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Begg v Aon (Fiji) Ltd [2012] FJHC 1436; HBC226.2012 (6 November 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 226 of 2012

BETWEEN:

SAHID BEGG
of Lot 8 Maharaj Road, Nakasi, Nausori, Fiji, Businessman.
PLAINTIFF

AND:

AON (FIJI) LIMITED
is a limited liability company having its registered office at level 7 FNPF Place, Victoria Parade, Suva, Fiji.
1st DEFENDANT

AND :

FIJI CARE INSURANCE LIMITED
a limited liability company having its registered office at 9TH Floor, FNPF Place, Victoria Parade, Suva, Fiji.
2nd DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. Samad I. H. Q. for the Plaintiff

Mr. Singh K. Y. for the Defendant

Date of Hearing : 2nd October, 2012

Date of Ruling : 6th November, 2012

RULING

1. INTRODUCTION
   

1. This is the summons filed by the 1st Defendant seeking strike out of the action in terms of the Order 18 rule 18 (1)(a) – namely the failure to disclose a reasonable cause of action. The Plaintiff's claim arose from an insurance claim which was rejected by the 2nd Defendant. The two defendants are the insurance broker and the insurer respectively. The claim was rejected by the insurer on the basis that the insured had violated conditions of the policy. Though both defendants had filed acknowledgment of service no statement of defence was filed.
   

2. ANALYSIS
   

2. The Plaintiff's vehicle bearing registration of FD 942 was destroyed due to a fire and it was insured with the 2nd Defendant. The 1st Defendant was the insurance broker who accepted the money for the said insurance.
   
3. The plaintiff alleges that he was not handed over the policy of insurance which contained conditions and exclusions, but the Plaintiff in his statement of claim does not disclose a cause of action against 1st and or 2nd Defendants.
   
4. The Plaintiff has narrated the facts in the statement of claim and without directly holding any defendant liable, for any breach or negligence, and in the prayer it states as follows
   

'Wherefore the Plaintiff claims:

1. Judgment in the sum equivalent to the current market value of the said vehicle at the time of its loss.
2. Interest.

100. Costs.

4. General damages.
5. Such further and or .....'
   

5. The statement of claim does not disclose a cause of action against the Defendants for them to reply. The Plaintiff without understanding the principles involved in his claim had drafted a statement of claim with the facts, and without disclosing a proper cause of action, is claiming market value of the vehicle. Though I am inclined to strike off the action on its present form I will not do so, as poor drafting should not prejudice the client if he has a genuine claim. In order to find out the genuineness of the claim the Plaintiff should adhere to the accepted principles and rules of drafting and also should be aware of the particular principles of law relating to the claim. The Plaintiff has neither understood the nature of the claim nor the basic rules of drafting.
   
6. High Court Rules of 1988 Order 18 rule 18 states as follows:-
   

Striking out pleadings and indorsements (O.18, r.18)

18. – (1) 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; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the court;

And may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on an application under paragraph (1) (a).

7. In Attorney – General of Duchy of Lanchester – v – L.N.W. Ry Co [1892] UKLawRpCh 134; [1892] 3 Ch 274 the court held that this rule can only be invoked when the claim is on the face of it 'obviously unsustainable. Thus meaning that in only in plain and obvious cases that recourse should be had to the summary process under O.18 r.18 (1).
   
8. Footnote 18/19/3 of the 1988 Supreme Court Practice where the following is stated in respect of applications such as the present:-
   

"It is only plain and obvious cases that recourse should be had to the summary process under this rule, per Lindley MR. in Hubbuck v. Wilkinson [1898] UKLawRpKQB 176; (1899) 1 Q.B. 86, p91(Mayor, etc., of the City of London v. Homer (1914) 111 L.T. 512, CA). See also Kemsley v. Foot and Qrs. (1951) 2KB. 34; (1951) 1 All ER. 331, CA. affirmed (1952) AC. 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] UKLawRpCh 134; (1892) 3 Ch. 274, CA). The summary remedy under this rule is only to be applied in plain and obvious cases when the action is one which cannot succeedor is in some way an abuse of the process or the case unarguable (see per Danckwerts and Salmon L.JJ. in Nagle V. Feliden (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 ER 1094, CA).

Footnote 18/19/4 of the 1988 Supreme Court Practice where the following is stated in relation to striking out applications:-

"On an application to strike out the statement of claim and to dismiss the action, it is not permissible to try the action on affidavits when the facts and issues are in dispute (Wenlock v. Moloney [1965] 1. W.L.R. 1238; [1965] 2 All E.R. 87, CA).

It has been said that the Court will not permit a plaintiff to be 'driven from the judgment seat' except where the cause of action is obviously bad and almost incontestably bad (per Fletcher Moulton L.J. in Dyson v. Att.-Gen. [1910] UKLawRpKQB 203; [1911] 1 KB 410 p. 419)."

9. In the case of Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641, where the headnote at kube 50 states as follows:-
   

"Held: 1 The jurisdiction to strike out a pleading for failure to disclose a cause of action is to be sparingly exercised and only in a clear case where the Court is satisfied that it has all the requisite material to reach a definite and certain conclusion; the plaintiff's case must be so clearly untenable that it could not possibly success and the Court would approach the application, assuming that all the allegations in the statement of claim were factually correct (see p 645 line 25)." (emphasis added)

10. Order 18 rule 6 of the High Court Rules deals with facts, not evidence, to be pleaded
    

'6(1) Subject to the provisions of this rule, and rules 9, 10, and 11, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defences, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.' (emphasis is added)

11. In Supreme Court Practice (1988) at page 269 it was stated under the "Material facts, not evidence" 18/7/3 state as follows
    

'Material facts, not evidence'- Every pleading must contain only a statement of the material facts on which the party pleading relies, and not the evidence by which they are to be proved (per Farwell L. J in N. W. Salt Co Ltd v Electrolytic Alkali C Ltd [1913] 3K.B. 422,425). "The distinction is taken in the very rule itself between the facts on which the party relies, and the evidence to prove those facts (per Brett L.J. in Philipps v Philipps (1878) 4 Q. B. D. 133). All facts which tend to prove the fact in issue will be relevant at the trial, but they are not "material facts" for pleading purposes. "It is an elementary rule in pleading that, when a statement of facts is relied on, it is enough to allege it simply without setting the allegation" (per Lord Denman C.J. in Williams v Wilcox [1838] EngR 305; (1838) 8 A& E 314, p 331; and see Stuart v Gladstone (1879) 10 Ch. D. 644).....' (emphasis is added)

12. The Plaintiff's statement of claim is a brief narration of facts and no cause of action is revealed. Though two Defendants are named no liability is attributed to any one specifically. No specific breach or negligence is disclosed.
    
13. The Plaintiff states that he engaged an insurance broker to obtain an insurance cover of the vehicle that was destroyed. If he did so the broker acts for the Plaintiff to secure an insurance policy and in paragraph 7 the Plaintiff was not sure of the responsibility of handing over a policy and stated
    

'7. However, the said Insurance Policy was never handed to the Plaintiff either by the 1st Defendant or the 2nd Defendant.'

14. Further, the plaintiff in the statement of claim did not disclose a cause of action against any of the Defendants in order for them to file a statement of defence, but I am not inclined to strike off the Plaintiff's statement of claim as the strike out is action of last resort and on the available facts I should grant the Plaintiff an opportunity to amend the statement of claim. A proper amendment to the statement of claim is needed to understand the causes of actions against defendants in order for them to reply. The Plaintiff has been negligent in its drafting which resulted this application for which the Plaintiff should pay the costs applying principles in Calderbank v Calderbank (1975) 2 All ER 333 which I assess summarily at $500.
    

100. FINAL ORDERS
     

1. The summons to strike out the statement of claim is dismissed.
2. The Plaintiff is directed to file and serve a summons to amend the statement of claim with a proposed statement claim indicating amendments in a separate colour, within 14 days from today.

100. If the Plaintiff is unable to comply with above (b) within 14 days the action is deemed struck off.

4. The Plaintiff is ordered to pay a cost of $500 to the 1st Defendant.
   

Dated at Suva this 6th day of November, 2012.

.................................................
Master Deepthi Amaratunga
High Court, Suva