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Nasolo v Nath [2005] FJHC 575; HBC0118.2002L (23 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0118 OF 2002L

BETWEEN:

MAIKELI JUNIOR NASOLO
Plaintiff

AND:

RAVENDRA NATH & OTHERS
Defendant

Counsel: Mr. Singh o/i from Messrs Krishna & Co. for the plaintiff
Mr. S. Maharaj for the defendant

Date of Hearing: 23 August 2005
Date of Ruling: 23 August 2005

RULING

The defendant by Summons filed today and supported by an affidavit of Ravindra Ravi Raj sworn today seek to amend the statement of defence filed in this matter on the 19^th June 2002.

The application is opposed.

The matter is listed for trial today and has been listed since the 19^th November 2004. The matter was commenced by a Writ of Summons filed on the 9^th April 2002 and the statement of defence was filed on the 19^th June 2002.

On the 29^th August 2003, two years ago, pre-trial minutes were filed with the court detailing the agreed facts at the agreed issues. The fourth of the agreed issues with respect to negligence is said to be whether there is any contributory negligence by either the plaintiff or 2^nd defendant. Notwithstanding the contents of the minutes, the defendant did not see fit to amend the statement of defence until today.

It is submitted on behalf of the plaintiff that the plaintiff will be prejudiced if the amendment is allowed as the sole defence of negligence pleaded is that the plaintiff was the sole cause of the collision on the 28^th April 2000. Particulars of negligence are pleaded in the statement of defence in support of the pleading that the plaintiff was the sole cause of the collision.

The defendants submit that there is in fact no prejudice to the plaintiff as the plaintiff has been on notice at least since the date of the pre-trial minutes or pre-trial conference of the allegation of contributory negligence on the part of the plaintiff. The defendants submit that by virtue of the provisions of Order 20 of the High Court rules that pleadings might be amended at any time. That of course is so, but the rules also provide that they might be amended at any time subject to such terms and conditions as the court might deem appropriate. The obvious condition to impose upon the granting of an amendment is to vacate the hearing date and cause the person who causes that application to take place to meet the costs thrown away as a result thereof.

The particulars of negligence pleaded in the statement of defence in support of the pleading that the plaintiff was the sole cause of the action are reasonably extensive and I would have thought in the circumstances, would have placed the plaintiff on notice of the defendants intended allegations.

Whilst I am of the opinion that it is most improper, particular for the defendants to seek to make amendments to pleadings at such a late hour, I think it is equally imprudent for the trial not to proceed and I think in the particular circumstances of this matter with the particulars as pleaded in the defence, it is most unlikely that there would be any actual prejudice flowing to the plaintiff and accordingly, I propose to grant leave to amendment as sought. However should it be that the plaintiff satisfies me at any point in the trial that there is in fact prejudice then I would be prepared to reconsider the position at that time.

JOHN CONNORS
JUDGE

At Lautoka
23 August 2005