IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0303 OF 1997

Between:

ADRIAN SOFIELD & ASSOCIATES
Plaintiff

and

CARPENTERS FIJI LIMITED
Defendant

Mr. S. Chandra for the Plaintiff
Mr. H. Lateef for the Defendant

Date of Decision: 7.9.05

DECISION

This is the defendant’s summons for an order that this action be struck out as the Statement of Claim discloses no reasonable cause of action pursuant to Order 18 Rule 18(1)(a) of the High Court Rules.

Background to the case

This case has a long history. The action commenced by writ of summons on 6 August 1997. The Statement of Defence and Counterclaim was filed on 8 September followed by Defence to Counterclaim on 26 January 1998; Order on Summons for Directions made on 20 February 1998 and Minutes of Pre-Trial Conference filed 4 April 2000.

The matter came before Fatiaki J (now Chief Justice) on 31 July 2000 when date of trial was given for 15, 16 & 17 November 2000. It was also Ordered that ‘counsels conduct a further pre-trial and file pre-trial minutes on or before 30.8.00’.

After several appearances, on 12 October 2000 Fatiaki J ordered ‘by consent liberty to plaintiff to file and serve an amended statement of claim within 14 days on or before 26.11.00. The matter to follow normal course. Thereafter Trial vacated by consent.’

Nothing was done by the plaintiff for about 2 years 9 months when on 14 July 2003 it filed ‘Notice of Intention to Proceed’.

Then by motion dated 3 December 2003 the plaintiff sought leave to amend statement of claim of 1 August 1997. This was granted by Connors J. The Amended Statement of Claim was filed on 10 December 2003.

On 3 February 2004 and 1 April 2004 draft copy of Minutes of Pre-Trial Conference was sent to defendant’s solicitor but it was not returned to plaintiff’s solicitors for approval and execution. In November 2004 the plaintiff applied by summons for an order that Pre-trial Conference for approval by the defendant etc. Then the Deputy Registrar put the matter before a Judge at the request of counsel.

It landed with me on 10 March 2005. On 20 April 2005 I ordered the PTC Minutes be filed within 21 days and the case was adjourned to 1.6.05 for mention to see to the progress of the matter.

The present summons to strike out was filed on 1 June 2005 and a hearing date was given for 8 June. Hearing took place on 18 July 2005 after both counsel filed written submissions on which they relied.

Before I deal with the application before me, in view of the chronology of events culminating in the present application, I am constrained to comment the way the case progressed or rather dragged on is a sad reflection on our system of ‘case management’. The sooner we rectify matters the better.

Both firms of solicitors are to be blamed for using the court system to suit their own ends and taking their own time by moving at a snail’s pace as if there are no Rules but solicitors know that there is such a thing as ‘The High Court Rules 1988’.

Consideration of the application 

The defendant submits that the Amended Statement of Claim is ‘exactly the same with the result that the Counsel for the defence is in the same position that he was in on the 12th October 2000.’

Then counsel refers to the various paragraphs in the Statement of Claim stating that ‘no cause of action is disclosed’ in these paragraphs.

The plaintiff opposes the application and submits that it has a chance of success. The claim by the plaintiff involves a breach of terms and conditions express or implied by the defendant company. Counsel submits that if the action was struck out the plaintiff ‘would continue to suffer loss and damage and the defendant company, that is liable in substantial damages, to the plaintiff, would be set free.’ 

The Law

Under Or.18 r.18(1)(a) pursuant to which this application is made states, inter alia, that the “Court may at any stage of the proceedings order to be struck out or amended any pleadings ……. on the ground that – (a) it discloses no reasonable cause of action or defence …”

The law on the subject of exercise of powers of striking out by the Courts has been clearly stated as follows in The Supreme Court Practice 1988 under Or 18/19/3:

“It is only in plain and obvious cases that recourse should be had to the summary process under this rule, per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 Q.B. 86, p.91 (Mayor, etc., of the City of London v. Horner (1914) 111 L.T. 512, C.A.). See also Kemsley v. Foot and Ors. [1951] 2 KB. 34; (1951) 1 All E.R. 331 C.A. affirmed (1952) A.C. 345, H.L. The summary procedure under this rule can only be adopted when it can be clearly seen that a claim or answer is on the face of it “obviously unsustainable” (Att.-Gen. Of Duchy of Lancaster v L. & N. W. Ry. Co. [1892] 3 Ch. 274, C.A.) The summary remedy under this rule is only to be implied in plain and obvious cases when the action is one which cannot succeed or is in some way an abuse of the process or the case unarguable (see per Danckwerts and Salmon LJJ. In Nagle Feiden (1966) 2 Q.B. 633, pp 648, 651, applied in Drummond-Jackson v. British Medical Association [1970] 1 W.L.R. 688; [1970] 1 All E.R. 1094, C.A. ). It cannot be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action (Wenlock v Moloney [1965] 1 W.L.R. 1238; [1965] 2 All E.R. 871, C.A.).

It goes on to state that:

“the power conferred by this rule will only be exercised where the case is clear beyond doubt (per Lindley L.J in Kellaway v Bury (1892) 66 L.T. 599, p.602). The Court must be satisfied that there is no reasonable cause of action (as in South Hetton Coal Co. v Haswell etc Co. [1898] 1 Ch. 465; …”

Also subject of ‘striking out’ has been very clearly dealt with by the Court of Appeal in Drummond-Jackson v British Medical Association & Others [1970] 1 W.L.R. 688 by Lord Pearson at 695-696. I also refer to that case for the law.

The application of law to facts

I have read the pleadings in this case and have considered the submissions of both counsel on this application.

Bearing in mind the law on the subject of striking out and applying it to the facts of this case. I am unable to grant the application for it is only in plain and obvious cases “when the action is one which cannot succeed or is in some way an abuse of the process of the court”. (Nagle v Feilden [1966] 2 Q.B. 633 by Danckwerts L.J at 648). That is not the case here I find.

Salmon J (ibid at p.651) said:

“It is well settled that a statement of claim should not be struck out and the plaintiff driven from the judgment seat unless the case is unarguable.”

What is a ‘reasonable cause of action’, has been stated in the Supreme Court Practice under Or 18/19/7 thus:

“A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered (per Lord Pearson in Drummond-Jackson v British Medical Association (1970) 1 W.L.R. 688; (1970) 1 All E.R. 1094, C.A.). But the practice is clear. So long as the statement of claim or the particulars (Davey v Bentinck (1893)1 Q.B. 185) disclose some cause of action, or raise some question fit to be divided by a Judge or a jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out (Moore v Lawson (1915) 31 T.L.R. 418, C.A.; Wenlock v Moloney (1965) 1 W.L.R. 1238).

Conclusion

To conclude, I bear in mind the fact that the power given to Court to strike out any pleading or any part of a pleading under this Rule is ‘not mandatory but permissive, and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending plea’ (Care Zeiss Stoffung v Rayner & Keder Ltd (No. 3) [1970] Ch. 506. 

The question is whether in view of the submission that the action be dismissed, the plaintiff could be given leave to amend.

It appears that this power is in the discretion of the Court for the Supreme Court Practice ibid 18/19/7 at p. 315 it is stated:

“Where the statement of claim presented discloses no cause of action because some material averment has been omitted, the Court, while striking out the pleading, will not dismiss the action, but give the plaintiff leave to amend.”

For these reasons, in the exercise of my discretion, on the pleadings before the Court the decision to strike out the Statement of Claim in a summary way could not be justified at this initial stage of the action. However, in the exercise of my discretion the plaintiff is given the opportunity to improve the Statement of Claim by amendment within 21 days if it so wishes for after all it is the plaintiff’s case and it has to prove it.

The case will take its normal course hereafter. The case has dragged on and parties should proceed with due diligence to have the action entered for trial.

Accordingly, I would dismiss the application with costs in the cause.

D. Pathik
Judge

At Suva
7 September 2005