COURT OF APPEAL OF SOLOMON ISLANDS

R & R Engineering Limited

v.

The Ship “Sri Ganga I” and The Ship “Sri Ganga II”

Court of Appeal of Solomon Islands
(Palmer JA.)

Hearing: 28th July 2003
Judgment: 20th August 2003

Sol-Law for the Applicant
A.Radclyffe for the Respondent

Palmer JA.: On 8th April 2003 the Respondents/Defendants (“Respondent”) applied to have the Applicant/Plaintiff’s (“Applicant”) Statement of Claim dismissed for want of prosecution. This was heard on 22nd April 2003 and judgment delivered on 9th May 2003. The Plaintiff’s Statement of Claim was dismissed. The Applicant now comes to court for leave to appeal against that decision. The test for grant of leave is whether there are arguable grounds of appeal – Kalena Timber Co. Limited v. Harry; Price Waterhouse v. Reef Pacific Trading Ltd.

Grounds of Appeal

Three grounds of appeal have been raised. The first ground relied on is that the principles in Birkett v. James had been misapplied by inferring prejudice or risk to a fair trial from mere delay in the absence of any evidence to that effect. Reliance is placed on the following case authorities: Grovit v. Doctor; Department of Transport v. Chris Smaller Transport Limited; Barratt Manchester Limited v. Bolton Metropolitan Borough Council. The second ground relied on is that the discretion miscarried as reliance was placed heavily on the pleadings in exercising the discretion whilst the court failed to take into account the continued counter-claim of the defendant. There could be no prejudice as inferred from the pleadings as there would in any event be a trial on the counter-claim with the same or substantially same witnesses involved. And thirdly, the additional evidence, affidavit of John Edmund Michael O’Connor filed 2nd June 2003, in support of this appeal, if admitted by the full Court of Appeal, would have most likely affected the exercise of the discretion. The evidence discloses that the plaintiff had no knowledge of the strike out application. If this was accepted it would contradict any allegation that the plaintiff was guilty of an abuse of process.

Respondent’s submissions

The Respondent maintains its stance in this application that the delay from October 1999 to March 2003 was inordinate and inexcusable. The misunderstanding between the lawyers in Australia and Solomon Islands resulting in a failure to communicate properly is not a good excuse for delaying legal proceedings.

On the issue of proof of prejudice, Mr. Radclyffe submits that there was affidavit evidence before the court which it had regard to and that the court was entitled to look at the pleadings and make such conclusions from them.

On the issue of the Respondent’s counterclaim, Mr. Radclyffe says this was irrelevant. The Respondents have the option of discontinuing with the counterclaim in the circumstances where it has succeeded in having the claim of the Applicant struck out for want of prosecution.

Learned Counsel also submits that the Applicant needed to show that the exercise of the court’s discretion was manifestly wrong in law. They have failed to do that.

On the subject of the additional affidavit evidence of John Edmund Michael O’Connor filed 2nd June 2003, learned Counsel submits that nothing new has been demonstrated which would justify any interference by the court. Whilst the affidavit evidence has sought to provide explanation for the delay, that does not excuse it. The reasons given for the delay are simply not acceptable.

Case Authorities cited

The first case authority cited and relied on by the Applicant was Grovit v. Doctor and Others. That case involved a defamatory action instituted by the plaintiff against seven defendants initially but eventually ended up with only two defendants. On or about 11 July 1990 Wright J. directed trial of the preliminary issue whether the words relied on were capable of bearing a defamatory meaning. The plaintiff took no further steps in the action after 20 September 1990. By summons dated 12 October 1992 the defendants applied to strike out the writ and statement of claim for want of prosecution. The deputy judge held there had been inordinate and inexcusable delay and that the plaintiff had no interest in actively pursuing the litigation and ordered the action to be dismissed for want of prosecution. The matter was appealed to the Court of Appeal but dismissed.

The issue as it came before the House of Lords was:

“Can inexcusable and inordinate delay (if stigmatised as an abuse of process) constitute or be treated as, prejudice without the need for the defendant to show actual prejudice or a substantial risk that a fair trial of the action would be impossible?”

The onus in an application to strike out is on the defendant to show that the action should be struck out. The deputy judge had found inordinate and inexcusable delay and “an element of prejudice” in relation to the effect on the business activities of the companies. The deputy judge placed much reliance on the fact that the appellant was not interested in actively pursuing his action describing it as intolerable.

On appeal to the Court of Appeal, Evans L.J. held there was sufficient prejudice established as regards the company, the third defendant.

Glidewell L.J. found an abuse of process in the appellant’s motive in delaying the libel action. He held this amounted to a significant prejudice which justifies the striking out action.

The decision of the House of Lords

The decision of the House of Lords was delivered by Lord Woolf. His Lordship held that the conduct of the appellant constituted an abuse of process and concluded that this entitled the defendant to have the claim struck out as a separate ground. This decision effectively establishes that if delay can be stigmatised as an abuse of process it would suffice to dismiss the proceedings without having to establish the element of prejudice.

“This conduct on the part of the appellant constituted an abuse of process. The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires (which will frequently be the case) the courts will dismiss the action. The evidence which was relied upon to establish the abuse of process may be the plaintiff’s inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution. However, if there is an abuse of process, it is not strictly necessary to establish want of prosecution under either of the limbs identified by Lord Diplock in Birkett v. James [1978] A. C. 297. In this case once the conclusion was reached that the reason for the delay was one which involved abusing the process of the court in maintaining proceedings when there was no intention of carrying the case to trial the court was entitled to dismiss the proceedings.” 

Barratt Manchester Ltd v. Bolton Metropolitan Borough Council and Another.

This case involved an inquiry into a cross undertaking for damages entered into by consent between plaintiff and the Attorney General. The plaintiff subsequently failed to serve documents setting out its claim and the Attorney-General applied to dismiss the inquiry for want of prosecution. The presiding judge found that there had been inordinate and inexcusable delay but dismissed the application because he was not satisfied that substantial prejudice had been caused. The Attorney-General appealed to the Court of Appeal.

In dismissing the appeal, the Millet L.J. said, after quoting the classic statement by Lord Diplock:

“This analysis enabled him to say, at p. 256, that delay which justifies dismissal of an action for want of prosecution, as distinct from dismissal for disobedience to a peremptory order of the court, is ex hypothesi so prolonged that it involves a serious risk that there will not be a fair trial of the issues. Here, too, the emphasis was on a single element, that of serious and prolonged delay, being delay sufficient to give rise to an inference that the possibility of a fair trial was at risk.” (Emphasis added)

The emphasis was on the point that delay alone is insufficient but that it must have occasioned prejudice to the defendant.

Application

The Applicant submits that there was no proof of prejudice that the delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants. They say that the Respondent was required to prove that the delay could be stigmatised as an abuse of process. They failed to do that in the court below and accordingly the court below was not entitled to make any findings of prejudice or to deduce that the delay had caused serious prejudice. Mr. Sullivan submits that the court below cannot infer prejudice or risk to a fair trial from mere delay in the absence of any evidence to that effect.

Unfortunately that is a question of fact and a matter which the court was entitled to consider on the affidavit material before it. The court below had held that a delay of four years, which was evident on the face of the record and not challenged, was not only inordinate and inexcusable, but that it was sufficient to give rise to a substantial risk that a fair trial of the action would be impossible or was likely to cause or to have caused serious prejudice to the defendants. The court below not only had recourse to the affidavit material that was before it but also to the pleadings to reach the conclusion that there was evidence of prejudice sufficient to justify the dismissal of the action.

I concede though that perhaps the only arguable ground is whether the affidavit material placed before the court and the approach taken by the court in looking at the pleadings as a whole to determine if prejudice had been established or not were sufficient, or, whether further evidence or particulars of actual prejudice was required, and if so to what extent, bearing in mind that the onus of satisfying the court below lies with the Respondent. The court below was obviously satisfied with the material placed before it by the Respondent as compared with the material adduced by the Applicant.

On the issue of the counter-claim, that was a matter which the Respondent was entitled to consider whether to continue with proceedings or not. Obviously having succeeded in having the claim of the Applicant struck out in the court below the Respondent was entitled to come back to court and have its claim withdrawn. Mr. Radclyffe adverted to this possibility in his submissions. The counter-claim was not considered by the court below but if it had, it is quite possible the court could have come to the conclusion that it should also be struck out for the same reasons.

As to the additional affidavit evidence of John Edmund Michael O’Connor filed 2nd June 2003, it adds nothing new other than to provide explanation for the delays without justifying them. The fact of the matter remains that the delay was inordinate and inexcusable.

Decision

I am satisfied that from the grounds of appeal raised, an arguable ground may exist on the question whether proof of prejudice in the circumstances of this case was sufficient or not or whether further proof was required. Accordingly I am satisfied leave should be granted.

Orders of the Court:

1.	Grant Leave to appeal.
2.	Costs of this application are to be costs in the appeal.

The Court.