IN THE SUPREME COURT OF SAMOA
National Pacific Insurance Limited v Vaivaimuli Corporation Limited; Vaivaimuli Corporation Limited v National Pacific Insurance Limited [2020] WSCA 3

Case name: 	National Pacific Insurance Limited v Vaivaimuli Corporation Limited; Vaivaimuli Corporation Limited v National Pacific Insurance Limited	
		
Citation: 	[2020] WSCA 3	
		
Decision date: 	12 August 2020	
		
Parties: 	National Pacific Insurance Limited (Appellant/Respondent) and Vaivaimuli Corporation Limited (Respondent/Appellant)	
		
Hearing date(s): 	05 August 2020	
		
File number(s): 	CA32/19; CA33/19	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Honourable Chief Justice Perese
Honourable Justice Fisher
Honourable Justice Blanchard	
		
On appeal from:	Supreme Court of Samoa, Mulinuu	
		
Order:	The appeal is allowed and judgment of the Supreme Court is set aside. The cross-appeal is dismissed.  No order is made for retrial.  No order is made for costs in either the Supreme Court or this Court.  	
		
Representation: 	J. O. Upton QC & F. D. Ey for Appellant/Respondent
R. Drake for Respondent/Appellant	
		
Catchwords: 	appeal against decision – judgment unsafe – extreme delay in judgment – insurance claim. 	
		
Words and phrases:		
		
Legislation cited:	Constitution of the Independent State of Samoa, Articles 9(1); 13(1)(d).	
		
Cases cited:	Boodhoo v Attorney General of Trinidad and Tobago [2004] UKPC 17;
Cobham v Frett [2001] 1 WLR 1775 (PC);
Jervis v Skinner [2011] UKPC 2;
Punitia v Tutuila [2014] WSCA 1.	
		
Summary of decision:		

CA32/19
CA33/19

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

NATIONAL PACIFIC INSURANCE LIMITED
Appellant/Respondent

A  N  D:

VAIVAIMULI CORPORATION LIMITED
Respondent/Appellant

Court:		Honourable Chief Justice Perese
		Honourable Justice Fisher
		Honourable Justice Blanchard

Hearing:	05 August 2020

Counsel:	J. O. Upton QC & F. D. Ey for Appellant/Respondent
		R. Drake for Respondent/Appellant

Judgment:	12 August 2020

JUDGMENT OF THE COURT
Justice delayed is justice denied
1. 	National Pacific Insurance Ltd (NPI) appeals against a decision of the Supreme Court on 26 August 2019 in which judgment was given, after the extraordinary period of over 22 years since the trial, in favour of the plaintiff, now respondent, Vaivaimuli Corporation Limited, in the sum of SAT$245,000.  The trial judge had heard the case over two days and reserved his judgment on 30 April 1997.  That judge was the former Chief Justice Sapolu, but he had ceased to hold that position in April 2019 and at the time of delivery of the judgment was a temporary judge of the Supreme Court.  We will nevertheless refer to him under his former title.
2. 	NPI says in this Court that the judgment must be set aside as unsafe, either because of the extreme delay alone or because of that delay coupled with the other circumstances in which the judgment was finally prepared and delivered.  Mr. Upton QC, for NPI, commented to us during the course of his submissions that he has been unable to find any case in the Commonwealth where there has been a delay since trial of this length.
3. 	The former Chief Justice has at no time given counsel any explanation for the delay and the judgment does not acknowledge or apologise for it.  Nor do the facts of the case – a straightforward dispute over an insurance claim – reveal any reason why it took the Judge 22 years to reach a decision.
Case law upon delay in judgment
4. 	It is convenient, in order to put the facts of this case in some context, to refer to three cases in which judicial delay has been discussed in the Privy Council in the past 20 years.
5. 	We begin with the decision of the Privy Council in 2000 in Cobham v Frett, on appeal from the British Virgin Islands.  It was a complicated land dispute in which the issue was whether the plaintiff’s title had been defeated by adverse possession by the defendant.  The trial had taken place over three days in May and July 1994.  Judgment was reserved and given in August 1995, a little over 12 months later.  There was no record of any reason for the delay, nor of any complaint or inquiry about it by the parties or their legal representatives.  The Privy Council nevertheless said that a 12 month delay would normally justify the description “excessive delay”.  However, if that excessive delay was to be relied on in attacking a judgment:
	“…a fair case must be shown for believing that the judgment contains errors that are probably, or even possibly, attributable to that delay.  The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant.”
	(p.1783/4).
6. 	The Privy Council eventually concluded that the judgment of the trial Judge should not have been overturned by the Court of Appeal as unsafe.  That was because:
	“Whatever may be the explanation for the delay, this is not the case in which the judge lacked notes of the witnesses’ evidence or of counsel’s submissions with which to refresh his recollection.  The record of the proceedings prepared for their Lordships included some 47 typescript pages of the judge’s notes.  Of these nine pages related to counsel’s submissions and the rest to witnesses’ evidence.  The notes of witnesses’ evidence distinguish clearly between evidence in chief, cross-examination, re-examination and answers given in response to questions by the judge.  The text of the notes records some of the linguistic characteristics of the witnesses.  There is no reason to doubt their accuracy.”
	(p.1779).
The Judge had given a judgment running to 31 pages of typescript.
7. 	After a detailed consideration of the judge’s reasoning and the approach to the issue of the delay, Lord Scott of Foscote, delivering the advice of the Board, said:
	“In their Lordships’ opinion, a legitimate basis on which the Court of Appeal could assert the right to disagree with the judge’s evaluation of the evidence and of the witnesses was absent.  It can be easily accepted that excessive delay in delivery of a judgment may require a very careful perusal of the judge’s findings of fact and of his reasons for his conclusions in order to ensure that the delay has not caused injustice to the losing party.  It will be important to consider the quality of the judge’s notes, not only of the evidence but also the advocates’ submissions.”
	(p.1783).
The Privy Council found that the complaints made about the judgment were unfounded, and held that there was no reason to doubt the correctness of the Judge’s conclusions or for supposing that he had forgotten or overlooked any material. 
8. 	Another decision of the Privy Council in 2004, Boodhoo v Attorney General of Trinidad and Tobago involved whether a delay at appellate level had infringed the appellant’s constitutional right to the protection of the law.  It is therefore not directly relevant to the present appeal. However, the case should be noted for the following salutary remark with which Lord Carswell began his judgment:
	“The law's delays have been the subject of complaint from litigants for many centuries, and it behoves all courts to make proper efforts to ensure that the quality of justice is not adversely affected by delay in dealing with the cases which are brought before them, whether in bringing them on for hearing or in issuing decisions when they have been heard.”
Lord Carswell also commented that in cases of delayed judgment:
	“…delay may have so adversely affected the quality of the decision that it cannot be allowed to stand. It may be established that the judge's ability to deal properly with the issues has been compromised by the passage of time, for example if his recollection of important matters is no longer sufficiently clear or notes have been mislaid.”
9. 	Then in 2011 the Privy Council once more considered the question of judicial delay in Jervis v Skinner.  It applied the test stated in Cobham v Frett of whether, as a result of delay, the decision under appeal was unsafe – whether it would be unfair or unjust to let it stand.  Lord Clarke said that where there is excessive delay the appeal court must consider the findings of fact of the Judge with particular care.  A delay of less than 18 months since trial was found to be excessive and led the Board to give “anxious scrutiny” to whether the judgment should be left to stand. But the Judge had had available transcripts of the evidence and the submissions made to him. There were nineteen volumes of material and the judgment ran to 131 pages.  The Privy Council accepted that there was no evidence that the decision of the Judge was in any way adversely affected by the delay. 
The present case 
10. 	The facts of the case heard by Sapolu CJ were not complex.  Vaivaimuli had in April 1986 insured its new building with NPI against fire under policy terms which also covered it for certain “extraneous hazards”.  These included cyclone damage.  The annual premium paid by Vaivaimuli for 1986/7 was SAT$3072.50 for cover of SAT$200,000 on the building, SAT$25,000 on stock-in-trade and SAT$25,000 for fixtures, fittings and equipment – a total of SAT$245,000. 
11. 	The policy was renewed in April 1987 but it was NPI’s case that at this time it was no longer willing to cover extraneous hazards and that the premium which Vaivaimuli paid in that year and in the years beginning April 1988 and April 1989 was consequentially reduced to SAT$2827.50 (a reduction of SAT$245.00).
12. 	Vaivaimuli was apparently aware that the premium had been reduced but its case was that it had never in any of the years 1987-1989 been informed that cover for extraneous hazards had been removed.  Its witness, Mr. Vaai, evidently gave an explanation that he believed Vaivaimuli was getting a discount for prompt payment of the premium.
13. 	From 1 February to 4 February 1990 Samoa was hit by cyclone Ofa. Vaivaimuli suffered destruction of its building and total loss of the other items.   The policy document held by Vaivaimuli was also lost.  It requested a copy of its policy.  NPI provided a copy showing extraneous hazards marked as “deleted”.  Vaivaimuli then claimed under the policy for the cyclone damage.  The claim was denied by NPI.  Supreme Court proceedings were issued by Vaivaimuli in October 1991 but they did not come to trial until April 1997.
14. 	At the trial some affidavits and witness statements were admitted by consent and viva voce evidence was given by three witnesses for Vaivaimuli and two witnesses for NPI.  The issues that Sapolu CJ had to decide were whether the policy terms had been varied in April 1987 to delete extraneous hazards and, if so, whether Vaivaimuli had been advised of that variation, so that, contrary to its contention, it knew by 1990 that it did not have cover for cyclone damage. These were entirely issues of fact.  They required an assessment by the Judge of the credibility of the witnesses on each side and a consideration of what could be gleaned from the available documentation. NPI was unable to produce the original (1986) policy document, nor did it have direct evidence of the sending out of renewal notices to Vaivaimuli with premium demands.  However, it was established that Vaivaimuli had paid at the reduced premium rate, which indicated that it had received some communication from NPI about policy renewals.
15. 	Judgment was reserved on 30 April 1997.  When it had not been delivered for nearly a year Mrs. Drake, who had appeared at trial as counsel for Vaivaimuli, wrote to the court on 24 April 1998 asking for an indication of when judgment would be delivered.  She wrote again in May and October 1998 and at least once in most years thereafter.  Altogether she wrote 16 times.  She never received a reply. On 28 June 2016 Mrs. Drake wrote to the Minister of Justice and Courts Administration requesting his assistance.  Her letter related to the present case but also to other long delayed judgments of the Chief Justice. On 26 September she wrote again to the Minister making the suggestion that the Chief Justice should refrain from undertaking new cases in order to attend to his outstanding decisions.  The Minister replied on 29 October 2016 advising that on return from a visit to China the Chief Justice would focus on these decisions.  The Minister also wrote to the Chief Justice.  However, the decision in the present case was still not forthcoming.
16. 	Mr. Upton told us that NPI too had in the years following the trial made approaches to the Court inquiring about the judgment but, in Mr. Upton’s words, “got nowhere” and later took the view that it was for the plaintiff to pursue the matter.  Eventually it closed its file. 
17. 	On 21 May 2019, at about the time when Sapolu CJ was due to retire, 
Mrs. Drake was asked to attend on him.  At that meeting he requested from her a list of outstanding judgments. She provided such a list.  On 1 July 2019 the Chief Justice saw Mrs. Drake again and asked her to provide copies of documents which had formed part of the Court file for the present case.
18. 	The Court file was missing.  It has never been located. As a result, none of the affidavits, witness statements or exhibits were available to the Chief Justice when he began to prepare his judgment in August 2019.  There was also no trial transcript available to him. It appears that Sapolu CJ’s own notes at the time of the trial must have been unavailable to him for he requested 
Mrs. Drake to supply notes she had taken during the trial.  She provided them. NPI’s solicitors’ firm in 1997 had long since been dissolved and its records relating to the case were missing. 
The judgment 
19. 	The judgment of 26 August 2019 is very short – less than five pages. The evidence for the plaintiff, Vaivaimuli, is covered in nine paragraphs; the evidence for NPI, contrastingly, is dealt with in only a single paragraph as follows:
	“The defendant called three witnesses.  I am not satisfied from the evidence by the defendant’s witnesses that what the witnesses for the plaintiff said was wrong or mistaken.  However, the evidence given for the defendant suggested that the defendant was acting in good faith and not fraudulently at the material times.  I am also conscious that the standard of proof required to establish fraud is very high.” 
20. 	Under the heading “Discussion” the Chief Justice said only:
	“After careful consideration of the evidence, I have decided to accept the evidence for the plaintiff. I find it to be simple, straightforward and credible evidence.  However, on the evidence adduced for the defendant, I am not satisfied to the required standard that the defendant was fraudulent.”
There is an entire absence of any analysis of the evidence of the defence witnesses or reasoning to support the conclusions of the Judge.
21. 	He then turned to Vaivaimuli’s claim for interest to the date of judgment, saying only that he was “not entirely clear on the basis for this part of the claim”.  He asked the parties to file further submissions “if they wish to continue with this issue”, expressing the hope that counsel would be able to resolve it themselves.
22. 	Vaivaimuli had also sought punitive damages against NPI.  In one sentence the Chief Justice said that he was not satisfied they should be awarded. 
23. 	The Chief Justice then gave judgment for Vaivaimuli in the sum of SAT$245,000 and called for submissions on costs if not agreed.
Discussion
24. 	We can be very brief.  The judgment obviously is unsafe.  We have the greatest sympathy for Mrs. Drake and her client for having suffered from this intolerable delay.  Mrs. Drake had battled valiantly to extract a judgment.  She had done everything she could do for her client.  But, as we made plain during the oral hearing, we cannot allow the judgment to stand.  The extreme delay alone would require that, especially in a factual matter turning on the credibility of witnesses, even if all the written materials necessary for the Judge’s assessment were still available.  But almost everything had after 22 years been lost.  Furthermore, the judgment itself, in particular the way in which the evidence is assessed and conclusions reached without any analysis at all, is very superficial.  It does not withstand a moment’s scrutiny, let alone the “anxious scrutiny” recommended by the Privy Council.  To allow this judgment to stand would be unfair to NPI. (If an equally flimsy judgment had in those circumstances been given in favour of NPI, that too would have been unfair to Vaivaimuli.)  We pay tribute to the quality of Mrs. Drake’s trial notes which do her much credit, but NPI does not accept they are complete in relation to its defence case and says they do not adequately record its counsel’s submissions at the end of the trial.  The Judge did not, we are told, ask NPI’s counsel to comment on Mrs. Drake’s notes.  As well as having, without a Court file, to attempt to remember a trial from so long ago, Sapolu CJ must have been particularly handicapped by the absence of defence affidavits and witness statements. There was, for example, nothing at all available about one of NPI’s witnesses who did not give oral evidence and whose statement had gone missing.
25. 	The judgment for Vaivaimuli must accordingly be set aside.  It follows that its cross-appeal seeking interest must fail.
What is now to be done?
26. 	Clearly it would not be appropriate to order a retrial when the Court has no file and, even if witnesses are still available, their memory of events in 1986-90 is likely to be unreliable. The case cannot fairly be revived. 
27. 	The consequence, however, will be that Vaivaimuli will never be able to bring to finality its claim against NPI, whatever the strengths or weaknesses of that claim.  It has lost the chance of a successful outcome through no fault of its own.
28. 	There was some discussion with counsel during the hearing in this Court of whether Vaivaimuli might now consider a claim for damages against the Government, which of course has responsibility for the justice system of Samoa, for breach of its constitutional right to a hearing within a reasonable time.  Article 9(1) of the Constitution of the Independent State of Western Samoa declares that in the determination of his civil rights and obligations, every person (which would include a company) is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law. It would not be appropriate for us in this judgment to say how that guarantee might apply to what has occurred in this case.  But it is certainly at least arguable that the right to a hearing within a reasonable time includes a right to have a judgment pronounced within a reasonable time of trial.  As to whether a breach of a constitutional right can give rise to a damages claim by someone adversely affected, we draw attention to this Court’s decision in Punitia v Tutuila where general and vindicatory damages were awarded for breach of the right of movement and residence in Article 13(1)(d) of the Constitution.  Some general principles were summarised at para [85] of that judgment.
29. 	In the absence of any representation for the Government in this appeal, we should not be taken to be indicating a view on whether it may have any liability for a breach of Article 9(1) in the present circumstances. 
30. 	While we are not aware of any problem of delay in giving judgment by any other Supreme Court Judge, it is nonetheless desirable that the Court should as soon as possible develop and promulgate a protocol for Judges concerning expectations for timely delivery of judgments.
Costs
31. 	NPI does not seek costs in the Supreme Court but asks for an award in respect of this appeal. In normal course we would make an award to a successful party.  NPI says that Vaivaimuli should have recognised the obvious inadequacies of the judgment and should not have opposed the appeal or filed its cross-appeal.  Those points are well made but Vaivaimuli bears no blame for the delay and has not acted improperly in relation to the appeal. Its cross-appeal has taken up very little of the time of the respondent’s counsel or the Court.  In the very unusual circumstances, we consider that the interests of justice are best served, if, as between the parties, costs are left to lie where they fall. We do, however, draw the attention of the Attorney General to this judgment with the strong recommendation that the Government should consider meeting the costs of the appeal incurred by both parties on a solicitor and client basis.  We direct the Registrar to transmit a copy of this judgment to the Attorney. 
Orders
32. 	The appeal is allowed and judgment of the Supreme Court is set aside. The cross-appeal is dismissed.  No order is made for retrial.  No order is made for costs in either the Supreme Court or this Court.  

HONOURABLE CHIEF JUSTICE PERESE
HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE BLANCHARD