N10174
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 800 OF 2016 (COMM)

BETWEEN:
ISAS LIMITED
Plaintiff

V

SIMON NUTLEY
First Defendant

AND
PETER LOWING
Second Defendant

AND
STEPHEN LEWIN
Third Defendant

AND
MICHAEL SULLIVAN
Fourth Defendant

AND
JOHN LEAHY
Fifth Defendant

Waigani: Anis J
2021: 19th, 20th October & 31st November
2023: 29th March

NEGLIGENCE – professional negligence claim - Duty of care, breach of duty and damages suffered – plaintiff a former client of the defendants – plaintiff instructed defendants to act for it on a claim for breach of contract – the claim was summarily dismissed without a proper trial – plaintiff appealed the dismissal decision to the Supreme Court – Supreme Court dismissed the appeal – plaintiff’s claim for breach of contract was determined – plaintiff aggrieved by the conduct of the defendants in dealing with its claim for breach of contract – plaintiff claims the defendants were negligent – Consideration of various issues – whether serious issue with element ‘duty of care’ – whether the element ‘breach of duty of care’ was established – considering pleadings premised on ‘breach of duty of care’ – whether pleadings were sufficient with particulars for each of the grounds – whether the Courts’ decisions in earlier proceedings constitute sufficient proof of breach of duties by the defendants – distinction discussed – Court decision made against a party distinct from a claim of negligence against the party’s lawyers – separate and precise claim with detail particulars to be pleaded for allegation of negligence raised by client against lawyer – mere assumption of want of duty of care premised on other events insufficient – burden of proof – whether plaintiff sufficiently discharged its evidentiary burden for the defendants to respond – duty of parties to disclose necessary or crucial evidence – duty of alleging party to provide sufficient evidence – transcript of proceedings based upon which allegation was made not disclosed – whether plaintiff has established grounds for breach of duty of care - whether damages should be awarded

Cases Cited:
Papua New Guinean Cases

Limitopa v. The State [1988-89] PNGLR 364
Akai v. Reeves and Anor (2014) SC1393
Otto Benah Matigen v. Building Tabai and Or (2008) N3470
Jimi Futolsi v. Anna Turi (2018) N7147
Yareng v. Kiong (2019) N8152
Boyd Construction v. Sister Elizabeth Koai (2017) N6702
Pius Sankin and Ors v. PNG Electricity Commission [2002] PNGLR 432
Timothy Mong v. George Doa (1997) N1540

Overseas Cases:
Miller v Minister of Pensions [1947] 2 All E.R. 372 at 373-374

Counsel:
R Bradshaw, for the Plaintiff
R J Webb SC with counsel assisting E Parua, for the Defendants
DECISION

29th March, 2023
1.	ANIS J:	This matter was trialed on liability and quantum on 19 and 20 of October and 21 of November, in 2021.  I reserved my ruling thereafter to a date to be advised. 
2.	This is my ruling.

BACKGROUND
3.	The plaintiff is suing the defendants for negligence or professional negligence.  The defendants had on various occasions at the material time, although not fully admitted, acted for the plaintiff on a specific matter.  The matter was a court case that the plaintiff had commenced against Telikom (PNG) Ltd (Telikom) in 2007.  The proceeding is described as WS No. 705 of 2007 (WS 705/proceeding).  The plaintiff sued Telikom for alleged breach of contract.  Briefly, the contract was signed to allow the plaintiff to distribute Telikom cards in Papua New Guinea.  It was signed on or about 3 February 2006 (the Agreement).  The Agreement, however, did not materialize.  So, on 27 June 2007, the plaintiff instructed the defendants to sue Telikom for damages for breach of contract.
4.	WS 705, however, did not reach a full trial or hearing.  On its trial date, which was scheduled on 5 February 2013, both parties failed to turn-up in Court.  As a result, the trial Court dismissed WS 705 for want of prosecution.  A day after on 6 February 2013, the plaintiff filed an application to set-aside the Court’s order that dismissed the proceeding.  Telikom also filed a counter application on 7 February 2013.  Telikom sought to dismiss the proceeding for want of prosecution.  Both applications were heard together on 26 February 2013.  A month later on 26 March 2013, the trial Court essentially made 2 findings.  First, it granted the plaintiff’s set-aside application, which meant that WS 705 was reinstated.  However, in the same decision, the trial Court also granted Telikom’s application to dismiss, and in so doing, dismissed WS 705.  The plaintiff appealed against the dismissal order of 26 March 2013 to the Supreme Court.  The appeal was described as SCA 36 of 2013 (the appeal/SCA 36).  The substantive appeal was heard but was unsuccessful.  It was dismissed by the Supreme Court on 10 September 2014.

5.	As a result of these events which have determined the plaintiff’s interest or claim in WS 705, the plaintiff commenced this proceeding against its lawyers the defendants.  It claims the defendants were negligent in their handling of its case.  As such, it claims that they should be held liable in negligence and that the Court should determine and award damages in its favour.
6.	The defendants deny this claim in its entirety.  They have filed a defence in response.
ISSUES
7.	The issues, as identified in the Statement of Agreed and Disputed Facts and Legal Issues filed (SADFLI), are:
1.	Whether the relationship of the Plaintiff and the Defendants was at all material times that of lawyer and client?
2.	(discarded)
3.	Whether the Defendants owed a duty of care to the Plaintiff, requiring the Defendants to act by exercising all due care and skill in the pursuit of the Plaintiff’s claim against Telikom?
4.	If yes, whether the Defendants breached the duty of care?
5.	Whether the Plaintiff suffered loss as a result of the Defendant’s negligence?
6.	If yes, whether the Plaintiff is entitled to damages claimed?
SPECIFIC ALLEGATIONS
8.	I refer to the pleadings.  The material allegations of negligence are, and I read from paras 11 to 21 of the Amended Writ of Summons and Statement of Claim (ASoC):
“11.  In the premises as pleaded in paragraph 10 above, the relationship of the Plaintiff and the Defendants was at that time and at all material times as pleaded hereafter that of lawyer and client.
12.  In the premises that are pleaded in paragraphs 10 and 11 hereof, the Defendants owed the plaintiff a duty of care, requiring the Defendant to act:
(a)	by exercising all due care and skill in the pursuit of the Plaintiff’s instructions and in the conduct of the Proceedings.
(b)	to conduct the Proceedings in a professional and timely manner;
(c)	to take reasonable steps to comply with all directions made by the court in the conduct of the Proceedings;
(d)	to take reasonable steps to ensure that the Proceedings were not dismissed for want of prosecution.
13.  In the course of the Proceedings:
(a)	directions were made on 2 September 2008, 16 November 2011 and 23 October 2012 requiring the Plaintiff through the Defendant to do certain tasks;
(b)	the directions made by the Court were not complied with by the Defendant;
(c)	when the Proceedings were listed and came on for trial on 5 February 2013, the Defendant failed to appear, leading to the Trial Judge dismissing the Proceedings (The First Dismissal Order);
(d)	in any event, the Defendant was not ready to proceed to trial on 5 February 2013 and had not, by that time, made any attempt to apply to vacate the trial dates to allow more time to prepare for trial;
(e)	the Defendant filed an application to set aside the First Dismissal Order on 6 February 2013 (the Setting Aside Application);
(f)	Telikom through its lawyers thereafter filed an application on 7 February 2013 to dismiss the proceedings for want of prosecution (the Dismissal Application);
(g)	the Dismissal Application was not competent as it was filed at a time when the Proceedings were not on foot as they had been dismissed by the First Dismissal Order;
(h)	on 26 February 2013, both the Setting Aside Application and the Dismissal Application were listed for hearing;
(i)	the Defendant did not object to the competency of the Dismissal Application;
(j)	after hearing both applications on 26 February 2013, the Trial Judge gave judgment on 26 March 2013 setting aside the First Dismissal Order but dismissing proceedings upon the determination of the Dismissal Application (the Second Dismissal Order).
14.  The Defendant, on behalf of the Plaintiff, appealed the Second Dismissal Order in proceedings filed in the Supreme Court of Justice proceedings SCA 36 of 2013 (the Appeal Proceedings).
15.  In the premises that are pleaded in paragraph 14 hereof, the Defendant owed the Plaintiff a duty of care, requiring the Defendant to act by exercising all due care and skill in the pursuit of the Appeal Proceedings.
16.  The Appeal Proceedings were determined against the Plaintiff, with the consequence that the Plaintiff was then statute barred from pursuing any further claim against Telikom to recover damages from Telikom in relation to the Loss Under Contract.
17.  The Appeal Proceedings were unsuccessful because:
(a)	the Defendant did not object to the competency of the Dismissal Application;
(b)	the Defendant had not filed affidavit evidence in the Proceedings sufficient to explain any reasons for the delay or non-compliance in the Proceedings and as a result was unable to raise such new evidence in the Appeal Proceedings.
18.  Prior to the dismissal of the Proceedings and the dismissal of the Appeal Proceedings, the Defendant did not at any time advise the Plaintiff that it (Plaintiff) did not have a good claim against Telikom.
19.  The Defendant at all material times advised the Plaintiff that it (Plaintiff) had a good claim against Telikom.
20.  The Defendant breached the duty of care pleaded in paragraphs 12 and 15 hereof and was negligent in that:
(a)	the Defendant failed to comply with the directions that had been made in the Proceedings when the failure was solely the responsibility of the Defendant;
(b)	the Defendant failed to prepare the Plaintiff’s case to be ready for trial in the Proceedings;
(c)	further or alternatively, the Defendant failed to take any reasonable steps to seek to vacate the trial dates in the Proceedings so that the Plaintiff’s case could be adequately prepared;
(d) the Defendant failed to raise objection to the Dismissal Application filed by Telikom for the dismissal of the Proceedings when such objection should have been raised;
(e)	the Defendant failed to file affidavit evidence explaining reasons for its delay in the Proceedings, and further failed to raise such matters on the hearing in the Dismissal Application;
(f)	on the hearing of the Appeal Proceedings, the Defendant failed to seek leave to file further evidence to explain reasons for its delay in the Proceedings.
21.  As a consequence of the Defendant’s negligence as pleaded in the preceding paragraph, the Plaintiff has suffered loss.”
(Bold lettering and underlining mine)
LAW/ NEGLIGENCE
9.	As stated, the claim is premised on negligence or professional negligence against the defendants.  To begin under this sub-heading, let me first consider the relevant provisions under the Professional Conduct Rules 1989 (PCR).  Rules 3(a), 8(1), 8(2), 15(2) and 15(4) state and I quote:
“3.  DUTY OF EVERY LAWYER.
It is the duty of a lawyer–
(a)	not to engage in conduct (whether in pursuit of his profession or otherwise) which–
(i)	is illegal; or;
(ii)	is dishonest; or
(iii)	is unprofessional; or
(iv)	is prejudicial to the administration of justice; or
(v)	may otherwise bring the legal profession into disrepute; and
……
8.  DILIGENCE.
(1)  A lawyer shall treat a client fairly and in good faith, giving due regard to–
(a)	the dependence by the client upon him and his special training and experience; and 
(b)	the high degree of trust which the client is entitled to place in him.
(2)  A lawyer shall always be frank and open with his client and with all others so far as his client’s interest may permit and shall at all times give his client a candid opinion on any professional matter in which he represents that client.
……..
15.  COURT PROCEEDINGS.
(1)  Subject to these Rules, a lawyer shall conduct each case in such manner as he considers will be most advantageous to his client.
(2)  A lawyer shall not knowingly deceive or mislead the Court.
……
(4)  A lawyer shall–
(a)	act with due courtesy to the Court before which he is appearing; and
(b)	use his best endeavours to avoid unnecessary expenses and waste of the Court’s time; and
……”  (Underlining mine)
10.	The plaintiff alleges that the defendants, based on the allegations pleaded at para 20 of the ASoC, breached their duties under Rules 3(a)(ii), (iii), (iv) and (v), 8(1), 8(2), 15(2) and (4) of the PCR.
11.	The defendants, in para 3 of their defence, deny all the allegations that were raised in para 20 of the ASoC.  This, to me, is where the central dispute lies on the issue of liability.
12.	The law and case law on negligence in regard to lawyer/client relationship or professional negligence by lawyers to their clients in this jurisdiction, is settled.  I commend counsel for their assistance with case authorities.  The cases include Limitopa v The State [1988-89] PNGLR 364, Akai v Reeves and Anor (2014) SC1393, Otto Benah Matigen v Building Tabai and Or (2008) N3470 and Jimi Futolsi v Anna Turi (2018) N7147. 
13.	In summary, the necessary elements for the tort of negligence the plaintiff must establish against the defendants are:
(i)	duty of care; the defendants must owe a duty of care to the plaintiff; and
(ii)	breach of the duty; the defendants must breach their duty of care they owed to the plaintiff;
(iii)	causation; the plaintiff suffered damages as a direct result of breach of the duty of care that the defendants owed to it (such as loss of opportunity to succeed in other civil action); and
(iv)	the type of damage claimed must not be too remote; and
(v)	the plaintiff did not contribute to its own detriment or whether there was contributory negligence on its part.

DUTY OF CARE

14.	In regard to the first issue, duty of care, I find it to be straight forward.
15.	The defendants were the lawyers on record for the plaintiff at the material time in WS 705 and SCA 36.  When I say material time, I refer to the period alleged under para 20 of the ASoC.  Evidence adduced by both the plaintiff and the defendants in general, shows the defendants acting for the plaintiff at those occasions alleged.  The defendants were on record as the lawyers for the plaintiff.
16.	As lawyers for the plaintiff, the defendants were bound by their oaths or affirmations that they took when they were admitted to practice law in this jurisdiction.  They were also bound by law in the legal profession or fraternity, namely, the Lawyers Act 1986 (LA) as well as the PCR.  Therefore, and when they were acting for the plaintiff at the material time, they owed a duty of care in their profession to their client which was the plaintiff.
BREACH OF DUTY OF CARE
17.	The contentious element is ‘breach of duty of care’.  The defendants deny that they breached their duties and obligations as lawyers for the plaintiff at the material time thus say the claim is baseless and must be dismissed.
Professional Conduct Rules
18.	At this juncture, let me first address claims by the plaintiff of alleged breaches of the rules under the PCR.  The rules are created by Council of the Law Society under the LA, to serve the Council’s purpose.  Allegations for alleged breaches of the rules under the PCR may be made, considered, and determined by the relevant process and entity that is created for such under the LA.  The body responsible to consider breaches of the rules by a lawyer is the Lawyers Statutory Committee (LSC).  
19.	The National Court’s jurisdiction, in situations such as this, is limited to that of an appellant or review court.  It may only hear reviews or appeals after complaints or allegations of breaches of provisions under the LA or the PCR, have been determined by the LSC.  Also, I remind myself that this claim is premised on the tort of negligence under common law.
20.	As such and for clarity, I discard any arguments or complaints that may be raised or implied by the plaintiff that rules 3(a), 8(1), 8(2), 15(2) and 15(4) of the PCR have been breached by the conduct, actions, or inactions of the defendants.
21.	Having made this clarity, I also note that Courts in this jurisdiction have nevertheless regarded the PCR as a useful guide or tool when considering whether a lawyer is negligent to his or her client.  Thus, I am not precluded in that regard and so I will proceed on that premise.
Extent of Defendants’ obligations
22.	I refer to Cannings J’s decision in Otto Benah Matigen v Building Tabai and Or (supra).  The Court held, and I quote in part:
“(1)	The standard of care lawyers must exercise in dealing with their client’s cases is measured in accordance with the standards of the profession: the lawyer must act skillfully and diligently at all times.
(2)	In particular, lawyers must act in accordance with their client’s instructions, unless the instructions are unlawful; and must be aware of all statutory time limitations for commencement of civil actions and advise their clients of the risks associated with commencing actions outside limitation periods.”
23.	Justice Cannings referred to s3 of the PCR which reads, It is the duty of a lawyer … to be competent in all his professional activities.  His Honour also referred to s8 of the PCR and said the section would assist to circumscribe the duty of a lawyer to his or her client.  I also find the considerations stated therein relevant and appropriate for consideration for this purpose.  Section 8 reads:
“(1)  A lawyer shall treat a client fairly and in good faith, giving due regard to—
(a)	the dependence by the client upon him and his special training and experience; and
(b)	the high degree of trust which the client is entitled to place in him.
(2)  A lawyer shall always be frank and open with his client and with all others so far as his client's interest may permit and shall at all times give his client a candid opinion on any professional matter in which he represents that client.
(3)  A lawyer shall take such legal action consistent with his retainer as is necessary and reasonably available to protect and advance his client's interests.
(4)  A lawyer shall at all times use his best endeavours to complete any work on behalf of his client as soon as is reasonably possible.
(5)  If a lawyer receives instructions from a client and it is or becomes apparent to him that he cannot do the work within a reasonable time, he shall so inform his client.
(6)  A lawyer shall not—

(a)	take unnecessary steps or do his work in such a manner as to increase his proper costs to his client; or
(b)	accept instructions which are beyond his competence.
(7)  A lawyer shall, when in his client's best interests, seek his client's instructions to endeavour to reach a solution by settlement out of court rather than commence or continue legal proceedings.”
Did the defendants inform/advice the plaintiff it had no good chance of success or did the defendants inform/advice the plaintiff it had good chances of success?
24.	Before I go on to consider whether the defendants breached their duty of care, I think it is appropriate that I first address the plaintiff’s claim as pleaded at paras 18 and 19 of the ASoC.  The plaintiff claims that the defendants did not advise it that it did not have any good prospect of success, but rather, that the defendants had advised it that it had good prospect of success, that is, in WS 705.  
25.	This issue is not difficult to determine.  I find the allegations pleaded under paras 18 and 19 to fall short or outside, of the material pleadings for alleged negligence under para 20 of the ASoC.  There is no basis for me to make findings on these claims, that is, based on how they are pleaded in the ASoC.  I discard them (i.e., paras 18 and 19) as proper or relevant allegations that should require findings by me.
26.	But in remark, I will say the following.  Firstly, I note that there are numerous email exchanges between the plaintiff’s Stuart Fancy (Mr Fancy) and the defendants including Simon Nutley (Mr Nutley).  Mr Nutley was the partner or principal lawyer with the then law firm Peter Allan Lowing Lawyers, who was directly responsible to the plaintiff in WS 705.  His immediate assistant lawyer was Gibson Geroro (Mr Geroro).  I refer to Exhibit D1.  The exhibit is an extracted copy of an email that was sent by Mr Nutley to Mr Fancy on 23 May 2007.  The email appears to exonerate the defendants against the plaintiff’s claim under paras 18 and 19.  In summary, Mr Nutley informs Mr Fancy of the real difficulties regarding the Telikom Agreement; that it was not an easy case as assumed or regarded by Mr Fancy.  My second remark is this.  The only evidence that is adduced that indicated support that WS 705 had good prospect of success was that of this lawyer, namely, John J Oswald-Jacobs (Mr Jacobs), and I refer to the last para of his email dated 2 November 2012 (annexure C to Exhibit D2, recorded as page 996 of 144).  However, Mr Jacobs view was given on the premise that expert witnesses that may be called to testify would agree with Mr Fancy’s views of the claim.  I note that Mr Jacobs was named as a defendant herein, but he was later removed as a party.
Whether the defendants breached their duty of care
27.	The specific allegations raised at para 20 of the ASoC may be summarized as follows:
(a)	the Defendants in WS 705 failed to comply with the 3 directional orders when the failure was solely their responsibilities.
(b)	the Defendants in WS 705 failed to prepare the Plaintiff’s case for hearing on 5 February 2013.
(c)	the Defendants in WS 705 failed to take any reasonable steps to vacate the trial dates when the matter returned to Court for trial on 5 February 2013, to enable the Plaintiff adequate time to prepare its case for trial at a later date.
(d)	the Defendants failed to raise objection to the Dismissal Application filed by Telikom for the dismissal of WS 706 when such objection should have been raised.
(e)	the Defendants failed to file affidavit evidence explaining the reasons for the delay in pursuing WS 705, and further, failed to raise such matters on the hearing in the Dismissal Application in WS 705 on 26 February 2013.
(f)	At or during the hearing in SCA 36, the Defendants failed to seek leave to file further evidence to explain the reasons for the delay in WS 705.
Ground (a)
28.	Ground (a) is premised on sets of directions that were issued by the National Court in WS 705 on 2 September 2008, 16 November 2011, and 23 October 2012.  The plaintiff alleges that court directions had been issued to it through the defendants to comply with in WS 705, but that the defendants had failed to comply on all the three occasions thus breached their duty of care as its lawyers.
29.	The defendants deny this claim.
30.	I note the submissions of the parties.
31.	I ask myself this. Where can I find in the evidence copies of the court’s directions of (i) 2 September 2008, (ii) 16 November 2011, and (iii) 23 October 2012 (the 3 directional orders)?  I refer to the 5 exhibits of the plaintiff.  I note that they do not attach sealed copies or minutes of the 3 directional orders.  When I refer to paras 18 and 19 in Exhibit P1, Mr Fancy deposes the following:
18.	The National Court made orders or directions for the parties to comply with to progress the matter to trial.
19.	I understand that the defendants, as lawyers for ISAS did not comply with the directions or orders made by the Court.
32.	I note that the parties are at common ground, based on their filed Statement of Agreed and Dispute Facts and Legal Issues (SADFLI), that the 3 directional orders had been issued on their various dates.  Para 6(a) of the SADFLI states, “directions were made on 2 September 2008, 16 November 2011 and 23 October 2012 requiring the Plaintiff through the Defendants and Telikom to take certain procedural steps;”
33.	References to the 3 directional orders are reflected in the earlier Court decisions, namely, WS 705 and SCA 36 (the earlier Court decisions).  For example, Sawong J in WS 705 stated at paras 67, 68 and 69, and I quote:
“67.	There is overwhelming evidence from the defendant that the plaintiff has not complied with any of the directional orders of the 3rd of September 2008, 16th of November 2011 and the 23rd of October 2012.  There has been no reasonable explanation for non compliance with the directional orders.
68.	In the present case I am satisfied that the plaintiff has committed an act of contumelious behavior in that it has not complied with the several directional orders, resulting in undue delay in prosecuting the matter diligently.  This has been a delay of over five years since the proceedings were filed.
69.	Furthermore, there has been lengthy and undue delay in the prosecution of this matter.  The delay caused by the plaintiff, in my opinion, has and would continue to cause prejudice to the defendant’s interest.”
(Underlining mine)
34.	How about the defendants?  Did they attach copies of the directional orders as referred to in the SADFLI?  If not, whose duty was it to adduce such evidence?  In regard to the first query, the defendants, I note, also did not attach sealed copies or minutes of the 3 directional orders.  In regard to the second query, the evidentiary burden of proof primarily rests on the plaintiff.  See cases:  Yareng v. Kiong (2019) N8152, Boyd Construction v. Sister Elizabeth Koai (2017) N6702 and Pius Sankin and Ors v. PNG Electricity Commission [2002] PNGLR 432.  The plaintiff is raising these claims.  As such, it is incumbent upon it to adduce evidence to support the serious allegations raised against the defendants as its former lawyers.  Justice Lenalia in Timothy Mong v. George Doa (1997) N1540 stated, which I adopt, as follows:
Similarly in a civil proceedings, the standard of proof required of any party to a civil litigation for the discharge of the legal burden of proof is "proof on the balance of probabilities". This means no more than that the tribunal of fact must be able to say, on the whole of evidence that the case for the asserting party has been shown to be more probable than not. If the probabilities are equal that is if a tribunal is wholly undecided the party bearing the burden of proof will fail. Standard of proof either in criminal or civil refers to the extent or degree to which the burden of proof must be discharged. It is the measurement of the degree of certainty or probability which the evidence must generate in the mind of a tribunal of fact. Speaking of the civil standard of proof Denning J (as he then was) said in Miller v Minister of Pensions [1947] 2 All E.R. 372 at 373-374:
"That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not', the burden is discharged, but if the probabilities are equal it is not."
(Underlining is mine)
35.	Justice Cannings in Yareng v Kiong (supra), stated, which I also adopt, at para 12 of his judgment:
12.  At this point another fact-finding principle is relevant: if one side of a case presents evidence of a fact and the opposing side presents no evidence to contradict it, the court is obliged to make a finding of fact that is supported by the evidence presented, unless that evidence is so incredible that it would not be reasonable to accept it (Re Fisherman’s Island [1979] PNGLR 202, Rabaul Shipping Limited v Peter Aisi (2006) N3173, Manuel Gramgari v Steve Crawford (2012) N4950).
36.	The first dilemma I have is the absence of the 3 directional orders or their minutes in the evidence of the parties.  And the plaintiff, through Mr Fancy, did not depose in his evidence what each of the orders say.  As such and without the benefit of the 3 directional orders, it is difficult for me to, first of all, see what each sets of orders say before proceeding on to determine which terms of each of the orders were breached by the defendants as alleged.  The second dilemma is this.  The Court in WS 705 said that it was the plaintiff herein that had failed to comply with some of the terms of the 3 directional orders.  There was also no express order or findings by the Court in WS 705 or SCA 36 that stated or directly implied the defendants as having failed to assist the plaintiff file affidavits or comply with Court directions.  The express orders of the Court of the failures were directed at the plaintiff.  As such and for me to consider whether the defendants had in fact failed or had caused the plaintiff to fail to adhere to the directional orders, I must, in my view, first see the terms of the 3 directional orders.
37.	Let me remind myself that I am not sitting here as a review Court in regard to the findings made by the Court in WS 705.  In this case, fresh allegations of negligence are raised by the plaintiff against new parties which are the defendants.  I therefore cannot be influenced by or make assumptions of carelessness or negligence based on the findings of the Court in WS 705.  The same may be said in regard to the findings of the Supreme Court in SCA 36.  Court decisions that say that a party has not complied with or has breached court orders in themselves mean the party concerned and not his or her lawyers unless of course specific finding or order is made to include the lawyers.  So, for that party to in turn blame his or her lawyers, sufficient evidence must be adduced in the first instance by the party that is making the allegation against the lawyers or counsel.
38.	The third dilemma or question I have is this.  Where can I find the claim by the plaintiff of the actions or inactions of the defendants that had fallen short of their duties as its lawyers in regard to complying with the 3 directional orders?  Where are the pleadings for these claims?  I turn my attention to the ASoC, and in particular, para 13(a) and (b) which is relevant for this purpose.  It reads:
(a)	directions were made on 2 September 2008, 16 November 2011 and 23 October 2012 requiring the Plaintiff through the Defendant to do certain tasks;
(b)	the directions made by the Court were not complied with by the Defendant;
(Underlining mine)
39.	I observe that without the actual court directions adduced in evidence, it does not support the alleged fact as pleaded that the 3 directions issued requiring the Plaintiff through the Defendant to do certain tasks.  I note that the parties are at common ground that the 3 directions had been issued.  But that does not mean or support the alleged fact that the directions made by the Court were not complied with by the Defendant.  Where are the pleaded particulars that shows where the defendants had or may have failed in regard to these directions, and that it was not the plaintiff’s, Telikom’s or a third party’s fault?  I inquire because a directional order would normally be issued against the parties and not their lawyers, thus, in order for me to commence considering whether a lawyer may be negligent, I need to see the actual order or a transcript of the proceeding that contains these directions.
40.	Also, I need to be guided by the pleadings which should contain particulars of where, when, and how the defendants allegedly failed.  For example, whether the defendants had failed to forward a draft affidavit in time to the plaintiff to sign and return to comply with term 1 of a particular order.  When I consider the plaintiff’s evidence, and in particular, the affidavit of Mr Fancy (Exhibit P1), I notice that there are no explanations or evidence provided in that regard.  For example, there is no deposition which states that in regard to this particular court direction(s), the defendants did not forward a draft to me in time to complete and return, or that the draft affidavit was sent to me well after the Court ordered period had expired.  As stated, it is insufficient to merely point to a court findings that the 3 directions were not complied with and then allege that these were due to the lawyers or the defendants’ fault.  The 3 directional orders, and I would assume, would have been directed at the plaintiff and not its lawyers, to do certain things.  So, if the plaintiff is to merely rely on what the court directions say, then these directions were directed at it, and it would be safe to assume, as found by the Courts in WS 705 and SCA 36, that it was the plaintiff that had failed to comply with the 3 directional orders.  I observe that there is no specific pleadings and evidence that alleges any faults or failures on the part of the defendants in regard to the 3 directional orders, and I have given examples of these above herein.
41.	I therefore find that the plaintiff has failed to establish these allegations against the defendants.  I also find that the plaintiff has failed to adduce sufficient pleadings and evidence to support the allegations which appear vague.  In summary, I find that the plaintiff has failed to discharge its burden of proof on its evidentiary evidence that is sufficient enough to warrant the defendants to respond.  The claims and allegations made under this ground are also vague.
42.	I dismiss ground (a).
Grounds (b) and (c)
43.	Let me address grounds (b) and (c) together.  The plaintiff claims the defendants failed to prepare it for trial in WS 705 when the matter was set down for trial on 5 February 2013.  Secondly, it claims that the defendants did not take any reasonable steps to vacate the hearing date; that if steps had been taken, it could have secured or granted adequate time to it to prepare for trial at a later date.
44.	I note the submissions of the parties.
45.	Did the defendants fail to prepare the plaintiff for trial in WS 705 which was set to commence on 5 February 2013?  Based on the adduced evidence by both parties, and in particular Mr Nutley’s affidavit which is marked as Exhibit D2, I would say, “yes, the defendants did all that they could in their capacities as the lawyers for the plaintiff to prepare the plaintiff for the trial.”  I would further say and find that the only person who had made it impossible for the trial to commence was Mr Fancy for the plaintiff.  Let me elaborate.  Mr Fancy was the person who was directly responsible on behalf of the plaintiff in WS 705.  There are depositions as well as many email evidence, that have caused me to form this view or finding.  I refer in particular to the bundle of emails that are annexed to Exhibit P1 and Exhibit D2.  I summarise what these evidence disclose as follows:  
•	WS 705 was filed on 26 June 2007;
•	WS 705 was amended and filed on 2 May 2008;
•	Pleadings closed in June of 2008;
•	At para 22 to Exhibit P1, Mr Fancy stated, “I do not believe that the Defendants were ready for the trial on 5 February 2013.”;
•	As at 27 November 2007, the defendants and Mr Jacobs requested Mr Fancy to provide evidence of loss and damage amounting to K72.6m;
•	The request and evidence continue to remain outstanding in 2013, that is, up to and immediately before the trial of the matter;
•	On 28 April 2008, Mr Nutley indicated in his email to Mr Jacobs of his concerns or doubts on whether Mr Fancy or the plaintiff had spent monies that would have generated the outstanding invoice that had been requested which were still pending; Mr Nutley also expressed the tardiness of Mr Fancy in attending to the requests of gathering evidence;
•	By 17 December 2012, email exchanges between the defendants’ Mr Geroro and Mr Jacobs showed that Mr Fancy had not yet settled his witness statement which the lawyers had intended to reduce into an affidavit, which was to comply with Court directions; it also showed that expert witness statements also remained outstanding at the material time;
•	There is evidence where Mr Fancy had refused outright to settle on the proposed expenses of expert witnesses that had been recommended by Mr Jacobs or the defendants to give evidence for the plaintiff; email evidence also shows Mr Fancy changing his minds on whether to call in expert witnesses and delaying in giving instructions in that regard;
•	There is evidence of Mr Fancy challenging the advices of the plaintiff’s lawyers where he had given contrary instructions and opinions on how the plaintiff should run the trial and who should be called in as expert witnesses or otherwise to give evidence for the plaintiff;
•	There is ample evidence where Mr Fancy had on numerous occasions complained of, refused to, and also delayed in settling the plaintiff’s lawyers’ bills; 
•	There is ample evidence that shows Mr Fancy arguing and showing distrust to the plaintiff’s lawyers;
•	There is evidence where Mr Jacobs had expressed concern regarding his professional relationship with Mr Fancy and the plaintiff;
•	On 8 January 2013, which was the due dates for the parties to file their respective witness statements, Mr Fancy had not provided his statements to Mr Nutley; Mr Nutley intimated to Mr Fancy in an email whether he (Mr Nutley) should tell the truth to Telikom of the plaintiff’s failure to comply with court directions;
•	By 10 January 2013, email evidence shows Mr Fancy still trying to amend his draft statement which was supposed to have been filed by consent of the parties and as per the court directions, before or by 8 January 2013; other witness statements forwarded too were not ready at that time;
•	Evidence adduced including the many various email exchanges, shows that the plaintiff had had many opportunities to gather its evidence since 27 November 2007; evidence adduced shows that after 4 years and 3 months, the plaintiff was still not ready with its evidence; evidence adduced shows that on the trial date, the plaintiff was not ready with its evidence; 
•	evidence adduced shows or portrays the plaintiff as an unwilling participant in its own case or in WS 705; the plaintiff appeared as a difficult participant, that is, in terms of gathering its own evidence to prepare for trial and in terms of co-operating and working with its lawyers generally.
46.	The above is a summary of my assessment of what had transpired in the years and months leading up to the failed trial in WS 705.  The plaintiff had been uncooperative, unwilling, and argumentative with the defendants and Mr Jacobs at the material time(s).  In my view, it was the plaintiff, and not the defendants nor Mr Jacobs, that did not prepare itself for the trial.  I find that the plaintiff’s lawyers, including the defendants, had taken all reasonably steps to assist the plaintiff at the material time(s).
47.	I refer to ground (c).  This ground, in my view, is quite difficult to ascertain with certainty.  It also appears speculative.  Let me elaborate.  It is not disputed that both lawyers at that time in WS 705 had agreed to seek vacation of the trial date.  Mr Geroro was assigned to make that request before the Court.  He did not appear to make that request.  Evidence adduced shows that the plaintiff was also not ready to hear its case with all of its evidence still outstanding.  It would seem that the defendants had seen Telikom’s predicament (i.e., to request to vacate the trial) as an opportune time to concede and agree to vacate the hearing dates.  Thus, at the material time, both parties had agreed by consent to vacate the trial.  By agreeing to an adjournment, the defendants had, in my view, taken reasonable steps to protect the plaintiff’s interest so that it may later prepare and file its evidence which it had continued to fail to file over the years.  That said, it is difficult to tell whether had Mr Geroro not missed out on the hearing on 5 February 2013, whether the Court would have gone ahead and granted the request for vacation by consent of the parties.  That same uncertainty would exist even say if a formal application for vacation had been filed before hand by the defendants.  But having said all that, I find the contention in ground (c) (i.e., want of a proper application to vacate trial) inconsequential because:
(i)	the defendants had already protected the plaintiff’s interest when it had agreed with Telikom to vacate the hearing date;
(ii)	Mr Geroro never appeared in Court on 5 February 2013 so he could not have been in any position whatsoever to make an application for leave to vacate the trial date; and
(iii)	the reason given by the trial Court to dismiss WS 705 was want of prosecution; it was not premised on failure by a party to seek leave of Court to vacate the trial.
48.	The other uncertainty or difficulty with ground (c) is this.  As the undisputed facts show, the defendants failed to appear on behalf of both parties on 5 February 2013 as per their agreement, and the matter was summarily dismissed.  In the plaintiff’s application to set aside the said dismissal order, the defendants stated their reason why Mr Geroro did not attend Court on 5 February 2013.  The reason was that Mr Geroro had a flat tyre on his way to the Court House on 5 February 2013 on that morning.  The trial Judge in WS 705 accepted this reason as an exceptional reason and, together with other considerations, granted the plaintiff’s application and set aside his decision of 5 February 2013 (i.e., where he had dismissed WS 705 for want of prosecution).  In his ruling on the matter, which is at page 108, Annexure K to Exhibit P1, Sawong J stated:
“33.	The courts have said many times that the negligence or inadvertence on the part of the lawyer in failing to appear on time is not a reasonable explanation and cannot be regarded as a reasonable explanation unless the exceptional circumstances beyond the control of the lawyers.  Here Mr Geroro submits his failure to attend court on the 5th of February 2013 resulted in the dismissal order was not caused by incompetence but by an event outside his control.  Mr Geroro has offered an explanation which I accept.”
(Underlining mine)
49.	To me, what the above decision and the material facts mean is that the defendants’ failure to appear on behalf of the plaintiff on 5 February 2013 was explained and was accepted by a court of competent jurisdiction.  And the only way to revisit this matter would have been to appeal or file a review against the said decision of Sawong J.  
50.	With these uncertainties or dilemmas, I find ground (c) uncertain and speculative, and I would also dismiss it.  Even if I may be wrong (which I say otherwise), I also find generally that the defendants had taken reasonable steps to protect the plaintiff’s interest at the material time particularly when it had conceded with Telikom’s request to vacate the trial date, which would have, amongst others, given more time to the plaintiff to settle and file its outstanding evidence.
51.	For the stated reasons, I dismiss grounds (b) and (c).

Grounds (d), (e) & (f)
52.	I will address grounds (d), (e) and (f) together.  The plaintiff alleges that the defendants did not object to the dismissal application of Telikom given that Telikom’s application was filed belatedly or after WS 705 had been dismissed for want of prosecution.  Secondly, the plaintiff alleges that the defendants did not file affidavits in response to the dismissal application explaining the reasons for the delay in pursuing the matter, and also, that it did not raise them before the trial Court that had heard the dismissal application on 26 February 2013.  And thirdly, the plaintiff alleges that the defendants failed to seek leave of the Court in SCA 36 to file further or fresh evidence to explain the delay in WS 705.
53.	I note the submissions of the parties.
54.	The first question I have is this.  Did the plaintiff discharge its evidentiary burden of proof under these 3 grounds?  I note that the 3 grounds are premised primarily on what had transpired in WS 705 on 26 February 2013.  Ground (f) is a follow on from grounds (d) and (e).  At the material time, the Court heard both the plaintiff’s application to set-aside the order that dismissed WS 705 and Telikom’s application to dismiss WS 705.  The immediate matter that comes to my mind, which I must say I will require to consider and determine the 3 grounds, is the transcript of proceeding of 26 February 2013 (transcript/transcript of 26 February).  
55.	I note that copies of the Courts’ decisions in WS 705 and SCA 36 are annexed to Exhibit P1.  However, in order for me to assess the conduct of the defendants as alleged by the plaintiff under the 3 grounds, I need to see the transcript of 26 February.  Do we have this transcript filed as part of the evidence of the plaintiff?  When I refer to the evidence, I firstly note that Exhibits P1 to P5 do not attach a true copy of the transcript of 26 February.  The same can be said in regard to the evidence of the defendants.  In my view, this constitutes a crucial deficiency in the plaintiff’s evidence.  I am therefore unable to verify or sustain the claim that the defendants did not object to Telikom’s dismissal application on the basis that it was incompetent or irregularly filed.  I am unable to verify this argument.  I note that Mr Geroro was the defendants’ lawyer who had attended Court on 26 February 2013 to argue the matter.  He was never called to give evidence.  Mr Nutley, who testified for the defendants herein, obviously could not have and did not given evidence on what actually transpired on 26 February 2013.  For whatever reason the defendants have not called Mr Geroro was a matter for them, however, the burden of proof, as stated, begins with the plaintiff.  
56.	The plaintiff may say that by making the claim itself is sufficient thus the evidentiary burden should shift, and the defendants should be called on to produce their evidence to the contrary.  But even if I accept that, there is evidence by the defendants to counter this claim.  This evidence may be found in an email exchange between Mr Geroro and Mr Fancy which was carbon copied to Mr Nutley.  Because the email was forwarded to Mr Nutley, I find it to be properly before this Court and not as hearsay or secondary evidence.  I also note that Mr Fancy has not denied receiving this email.  The email is dated 25 April 2013.  It is located at page 1437 in Exhibit D2.  In the said email, Mr Geroro explains to Mr Fancy what occurred in Court on 26 February 2013.  The email reads in part:
“We did not inform you and require you to execute an affidavit having considered that there was sufficient material to resist the dismissal application, particularly since:-
1.	The dismissal application of 7 February was incompetent in that the action was previously dismissed on 5 February so there was no cause to be dismissed;
2.	There was reasonable explanation for the delay in the prosecution of the action because:
a.	the court file had gone missing on at least 4 occasions resulting in the creation of 3 supplementary court files;
b.	the first court directions in 2008 were in effect amended, varied or extended by the second court directions in 2011, so there was no no-compliance;
c.	The 2011 court directions had been set aside by the third court directions in 2012, so there was no non-compliance.
3.	The judge did not consider and failed to explain why he was exercising his discretion to depart from the specific relief provided for under term 5 of the 2012 directions if there was found to be non-compliance by ISAS as to the lay or expert witness statements i.e., if non-compliance then no oral evidence could be adduced by the defaulting party at trial without leave of the court;”
57.	To me, this evidence suggests, without the benefit of the transcript, what may or may not have been argued before the trial Court on 26 February 2013.  It also shows all the more reasons why the transcript of 26 February 2013 is necessary.  Were there other evidence that were also tendered by the plaintiff through the defendants before the trial Court which were not highlighted in both decisions of the Court in WS 705 and SCA 36?  What affidavits were presented before the trial Court and what affidavits did the trial Court consider or discard?  Did the defendants fail to object to the dismissal application by Telikom as alleged by the plaintiff?  Or did the defendants object or made submissions in that regard as indicated in Mr Geroro’s email to Mr Fancy which was copied to Mr Nutley?  If what the defendants said in the email is correct, then this may also affect the plaintiff’s argument in ground (f).  I find it difficult to determine these queries with the evidence that is adduced by the plaintiff (and the defendants) without the transcript of 26 February.
58.	Disclosing the 2 applications with their evidentiary materials that had been relied on at the hearing on 26 February 2013 in WS 705 would have been prudent as well for this purpose.
59.	Let me remind myself again that I cannot simply fall on or make assumptions that are based on the findings of the Courts in WS 705 and SCA 36, or on what these courts have found.  Their findings were made against the plaintiff, not against the defendants herein.  The Court hearing this matter is separate from the two proceedings.  I am on a ‘fact-finding mission’ so to speak.  And to do so, I would require the transcript in order to (i), consider the grounds (d), (e) and (f), (ii), consider the defence raised by the defendants, and (iii), make determinations or findings.  To proceed without the transcript would be like to proceed blindfolded, which would be most unfair to the defendants and the justice of this case as a whole.  To better illustrate, I find myself at the stage where I cannot reasonably verify the claims that are being made by the plaintiffs and the defence that is being raised by the defendants.  I have reached the point in the evidence where the probabilities are equal on both sides thus meaning that the burden of proof may not be discharged by the plaintiff.  As Denning J (as he then was) had said in Miller v Minister of Pensions [1947] 2 All E.R. 372 at 373-374,…… If the evidence is such that the tribunal can say 'we think it more probable than not', the burden is discharged, but if the probabilities are equal it is not." [Underlining mine].
60.	Based on the above stated reasons, I also cannot make a firm determination for ground (f).  As stated, ground (f) is dependent upon grounds (d) and (e).  I also note that the Supreme Court’s view in SCA 36 on seeking leave to file fresh evidence, was made as an observation or remark.  But regardless, and even if it was an order of the Court, it was made against the plaintiff, and so for me to consider the issue of negligence in this new proceeding against the defendants, I would require and it is prudent I consider, the transcript of 26 February.
61.	The plaintiff, in my view, has therefore failed in that regard.  Its claims under the 3 grounds fell short, and in my view, the evidentiary burden of proof therefore does not shift to the defendants to disprove these 3 claims.  I am left with a situation where the allegations raised are not reasonably or sufficiently supported by evidence.  
62.	Even if I am wrong (which I say otherwise) and that the evidentiary burden shifts to the defendants, I would find that the defendants continue to hold their ground of defence, where in the end, the balance of probabilities would be regarded as equally discharged by the parties.  Consequently, this would mean that the plaintiff would fall short of discharging its ultimate burden of proof on the balance of probabilities.
SUMMARY
63.	In summary, I find that the plaintiff has not established the element ‘breach of duty of care’ to its claim for negligence.  The claim must therefore fail.  I will make an order for it to be dismissed.
COST
64.	An order for cost in this type of case is discretionary.  I will order cost to follow the event, that is, on a party/party basis to be taxed if not agreed.

AND THE COURT ORDERS:
65.	I make the following orders:
(1)	The proceeding is dismissed in its entirety.
(2)	The plaintiff shall pay the defendants’ cost of the proceeding on a party/party basis to be taxed if not agreed.
(3)	Time for entry of these orders is abridged to the date and time of settlement by the Deputy Registrar of the National Court which shall take place forthwith.

The Court orders accordingly
________________________________________________________________
Bradshaw Lawyers: Lawyers for the Plaintiff
Leahy Lewin Lowing Sullivan:	Lawyers for the Defendants