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

CIVIL ACTION No. HBC147/2013

BETWEEN 	VIRENDRA SINGH of Sacramento, California, USA, and SHAILENDRA PRASAD (also known as Shelendra Suman Prasad) of Ragg Avenue, Tamavua, Suva
							PLAINTIFFS

AND				CHENDRESH ARUN PRASAD of Varadoli, Ba
							FIRST DEFENDANT

AND				JOSEPHINE RANJINI LATA PRASAD of Varadoli, Ba
							SECOND DEFENDANT

AND	RASHIKENDRA SINGH of Sacramento, California, USA, RAJESH SINGH of Calgary, Alberta, Canada, AKLESH PRASAD of Calgary, Alberta, Canada and CHANDRA PRABHASH of Varadoli, Ba
							THIRD DEFENDANTS

AND	WESTERN LAND DEVELOPMENT AND INVESTMENT LIMITED of Ba
							FOURTH DEFENDANT
APPEARANCES	:	Ms Vanua for the Plaintiffs/respondent
Mr N Padarath for the Defendant/applicants

DATE OF HEARING	:	12 August 2020

DATE OF JUDGMENT	: 	20 October 2020

DECISION

1.	This is essentially a family dispute about an estate.  All the parties to the proceedings other than the second and fourth defendants are brothers.  The second defendant is the wife of the first defendant, she was served with the writ, but took no steps to defend the claims.  Judgment on liability (damages to be assessed) was entered against her by the plaintiffs on 24 September 2013.  The fourth defendant is a company in which the brothers’ father was said to be the sole shareholder, but which is effectively now controlled by the first defendant.  

2.	When the brothers’ father died in 1983 he left a will in which he gave the whole of his estate, including the shares in the fourth defendant company, to his sons.  

3.	The company once owned 31.45 acres of land at Varadoli, Ba, and the present proceeding enquires into how the first defendant came into control of the company, how the company has disposed of the land, and who has benefitted from its activities.  

Background to this appeal

4.	In an action commenced by writ of summons dated 16 August 2013 the plaintiffs sought various orders relating mainly to the conduct of the first defendant, and his management of the company, but also making thirteen prayers for relief (some in the alternative), including for:

i.	a declaration that the first defendant’s shareholding in the company is void and of no effect.
ii.	rectification of the share register
iii.	an order that the first defendant purchase the plaintiffs’ shares in the company at fair value reflecting any losses arising from the first defendant’s management of the company. 
iv.	damages (including exemplary damages) against the first and second defendants. 
v.	the winding up of the company.

5.	The first defendant filed a statement of defence on 18 September 2013, and an  affidavit of documents (in compliance with directions made in September 2014) on the 19th January 2015.  In June 2015 the plaintiffs applied for orders directing the first defendant to supply the plaintiffs with copies of the following:
	
i.	bank statements of the first defendant and the company going back to 2002
ii.	documents and correspondence relating to all transactions and dealings with regard to Certificate of Title 11650 in which the first defendant was involved as director

and on 26 August 2015 orders were made by consent by (then) Master Nanayakkara directing the first defendant to provide copies of these within 28 days, i.e. by 23 September 2015.  The case was adjourned for mention to 24 September 2015.  

6.	On 24 September there was no appearance for the first defendant (it appears from a subsequent affidavit that counsel for the first defendant was late, and was advised by counsel for the plaintiffs of the orders that had been made), and there was therefore no explanation for the fact that the order for discovery was not complied with.  On that date the Master extended the time for compliance with the order by a further 14 days to the 8th October 2015, and made an ‘unless’ order to the effect that if the order was not complied with by that date the first defendant’s defence would be struck out under Order 24, Rule 16(1)(b) High Court Rules.  The matter was adjourned again to 9 October for mention.  

7.	On 9 October the plaintiffs and the first defendant appeared by counsel.  The first defendant had still not complied with the orders made on 26 August.  Counsel for the first defendant sought an extension of 7 days to comply.  It is not clear from the notes on the court file what explanation (if any) was offered at this stage for this non-compliance, or for the non-appearance two weeks before, but the Master’s note of the appearance reads:
	
The first defendant does not offer a valid reason or ground to vary or extend the unless order. 
		I do not see compelling reason to [extend?] order.
		Non compliance has not been explained by the first defendant satisfactorily. 
Order therefore: The Statement of Defence of the first defendant is struck out in terms of Order 24, rule 16(1)(b) of the High Court Rules.
Matter to take normal course.
 
8.	On 23 October 2015 the solicitors for the first defendant filed a summons seeking leave to appeal the Master’s decision.  The summons was supported by an affidavit by the first defendant, which included the following evidence relevant to this appeal. 

5.	That the Plaintiffs initiated the within action on 16th August 2014 [sic -this should be 2013] by filing a Writ of Summons and Statement of Claim.
6.	That I acknowledged service of the Writ of Summons and filed an Acknowledgement of Service in person dated 5th September 2013.
7.	That I then filed my Statement of Defence on 18th September 2013 and served the same on the Plaintiffs’ Solicitors on the same day.
8.	That I then instructed Messrs Gordon & Co to act as my Solicitors in late July 2014 and on 1st August 2014 my solicitors filed a Notice of Appointment of Solicitors.
9.	That after almost a year from the close of pleadings the Plaintiffs filed their Summons for Directions on 1st September 2014 and the Summons was called on the 19th September 2014 wherein parties agreed to Order in Terms of the Summons for pre-trial procedures.
10.	That although the Plaintiffs were required to file their Affidavit Verifying List of Documents within 21 days from the date of the Order mentioned in paragraph 9 herein the Plaintiffs filed the said Affidavit Verifying List of Documents on 23 January 2015. 
11.	That I filed by Affidavit Verifying List of Documents on 19th January 2015. 

COURT APPEARANCES
12.	That this matter was called before the Learned Master of the High Court on the following occasions:
i.	19th September 2014 – the Plaintiffs’ Summons for Directions was called and parties obtained Order in Terms. I instructed my Counsel to obtain Order in Terms;
ii.	29th October 2014 – the Plaintiff sought 21 days to file affidavit verifying list of documents;
iii.	19th November 2014 – the Plaintiffs sought and was granted a further 28 days to file their affidavit verifying list of documents;
iv	19th January 2015 – matter was listed for mention on 16th February 2015;
v.	16th February 2015 – 7 days was granted to parties to serve their respective list of documents;
vi.	25th February 2015 – the 4th named 3rd Defendant was granted 14 days to file affidavit verifying list of documents;
vii.	17th March 2015 – the same orders were granted for the 4th named 3rd Defendant was granted 14 days to file affidavit verifying list of documents;
viii.	25th March 2015 – matter was adjourned to 10th April for further mention;
ix.	10 April 2015 – the High Court issued Notice of Adjourned Hearing on all parties and the matter was listed for mention on 1st May 2015;
x.	1st May 2015 – the Plaintiff was granted 21 days to file formal application for specific discovery;
xi.	22nd May 2015 – the Plaintiff was granted final 14 days to file a formal application for specific discovery;
xii.	5th June 2015 – the Plaintiff sought and was granted another 28 days to file formal application for specific discovery.  Master also made an order under Order 24, rule 16(1)(a) (b) ‘unless order’ to strike out the Plaintiffs’ claim if application not filed;
xiii.	6th July 2015 – Plaintiff’s summons for specific discovery filed. Hearing set on 26th August 2015: 
xiv.	26th August 2015 – Plaintiffs granted Order in Terms of Summons. I had instructed my counsel to consent to the said application;
xv.	24th September 2015 – 1st Defendant granted a further 14 days for discovery.  My counsel was late in arriving to Court and met Mr Young outside Court wherein he was told of the Unless Order.  I partially complied with the Order;
xvi.	9th October 2015 – 1st Defendant’s Statement of Defence struck out by the Master.  I sought further time to comply as I had partially complied with the Order by furnishing the Plaintiffs with Bank statements.  Other materials sought were partially discovered as per paragraph 20 herein. 

The first defendant then lists the documents of which he did provide disclosure, and goes on to say:

15.	That at all material times Messrs Sahu Khan & Sahu Khan were my solicitors and all matters relating to the Fourth Defendant company were dealt within the offices of Messrs Sahu Khan & Sahu Khan.
16.	That it is a known fact that Messrs Sahu Khan & Sahu Khan Principal Mr Sahu Khan has been struck off the roll of practitioners in Fiji and his office was administered by the Chief Registrar.
17.	That I have enquired on various occasion with respect to my matters however:
i.	All documents relating to the Fourth Defendant Company has gone missing.
ii.	All Trust Account documents and monies are in an uncertain state and remains unaudited to date;
iii.	Matters relating to my previous case Lautoka High Court Action No. 147 of 2008 has gone missing and is un-locatable. 
18.	That I have filed an action against Mr Sahu Khan and his Company with respect to matters that Mr Sahu Khan handled for my Company and me.  The action is Lautoka High Court Action No. 16 of 2013.
19.	That Mr Sahu Khan’s office has deliberately jeopardised my position with respect to the Fourth Defendant Company and for this reason I am not in a position to obtain documents relating to the Fourth Defendant. 
20.	That on the issue of the bank statement I wish to state that bank records are purged after being kept for the mandatory period of 7 years therefore access to these records is also quite difficult. 

9.	This application for leave to appeal was eventually heard by a judge in the High Court on 1 July 2016.  A decision on the application was issued on 10 April 2017.  The application for leave to appeal was dismissed, mainly it appears on the basis that the application for leave to appeal the Master’s decision had been served outside of the time provided for filing and service under O.59, r.11 High Court Rules.  The judge held that the Court had no power to extend the time for service. 

10.	By summons filed on 1 June 2017, supported by an affidavit sworn on the same date, the first defendant applied for leave to appeal to the Court of Appeal against the decision referred to in paragraph 9 above.  This application was heard on 17 October 2017, and a decision issued on 8 December 2017 dismissing the application for leave to appeal, essentially on the grounds that there is no right of appeal against the refusal of leave to appeal.  This reflects the fact that a party is entitled to apply to the Court of Appeal for leave to appeal when such leave has been refused in the lower court. 

11.	The first defendant then appealed to the Court of Appeal against the decision of the High Court dated 10 April 2017.  The hearing in the Court of Appeal was held on 18 November 2019, and a decision issued on 29 November.  The Court allowed the appeal on the ground that the High Court was mistaken in its finding that it had no power to extend the time for service of the summons seeking leave to appeal.  The Court directed that the first defendant’s third ground of appeal was to be determined in an appeal of the learned Master’s decision.  

12.	Hence, more than four years after the order was made striking out the first defendant’s defence to a claim that has its origins in the death of the parties’ father in 1983, the matter came before me on 12th August 2020 for hearing of the appeal against that order. 

Grounds for appeal

13	The first defendants Notice of Appeal dated 5 December 2019 sets out the grounds of appeal as follows:

1.	The Learned Master erred in law in striking out the Statement of Defence under Order 24, Rule 16(1)(b) of the High Court Rules on the grounds that the Defendant had to give a valid reason for non-compliance when the correct application of the law was whether or not the Defendant was in wilful default or negligent in withholding the documents for discovery. 
2.	The Learned Master erred in law and in fact when there was no evidence before the Court that the Defendant was in wilful default or negligent in withholding the documents for discovery.
3.	The Learned Master erred in law by not exercising his discretion to extend time for compliance with the unless order when,
	3.1	An application for extension was made orally in Court.
	3.2	The defendant conduct was not intentional or contumelious.
3.3	There was no evidence of any prejudice to the plaintifsf if extension of time was granted.
3.4	There are alternative remedies available under the High Court Rules

14.	I am grateful to counsel for their helpful written submissions.  I have also been assisted by the submissions filed by counsel in July 2016 at the hearing referred to in paragraph 9 above.  Although the decision of the court was, as stated, based largely on the issue of whether the appeal was out of time, the submissions of counsel also addressed the substantive issue of whether the Master’s striking out order should be set aside. One matter about the plaintiffs’/respondent’s submissions on the hearing before me warrant comment.  It seems that the plaintiffs’ counsel was under the impression that the hearing before me involved an appeal against the decision of the High Court of 10 April 2017 upholding the decision of the Master dated 9 October 2015.  Of course, I have no jurisdiction to revisit the decision of another judge of the High Court.  The review of that decision took place in the Court of Appeal.  In its judgment of 29 November 2019 that Court dealt only with that aspect of the decision of the High Court that held that the High Court did not have power to extend the time to apply under O.59, r.11 HCR for leave to appeal.  In effect the Court of Appeal held that the time to apply could and should have been extended.  However, rather than dealing itself with the substantive appeal, the Court of Appeal directed that the appeal be reheard in the High Court.  Hence the matter before me was an appeal, filed by the first defendant on 6 December 2019 (reflecting the leave to appeal given by the Court of Appeal), which was expressed as set out in paragraph 13 above. 
Law

15.	A useful starting point is to refer to the comments of the Supreme Court in a recent decision Extreme Business Solution Fiji Ltd v Formscaff Fiji Ltd [2019] FJSC 9 on the purpose served by the rules of procedure, including the High Court Rules.  The particular issue before the court in that case was the failure of the appellant to comply with directions as to time made by the High Court in granting leave to appeal.  In the course of setting aside the orders of the High Court and the Court of Appeal striking out the appellant’s appeal because it was filed and served outside the 7 day time allowed by the High Court at the time of giving leave to appeal, the Court (Stock JA) made the following observations about the importance of complying with time limits:

[65]	I accept that there was in this case a failure to comply with a court order as to time but it is to be noted that the discretion to extend time, conferred by order 3 rule 4, contemplates that such breaches are not of themselves necessarily fatal, although one might observe that the position would be different in the case of an “unless” order.  Nonetheless, what this all amounts to in this particular case is the refusal to extend time for service of a notice of appeal where service was a mere three days out of time, where the notice of appeal was filed in the time stipulated, where the judge had held that, prima facie, the prospective appeal had merit and where it is impossible to discern that Formscaff could have been in the least prejudiced by an extension.  To refuse in these circumstances a three day extension of time seems to me to permit minor breach to trump merit and that must, I respectfully suggest, be inimical to the objective of the Rules.
[66]	The guiding principle is this (from Castellow v Somerset CC [1993] 1 All ER 256 @ 263-4:
“The object of the rule is to give the court a discretion to extend time with a view to avoidance of injustice to the parties. ‘When an irreparable mischief would be done by acceding to a tardy application, it being a departure from the ordinary practice, the person who has failed to act within the proper time ought to be the sufferer, but in other cases the objection of lateness ought not to be listened to and any injury caused by delay may be compensated for by the payment of costs.” 
[67] 	The principles are more fully canvassed in Finnegan v Parkside Health Authority [1998] 1 All ER 595 in its reference to a number of other authorities and it is a judgment which merits study.  The theme emerges that whilst the rules are devised to promote expedition and are requirements to be met, procedural default should not stand in the way of judgment on the merits unless the default causes prejudice which cannot be compensated by an award of costs.  That said, an eye must be trained on the particular circumstances so as, for example, not to allow a wealthy plaintiff to flout the rules knowing that he has a deep pocket to meet such costs orders as might be made. “A rigid mechanistic approach is inappropriate.”  No doubt the length of the delay will be a relevant factor but generally the question is what the overall justice of the case requires.
 
	In a footnote the Court also explained what was meant by an ‘unless’ order: 

An unless order is an order which provides that unless an act is done within a specified time, a certain unwelcome consequence will follow e.g. the defence will be struck out. They are not intended to be used regularly or as a matter of course but only as a last resort where there has been a history of a failure to observe orders or directions or rules and the line must finally be drawn or where otherwise the other party will be materially prejudiced by a (further) failure by the errant party to observe a direction or rule and where a costs order is not appropriate to meet that prejudice. See the Supreme Court Practice 1999 in the commentary at pp 762-763 in relation to Order 42 rule 2 of the Rules then applicable in England and Wales.

16.	These comments are particularly pertinent in the present case, in which the ‘unless’ order that was made in 2015, and which ultimately led to the first defendant’s defence being struck out, was based on a concern over compliance by the first defendant with directions made by the Court as to time for providing disclosure of documents to the plaintiffs.  

17.	In the Court of Appeal decision in Native Land Trust Board v Rapchand Holdings Ltd [2006] FJCA 61 the Court made the following observations (in an appeal with some similarities to this case, where the defendant’s defence was struck out for dilatory compliance with directions as to time, including – as in this case – a failure to comply with an order for discovery):

We understand the frustration of the Respondent, keen to have its claim resolved as soon as possible. We sympathise with the position of the judge whose conscientious commitment efficiently to manage the case load of his court was repeatedly thwarted by wholly unacceptable conduct by the Appellant.  At the same time however we have to ask ourselves whether, in the face of what was clearly a very substantial monetary claim it was right, on 25 February, absolutely to debar the Appellant from defending.

The Court of Appeal decided to allow the appeal and reinstate the defence, as a result of which a substantial judgment awarded in favour of the plaintiff was set aside. 

18.	‘Unless’ or – more colourfully – ‘guillotine’ orders are undoubtedly a useful tool for courts to use in ensuring compliance with court orders.  But as with any procedural orders, they must be used in a manner which serves the objective of doing justice, not in a way that causes injustice.  In his decision in Vuti v ILTB [2015] FJHC 325 (in which the court ultimately upheld the striking out of the defendant’s defence) Tuilevuka J undertook a very thorough analysis of decisions in various jurisdictions dealing with these orders.  Included in that analysis were these passages:

1.	From the English Court of Appeal in Marcan Shipping (London) Ltd v Kefalas [2007] 1 WLR 1864 where, at [36] Moore-Bick LJ said:
[B]efore making conditional orders, particularly orders for the striking out of statements of case or the dismissal of claims or counterclaims, the judge should consider carefully whether the sanction being imposed is appropriate in all the circumstances of the case. Of course, it is impossible to foresee the nature and effect of every possible breach and the party in default can always apply for relief, but a conditional order striking out a statement of case or dismissing the claim or counterclaim is one of the most powerful weapons in the court's case management armoury and should not be deployed unless its consequences can be justified. I find it difficult to imagine circumstances in which such an order could properly be made for what were described in Keen Phillips v Field as "good housekeeping purposes".

2.	Browne-Wilkinson VC in In re Jokai Tea Holdings [1992] 1 WLR 1196 at 1203B said:
In my judgment, in cases in which the court has to decide what are the consequences of a failure to comply with an "unless" order, the relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed.

3.	Tan Boon Heng, Case Note - Mitora: The Mantra of " Unless Orders"? (2014) 26 SAcLJ at page 295 refers to the decision of the Court of Appeal of Singapore in Mitora Pte Ltd v Argritrade International (Pte) Ltd [2013] 3 SLR 1179 and other cases which endorse the view that the enforcement of an unless order would be harsh and unjust where the consequences or the penalty for non-compliance is grossly disproportionate to the default in question.  The author of the article goes on to say:
The decision in Teeni Enterprise had created a renewed awareness that the courts must balance the importance of compliance with Court Orders with the need to ensure that a party would not be summarily deprived of its legal rights without any hearing of the merits especially when the non-compliance or breach was not so serious or aggravating as to warrant such a serious consequence. The Court in Teeni Enterprise agreed with the party who breached the unless order that it was a draconian punishment to allow the massive counterclaim of over $1.2 million and that the dismissal of the whole of the plaintiff's claim was disproportionate, taking into account the relatively trivial breach by the plaintiff which did not occasion any real prejudice to the defendant.

The Singapore Court of Appeal Mitora suggested the following as guidelines that might be followed when a court considers whether to make ‘unless’ orders, or to make orders as a consequence of their breach. 

(a)	‘unless’ orders stipulating the consequence of dismissal should not be given as a matter of course but as a last resort when the defaulter's conduct is inexcusable;
(b)	the conditions appended to 'unless’ orders should as far as possible be tailored to the prejudice which would be suffered should there be non-compliance; and
(c)	other means of penalising contumelious or persistent breaches are available, including but not limited to
(i)	awarding costs on an indemnity basis;
(ii)	ordering the payment of the plaintiff's claim or part thereof into court where the defaulting party is a defendant (see Husband's of Marchwood Ltd v Drummond Walker Developments Ltd [1975] 1 WLR 603 at 605);
(iii)	striking out relevant portions of the defaulting party's Statement of Claim or Defence rather than the whole;
(iv)	barring the defaulting party from adducing certain classes of evidence or calling related witnesses; and
(v)	raising adverse inferences against the defaulting party at trial.
In this regard, the draconian sanction of striking out a litigant's claim or defence in its entirety should not be the default consequence of an "unless order" as it would effectively deprive the litigant of its substantive rights on account of a procedural fault.

Analysis

19	The principle that I think these cases all point to is that the ‘draconian’ response, to the procedural default of a party, of striking out the party’s claim or defence so that there can be no ‘on the merits’ adjudication of the parties’ cases, is one that should be used sparingly and for situations where either a party is being wilfully disobedient of the court’s orders, or the defaulting party’s conduct has caused real prejudice to the other party that cannot be remedied in some other way (e.g. by orders for costs, including indemnity costs).  But if this statement of principle is correct, it is important that a Court considering the making of ‘unless’ orders with these consequences, properly addresses not only the immediate frustration of a party in default, but whether the consequences of the order that the court is intending to make are justified in all the circumstances.  Although the High Court Rules (O.24, r.17) and cases (Trade Air Engineering (West) Ltd v Taga [2007] FJCA 9 at paragraph 13) make it clear that a court having made an ‘unless’ order, at least in relation to discovery, still has jurisdiction to entertain an application to relieve the defaulting party of the consequences of the order, the making of the ‘unless’ order will have changed the environment in which an application for relief might be considered.  By then the court has ‘backed itself into a corner’, and must enforce the order, or risk being seen to be allowing its order to be ignored.  It is preferable by far for the consequences of any breach of the order to be addressed at the time the ‘unless’ order is first made.  

20	Order 24, rule 16(1)(b) provides: 

Failure to comply with requirement for discovery, etc. (O.24, r.16)
16(1) 	If any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose, fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, to rules 3(2) and 11(1),-
(a)	that party shall not be entitled subsequently to produce a document in respect of which default was made without the leave of the Court, and 
(b)	the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly. 
(2)	If any party against whom an order for discovery or production of documents is made fails to comply with it, then, without prejudice to paragraph (1), he shall be liable to committal.
(3)	Service on a party’s barrister and solicitor of an order for discovery or production of documents made against that party shall be sufficient service to found an application for committal of the party disobeying the order, but the party may show in answer to the application that he had no notice or knowledge of the order 
(4)	A barrister and solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable to committal.

21.	I am not satisfied that an analysis of the sort suggested in paragraph 19 above occurred at the time the ‘unless’ order was made by the Learned Master on 24 September 2015, particularly when the order was made in the apparently inadvertent absence of counsel for the first defendant, and therefore without submissions on behalf of the first defendant on whether the order should be made at all, and if so on what terms.  I can well appreciate the frustration of the Master in dealing with the matter.  This was an already absurdly delayed proceeding (stemming as it does from events dating back to 1983, although commenced only in 2013), and it is apparent from the sequence of court appearances outlined in the affidavit of the first defendant (see paragraph 8 above) that the plaintiffs had themselves been less than diligent in its compliance with court orders, and its general progression of the proceedings.  (I note here that although the first defendant says that the Master had made an ‘unless’ order on 5 June 2015 in relation the plaintiffs’ much delayed application for specific discovery, the Master’s note on the Court file does not indicate that such an order was made at that time, although the note does refer to a ‘final’ adjournment).  But the fact that the Master was no doubt exasperated by the absence of counsel for the first defendant, along with the unexplained failure to comply with the orders made by consent, suggests that the proper consideration of whether ‘unless’ orders were appropriate, and what might be the sanction if there was no, or insufficient compliance (even if ‘unless’ orders were to be made, striking out was not the only sanction available) did not occur at that time.  Certainly there is nothing on the court file to shown the Master’s reasoning – apart from the non-compliance - in making the orders he did, and when on 9 October 2015 counsel for the first defendant sought more time to comply, the file does not show any further consideration by the Master to whether striking out was still an appropriate response at that time.  It seems clear that having made the order, the court felt compelled to give it effect – exactly the consequence that I have referred to in paragraph 19 above.  It is particularly significant I think that at all stages of this process the first defendant had partly complied with the orders, and was still endeavouring to provide the balance of the documents it was ordered (and had agreed) to produce.  It was merely seeking more time to do so.  This was not a wilful disobedience of the court order, nor has there been any evidence to suggest that the plaintiffs are irreparably prejudiced either by the delay or the non-discovery of the documents referred to.  

22.	Since the striking out order was made, and the first defendant has applied to reinstate its defence, more information has become available about the failure to comply with the court orders.  The first defendant has belatedly provided an explanation of his inability to provide some of the missing documents, including the fact that bank records are not kept for more than 7 years, and that his former solicitors have been uncooperative (see paragraph 8 above).  I agree with the submissions made on behalf of the plaintiffs that the information provided by the first defendant about the attempts he has made to locate the missing documents is not impressive, but it must be acknowledged that the first defendant’s affidavits have focussed on the issue of reinstating his defence, not on providing a comprehensive explanation for the failure or inability to provide copies of the documents. 

23.	In the end the first defendant cannot produce what no longer exists, or cannot be located, and if that is in fact the case, it is a complete answer to any suggestions that he has deliberately disobeyed the court order.  While I agree that his initial agreement to the making of the orders means that his apparent inability to now comply needs to be looked at carefully, that is not something that can properly be addressed at the interlocutory stages of the proceedings without very clear evidence that he is lying.  There is no such evidence, and if it were to emerge at any later stage in the proceeding O.24, r.16 still provides a basis for the court to make orders – including striking out orders - at that point.  The purpose of the process of discovery and inspection is to ensure that all documents relevant to an issue are identified (hence the importance of the list of documents), and all available documents are accessible to the parties for use for their case or defence (inspection).  While there may be consequences for a party for destroying documents known to be relevant to an existing or pending proceeding, there is nothing in the rules of procedure (there may be obligations imposed by other statutes that require a person to keep certain material for a prescribed period, but they are not relevant here) that obliges a person who is not a party to proceedings to keep material in case it becomes an issue at some point in the future.  The discovery process deals with the possibility that documents may have been destroyed, lost or no longer accessible by requiring parties to disclose documents that were but are not now in that party’s possession, custody or power (see paragraphs 3 & 4 of the prescribed form for a list of documents – Form 13, Appendix 1, High Court Rules).  Note that discovery does not require a party to disclose documents he/she is merely aware of, but have never been in that party’s possession custody or power (although that phrase is wide in its application).  Proper compliance with disclosure obligations requires far more care to be given to this aspect of discovery than currently seems to be the norm.  This is more a failure on the part of solicitors and counsel engaged in proceedings than of the parties themselves, who cannot be expected to understand the requirements of the process, and rely on their advisers to tell them what they need to disclose, and ensure they think properly about what is discoverable, instead of selecting only what is obvious, and helpful to their own case. 

24.	In the absence of production of these documents by the first defendant some information is no doubt available from Land Transfer Office records for the sale transactions that have occurred, and both the former solicitors and the banks can be required (prior to trial if necessary – see Khanna v Lovell White Durrant [1995] 1 WLR 121, which includes a very useful discussion of how this might work) to produce any documents they hold, and to explain what has happened to anything that is missing.  In the absence of specific provision in the High Court Rules for non-party discovery there is also the option of an action for discovery (see Norwich Pharmacal Co v Commsrs. of Customs & Excise [1973] 2 All ER 943 (HL), and P v T Ltd [1997] 4 All ER 200), although I acknowledge that that can be a cumbersome, time-consuming and expensive process.  

25.	Finally there is the question of whether the documents sought by the plaintiffs are essential to the plaintiffs’ case.  Assuming that Land Transfer Office records will enable the transactions themselves to be tracked, and the sale values established, it may be that the solicitor’s records will be of more value to the first defendant (to establish the bona fides of each transaction, or deductible expenses) than to the plaintiffs, and the same may be true of the bank statements.  If so, there is no prejudice to the plaintiffs from the defendant’s inability to produce the documents that cannot be compensated by costs for the futile attempts to obtain material that does not exist or cannot be produced.  In the plaintiffs’ submissions on this appeal there is only a brief reference to the prejudice the plaintiffs say they have suffered.  The submission made assumes that the documents sought exist and could have been produced.  In other words, the submission addresses not the prejudice to the plaintiffs, but what is said to be the wilful refusal of the first defendant to produce the documents.  I do not accept that this is the situation.  Although very belatedly, the first defendant has now explained the difficulty with production.  It is true that this information should have been offered much earlier – i.e. before the first defendant agreed to provide the documents.  I have already commented on the significance of this agreement, and the impossibility of resolving – at this stage – the truth of the first defendant’s assertions about his access to the documents.  If at or before trial it emerges that the documents do exist, and the first defendant could have accessed them, it is very likely, given the history of the matter, that his defence will be struck out at that stage.  But if what he says is true, the plaintiffs are not prejudiced by the failure to comply with the orders, because there was never any possibility that the defendant could comply.  The documents cannot be produced because they no longer exist, and the plaintiffs would always have had to prove their case without them.  In that case, the only prejudice that the plaintiffs havw suffered is the delay and expense of seeking documents that could not be produced.  That is a prejudice that can be remedied by an award of costs.   

26.	The matters canvassed in paragraphs 21-25 above are all issues that could and should have been considered before making an ‘unless’ order, and – if not then – at least before the Court gave effect to that order by striking out the first defendant’s defence.  Had it done so I am sure that the striking out order would/could not have been made.  I therefore accept that the learned Master erred in making the decision he did on 9 October 2015 to strike out the first defendant’s defence in the ways set out in the grounds of appeal, the cumulative effect of which was that the striking out decision was made without considering the real issue that needed to be decided, i.e. were the orders made appropriate in all the circumstances.  In saying this I am certainly not saying that someone in the position of the first defendant need not provide an explanation for his failure to comply with the orders.  Of course, the explanation for the default is relevant, and if one is not given the court is entitled to make whatever inferences are appropriate in the circumstances from that failure.  But in this case the Court did not ask itself the questions that it needed to, in deciding in its discretion to strike out the defence, and so made an order that it should not have. 

27.	For the reasons given I allow the appeal against the decision of the Master dated 9 October 2015.  Subject to payment of costs as provided for in the next paragraph the defence of the first defendant is reinstated, and the matter is to proceed to trial when it is ready (see my comments below).  

28. 	However the plaintiffs are entitled to costs on this appeal.  They have been put to a great deal of trouble, delay and expense in dealing with the first defendant’s failure to properly address its discovery obligations, and while I have decided that that failure does not warrant striking out the defence, it certain warrants an order of costs.  Taking into account the order for costs already made in the Court of Appeal, and also the wasted time for the plaintiffs of filing and attending on the original application for specific discovery, I summarily fix costs in favour of the plaintiffs in the sum of $4,000.  The reinstatement of the defence is conditional on payment of these costs (and the costs awarded in the Court of Appeal if they have not already been paid) by the first defendant within 6 weeks from the date this decision is delivered, unless that time is extended on application to the Court. 

29.	The matter is adjourned for mention to the 	30th October 2020 at 10.30am for consideration of the next steps.  One of the matters I am considering, subject to submission by the parties, is to make orders requiring the first and fourth defendants to make proper discovery in terms of the rules of all documents that are or have been in their possession, custody or power (that includes of course documents such as bank statements, and documents in the possession of their former solicitors, including documents relating to property transactions involving the fourth defendant) that are relevant to any matter in question in these proceedings.  Given what is alleged in the statement of claim I would expect this to include documents (including emails and texts) relating to the operations of the company, the changes of shareholding of the company, dealings between the brothers relating to those transfers of shares, the exercise of the power to appoint a Governing Director of the company etc. – this list should not be taken as comprehensive.  

_________
A.G. Stuart
Judge

At Lautoka this 20th day of October, 2020

SOLICITORS:
Young & Associates, Lautoka for the plaintiffs
Samuel K Ram, Ba, for the defendants