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National Court of Papua New Guinea |
[PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS. NO. 1012 of 2005
BETWEEN
NIBSON KANEN NIBABE
Plaintiff
AND
JACK SOLI
First Defendants
AND
GEBA KURUNOS
Second Defendant
Waigani: Kandakasi, J.
2016: 21st July
2017: 25th September
LAWYERS – Duties and responsibility of lawyers in mediation –Duty to resolve matters promptly and avoid unnecessary delays and increased costs – ADR Rules providing a process to assist lawyers to properly and meaningful discharge their duties and responsibilities – Lawyers role is to give effect to orders for mediation, before during and after conduct of mediation – Breach of – No evidence of lawyer discharging his duties – Lawyer losing contact with client well before date set for mediation – Failing to inform opposing counsel and mediator – Breach of lawyers professional conduct rules requiring professional courtesy to opposing counsel and the Court - Professional Conduct Rules r. 8 (6) and (7) and r. 15 (2), (4) (a) and (b) and (10), r. 20 (1), r. 3 (a), (b), & (c), and r.15 (4) - ADR Rules, rr.5 (2) 9(3), and 10 (7)
MEDIATION – Mediation order –– Only one party attending with lawyer while the other failing – Failing party’s lawyer having prior knowledge of difficulty with client – Failure to inform opposing counsel and mediator - Lawyer ceasing to act on the day of mediation – Bad faith – Consequence – Self-executing orders issued for judgment if there is continuous default, issued. Costs ordered against failing party on a solicitor and own client basis.
MEDIATORS – Appointed by the Court for a particular purpose or task – Effect of – An extension of the Court – Lawyers duty of courtesy under r. 15 (4) Professional Conduct Rules 1989 to the Court applies with appropriate modification to such persons.
Cases cited:
Abel Constructions Ltd v. W.R. Carpenter (PNG) Ltd (2014) N5636
Alex Awesa & Anor v. PNG Power Limited (2014) N5708
Alex Awesa v. PNG Power Ltd (2016) N6359
Hargy Oil Palm Ltd v. Ewase Landowners Association, (2014) N5441
Kanga Kawira v. Kepaya Bone & Ors (2017) N6802
Koitaki Plantations Ltd v. Charlton Ltd trading as Kookabura Meats & Stuart Fancy (2014) N5656.
Meckpi v. Fallon and Dekenai Constructions Ltd (2017) N6708.
South Pacific –PNG- Seafoods Limited v. National Executive Council & The State (WS 492 of 2013) decision delivered on 25th September 2017.
Wantok Gaming Systems Ltd v. National Gaming Control Board (2014) N5809.
Wantok Gaming Systems Ltd v. National Gaming Control Board (No.2) (2017) N6685.
Wantok Gaming Systems Ltd v. National Gaming Control Board (No.2) (2017) N6685.
Counsel:
C. Joseph, for the Plaintiffs
No Appearance, for the Defendants
25th September, 2017
1. KANDAKASI J: Following the Defendant and their lawyer’s failure to turn up on the Court appointed date for mediation, the mediator issued a bad faith certificate. After the termination of the mediation, the Defendants lawyer filed and served a notice of ceasing to act for the Defendants and deposed to having lost contact with his client. The matter is now before the Court for the Court to decide on an appropriate penalty under r. 10 (7) of the ADR Rules for the Defendants’ bad faith conduct.
2. The Plaintiff argues for a strike out of the Defendants’ defence and entry of judgment against them. The Defendants and their lawyers failed to turn up and hence failed to assist the Court with any submissions.
Main Issue
3. The main issues for me to decide is this. Whether the Defendant and their lawyer’s bad faith warrant a strike out of the Defendants’ Defence?
4. As I noted in the decision I just handed down today in the matter of South Pacific –PNG- Seafoods Limited v. National Executive Council & The State,[1] this requires a consideration of the basis upon which the Court ordered mediation; steps each of the parties took to comply with those orders; the basis upon which the mediator issued the bad faith certificate against the Defendants and arguments on the consequence that should follow the issuance of the bad faith certificate. This in turn requires a consideration of the relevant factual back ground as they appear from the pleadings and the various affidavit material that has been filed.
Relevant factual background
5. The plaintiff is the registered proprietor of a State Lease Volume 33, Folio 8159, Section 231, Allotment 109, Hohola (Tokarara), National Capital District (the Property). A Linda Soma, who was the only surviving joint owner of the Property, sold it to the Plaintiff in a written contract for sale dated 10th March 2003. The Plaintiff alleged that the Defendants were illegal squatters on the Property prior to the sale. It was a term of the contract of sale that the Plaintiff would assist the vendor in the eviction of the Defendants and their relatives. Accordingly, in this proceeding the Plaintiff seeks a declaration that the Defendants are illegally squatting on the Property and seeks vacant possession amongst other reliefs. In the Defendants defence, they denied the Plaintiff’s claim. They also claim that they had been living on the Property and were in the process of having the title transferred to them when the Plaintiff obtained the title. Without pleading any particulars explaining what they mean, the Defendants claim the Plaintiffs acquisition of the title to the Property was dubious.
6. Through a number of directions hearing, the Court had a meaningful discussion with the parties, the parties as well as the Court came to the view that this case did not present any issue of the kinds listed in my decision in Able Construction Ltd v W.R. Carpenter (PNG) Ltd.[2] That decision at paragraph 18 lists the kind of questions that warrant resolution in the following terms:
“18. ... mediation is suitable for all cases. The only exception to this would be cases in which mediation is inappropriate because:
7. Proceeding on the above basis, the parties and the Court agreed that this matter requires resolution by mediation or direction negotiations between the parties. Accordingly, the Court issued orders for by consent on 08th June 2016 and fixed 21st June 2016 for the mediation to take place. The orders appointed His Honour, the Deputy Chief Justice, Sir Gibbs Salika as the mediator. On the set date and time, the Plaintiff with his lawyer turn up ready to proceed with the mediation. The Mediator was also ready to conduct the mediation on the relevant date. Unfortunately, neither the Defendants nor their lawyers turned up for the mediation. This caused the mediator to terminate the mediation and issue a bad faith certificate against the Defendants.
8. Unknown to the Plaintiff and his lawyers and the Mediator, the Defendants lawyers, Kawat Lawyers filed a Notice of Ceasing to Act for the Defendants together with an affidavit in support on 15th June 2017. These documents were not served on the Plaintiffs lawyers until 12:00 noon on 21st June 2017, which was immediately after the termination of mediation. Neither the Mediator, nor the Plaintiffs lawyers were alerted to the fact of the Defendants’ lawyer ceasing to act for the Defendants and more so the possibility of the mediation not proceeding on the appointed date or at all.
9. When the matter was called for mediation it was clearly established that, the Defendants did not:
(a) pay the court mediation services fees;
(b) notify the Acting Assistant Registrar – ADR Services and the Mediator of their contact details;
(c) notify the Acting Assistant Registrar – ADR Services and the Mediator of the details of their authorised representatives if any, who had authority to settle in the mediation; and
(f) attend the main mediation conference.
Relevant Law
10. In the South Pacific Seafoods case, I fully discussed the relevant law on point. Repeating that, once the Court decides to order mediation and makes the appropriate orders, compliance of those orders is what is required next. There are number of judgments on this point. This includes amongst others, my decisions in Koitaki Plantations Ltd v. Charton,[3]Awesa v. PNG Power[4] (first Alex Awesa decision), Wantok Gaming Systems Ltd v. National Gaming Control Board,[5] Roger Meckpi v. Fallon and Dekenai Constructions Ltd[6] and Kanga Kawira v. Kepaya Bone & Ors.[7]
11. In Hargy Oil Palm Ltd v. Ewase Landowners Association,[8] and Abel Constructions Ltd and the Koitaki Plantations Ltd cases, I went to some length in discussing the development, promotion and use of ADR and mediation for an expedited, efficient and effective resolution of disputes. Additionally, I highlighted the reasons why the formal courts and governments worldwide are promoting and encouraging the use of mediation. Further, I discussed in some detail the duties and responsibilities of the parties and their lawyers once an order for mediation is made. Thereafter, I proceeded to provide an answer to the important question of what amounts to “bad faith” which gave rise to judgments in the first Alex Awesa decision), Koitaki Plantations Ltd, Wantok Gaming Systems Ltd v. National Gaming Control Board,[9] Roger Meckpi and Kanga Kawira cases. In those cases, I answered the question raised in all of these judgments in the same way. In so doing, I pointed out that an absence of any of the following list of behaviours would lead to a finding of a party acting in “bad faith”:
“(1) Complying with the various legislative provisions and other rules, standing orders or practice directions’ or provisions that govern mediation;
(2) Complying with orders referring a matter to mediation;
(3) Personally attending (excluding attendance by telephone) at the mediation by all persons who are fully authorized to settle the dispute,
(4) Preparing for mediation by the parties and their representatives, which includes the exchange of any documents requested or as set forth in a rule, order or request of the mediator;
(5) Participating in meaningful discussions with the mediator and all other participants during the mediation;
(6) Acting in accordance with all contractual terms regarding mediation, the parties may have agreed to;
(7) Following rules set out by the mediator during the introductory phase of the process;
(9) Remaining in the mediation process until the mediator determines that the process is at an end or excuses the parties;
(10) Engaging in direct communication and discussions between the parties to the dispute, as facilitated by the mediator;
(11) Engaging in accurate and honest representations to the other parties or the mediator during and for the purpose of the mediation; and
(12) Refraining from filing any new motions until the conclusion of the mediation, in pending lawsuits.”
12. On the question of appropriate penalties or consequences for any breach of the requirements for “good faith” at mediation, I noted that the starting point is r.10 (7) of the ADR Rules. This provision stipulates the kinds of penalties the Court could impose against a party that is guilty of “bad faith”. I have expressed the view that, this vests in the Court a “wide discretion or power to make such orders as it may think appropriate in the proceedings once a case of ‘bad faith’ is made out against a party.” Further, I noted that, in so doing, the rule was merely restating and reinforcing a power the Court already has. It would follow therefore that, a case of “bad faith” could be met by any one or more of the following orders depending on the seriousness of the conduct and whether the conduct is deliberate or inadvertent:
“(a) dismissal of the claim;
(b) permanent stay of the claim; or
(c) a stay of the claim pending a meeting of certain conditions; or
(d) a strike out of a defence and entry of judgment; and or
(e) order costs.
... Sanctions under (a) - (c) could be imposed in appropriate cases, if the defaulting party is the plaintiff or a cross claimant. Obviously, the sanction under (d) could be imposed against a defendant or a cross-defendant. Sanctions under (a) and (d) could be considered drastic. However, if the circumstances leading to a finding of “bad faith” is serious, such sanctions might very well be called for and warranted, when considered in the light of the kind of sanctions that could be and are being imposed for contempt of court or for breach of court orders. The final possible sanction of costs could be either on a solicitor/client or party/party basis. Such a sanction could be in addition to any of the sanctions under (a) - (d). If possible, the court could at the time of the order, fix the actual amount of costs payable or allow for taxation.”
13. Applying the principles outlined above, I found in the Koitaki Plantations Ltd; the first Alex Awesa decision; Wantok Gaming Systems Ltd and Roger Meckpi cases, that there was a complete failure to discharge the kinds of duties listed above. Also in all of these cases, I found the bad faith conducts seriously impeded the Court ordered mediations from proceeding. That denied the parties an opportunity to resolve the respective matters. Also, the bad faith conduct denied the parties from identifying the existence, if any, of a serious and meritorious issue warranting resolution only by a judicial determination. In this regard, I referred to the list at paragraph 18 of my decision in Abel Constructions Ltd case. I also pointed out that, once a Court decides to refer a matter to mediation it means no issue of the kind under discussion is presented. This necessarily imposes an obligation on the parties to use their best efforts in good faith to have their matter resolved. A failure to do so, constitutes contempt of Court which may be met by any of the orders the Court can make under r.10 (7) of the ADR Rules apart from the traditional penalties for contempt of court.
14. In the first two cases, the Court found that the Plaintiff and the Defendant respectively:
(a) failed to demonstrate to the Court’s satisfaction that there existed in their respective cases, the kind of impediment and or type of issues discussed above;
(b) conducted in a way that was contemptuous of the orders for mediation;
(c) conducted against the grain of the various legislative, judicial and learned publications, encouraging and supporting the use of mediation to resolve human conflicts;
(d) by their conducts, forced the other parties, the Court and the mediator to waste their time, energy and effort in arriving at the decision to have the matter referred to mediation and setting aside time and generally preparing for it; and
(e) save only to point out that their decisions were not to settle the matter and hence not to give mediation a fair chance, they failed to provide any good reason for taking that position.
15. In those circumstances, I decided in the Koitaki Plantations case that the most appropriate sanction would be an order for a dismissal of the Plaintiff’s case. Accordingly, the Court ordered a dismissal of Koitaki Plantations’ claim and ordered a strike out of its defence with judgment entered against it on a cross claim by the defendants. In making the second part of the order, I noted that, the case concerned a simple supply of goods contract, namely live animals and a claim of non-payment for them in the plaintiff’s claims while in the defence the defendant denied the claim and cross-claimed a failure to supply the animals and or an over payment for them. I was of the view that, this presented no meritorious issue that was beyond the reach of mediation and resolution by the parties. All that the parties had to do was to sit down with the facilitation of a mediator at mediation and settle that claim. At mediation they would have gone through the various and relevant purchase orders, delivery dockets, invoices, payment slips and evidence of payments and settle the claim after establishing the correct records of what happened in the various transactions.
16. In the first Alex Awesa decision, I arrived at a similar decision and ordered judgment for the plaintiff with damages to be assessed as they were not liquidated. I then ordered the Plaintiff’s damages to be settled through further mediation. Costs were ordered against PNG Power Ltd, which acted in bad faith. The parties did proceed with the mediation under the second order for them to do so. During the mediation however, Mr. Awesa raised a number of issues which frustrated and prevented the mediation process from resolving the question of his damages. This resulted in the parties agreeing on a set of questions and the facts giving rise to those issues after which the matter returned to the Court. That resulted in the second decision in the case published as Alex Awesa v. PNG Power Ltd[10] (second Alex Awesa decision). At paragraph 82 of the judgment I summed up my decision in these terms:
“... the issues raised at mediation and referred back to Court prevented the parties from resolving the issue at mediation.
I have now considered the questions referred and answered all but one question in favour of Mr. Awesa. They effectively demonstrate
that, Mr. Awesa did not have any proper foundation in the pleadings, facts or the law to raise those questions at the first place and
take the position he has taken in his submissions before me. The questions thus lack merit and were raised unnecessarily. Consequently,
they unnecessarily frustrated the mediation process. If the questions were not raised at the mediation the parties could have easily
resolved the question of damages and all relevant and related questions. These factors dictate an order for costs against Mr. Awesa
for all costs concerning and connected to an assessment of his damages. I would further order that such cost be agreed within 14 days and failing that taxation.”
(Underling mine)
17. In Wantok Gaming Systems Ltd case, I found that, unlike the defendant in the first Alex Awesa decision which was able to point out at least an issue about interpreting a particular statute, the defendant did not point out any issue of the kind listed in the Able Construction Ltd arising in the case. I also pointed out that, if the parties attended mediation in good faith and were not able to resolve their dispute despite their best efforts, they have a duty to discharge under Rule 5(2) of the ADR Rules. That duty is to “identify and limit the real and meritorious issues in the proceedings that warrant judicial consideration and determination” and reach agreement on how to have those issues resolved promptly as was done in the second Alex Awesa decision. A review of that position could only come after the parties tried their very best to find a resolution of their dispute and in the process discover an issue of the kind that is inappropriate for mediation. By choosing not to go to mediation at the instigation of the defendant, the parties failed to discharge that duty. This, I found was serious. In the circumstances, I decided to refer the matter back to mediation for the second time at the defendant’s costs on account of its bad faith conduct.
18. Mediation under the second order did take place with certain offers being communicated to and from the parties. Unfortunately, those did not result in any settlement. On return of the matter to the Court, the plaintiff argued for a finding of bad faith at mediation. In my judgment now published as Wantok Gaming Systems Ltd v. National Gaming Control Board (No.2),[11] I was not satisfied that the defendant acted in bad when it made certain offers up to its chairman’s financial limit. After the judgment, the parties asked for more time to continue their settlement discussions and I gave them that opportunity. That resulted in a settlement of the matter. This followed the Court making certain observations about the strengths and weakness of each of the parties’ cases.
19. Most recently in the Kanga Kawira case, issues affecting the plaintiffs’ and the first defendants’ tribe and clan rights and interests were raised. This necessarily called for a participation of the full membership of the tribe or clan to resolve the issues fully and finally. I was convinced that the case did not present any issue that warranted judicial consideration and determination going by the decision in Able Constructions Ltd. Instead, I was convinced that, the issues presented were ideal for resolution by mediation in the village where the plaintiffs and the defendants’ full clans and tribal membership could attend to resolve the matter. I found that, the first defendants’ by their conduct did not want to take the matter back to the people in the village. In particular, I found the first defendants with the support of their lawyer repeatedly failed to comply with Court orders and directions and specific orders issued by consent of the parties for mediation. This was despite repeated adjournments for them to comply with the orders. They also failed to attend upon the Court appointed mediation intake sessions and failed to take any meaningful step toward fully complying with the mediation orders.
20. Further, I found the position taken by the first defendants through their counsel was in defiance of the import of the relevant law on point as clearly brought out by the various judgments as discussed and set out in the foregoing. In particular, the Court found the steps taken or failed to be taken by the first defendants’ counsel were deliberate and without good reason, factual or legal. These failures lead to an issuance of the bad faith certificate against the first defendants. In the face of these, the Court found the first defendants’ and their lawyer’s conduct denied any opportunity being given to the mediation process to attempt to help resolve the matters in dispute between the parties. The Court also found that, the first defendants failed to provide any satisfactorily or reasonable explanation. Consequently, I found the first defendant and their lawyers were in clear contempt of Court on each of the occasions they failed to comply with the orders of the Court, most of which, were in the face of the Court repeatedly. That made the case a worse case of bad faith at mediation compared to the earlier cases. Further, I noted that, on each occasion of the breach of the Court’s orders, I was prepared to excuse the breach of the orders and hence the clear contempt of Court hoping that counsel and his clients would finally get around to complying with the Court’s orders. That was to avoid shifting attention away from having the substantive matter resolved promptly through mediation. Accordingly, I ordered the parties to go back to giving mediation a fair opportunity to try and help resolve their issues. Also in the light of the first defendants and their lawyer’s contemptuous and bad faith conduct, I ordered them to take the lead in ensuring a compliance of the second mediation orders and ensure that mediation does take place this time. Additionally, I warned that, should the first defendants and their counsel fail to comply with the orders for mediation, they will be dealt with for contempt. Costs were ordered against the first defendants to be borne by their counsel or themselves depending on who caused the bad faith conduct and breach of the first mediation orders.
21. When issuing the warning, I noted with concern that Mr. John Kumara a senior lawyer had deliberately failed to discharge his duties under the lawyers Professional Conduct Rules, r. 8 (6) and (7) to his client and to the Court under r. 15 (2), (4) (a) and (b) and (10). I pointed out that, these rules require all lawyers to take all steps necessary to promptly resolved client’s claims and to avoid a wastage of the Court’s time and costs. In particular, I noted that, lawyers are required to promptly settle their clients’ claim and avoid delaying proceedings and thus increase costs for their clients. Further, I noted that these provisions were enacted or promulgated long before the ADR Rules. I went on to note that, the ADR Rules help to provide a clear and better avenue for the lawyers to discharge their duties to promptly bring about lasting, efficient and effective outcomes to their clients’ as opposed to Court proceedings which can go around in vicious circles, without any finality in sight for some time. I also pointed out that, a lawyer who fails and worse still, take the kind of position Mr. Kumara took in that case would clearly be in breach of the lawyer’s duty to the client and to the Courts. Such a conduct could attract personal liability both in costs and substantively on account of the lawyer’s breaches.
Present Case
22. In the present case, the Court ordered the matter to be resolved by mediation with the consent of all parties through their respective lawyers. That followed the parties and the Court being convinced that, no issue warranting only a judicial consideration and determination was presented in this case. After the orders were made but before the appointed date for mediation, it appears counsel for the Defendants lost contact with their client. This led to their filing and serving their notice of ceasing to act for the Defendants about 6 days before the date set for the mediation to take place. Unfortunately however, the Defendants lawyers did not serve their notice or communicate their ceasing to act to the Plaintiffs and the mediator well before the date set for mediation and their reason for taking that step. The required communication and giving of notice of the Defendants lawyers ceasing to act for their then client went out on the day of the mediation. That was well after the appointed time and date for the mediation and the decision to issue a bad faith certificate against the Plaintiff had been arrived at.
23. A close examination of the Defendants’ lawyers notice of ceasing to act and affidavit filed in support of it, makes it clear to me that the steps he has taken are contrary to the rules governing such notices. In this regard, O.2, r.39 (1) and (2) and r.40 are relevant. These rules empower a lawyer to cease to act for a client at any time. But this can happen only with leave of the Court or with a prior 7 days forewarning or notice given to the client. If proceeding without leave, the notice of ceasing to act must be filed together with an affidavit containing the forewarning letter or notice. A notice of ceasing to act filed in this way does not take effect until a seal copy of the same is served on the opposing counsel or parties. In this case, there is no evidence of leave being sought and granted by the Court for the Defendants lawyers to cease to act for their clients. It is clear however that, Kawat Lawyers purported to use the process of ceasing to act with the filing of the notice with a supporting affidavit. But this was defective, because the affidavit filed in support of the notice of ceasing to act neither annexes a copy of a letter or a form of communication evidencing a meeting of the 7 days prior warning or notice requirement. The affidavit also fails to address this point. This means the notice of ceasing to act for the Defendants filed by Kawat Lawyers is defective, null and void and of no force and effect. Hence, Kawat Lawyers are still the lawyers on record for the Defendants. Hence, for the purpose of the Court ordered mediation and this proceeding, Kawat Lawyers are still the lawyers on record for the Defendants until they have properly ceased to act for the Defendants.
24. There is no evidence of what steps if any the Defendants and their lawyer took to comply with the orders for mediation. What can however, be reasonably inferred from the little that is available by way of Mr. Kawat’s affidavit filed with the notice of ceasing to act for the Defendants is that, the lawyers lost contact with their clients or vice versa earlier than the date they eventually filed and served their purported notice of ceasing to act. It is also not clear as to when counsel was last in contact or communication with his client. If that was after orders for mediation, the Defendants could be aware of the orders. If however, it was after the orders were made, they may not be aware of the orders and hence their duties and obligations. The onus was on the Defendants and in their absence their counsel to provide the necessary explanation. Such explanation had to include, when counsel advised his clients about mediation and the steps he took to ensure his client was well prepared and indeed ready for mediation when the appropriate orders were issued. Also, the explanations had to include explanation around when and how counsel lost contact with his client. Counsel had the duty in accordance with the Professional Conduct Rules to provide the necessary explanation to the Court and to his professional colleague. It was in my view, unprofessional and discourteous of counsel to simply file and serve on the day his notice of ceasing to act without the relevant and necessary earlier forewarning and full and detailed explanations for the actions he was proposing to take. In these circumstances, the issuance of the bad faith certificate by the mediator was in order.
25. This case appears to come closure to the South Pacific Seafoods case, in terms of counsel’s conduct. There, I considered the provisions of r. 20 (1) and r.3 (a), (b) and (c) of the Professional Conduct Rules 1989. I noted these provisions require a lawyer to “treat his professional colleague with utmost courtesy and fairness”. The provisions in particular call for lawyers to act and conduct themselves in a manner that is competent, professional and within the bounds of professional ethics and etiquettes. This is to ensure they do not bring the legal profession into disrepute and to ensure they act and conduct in a manner that does not prejudice the due administration of justice. I also considered the provisions of r.15 (4) of the Professional Conduct Rules and noted that, this rule amongst others, requires a lawyer to be courteous to the Court, avoid any wastage of the Court’s time and expenses and inform the Court promptly of any development affecting any information already before the Court. I observed also that, this duty, in my view extends to mediators. That is because mediators under our ADR Rules are trained, accredited and appointed by the Court and they deal with cases referred to them by the Court. In that sense, they are an extension of the Court.
26. As did the counsel for the defendants in the South Pacific Seafoods case failed to duly inform the other side and the mediator of instructions against proceeding with mediation, counsel for the Defendants here, Mr. Kawat failed to inform the mediator and his professional colleagues of the fact of having lost contact with their client and his firm’s wish to cease to act for their former clients. That communication should have gone the moment the lawyers lost contact with their clients. This should have happened even long before they filed their purported notice of ceasing to act for the Defendants. Their failures resulted in the mediator, the Plaintiff and his lawyer setting time and energy aside to attend mediation on 21st June 2016, which they did. They no doubt also suffered unnecessary inconvenience and costs on account of the counsel for the Defendants’ failure. The mediator was and is the second most senior Justice of the Supreme and National Courts of our country, Sir Gibbs Salika. Counsel for the Defendant, appear to have failed to recognize this fact and act appropriately as evidenced by his failure to turn up at the mediation and inform the Plaintiff and the mediator of his predicament especially, when he failed to inform them earlier when his problem with his client first became apparent.
Relevant Orders
27. The Plaintiff’s lawyer in his submissions is asking for a strike out of the Defendants defence. He is also asking for orders sought in his client’s prayer for relief. However, consistent with the approached I have taken in the first Alex Awesa decision and Kanga Kawira’s case, I am not minded to grant the Plaintiffs submissions right away. I am instead minded to give the Defendants one more opportunity to have this matter resolved by mediation if they are desirous of defending this proceeding and are opposed to the reliefs sought in the Plaintiffs claim. But that will have to be at their costs on an own Solicitor and Client basis and with self-executing orders in the event of their continued failure to comply with the Court’s orders and directions. Accordingly, I make the following orders:
________________________________________________________________
Ashurst : Lawyers for the Plaintiff
Kawat Lawyers : Lawyers for the Defendants
[1] (WS 492 of 2013) decision delivered on 25th September 2017 (cited hereafter as South Pacific Seafoods)
[2] (2014) N5636.
[3] (2014) N5656.
[4] (2014) N5708.
[5] (2014) N5809.
[6] (2017) N6708.
[7] (2017) N6802.
[8] (2014) N5441.
[9] (2014) N5809.
[10] (2016) N6359.
[11] (2017) N6685.
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