I shall have to refer in some detail to correspondence annexed to Mr.s affidavit which I think iink it is fair to summarise as making
a number of allegations against Dominion Insurance and Messrs Lateef & Lateef that either or both of them failed to represent
the Defendant's interests adequately, but I must first quote paragraphs 17, 18 and 19 which say:
"17. That prior to 27th March, 1998, no proper instructions were sougr given.
18. That I am now advised and verily believe that Dominion Insurshould not have representedented us as a substantial part of the claim
was not covered by the policy of insurance between us and them.
19. That we were not aware that the matter had proceeded until we read iji Times and saw the articarticle publicising the award to
the Plaintiff."
Before Mr. Clarke began his submissions this mornn any depth I suggested to him that having read the Notice tice of Motion and Atul
Deo's affidavit it seemed to me that the Defendant should be looking for any remedy it might have not to the Plaintiff but to Dominion
Insurance Limited or Messrs Lateef & Lateef or both in that it seemed to me, without hearing any argument, that it would be unfair
to penalise the Plaintiff for what really were alleged to be the mistakes or negligence of Dominion Insurance Limited or Messrs Lateef
& Lateef. Mr. Clarke disagreed and began by citing the two well known cases of Evans v. Bartlam (1937) AC 480 also reported in (1937) 2 ALL E.R. 642 and the Fiji Sugar Corporation Limited v. Ismail [1988)] FLR 75. Both these cases concerned applications to set aside judgments entered after failure to comply with the rules of
the High Court relating to procedure and as such are distinguishable from the facts of the present case which concerns a judgment
entered after pleadings had been closed and a date for hearing given and evidence given in the absence of the solicitors on the record
for the Defendant.
In paragraph 20 of his affidavit the Defe claims that there are triable issues relating to facts whis which the Defendant should have
the right to re-open notwithstanding the judgment.
Counsel for the Defendant was obviously unaware of the recent decision of the Court of Appeal in Civil Appeal No. ABU0030/97S Wearsmart Textiles Limited v. General Machinery Hire Limited and Another delivered on the 29th of May 1998.
On pages 1516 of its judgment the Court of Appeal said:
"Dealing with the discretionary powers of the Courts unnglish Order 13 r.9 sub-rulb-rule 14 the Supreme Court Practice 1997 (the White Book) (Vol. 1 p.145) cites the Court of Appeal's judgment in Alpine Bulk Transport Co. Inc. v. Saudi Eagle Shipping Co. Inc., The Saudi Eagle [1986] 2 Lloyd's Rep. 221 as authority for following propositions:
"(a) It is not sufficient to show a merely &quouable" defence that woat would justify leave to defend under Order 14; it
must both have "a real prospect of success" and "carry some degree of conviction". Thus the court must form a
provisional view of the probable outcome of the action.
(b) If proceedings are deliberately ignored this conduct, although nounting to an estoppel at laat law, must be considered "in
justice" before exercising the court's discretion to set aside."
Notwithstanding the Court of Appeal's later decision in Allen v. r [1992] P.I.Q.R. 255 w/u> which purports to dilute the principles emerging from Saudi Eagle, we subscribe to the White Book's preferred view that 'unless potentially credible affidavit evidence demonstrates a real likelihood
that a defendant will succeed on fact no "real prospect of success" is shown and relief should be refused'.
Counsel for the Plaintifmits, and I agree, that this being the law for Fiji now stated with abundant clarity by they the Court of
Appeal in a case involving failure to comply with the procedural rules of this Court, a fortiori it must apply to a case such as
the present where evidence was taken after the pleadings had been closed.
If I were to accept the Defendant's submissions the result would almost certainlyhat any dissatisfied party arty to litigation could
apply successfully to the Court to have the decision set aside on the grounds that it was the result of incompetence or inaction
by the parties' lawyers or others having the conduct of the proceedings on behalf of the party, in this case an insurance company.
That simply is not the law.
Earlier I quoted certain paragraphs of Atul Deo's avit of the 5th of November 1998.
Before passing to some of the correspondence which took place between the Defendant and its insand Messrs Lateef & Lat; Lateef
and Dominion Insurance Limited I must refer to two questions and his replies which I put to counsel for the Defendant during argument.
The Plaintiff gave evidence that the only medication he received on board the vessel was some Panadol tablets. Counsel for the Defendant
disputed this and when I asked him whether the Defendant claimed that it had other medication on board which its crew administered
to the Plaintiff such as morphine or antibiotics all Mr. Clarke could say that he was not sure and that he would have to get instructions
on this. Likewise, referring to paragraph 20(f) of Atul Deo's affidavit which reads, "the practicability of the vessel detouring to Lau has not been addressed", I asked Mr. Clarke whether there were any charts on the vessel which showed that its draught was too high to go into Lau and disembark
the Plaintiff there. All Mr. Clarke could say was that he would have to get instructions on this. I do not mean to be disrespectful
to Mr. Clarke when I say that before making this application these were matters on which he should have first obtained full instructions
which he admitted he had not. It may also be pertinent to ask whether it would have been practical to return immediately to Suva
if to go to Lau was not practical. The evidence was that the vessel remained at sea fishing. Perhaps the profit motive was adjudged
far more practical, albeit at the Plaintiff's expense.
I turn now to some of the correspondence. I first quote the first tparagraphs of a letter dated 18th March 1998 from Dominion nion
Insurance Limited to the Defendant which for some curious reason is headed "Without Prejudice". The paragraphs read:
"Further to our letter dated 31st July, 19tached please find a copy oopy of self explanatory letter R.I. Kapadia & Co representing
the injured employee. You would note that this matter has reached a serious stage where the claimant's Solicitor would not agree
to our offers in out of court settlement. You would also notice that the claimant's Solicitor is also asking for $200,000.00 court
award as opposed to total cover taken by your Company for $15,000.00.
As advised earlier we have appointed Messrs Lateef & Latarrister & Solicitors tors to file defence on your behalf. However
they have had very little assistance from yourselves in terms of information to assist them in filing defence on your behalf. It
now appears that with the fishing vessel Captain gone back to Korea and in absence of any other witnesses you would be left defenceless
in the court.
With the way the damages are awarded in court nowadays it is most certainly the the amount will be substantially higher than your
$15,000.00 policy coverage. It is with the respect we request you to engage your own Solicitors or confirm in writing that you are
comfortable with Lateef & Lateef acting on your behalf."
p class=MsoNormaNormal style="margin-top: 1; margin-bottom: 1"> This is annexure 'E' to the Deo affidavit.
Annexure 'F' is a letter from Dominion Insurance Limited to the Defendated 27th March 1998; para paragraphs 2 and 3 read:
"We have received a verbal indication from the Solic, Lateef & Lateef that that an out of Court settlement is possible at
approximately $25,000. We have asked them to pursue this possibility which would mean ourselves paying the Personal Accident claim
of $6,000 plus all legal costs to date and yourselves the difference between the settlement and $6,000.
In the meantime, we need urgent decision as to whether you wish Lateef & Lateef teef to act on your behalf should the matter proceed
to the High Court on the 1st of April."
The last letter annexure 'H' must be quoted in full as proof of what I consider to be either tvalier attitude of the Defe Defendant
to the Plaintiff's claim or its incomprehensible refusal to treat the Plaintiff's claim with any seriousness.
"1st April 1998
Mr. K.C. Lee/p> Managing Director
Jiko Fisheries Ltd
Box 13084
Suva
Dear Mr Lee
& Employee Liability Claim
Apii Kava
>
Date of Injury - 10/10/95
/p>
I refer to ourous correspondence regarding this claim and our meeting lasg last Friday with Mr. Haroon Lateef of Lateef & Lateef,
solicitors.
A summary of events leading up to Friday's meeting is as follows.
ass=MsoNormaNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> 1. We were advised of a possible claim under your Personal Accident policy 120320PAI003 covering ships crew on the 6th February 1996.
The capital sum insured on this policy is $15,000 and the scheduled benefit for loss of an eye is 40% or $6,000.
