IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0043 OF 1995

Between:

CHANDAR BALI PRASAD
Plaintiff

and

1. ESTATE OF THE LATE RAM DEI
2. ESTATE OF THE LATE CHANDAR DIP SHARMA
3. SATISH CHANDRA
4. SHALENDRA CHANDRA
Defendants

Ms. M. Prasad for the Plaintiff
Mr. F. Haniff for the Defendants

DECISION

This is the defendants’ summons dated 28 May 2003 to dismiss the plaintiff’s action for want of prosecution upon the following grounds:-

[a]	That the default on the part of the Plaintiff to proceed with this action since the issue of the Indorsed Writ of Summons has been intentional and contumelious;

[b]	That there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers and that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in this action or is likely to cause or have caused serious prejudice to the Defendants;

[c]	That this action now constitutes an abuse of process of this Court.

In support of their application the defendants have filed affidavits of Satish Chandra (third defendant) and Shalendra Chandra (fourth defendant). The plaintiff Chandar Bali Prasad filed an affidavit in reply. 

Before I consider the issue before me, I must say that I have the benefit of very comprehensive and well-researched submissions from both counsel on the subject of dismissal for want of prosecution. They are to be commended for their industry in preparing these submissions.

Chronology

The chronology of events from the time the writ of summons was filed on 24 January 1995 to 28 April 2003 when the Statement of Claim was filed are stated at length in both the counsel’s submissions. From there one can easily deduce the delay in getting to the stage the proceedings have reached in this case.

For a clear picture of the situation I give below the ‘chronology’ (as stated by Mr. Haniff in his submission):

(i)	Writ of Summons filed on 24 January 1995.

(ii)	Summons to Strike Out filed on 26 September 1996 – served on Plaintiff’s solicitors on 2 October 1999.

(iii)	Notice of Change of Solicitors filed on 1 June 2001.

(iv)	Notice of Intention to Proceed filed on 6 December 2002.

(v)	Summons that Third and Fourth Defendant be made the Personal Representatives of the First and Second Defendants filed on 10 January 2003.
(vi)	Order that Third and Fourth Defendant be made the Personal Representatives of the First and Second Defendants filed on 14 April 2003.

(vii)	Statement of Claim filed on 28 April 2003.

Background facts

The background facts have been clearly stated by Mr. Haniff in his submission as follows:

The claim alleges that Kandhaiya Prasad in his will gave Crown Lease Nos.11005 and 10267 to Ram Dei, his wife, upon trust for herself during her lifetime and on her death to the Plaintiff and to the Plaintiff’s brother, Chandar Deo Sharma, as tenants in common. Both the Plaintiff and Chandar Deo Sharma are sons of Kandhaiya Prasad.

The Plaintiff says he gave a power of attorney to the Second Defendant, Chandar Dip Sharma, his brother. The Plaintiff says that the Power of Attorney was given on the understanding that in exercising his powers under the power of attorney, Chandar Dip Sharma would ensure that the terms of will would be implemented.

By a deed of distribution dated 16 March 1999, it was agreed between the First Defendant, Second Defendant and the Executors of the Chandar Deo Sharma that Crown Lease Nos. 11005 and 10267 be transferred to the Third and Fourth Defendants. The Deed was signed on behalf of the Plaintiff by the Second Defendant, Chandar Dip Sharma, under the Power of Attorney.

The claim alleges that by a transfer dated 16 March 1993, the First Defendant, Ram Dei, as the executrix and trustee of the Estate of her husband, Kandhaiya Prasad, transferred Crown Lease Nos. 11005 to the Third Defendant and Crown Lease 10267 to the Fourth Defendant.

The Plaintiff is seeking an order that Crown Lease Nos. 11005 and 10267 be transferred to the Plaintiff because of the understanding that he had with Chandar Dip Sharma that the terms of the will would be implemented. 

Consideration of the issue

I have carefully considered the submissions made by both counsel.

Looking at the ‘chronology’, and I agree with Mr. Haniff (the counsel for the defendants), that there has been an ‘inordinate’ and ‘inexcusable’ delay in proceeding with the action on the part of the plaintiff as these terms have been defined by the Court of Appeal in Owen Clive Potter v Turtle Airways Limited (Civil Apeal No. 49 of 1992).

The Court said:

“(Inordinate) … means so long that proper justice may not be able to be done between the parties. When it is analyzed, it seems to mean that the delay has made it more likely than not that the hearing and/or the result will be so unfair vis a vis the Defendant as to indicate that the court was unable to carry out its duty to do justice between the parties”. 

And at page 4, their Lordships stated:

“‘Inexcusable’ means that there is some blame, some wrongful conduct, some conduct deserving of opprobrium as well as passage of time. It simply allows the Judge to put into the scales the Plaintiff’s conduct or reasons for not proceeding, as well as the lapse of time and the prejudice that would result to him from denying him opportunity from pursuing his action or perhaps any action against the defendant.” 

A period of 8 years has elapsed since the filing of the Writ of Summons on 24 January 1996 and the Statement of Claim on 28 April 2003. Under Or.18 r.1 of The High Court Rules 1988 the plaintiff is required to serve Statement of Claim 14 days after the service of writ.

The law

I have considered the matter in the light of the principles governing the dismissal of an action for want of prosecution. The affidavit evidence and the written submissions have been given due consideration.

Solicitor’s fault

The plaintiff blames his former counsel for his inaction resulting in delays in the progress of the action. This explanation is not acceptable to Court. The plaintiff himself is to be blamed for not quickly ascertaining what steps are being taken in his case knowing that there was considerable delay on the part of his former solicitors. Even the plaintiff’s solicitors had not acted swiftly for after the filing of Change of Solicitors on 1 June 2001 it took two years to file Statement of Claim.

This is a case which could be dismissed under the inherent jurisdiction of the Court on the grounds of abuse of process. In this regard it was held as follows in Grovit v Doctor and Others (1997) 2 All ER 417 (HL).

“The Court had power under its inherent jurisdiction to strike out or stay actions on the grounds of abuse of process irrespective of whether the test for dismissal for want of prosecution was satisfied. Accordingly, since the commencement and continuation of proceedings with no intention of bringing them to a conclusion was itself sufficient to amount to an abuse of process which entitled the court to dismiss the action, it was not strictly necessary in such a case to establish want of prosecution by showing that there had been inordinate and inexcusable delay on the part of the plaintiff which had prejudiced the defendant. It followed, on the facts, that the deputy judge had been fully entitled to strike out the action. The appeal would therefore be dismissed”.

Since the blame for the delay in this case is being pushed on to the solicitors for the plaintiff, I would dwell on this subject a bit longer by stating the law. It was held by the Court of Appeal in Lownes v Babcock Power Ltd 18.2.98 TLR 84 in a similar situation as the present that:

“Inordinate and inexcusable delay in civil litigation caused by default on the part of solicitors was totally unacceptable. Prejudice to the client resulting from the striking out of his action had to be balanced against the prejudice to the other party, other litigants and the administration of justice in general.” (emphasis added)

The Master of Rolls, Lord Woolf there stated at 85 that:

“It was in the interests of solicitors to handle cases in the business-like way. Delay had an effect in extra work on the plaintiff’s solicitors, the defendants’ solicitors and client. Additional costs were incurred”.

He further stated:

“Delays also had an effect on the administration of justice by taking up court time and putting other cases further back in the queue. That damaged the reputation of civil justice.

The message to the profession, which should be read and understood, was that the standard of diligence in this case was totally unacceptable. In balancing the prejudice to the plaintiff against the prejudice to the defendants, account had to be taken of prejudice to other litigants and the administration of justice generally”.

Putting the blame on to solicitors was not accepted in Lownes (supra) where Lord Woolf M.R. said:

“The person who suffered because the action was dismissed was not the plaintiff’s solicitors but the plaintiff personally therefore it could be said that the judge was visiting the sins of the solicitor on the client and should not let the desire to discipline the solicitor injure the plaintiff personally.

His Lordship was very conscious of the force of that point but it was wrong to give way to it. The plaintiff, even in a personal injuries case, had to be responsible for the conduct of his solicitor. Consideration had to be given to the position of parties to other litigation. (emphasis added)

In Halsbury’s Laws of England 4th Ed. Vol. 37 para. 448, Sir Jack Jacob Q.C. the author of the subject dealing with Practice and Procedure stated:

“…A plaintiff’s solicitor who does not “get on” with his case will be at risk of having the plaintiff’s action dismissed for want of prosecution and himself rendered liable for negligence to the plaintiff as his former client”.

Principles governing want of prosecution

There are three cases which are most frequently relied upon when dealing with applications for dismissal for want of prosecution [Allen v Sir Alfred McAlpine & Sons Ltd & Another [1968] 2 Q.B. 229 (C.A.), Birkett v James [1978] AC 297 (HL), Grovit and Others v Doctor and Others [1997] 2 All E.R. 417 (HL)].

In Birkett (supra at 318) Lord Diplock, on power to dismiss declared:

“The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such 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 either as between themselves and the plaintiff or between each other or between them and a third party”. (emphasis mine)

The following statement of Lord Parker in Culbert v Stephen Westwell Co. Ltd (1994) PIQR 55 on ‘contumelious conduct’ is worth noting as it fits in well with the facts of this case.

“There is however in my view another aspect of this matter. An action may also be struck out for contumelious conduct, or abuse of the process of the Court or because a fair trial in action is no longer possible. Conduct is in the ordinary way only regarded as contumelious where there is a deliberate failure to comply with a specific order of the court. In my view however a series of separate inordinate and inexcusable delays in complete disregard of the Rules of the Court and with full awareness of the consequences can also properly be regarded as contumelious conduct or, if not that, to an abuse of the process of the court. Both this and the question of fair trial are matters in which the court itself is concerned and do not depend on the defendant raising the question of prejudice.

In my judgment the way in which the action has been conducted does amount to an abuse of the process of the court and it would be a further abuse of the process if the action were allowed to proceed. In my judgment also, a fair trial is no longer possible”. (emphasis added)

In this case after taking into consideration the ‘chronology’, and as I said before, the delay no doubt has been ‘inordinate’ and inexcusable’. The former has been admitted by the plaintiff but not the latter stating, inter alia, that the plaintiff himself was for some time medically unfit to attend to his matters.

In the light of the authorities referred to hereabove and on the facts the plaintiff’s conduct can be regarded as ‘contumelious’ conduct.

Prejudice

Despite the delays being ‘inordinate’ and ‘inexcusable’ leading to delays being ‘intolerable’ and lasting ‘so long as to turn justice sour’ [Denning L.J in Allen (supra)], there are certain streaks in the history of this case which give rise to the belief that the defendants themselves let the sleeping dog lie so to say for 

reasons best known to themselves. But then knowing of the delays and the case remaining static, when the plaintiff on 10 January 2003 applies to make the third and fourth defendants the personal representatives of the first and second defendants, counsel (Mr. Haniff) for the defendants appears and consents to the Order being made. The Order was made on 25 March 2003 and on that day 
Mr. Haniff undertook to file change of Solicitors which he did on 13 May 2003. It is to be noted that the Statement of Claim was filed on 28 April 2003. It is also pertinent to note that this application to strike out for want of prosecution was made on 28 May 2003 i.e. after Statement of Claim was filed.

By filing this application shortly after the defendants had consented to joinder of the third and fourth defendants they have waived their rights to strike out I would say after being appointed solicitors on 13 May 2003 in place of Mr. Ram Chand. Mr. Haniff evidently did not find out what was taking place until then but consented to the matter proceeding and he did not raise the question of ‘delay’ then.

Be that as it may, Mr. Haniff submits that the delay is such as to give rise to a substantive risk of prejudice or likely to prejudice the defendants in the sense that it is no longer possible to have a fair trial of issues in the action.

I find that this is not so. I agree with the plaintiff in his submission that there would be no prejudice suffered by the Defendant or any third party if the Plaintiff is allowed to prosecute this matter as the remaining Defendants are currently holding the properties (two Crown Leases) in their name as the registered lessees which is the subject-matter of the litigation in the substantive matter. Also, there is injunction restraining the Defendants from in any way dealing with these properties.

Counsel submits that no written documentary evidence which are material have been located. It is only the plaintiff who would be in a position to ‘give evidence on the alleged ‘understanding’ with the deceased persons. This he says is prejudicial to the defendants. If the plaintiff had prosecuted his case with diligence, the Court would have had the benefit of hearing both the deceased persons ‘on the understanding’.

The plaintiff does not agree with the above submission. There will be no prejudice to the defendants and that it is still possible to have a fair trial of the issues in the action. The plaintiff says that there is ample documentary evidence, copies of which are readily available to the general public from State Offices and reliance upon these documents by the plaintiff would allow a fair trial of the issues in the action. It will be for the Court to decide on the evidence before it. 

On the affidavit evidence before me and in the circumstances of this case the defendants have not discharged the burden of establishing that serious prejudice would be caused to them by the delay. Detailed reasons with particulars ought to be given to prove how the defendant will be prejudiced. There is no such evidence before the Court. Just a bare statement that the above first and second defendants are dead is an unconvincing reason.

For these reasons I find that the defendants have not been prejudiced by the delays in this case. This does not mean that the action should not have been proceeded with diligence. There has to be a trial of the action and it will be for the Court while determining the issue to find if the witnesses have difficulty in recollecting events because of lapse of time. 

To conclude, for the reasons given hereabove on the authorities and on the facts and circumstances of this case I dismiss the defendants’ summons for dismissal of action with costs in the cause.

The pleadings will now take their normal course.

D. Pathik
Judge

At Suva
12 September 2003