SC1260
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 139 0f 2011

Between:

NATIONAL CAPITAL DISTRICT COMMISSION
Appellant

And:

ROBERT DADEMO
Respondent

Waigani: Injia CJ, Sawong & Murray JJ
2013: 25 February, 28 June

PRACTICE & PROCEDURE – Judgements – National Court - Variation of judgment under the Slip Rule principle – Judgement on damages without Interest though Claimed in Writ – Trial Judge varied judgment to include interest on Damages - Exercise of Discretion – Principles, Practice & Procedure on Slip Rule Applications – relevant considerations

INTEREST – Award of interest on judgment sum – principles 

Facts:

The plaintiff (respondent) was employed by the defendant (appellant) under a contract of employment for a term of three years. The defendant terminated the contract and paid K52,164.79 in severance entitlements. Dissatisfied with the payment, the plaintiff brought an action for breach of contract seeking additional damages. In the statement of claim, the plaintiff claimed damages and interest at 8% per annum pursuant to Judicial Proceedings (Interest on Debts and Damages) Act (Ch 52). Two years after the action was brought, it was tried and judgment on liability was entered for the plaintiff by the trial judge (first trial judge). Four years after the entry of judgment on liability, the question of damages was tried before a second trial judge. At the hearing, the plaintiff did not pursue interest. Three years after the trial on assessment of damages was concluded, judgment on damages was delivered. The second trial judge awarded K10,557.19 in damages and omitted to award interest. Some time after the judgment was delivered, the plaintiff's lawyer contacted the associate to the second trial judge and alerted him to the omission. The second trial judge recalled the matter under the slip rule principle, heard the parties on the question of whether the judgment should be varied to include interest; and, varied the judgment to include interest on K62,721.98 ( K52,164.79 plus K10,557.19) at 8% per annum, for the period from commencement of proceedings to date of judgment (11 years) pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act (Ch 52). The defendant appealed the award of interest. 

Held:

1.	The same Court or Judge who gave the judgment on damages may vary the judgment under the slip rule principle to include interest pursuant to Judicial Proceedings (Interest on Debts and Damages) Act (Ch 52); on application by a party or of the Court's own motion; at any time and regardless of whether or not the order granting judgment on damages has been entered.

2.	Subject to the Court's discretion, the plaintiff is entitled to an award of interest by the Court under s 1 (1) of the Judicial Proceedings (Interest on Debts and Damages) Act (Ch 52) on an award of damages for a specific sum (judgment sum); it is consequent upon the award of the judgment sum and awarded as a matter of course in appropriate cases, whether or not it is claimed as a relief in the Writ and whether or not it is pursued at the trial.

3.	The award of interest on damages under s 1 (1) of the Judicial Proceedings (Interest on Debts and Damages) Act (Ch 52) is made on the actual damages awarded which constitutes the judgment sum; it is not awarded on a sum of money that the paid defendant paid to the plaintiff before the commencement of the action, which did not form part of the plaintiff's claim and which amount is not included in the judgment sum.

4.	The award of interest is discretionary having regard to all relevant considerations including the following:
 
(1)	whether the judgment sum for damages is of a kind which should attract award of interest;

(2)	the whole or a part of the period calculated from the time the cause of action arose and the date the judgment is given; 

(3)	whether interest should be awarded for the whole amount or a part thereof;

(4)	gross or undue delay in the prompt disposition of the case attributed to either of the parties;

(5)	gross or undue delay by the Court in a timely disposition of the case, in particular in delivering a deferred judgment within the three (3) to six (6) months timeline set out in the Judicial Policy on Delivery of Reserved Judgments issued by the office of the Chief Justice on 18 August 2008;

(6)	 the appropriate interest rate for the particular type of damage awarded; and 

(7)	The interest of justice, fairness and equity.

5.	Applying those principles to the circumstances of the case, the part of the judgment of the trial judge in question is quashed and be substituted with an award of interest at 8% per annum on K10,557.19 for a period of six (6) years at K5,067.45. 

Cases cited: 
Papua New Guinea
 
Andrew v MVIL (2001) N2098
Bob Kol v The State (2010) N3912
Cheong Supermarket Pty Ltd v Perry Munro [1987] PNGLR 24
Costello v Talair Pty Ltd [1985] PNGLR 61 
Emba Ltd t/s Tribal Plumbers v Tropical Habitat Ltd (2001) N2067
In re Application of David Lolok (1999) N1592
John Wescott v MVIL (2008) N3565
Kosi Bongri v The Independent State of Papua New Guinea [1987] PNGLR 478
Laimo v Kama (2010) SC1063
Lawrence Sasau v PNG Harbours Board (No 2) (2007) N 3255
Michael Buna v The Independent State of Papua New Guinea (2004) N2696 
MVIT v Reading [1988] PNGLR 236, [1988] PNGLR 608 
PNG Ports Corporation Ltd v Charles Inni (2012) N4717
Pinzer v Bougainville Copper Limited [1985] PNGLR 160
Polem Enterprises Ltd v Attorney-General (2010) SC1073 
Rabaul Shipping Ltd v Peter Aisi (2000) N 3173
Sasau v PNG Harbours Board (No 2) (2007) N3255
Westpac Bank Ltd v Larelake (2008) N3247

Overseas Cases

Birkett v Hayes [1982] 1 W.L.R. 816, [1982] 2 All E.R. 710
Edward Butler Vinters Ltd v Grange Seymour International Ltd (1987) 131 S.J. 1188, AC
London, Chatham and Dover Ry.Co v South Eastern Ry.Co. [1893] A.C. 492 
Spittle v Bunney [1998] 1 W.L.R 847; 3 All E.R. 1031 

Counsel:

L Kila, for the Appellant
R Uware, for the Respondent

28th June, 2013 

1. BY THE COURT: This is an appeal against a part of the judgment of the National Court in proceedings WS No 1290 of 2000 given on 14 October 2011 in which the trial judge varied the final judgment for damages for wrongful dismissal given on 28 September 2011, by awarding interest pursuant to Judicial Proceedings (Interest on Damages) Act (Ch 52). 

2. The pertinent parts of the Notice of Appeal states the background and grounds of appeal in the following terms: 

(1)	The Appellant appeals from the part of the judgment of the (the Honourable Judge) given in the National Court at Waigani on the 14th of October 2011 wherein the learned Judge:

(a)	Without a formal and proper application before him from the respondent applied the slip rule principle and varied his order of 28 September 2011 to include interest pursuant to section 3 of the Judicial Proceedings (Interest on Damages) Act 1962. 

(b)	Awarded interest to the respondent at 8% per annum from the date of filing of the Writ of Summons (28.09.00) to the date of Judgment (28.09.11) on the total sum of entitlements due to the respondent at K62,721.98 of which K52,16479 was paid to the respondent after he was terminated in 1999.
 
(2)	……

(3)	Grounds

(i)	His Honour erred in fact when he applied the Slip Rule in making the variation orders of 14th October 2011 without any formal application filed by the respondent to correct the orders of 28th September 2011 which did not make any orders for interest.

(ii)	His Honour erred in law and in fact when he awarded 8% interest pursuant to section 3 of the Judicial Proceedings (Interest on Damages) Act 1962 (to) the respondent on a sum of K62,72198 which is not part of his order for judgment of 28 September 2011.

(iii)	His Honour erred in fact when he awarded interest at 8 % per annum on the total entitlements for the respondent despite the fact that his Honour adjudicated a sum of K10,557.19 as the judgment sum in his Order of 28 September 2011. 

3. The background facts of the case are not in dispute. On 1 June 1998, the appellant and the respondent entered into a formal contract of employment for a term of three (3) years under which the respondent was employed as the City Administrator. On 16th August 1999, the appellant terminated the contract and paid him K52,164.79 in severance entitlements. The appellant offered an additional payment of K10,557.19 but the respondent refused it. On 28 September 2000, the respondent commenced proceedings in the National Court seeking damages and interest. On 13 November 2002, the first trial Judge granted judgment on liability in favour of the respondent for damages to be assessed. On 9 July 2008, the question of damages was tried before another judge (second trial judge). The trial judge deferred judgment to be handed down later. Subsequently, parties attended to further directions to file further affidavits issued by the trial judge. On 28 September 2011, the trial judge handed down his judgment on damages. He awarded K10,557.19 in damages. The trial judge did not award interest. Some time after the judgment was delivered, the respondent's lawyer approached the second trial Judge's Associate and alerted him to the omission in the judgment concerning interest. On 14 October 2011, the trial judge recalled the matter, heard parties on the issue and varied the judgment under the slip rule principle by including an order for interest at 8% on the sum of K62,721.98 (K52,164.79 plus K10,557.19), pursuant to Judicial Proceedings (Interest on Damages) Act 1962. The reasons for decision are summarized as follows: 

(1)	An order for interest was not included in the judgment due to inadvertence partly because counsel for the respondent did not direct the court's attention to the interest component of the orders.

(2)	Notwithstanding the absence of a formal application under the slip rule principle, the Court of its own initiative recalled the matter to correct a slip in the decision.

(3)	The Court was entitled to include an order for interest under the Judicial Proceedings (Interest on Damages) Act 1962 when the judgment was given.

(4)	Assessment of damages was ordered by the first trial judge because the sum of K52,164.79 that had been paid prior to the commencement of proceedings was a miscalculation. It was for this reason that the second trial judge included K52,164.79 in the calculation of interest.

(5)	The award of K10,557.19 was made on the appellant's acknowledgement that this amount was owing to the respondent. 

(6)	Therefore, interest on the total amount of K62,721.98 ( K52,164.79 plus K 10,557.19) was granted as a matter of course. 

4. The main issues before this Court have been succinctly identified by counsel for the respondent and we adopt them. Those issues are as follows:

(1)	Whether an Order of the Court after being entered, can be varied by the application of the slip rule principle.

(2)	If so, whether the Court on its own volition and without Notice of Motion by any party can call back parties to Court to correct a patent slip in its judgment applying the slip rule.

(3)	Whether the second trial judge erred in fact in awarding interest on the whole of the respondent's severance payment totaling K62,721.98 when the respondent was already paid K52,164.79.

5. The first and second issues raise procedural matters concerning the application of the slip rule principle and they can be dealt with together. Prior to 19 December 2012, the Supreme Court Rules 1987 did not provide any procedure for bringing an application under the slip rule principle (slip rule application). As a matter of practice, a slip rule application was permitted to be made by parties without leave and made before the same judge or Court that made the decision: see Laimo v Kama (2010) SC1063. The position changed after 19 December 2012 when the new Supreme Court Rules 2012 were promulgated. A formal application is now required to be made by the parties and an application for substantive review to proceed by leave only: see O 5 rr 1-4, O 11 r 32 of Supreme Court Rules 2012. 

6. In the present case, the trial judge recalled the matter after the plaintiff's lawyer approached the trial judge through his Associate. Under the existing practice at that time, such practice was permissible and we find no error on the part of the trial judge occurred in recalling the matter in that manner. 

7. The National Court's jurisdiction to correct its own mistakes in a judgment under the slip rule principle is part of the Court's inherent discretionary jurisdiction. It is an open ended and flexible procedure developed by case law that permits the judge or Court to correct errors in a judgment that would be either "clerical, accidental omission in a judgment or order or would be a misapprehension of fact or law": Laimo v Kama, supra. Clearly the jurisdiction may be exercised by the Court of its own motion or invoked by a party on application, in an appropriate case, at any time after judgment is given. 

8. The provisions of O 8 r 59 of the National Court Rules 1987 reinforces the slip rule principle insofar as "clerical mistakes" in a judgment is concerned. It permits a judge on application by a party or of the Court's own motion, to correct clerical mistakes in a judgment at any time after judgment has been given. A slip rule application under this provision is not premised on whether or not the orders have been entered. 

9. We accept that the award of interest though claimed as a relief in the Writ was omitted due to inadvertence of counsel for the respondent and the trial judge. For the reason that the discretion to award interest under the Judicial Proceedings (Interest on Damages) Act (Ch 52) is consequent upon the award of a judgment sum, such omission by the Court squarely falls under the description "glaring error or mistake" in Laimo v Kama, supra, and remained open to be corrected under the slip rule principle. 

10. Award of interest on a judgment on damages is provided under Judicial Proceedings (Interest on Damages) Act (Ch 52). Sections 1is relevant and it provides:

 "s 1 Interest on certain debts and damages

(1)	Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of judgement.

(2)	Where the proceedings referred to in Subsection (1) are taken against the State, the rate of any interest under that subsection shall not exceed 8% yearly…"

11. Section 1 gives the Court a wide power to award interest on a judgment sum in damages that it has given. The award of interest is founded on statute and it is available to be granted by the Court in the exercise of its judicial discretion, regardless of whether or not interest is pleaded as a relief in the originating process and whether or not it is pursued by the plaintiff at the trial. It is consequent upon the award of a judgment sum for damages and falls to be determined by the Court as a matter of course. This principle is derived from a construction of the expression "the court may order that there be included in the sum for which judgment is given interest" in s 1 (1) of the Act. It is the same construction the National Court ascribed to that expression in Lawrence Sasau v PNG Harbours Board (No 2) (2007) N3255. In that case the Court said:

"Under s 1(1) the discretion given by the phrase "the court may order there be included in the sum for which judgement is given interest" implies that interest on damages is part of or follows the judgment sum which falls on the court to consider and award at the time judgment sum is awarded. The exercise of this discretion in my view is not dependant on a party pleading it as a claim or relief in the Originating Summons or Statement filed under O 16. This does not mean an uninterested plaintiff who does not claim it in the Originating Summons and Statement and pursue it at the hearing is nonetheless awarded interest on a golden plate. The plaintiff must claim it or pursue it at the hearing or soon after judgment is given. In a case where the plaintiff in hindsight or through genuine inadvertence does not claim or pursue interest before or at the time judgment is given and claims or pursues interest soon after judgment is given, the Court, in the exercise of its discretion should not unreasonably refuse interest, even if it means varying the judgment to provide for interest. In my view it is within the inherent discretionary jurisdiction of the court to revisit the final judgment, vary it and award interest as provided for by law."

12. The trial judge in the present case was not referred to the Sasau decision but notwithstanding this omission, he was of the same view when he said "the Court would have been entitled to include an order in relation to interests as permitted by the Judicial Proceedings (Interest on Debts and Damages) Act 1962 as one of the orders of the court pursuant to the claim in the statement of claim in the originating process; writ of summons". We find no error committed by the trial judge in coming to that conclusion on the construction of s 1 (1) of the Act in that regard.

13. On the whole, we reject the submissions of counsel for the appellant and accept submissions of counsel for the respondent on the first and second issues. We are satisfied that there occurred no error of law or fact with regard to the procedural manner in which the Court invoked the discretionary jurisdiction under the slip rule principle.

14. The third issue concerns the exercise of discretion with regard to the component of damages and the period for which interest was awarded. There is no question on the interest rate at 8% per annum as that is the ordinary interest rate on debts and damages. 

15. The issue is framed as one of fact reflecting on the third ground of appeal but when that ground is read in conjunction with the other grounds of appeal and the way in which the issue was argued before us, it is clear that this ground of appeal raise questions of mixed fact and law. 

16. We also note the reference to s 3 of the Act in the grounds of appeal as the provision under which interest was awarded is a misnomer because that provision relates to post-judgment interest has no application to the facts of this case. The correct provision is Section 1 of the Act. 

17. There are two components of the damages for which interest was awarded. The first is on the judgment sum at K10,557.19 which the trial judge awarded on 28 September 2011. It follows from our construction of s 1 (1) of the Act that the respondent was entitled to interest on that judgment sum. We find no error on the part of the trial judge in that regard. A question arises in relation to the period for which interest was awarded for that amount, which we address later.

18. The second component relates to the sum of K52,164.79 on which interest was awarded. This amount was not part of the judgment sum awarded on 28 September 2011. A judgment for damages in that amount was also not awarded on 14 October 2011. Therefore that amount did not form part of the judgment sum within the meaning of that expression in s 1(1) of the Act. The question is whether interest may be awarded for an amount of money that does not form part of the judgment sum. The answer is simple and it is to be found in the construction of the term "the sum for which judgment is given" (judgment sum) in s 1(1) of the Act. An award of judgment in damages is a precondition to the award of interest. For the purpose of awarding interest, an amount of money that is not part of the judgment sum is clearly outside the scope and ambit of s 1(1) of the Act and no interest can be awarded in respect of that amount. There is a clear distinction between the type, item and amount of damages that is claimed by the plaintiff, tried and assessed by the Court on the one hand and on the other hand, the amount in damages that is actually awarded by the Court which constitutes the judgment sum for the purpose of awarding interest. In the case before us, it follows that the sum of K52,164.79 was not part of the respondent's claim because he was paid that amount prior to commencement of the court proceedings; that amount was not part of the plaintiff's claim and was not included in the judgment sum awarded on 28 September 2011. 

19. It is submitted by counsel for the respondent that the second trial judge gave effect to a finding by the first trial judge (who determined the issue of liability) that identified this amount (K52,164.79) was a miscalculation and ordered a trial on damages. For this reason, interest should also be awarded on K52,164.79 and the trial judge was correct in awarding interest on this amount.

20. The second trial judge made reference to the payment made and procrastination over payment of the balance which took some years before the respondent commenced proceedings. However the trial judge did not vary the judgment sum that he had previously awarded to include this additional amount such that it would be open for him to award interest on the total judgment sum of K 62,721.98. The orders that the trial judge made that are reflected in the transcript of proceedings before us and the orders entered by the Registrar confirm that the hearing on 14 October 2011 did not concern varying the judgment to include the additional amount (K52,164.79) in the judgment sum. That said, we do not see any reason in law how the original judgment could be varied to include an amount that never formed part of the plaintiff's claim because the respondent was paid that money prior to the commencement of court proceedings, was not litigated at the trial and was not included in the original judgment sum. Any determination by the first trial judge (who determined the question of liability) to the payment of that amount would not amount to a judgment sum unless such determination were reduced to an order and placed before the second judge to incorporate in the judgment sum. There is no evidence before us as to the existence of such an order. For those reasons, we accept submissions of counsel for the appellant and reject those of counsel for the respondent on this point. We are satisfied that the trial judge committed a fundamental error in the exercise of his discretion on this aspect.

21. The final question is whether the trial judge erred in awarding interest on K10,557.19 for the period from the date of commencement of proceedings (28/09/00) to the date of judgment (28/9/11); a period of 11 years. The period for which interest is payable is stipulated in s 1(1) of the Act. That is "for the whole or part of the period between the date on which the cause of action arose and the date of the judgment". In the present case the judge awarded interest from the date of commencement of proceedings to the date of judgment. No question arises with regard to that interest period. Subject to what we say in the succeeding paragraphs in relation to the period within that broad period for which interest may be awarded, no error can be imputed to the trial judge in that regard. 

22. In our view, interest was awarded for a blanked period without any meaningful exercise of judicial discretion. This case is an example of countless cases before the National Court in which the discretion given by s 1(1) of the Act is not properly exercised by the Court. As a result, the amount of interest awarded equal or far exceeds the amount of the judgment sum. Award of interest on a judgment sum to the plaintiff is not as compensation for the damage done but for being kept out of the money which ought to have been paid to him: London, Chatham and Dover Ry.Co v South Eastern Ry.Co. [[1893] A.C. 492 at 437, per Lord Herschell L.C. It is discretionary and interest should not be paid to a plaintiff in circumstances where it is unfair or unjust to do so. In exceptional cases, such as where a party is guilty of gross delay, it is in the Court's discretion to increase or reduce the award of interest or alter the period for which it is allowed: Birket v Hayes [1982] 1 W.L.R.816, [1982] 2 All E.R. 710; Spittle v Bunney [1998] 1 W.L.R 847; 3 All E.R. 1031. Also see The Supreme Court Practice 1999, Vol 1, Sweet & Maxwell( London) at page 63, paragraph 6/L26. 

23. Under s 1 of the Act, interest is payable at such rate as determined by the Court, for "a whole or a part of the debt or damages" and for "the whole or part of the period". This provision confers a wide discretion on the Court to determine those matters in the circumstances of a particular case. It is incumbent on the Court to exercise that discretion and to do so judicially, having regard to those matters and all other relevant considerations. We restate and expound on those matters as follows: 

(1)	whether interest should be awarded for the type of damage in question. The plaintiff has no right to an award of interest; it is not mandatory; it is discretionary: Polem Enterprises Ltd v Attorney-General (2010) SC1073, John Wescott v MVIL (2008) N3565, Westpac Bank Ltd v Larelake (2008) N3247, Emba Ltd t/s Tribal Plumbers v Tropical Habitat Ltd (2001) N2067. In the exercise of discretion, interest may be refused: Polem Enterprises Ltd v Attorney-General (2010) SC1073; Michael Buna v The Independent State of Papua New Guinea (2004) N2696, Cheong Supermarket Pty Ltd v Perry Munro [1987] PNGLR 24, Emba Ltd t/a Tropical Plumbers v Tropical Habitat Ltd (2001) N2067. 

(2)	whether interest has been pleaded and litigated. A claim for interest under the Act is not required to be pleaded by the Act or the National Court Rules 1987 (as amended): see also Edward Butler Vinters Ltd v Grange Seymour International Ltd (1987) 131 S.J. 1188, CA regarding O 8 r 8 of the Supreme Court Practice Rules 1999 (UK). Interest is not an instance of the plaintiff's cause of action or litigation; it is something given to the plaintiff under statute because of the damages awarded to the plaintiff: MVIT v Reading [1988] PNGLR 236 at 238 [1988] PNGLR 608 at 610, Costello v Talair Pty Ltd [1985] PNGLR 61 at 65. The Court in the exercise of its discretion may award interest even if it is not pleaded or pleaded but the interest rate is not pleaded: Rabaul Shipping Ltd v Peter Aisi (2000) N 3173; Sasau v PNG Harbours Board (No 2) (2007) N3255; cf Cheong Supermarket Pty Ltd v Perry Munro [1987] PNGLR 24. The only exception to this general principle is that where interest is claimed under some other statutes that expressly provide for interest at a fixed rate it may be necessary to plead it.

(3)	If so, whether interest should be awarded for the whole amount or a part thereof. The interest period may vary depending on the circumstances of each case. Interest may be calculated and awarded from time the cause of action arose to date of judgment: Michael Buna v The Independent State of Papua New Guinea (2004) N2696; or from the date of commencement of the action to the date of judgment: In re Application of David Lolok (1999) N1592. 

(4)	whether interest should be awarded for the whole or a part of the period stipulated in s 1 (1) of the Act. The interest period may vary depending on the circumstances of each case. Interest may be calculated and awarded from time the cause of action arose to date of judgment: Michael Buna v The Independent State of Papua New Guinea (2004) N2696; or from the date of commencement of the action to the date of judgment: In re Application of David Lolok (1999) N1592. 

(5)	the appropriate interest rate for the particular type of damage in question. Section 1(2) of the Act provides the ordinary interest rate (8% per annum) and that may be appropriate in normal cases; whereas other special category of damages may attract special interest rates such as damages for economic loss or damages in liquidated demand claims such as claims arising out of unpaid bank loans. In some cases, interest rate may be fixed by contract between the parties in which case the Court has no choice but to award interest at the fixed rate. The interest rate may also vary depending on the type of damage awarded. For instance, the ordinary rate at 8% may be awarded for damages for damage to land: Michael Buna v The Independent State of Papua New Guinea (2004); for personal injury for economic loss: Pinzer v Bougainville Copper Limited [1985] PNGLR 160, Andrew v MVIL (2001) N2098; for general damages for personal injury: Bob Kol v The State (2010) N3912; for judgment for liquidated sum for unpaid land rent and mesne profits: PNG Ports Corporation Ltd v Charles Inni (2012) N4717. Interest rate at 4% may be awarded for general damages for pre-judgment loss in personal injury cases: Kosi Bongri v The Independent State of Papua New Guinea [1987] PNGLR 478.

(6)	 unreasonable delay by the parties in the prompt disposition of the case in Court; The party that is responsible for protracting the case should not be rewarded with an award of interest in its favour for the period of delay attributed to that party; 

(7)	gross or undue delay by the Court in a timely disposition of the case, in particular in delivering a deferred judgment within the three (3) to six (6) months timeline set out in the Judicial Policy on Delivery of Reserved Judgments issued by the office of the Chief Justice on 18 August 2008. The question to consider is whether or not interest should be awarded for a significant period of delay beyond the said three (3) to six (6) month timeline. If so, the court should consider who should pay that interest. A related question to consider is whether the State should be held vicariously responsible to pay the interest for the delay period or a portion thereof; and

(8)	 The interest of justice, fairness and equity. 

24. There are some decisions of this Court and the National Court that deal with some of these matters and judges should have recourse to those decisions in exercising their discretion. We mention some of those cases that have come to our attention. Some decisions of the National Court which concern matters of practice and procedure and others which concern the law on interest may conflict with the views expressed in this decision and those are to be read subject to this decision. 

25. In order to afford natural justice to the parties, it is incumbent on the Court to raise the matters set out in paragraph 23 (1), (2), (3), (4), (5), (6) and (8) above with the parties at the trial and consider their position on those matters in its deliberations. In respect of the matter set out in paragraph 23 (7) above, the matter may be more appropriately raised with the parties at the time the judgment is about to be delivered and the Court consider their positions.

26. In the case before us, most of these matters were relevant to the case before the National Court but they were not raised by the Court with the parties and not considered by the Court. We raised some of the more relevant matters with counsel that appeared before us and are in a position to determine those matters. 

27. This is a simple case of an action for damages for a small amount of money in unpaid severance entitlement that resulted in an award of a small quantum of damages. However it took eleven (11) years to complete the case. The delay period by that many years is gross. 

28. It is not in contention between the parties that the respondent's action was not disposed off within reasonable time and fault is attributed to the parties and the Court. Both parties tend to agree with the Court's suggestion during argument that some interest time may be discounted to cater for delay depending on who is at fault. We intend to follow that course in the present case. 

29. There was a delay by some two (2) years before the action was tried before the first trial judge. We consider this period to be not unreasonable, given civil trials in a majority of cases before the National Court take a longer time to try.

30. There was a delay by four and half years for the trial on assessment on damages to take place. This period is a lengthy period and constituted gross or undue delay. Whilst the Court would have been responsible for setting down the matter for trial, the onus was on the appellant to seek and secure an early date for trial. For that reason, we would reduce the interest period by two and half years. Interest is allowed for two (2) years only.

31. It took three (3) years for the judgment to be finalized and delivered. A judgment delayed, by the Court for one reason or another, by this period, by more than twelve (12) months beyond the three (3) to six (6) months is a lengthy period and constitutes gross or undue delay. The Court was largely responsible for that delay. As much as the appellant should not be penalized with interest for this period, the respondent is equally entitled to interest. If interest is to be paid, who should pay that interest? If the appellant is not to pay the interest, the respondent will have no further recourse to claim interest from the State for the actions of the Court for the delay period because the State is not a party to these proceedings. Nonetheless, should the State be held vicariously responsible for the Court's inaction and ordered to pay the interest? These and other related questions have not been fully argued before us and we are in no position to make any definitive statements of principle on those matters. 

32. However, in the circumstances of the case before us, we consider that the respondent is entitled to interest for the delay period to be paid by the appellant for the reason that the appellant carried the overall responsibility for the conduct of his case in Court and in obtaining judgment from the Court. In our view, in the interest of justice, fairness and equity; the interest time should be apportioned fairly between the parties. We allow interest for two (2) years only. 

33. For the foregoing reasons, we award interest at the ordinary interest rate at 8% per annum on K10,557.19, calculated from the date of commencement of proceedings to date of judgment on quantum, but for a period of six (6) years only. In order to avoid disagreement between the parties as to the exact amount of interest awarded, we calculate interest at K5,067.45. 

34. In relation to costs, the appellant has been in part successful in the appeal. For that reason, we wish not to award costs in favour of or against any party.

35. The orders of the Court are as follows: 

(1)	The appeal is allowed in part.

(2)	 Paragraph 3 of the judgment of the National Court given on 14 October 2011 is quashed and substituted with the following:

"Interest on the judgment sum of K10,557.19 is awarded at 8% per annum for 6 years at K5,067.45 pursuant to Section 1 of the Judicial Proceedings (Interest on Debts and Damages) Act (Ch 52).

(3)	Each party shall bear their own costs of the appeal. 
_______________________________________________
Public Solicitor: Lawyer for the Appellant
Lari Raula Kila: Lawyer for the Respondent