IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO: HBC 343 OF 1997

BETWEEN:

SHEILA WATI d/o Ram Tahal
Plaintiff

AND:

SAM LAL s/o Sukh Ram
Defendant

COUNSEL:
Ms M. Datt for Plaintiff
: Mr M. Arjun for Defendant

HEARING: 23rd November 1999

DECISION: 10th January 2000

DECISION

This is an application to strike out the defence filed by the Defendant dated 11th June 1998, under Order 18 Rule 18 of the High Court Rules on the grounds that it discloses no reasonable cause of action. In the alternative, the Plaintiff asks for Judgment to be entered with damages to be assessed.

Writ of summons in this case was issued on 19th August 1997. The indorsement of claim states that the Defendant was convicted of assault on the Plaintiff at Nausori Magistrates Court on 24th November 1994. The Indorsement states as follows:

“At that material time the defendant undertook to pay $10,000.00 in damages to the plaintiff together with hospital costs. Later the Defendant refused or neglected or failed to honour his agreement and left Fiji to America to defeat the civil suit of the Plaintiff. On or about 15 August 1997, the Plaintiff discovered that the Defendant has returned to dispose his assets and migrate to America.

That the Defendant is aware that the Plaintiff suffered permanent injuries that is de (p) riving her from earning income.”

The relief claimed was (a) an injunction restraining the Defendant from removing his assets out of jurisdiction (b) an order that the Defendant disclose his assets, (c) an order for a writ re exeat civitate, (d) a declaration that the Defendant is in breach of contract, (e) special and general damages and (f) costs.

Subsequently on 18th May 1998, a Statement of Claim was filed. The Statement of Claim claims damages for personal injuries in relation to the alleged assault. It is not a claim for breach of contract. The only reference to an undertaking to pay $10,000 is a historical one, at paragraphs 7 and 8.

Statement of Defence was filed on 11th June 1998. The Defence denies the assault, the injuries, admits the conviction of assault on the Defendant’s plea of guilty denies any undertaking to pay damages and denies particulars of damages.

An application to dismiss the action for want of prosecution was filed on 6th August 1999 and heard on 2nd September 1999. It was dismissed on 9th September 1999.

This application was made by summons which was filed on 10th September. The application was heard in chambers on 23rd November 1999. Ms M. Datt for the Plaintiff submitted that the only cause of action in the Statement of Claim is the assault at Paragraph 1. She said that the denial as to the undertaking to pay $10,000.00 was only relevant to the issue of damages. She asked for the Defence to be struck out and for Judgment to be entered for the Plaintiff.

Mr M. Arjun for the Defendant submitted that the claim was contractual. He said that in the affidavit of Sheila Wati, sworn on 18th August 1997, in support of the application for a mareva injunction, it was clear that the claim was contractual. He said that the Statement of Claim was limited to a personal injuries claim, and that the Plaintiff had to make up her mind as to the exact nature of her claim. He asked for the application to be dismissed.

Ms Datt in reply agreed that there was a contradiction between the writ of summons and the statement of claim, but said that the writ was superseded by the statement of claim.

She was then asked to provide authorities to support her argument. She did so within 14 days. Mr Arjun replied 14 days thereafter. Counsel referred to the cases of Pontin v. Wood (1962) 1 QB 594, and Hill v. Luton Corporation (1951) 2 KB 387 which provide that defects in the writ of summons may be cured either by amendment or by service of a proper statement of claim.

Mr Arjun pointed out that the Statement of Claim is not merely an amendment, it adds a new cause of action which the Plaintiff was not entitled to do. He referred to Order 18 Rule 14(2) (a) which specifically disallows new causes of action in a Statement of Claim “unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned.”

Order 18 Rule 18(1) provides:

“The court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that -

(a)	it discloses no reasonable cause of action or defence, as the case may be;

.....and may order the action to be stayed or dismissed or judgment to be entered, as the case may be.”

Order 18 Rule 14 provides:

“(1)	A statement of claim must state specifically the relief or remedy which the plaintiff claims; but costs need not be specifically claimed.

(2)	A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of facts, giving rise to a cause of action so mentioned: but subject to that, a plaintiff may in his statement of claim alter, modify or extend any claim made by him in the indorsement of the writ without amending the indorsement.”

Counsel for the Plaintiff did not refer to Order 18 Rule 14 in her submissions. However there is no doubt that Order 18 Rule 14 gives the Plaintiff the right to alter or extend the claims made in the writ unless the claim is in relation to a new cause of action not referred to in the writ, and which is not factually linked to the cause of action in the writ.

In this case, the statement of claim does not allege breach of contract at all. However the factual basis of the claim in the writ, and in the statement of claim, is the alleged assault on the Plaintiff by the Defendant. As such there is a clear factual link between the writ and the statement of claim, which in my view justifies the modification of the remedy sought in the statement of claim. Furthermore, now that the Plaintiff has abandoned her claim for a declaration of breach of contract, she is deemed to have abandoned that relief (Cargill v. Bower (1878) 10 ChD 502,508).

In Brickfield Properties Ltd -v- Newton (1971) 3 All ER 328, Sachs LJ said, at p.333 in relation to the equivalent rule to our Order 18 Rule 14:

“Without wishing to lay down any general formula as to how the sub-rule should be applied, it seems that in general it is meant to relate to cases in which some part of the facts necessary to establish the claim made in the writ would suffice to establish some other, perhaps narrower, cause of action. It has somewhat the same effect as the rule in criminal cases that one may include any court in an indictment that is supported by evidence disclosed in the depositions, but none that requires the proof of additional facts.”

I note that the cause of action and relief sought in the statement of claim requires proof of no additional facts other than those already referred to in the writ. I further note that the Defendant chose not to apply to strike out the statement of claim for irregularity as he might have done under Order 2 Rule 2 of the High Court Rules, but instead proceeded to file statement of defence.

For these reasons, I find that the modification of the statement of claim which is based on the same facts alleged in the writ is permissible under Order 18 Rule 14.

The next question is whether the Defence should be struck out for failing to disclose a reasonable defence.

It seems clear that the Defendant’s defence denies assault on the one hand, but admits the assault conviction on the other. The Defence appears also to be based on an understanding that the cause of action is one for breach of contract.

In my view, the confusion in the Statement of Defence is a reflection of the confusion created by the Plaintiff’s pleadings. The writ and the statement of claim fail to show with sufficient clarity exactly what the cause of action is. Instead, until this application was heard, the Court (and the Defendant) were not told that the reference to breach of contract was only historical, and that the only relief sought was damages for personal injuries.

In the circumstances it is hardly surprising that the Statement of Defence lacks clarity.

I am therefore of the view that it would not be just to strike out the Statement of Defence.

Order 20 Rule 5 of the High Court Rules permits the Court “at any stage of the proceedings to allow the plaintiff to amend his writ, or any party to amend his pleading on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.”

I therefore order the Plaintiff to file amended statement of claim excluding reference to breach of undertaking and specifying the cause of action, within 14 days. The Defendant may then file amended Statement of Defence within 14 days thereafter. The Plaintiff’s application is dismissed.

Costs are to be in the cause.

Nazhat Shameem
JUDGE

At Suva
10th January 2000