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Singh v National Bank of Fiji [2004] FJHC 227; HBC0171d.1993s (19 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0171 OF 1993

Between:

RAJESH SINGH
f/n Hari Prasad Singh
Plaintiff

and

THE NATIONAL BANK OF FIJI
Defendant

Mr. T. Fa for the Plaintiff
Mr. H. Nagin for the Defendant

DECISION

By summons dated 26 March 2004 the defendant is applying pursuant to Order 34 r 1 (2) of the High Court Rules 1988 for an order that the “plaintiff’s action be struck out for want of prosecution, the plaintiff not having made any effort to prosecute and to pursue its claim”.

An affidavit in support of Ritesh Chandra Singh, a Law Clerk employed by Sherani & Co, Solicitors for the defendant sworn 26 March 2004 has been filed. An affidavit in response was not filed by the plaintiff/respondent until 26 May 2004 after further time to do so was ordered. The defendant replied to the plaintiff’s said response on 18 June 2004.

Defendants’ (applicant’s) contention

The defendant has set out in its affidavit the following Chronology of Events which shows that the action lay completely dormant since 8 December, 1997 which is a period of about 7 years:

Documents

1. Plaintiff filed Writ of Summons and

Statement of Claim against the Defendant 2^nd April 1993

2. Defendant filed Statement of Defence 11^th May 1993

3. Plaintiff filed Reply to Statement of

Defence 29^th July 1993

4. Defendant filed Reply 26^th August 1993

5. Plaintiff filed Notice of Change of

Solicitors 6^th May 1994

6. Plaintiff filed Summons for Direction 6^th May 1994
   
7. Plaintiff filed Order for Summons for

Direction 14^th July 1994

8. Plaintiff filed Notice of Intention to

Proceed 6 March 1996

9. Plaintiff filed Notice Requesting

Pre-Trial Conference 29^th March 1996

10. Plaintiff filed Affidavit Verifying

List of Documents 2^nd July 1996

11. Plaintiff filed Notice of Intention

To Proceed 5^th November 1997

12. Plaintiff filed Notice of Motion to

dispense the Pre-Trial Conference 8^th December 1997

13. Plaintiff filed Affidavit in Support 8^th December 1997

By his Statement of Claim the plaintiff sought reimbursement and compensation from the defendant but has failed and/or neglected to pursue the claim.

The defendant says that there has been an inordinate and inexcusable delay on the part of the plaintiff and/or his solicitors to prosecute the claim which has caused prejudice to the defendant and it has incurred unnecessary expense already. It believes that the “memories and reliability of witnesses may affect the fair trial of this action” if proceeded with now after such a long delay.

The applicant denies that it did not co-operate in having a Pre-trial Conference. The plaintiff could still have applied to Court for an Order to get the applicant to have the Pre-trial Conference. The applicant says that the respondent has not shown any valid and proper reason why he wants to pursue this action after eleven years.

Plaintiff’s (respondent’s) response

The plaintiff said that there was change of solicitors and Mr. T. Fa was appointed to act as his solicitor in November 1997. The plaintiff said that Sherani & Co were ‘not co-operating’ in having a Pre-trial Conference. He says that he would like his case heard 'but the solicitors are delaying the process in order that my case be heard’. He says that ‘Messrs. Sherani & Company is partly responsible for this state of affairs’.

He wants the Court to ‘set out a timetable that the Solicitors follow in order that the present case may go for a hearing as soon as possible’.

Consideration of the issue

I have considered the affidavit evidence and the submissions from both counsel.

Looking at the Chronology it is abundantly clear that there has been an ‘inordinate’ and ‘inexcusable’ delay in proceeding with the action on the part of the plaintiff as defined by the Court of Appeal in Owen Clive Potter v Turtle Airways Limited (Civil Appeal 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 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”.

It is quite clear that since 1997 there has been no progress with the action because the plaintiff did not proceed diligently with it. In fact no steps have been taken by the plaintiff since 1997 to proceed with the action although the plaintiff was represented by a solicitor.

Solicitor’s fault

The plaintiff blames not only his former solicitors but the defendant’s solicitors for the delays in the progress of the action.

I must say that the reason he has given is not acceptable to Court. No steps have been taken even by his present solicitors for some unknown reason.

The plaintiff is only himself to blame for not quickly ascertaining what steps are being taken in his case knowing that there was considerable delay on the part of his solicitors.

In fact his solicitors could have applied to Court for an order that Pre-trial Conference be held so that some concrete progress is made in the case. Had this been done the plaintiff would not have been facing this problem of having to answer to this application to dismiss the case for want of prosecution.

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] UKHL 13; (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 4^th 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”.

I agree with counsel that because of the delays in prosecuting this case has caused prejudice to the defendant. It will be further prejudiced if the action is allowed to proceed after a delay of about 7 years by the plaintiff and/or his counsel sleeping on the file for so long.

Conclusion

In the outcome, for these reasons, on the evidence and on the authorities it would be unfair and prejudicial to the defendant to allow the action to proceed. The reasons given for not proceeding with the case and letting the ‘sleeping dog’ lie for so many years so to say are not acceptable to Court.

The plaintiff’s action is therefore dismissed for want of prosecution with costs in the sum of $250.00 (two hundred fifty dollars) to be paid to the defendant’s solicitors within 21 days.

D. Pathik
Judge

At Suva
19 July 2004