substantial ground of defence to the action;

(b)	whether the defendant has a satisfactory explanation for his failure to enter an appearance to the writ; and

(c) whether the plaintiff will suffer irreparable harm if the judgment is set aside.

In this latter regard in my view it is proper for the court to consider any delay on the defendant's part in seeking to set aside the default judgment and how far the plaintiff has gone in the execution of its summary judgment and whether or not the same has been stayed”.

18.	All the above authorities suggest that, the when exercising the discretion in setting aside the default judgments entered regularly, the courts have to consider the following factors; (a) whether the defendant has a substantial ground of defence to the action; (b) whether the defendant has a satisfactory explanation for his failure to enter an appearance to the writ; (c) application must be made promptly and without delay and (d) whether the plaintiff will suffer irreparable harm if the judgment is set aside. However, the primary consideration to be given to the fact whether there is a defence on the merits. Legatt LJ in Shocked v Goldsmith(1998) 1 All ER 372  held at p. 379 ff that; 

"These cases relating to default judgment are authority for the proposition that when considering whether to set aside a default judgment, the question of whether there is a defence on the merits is the dominant feature to be weighed against the applicant's explanation both for the default and any delays, as well as against prejudice to the other party."

19.	Lord Wright delivering the judgment of House of Lords in Evans v Bartlam (supra) held at p 656 that;

"In a case like the present, there is a judgment, which, though by default, is a regular judgment, and the applicant must show grounds why the discretion to set aside should be exercised in his favour. The primary consideration is whether he has merits to which the court should pay heed; if merits are shown, the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication... The court might also have regard to the applicant's explanation why he neglected to appear after being served, though as a rule his fault (if any) in that respect can be sufficiently punished by the terms, as to costs, or otherwise, which the court, in its discretion, is empowered by the rule to impose." (emphasis added).

20.	The applicant, therefore, has to establish a prima facia defence and he does not need to file the draft defence. “We draw attention to that part of Lord Atkin's statement referring to the fact that a defendant only has to establish a prima facia defence. The learned Judge cannot have had the principles enunciated in Bartlam’s case in mind when he ordered in effect that the appellant had to establish its defence. The statement also indicates that a draft defence is not necessary, what is required is the affidavit disclosing of prima facie defence”: the Fiji Court of Appeal in Fiji Sugar Corporation Limited v Ismail [1988] FJCA 1; [1988] 34 FLR 75 (8 July 1988) [1988] 34 FLR 75. However, if there is no such affidavit stating the fact showing a defence, the application ought not to be granted: “it is an (almost) inflexible rule that there must be an affidavit of merit i.e. an affidavit stating facts showing a defence on the merits (FARDEN v. RICHTER (1889) 23 Q.B.D. 124)"  At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason" (HUDDLESTON, B in FARDEN ibid p. 129): The Supreme Court Practice 1993 Or 13 r.9 p.137). 

Defence on Merits

21.	It was held in Alpine Bulk Transport Co. Inc V Saudi Eagle Shipping Co. Inc., The Saudi Eagle [1986] 2 Lloyd’s Rep. 221, that it is not sufficient to show a merely “arguable” defence that would justify leave to defend under order 14; but it must have “a real prospect of success” and “carry some degree of conviction.” It was further held that the court must form a provisional view of the probable outcome of the action. This view was accepted by the Fiji Court of Appeal in Wearsmart Textiles Limited v. General Machinery Hire Limited [1998] FJCA 26; Abu0030u.97s (29 May 1998) where it was held that:

“Notwithstanding the Court of Appeal's later decision in Allen v Taylor [1992] P.I.Q.R. 255 which purports to dilute the principles emerging from Saudi Eagle, we subscribe to the White Book's preferred view that ‘unless potentially credible affidavit evidence demonstrates a real likelihood that a defendant will succeed on fact no "real prospect of success" is shown and relief should be refused”.

Irreparable Loss

22.	 Irreparable loss is a legal concept which argues that the type of harm or loss threatened cannot be corrected through monetary compensation or conditions cannot be put back the way they were. Examples of such irreparable harm may arise in cutting down shade trees, polluting a stream, not giving a child needed medication, not supporting an excavation which may cause collapse of a building, tearing down a structure, among other actions or omissions. The foremost thing is that, the injury must be both certain and great; it must be actual and not theoretical. It should not be something that is merely feared as liable to occur at some indefinite time. It is also well settled that economic loss does not, in and of itself, constitute irreparable harm. It must be shown that the irreparable loss is ‘likely’ to occur. A mere allegation of what is likely to occur is of no value since the court must decide whether the harm will in fact occur. There must be the proof that the harm has occurred in the past and is likely to occur again, or proof must indicate that the harm is certain to occur in the near future.

Delay

23.	None of the Rules, which provides discretion to the court to set aside the default judgment, prescribes any time framework within which such application to set aside be made. Therefore, this question of delay may be considered with the fact as to how far the party who obtained the judgment had gone in executing it, together the with the length of delay. This is the question fact and each and every case must be considered on its own facts. Fatiaki J in Fiji National Provident Fund v Datt  (supra)held that;

“In this latter regard in my view it is proper for the court to consider any delay on the defendant's part in seeking to set aside the default judgment and how far the plaintiff has gone in the execution of its summary judgment and whether or not the same has been stayed”

Reasons for delay

24.	As discussed above, the person seeking to set aside a default judgment must give reasons for his delay. The reason may be false in certain cases. However, the court should consider as to how far this lie affects his credibility. This was stated in Supreme Court Practice 1997 known as the White Book in Volume 1 (supra)

“On the application to set aside a default judgment the major consideration is whether the defendant has disclosed a defence on the merits, and this transcends any reasons given by him for the delay in making the application even if the explanation given by him is false (Vann v. Awford (1986) 83 L.S.Gaz. 1725; The Times, April 23, 1986, C.A.) The fact that he has told lies in seeking to explain the delay, however, may affect his credibility, and may therefore be relevant to the credibility of his defence and the way in which the court should exercise its discretion (see para. 13/9/14, below)."

Conditions

25.	If the court decides in particular case to set aside the default judgment, the last question that arises as to what condition or term it may impose on the party. The Rules that give discretion states that the court may set aside such judgment “on such terms as it thinks just”. This provision empowers the imposition of terms. However, it does not provide for any base upon which the discretion is to be exercised. Therefore, Bowen L J., in Gardner v. Jay (1885) 29 Ch. D. 50, at p.58, referring to that situation said:

" ...when a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view to indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the Judge why should the Court do so?"

26.	Generally, the courts tend to impose the costs on the defaulting party or order such party to deposit such amount in court. The important thing in this situation is that, the any such condition or term should not be a punishment for the defaulting party, but must facilitate of interest of justice between the parties.

Analysis 

27.	The interlocutory judgment sought to be set aside in this case was entered on 02.12.2016 for default of filling notice of intention to defend by the first and second defendants. This is a regular judgment after following the rules of the court and the principles set out above in setting aside the regular judgment apply to this case. The claim of the plaintiff as briefly stated above arises out the road traffic accident which allegedly caused injuries to the said Prashil Pranay Chand. Basically, the claim of the plaintiff is based on the careless and or negligent driving of the second defendant who was the driver of the first defendant. Thus this court should consider whether there is a merit in defence. It is of great importance to consider the elements of the claims based on careless act or omission to identify the probable defences. Generally, in such claims the plaintiff must prove (a) that the defendant owed a duty to plaintiff under the circumstances, (b) the defendant breached that duty by his action or omission, (c) it was the breach that caused the injury and (d) the plaintiff incurred damages due to that breach. In the affidavit, the first defendant, whilst denying the negligent and or careless driving of his employee, stated that neither the police nor the enforcement officers of Land Transport Authority charged the second defendant for any such careless driving or negligent driving. Thought the charge by the enforcement authority is not necessary for proving the negligence or careless driving of any particular driver, the point raised by the first defendant affidavit indicates that, there is a defence in this case. “The primary consideration is whether he has merits to which the court should pay heed; if merits are shown, the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication...”(Evans v Bartlam (supra)

28.	The defendant, therefore, has merits to which this court should pay heed and the defendant must be given an opportunity to place his defence in this regard. "Be that as it may, a party to an action is prima facie entitled to have it heard in his presence. He is entitled to dispute his opponent's case and cross-examine his opponent's witnesses, and he is entitled to call his own witness and give his own evidence before the court”: Lord Justice Jenkins in Grimshaw v Dunbar [1953] 1 All E.R 350, p 355. 

29.	The first defendant in his affidavit stated that, on 23rd of November 2016 the solicitors for the third defendant informed the first defendant that, they are not acting for the first defendant. This letter is attached with the affidavit of the first defendant marked MNK 2. In fact, the said solicitor initially filed the acknowledgment for all three defendants and later filed the amended acknowledgement excluding the first and second defendants. The letter marked MNK 3 attached with the affidavit of the first defendant clearly indicates that, only on 02.12.2016, the manager of third defendant company informed the first defendant clarifying the coverage under the insurance policy. In the meantime, the interlocutory judgment was entered on the same day i.e. on 02.12.2016. These letters clearly justify the default on part of the first defendant to file the notice of the intention to defend in this matter. In addition, the application for setting aside the interlocutory judgment was promptly made by the first defendant without any dely. Thus the interest of justice requires an audience be given to the first defendant. In addition, there will be no irreparable loss to the plaintiff, if the interlocutory judgment is set aside, as the matter will be adjudicated on the evidence and the facts.

30.	On the other hand, the plaintiff filed this action in September last year and one year lapsed from filling the Writ. The plaintiff during this period has taken several steps through his solicitor till the date of interlocutory judgment and thereafter could have consulted the solicitors for the other steps to be taken in this matter. Thus, the plaintiff would have, inevitably and invariably incurred some costs till to date in maintaining this action against the defendants. Though the court is unable to impose any condition on the first defendant to set aside the interlocutory judgment considering the defence and the circumstances of this case, the costs that would have really been incurred by the plaintiff should not be forgotten. 

31.	Considering all the circumstances of the case, I set aside the interlocutory judgment entered against the first defendant on 02.12.2016 subject to cost of $ 500 to be paid to the plaintiff within 7 days from today. I further order the first defendant to file the Statement of Defence within 7 days. Accordingly, the final orders are;

a.	The interlocutory judgment entered 02.12.2016 against the first defendant is set aside,

b.	The first defendant to pay a cost of $ 500 to the plaintiff within 7 days and

c.	The first defendant to file the Statement of Defence within 7 days.

U.L.Mohamed Azhar
Acting Master

                                                         At Lautoka
                                                           19/09/17