IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 258 of 2012

BETWEEN	:		TEVITA SAQABOBO of Veiwawa Road, Nakaulevu, Navua, Driver.

PLAINTIFF

AND	:		DR. SEMESA MATANAICAKA JNR of CWM Hospital, Waimanu Road, Suva in the 	Republic of Fiji, Medical Doctor.

1ST DEFENDANT

AND	:		DR. IFEREIMI WAQAINABETE of CWM Hospital, Waimanu Road, Suva in the 	Republic of Fiji, Medical Doctor.

2ND DEFENDANT

AND	:	MINISTRY OF HEALTH of a statutory organization duly established under the Public 			Health Act and Public Hospitals and Dispensaries Act and is being sued for vicarious 				liability as an employer of the 1 Defendant and duly responsible for the administration of 			Public Health at various hospitals in Fiji.

3RD DEFENDANT

AND	:	THE ATTORNEY GENERAL OF FIJI being sued for vicarious liability in pursuant to 			the Crown Proceedings Act Cap 24.

4TH DEFENDANT

BEFORE:			Master Vishwa Datt Sharma

COUNSELS:			Mr. Vosarogo	  -   for the Plaintiff
Ms. Mani. R         -   for the Defendants

DATE OF RULING:		22nd May, 2018

RULING
[Court’s own motion for the Plaintiff to show cause why the Statement of Claim                                   should not be struck out for want of prosecution and abuse of the process of                                       the Court pursuant to Order 25 Rule 9 of the High Court Rules, 1988]

(A)	INTRODUCTION
1.	The Court issued Notice of its own motion pursuant to Order 25 Rule 9 of the High Court Rules, 1988 for the Plaintiff to show cause as to why the action ought not to be struck out for want of prosecution or as an abuse of the process of the Court.
2.	The Plaintiff filed the Affidavit opposing the striking out.
3.	1st, 2nd, 3rd and 4th Defendants did not file any Affidavits in respect to the strike out of the Plaintiff’s action although an order was made rather thought fit to inform court that the Defendant will tender his written submissions.
4.	A written submission was only filed by the Defendant and the Plaintiff asked court to deal with the Order 25 Rule 9 on his Affidavit in Reply as he intended not to file any written submissions.
BACKGROUND
5.	On 12th February, 2010, the Plaintiff had undergone an exploratory laparotomy surgery which was performed by the 1st and 2nd Defendants.
6.	The Plaintiff commenced proceedings on medical negligence alleging that the 1st and 2nd Defendants did not perform the surgery within an acceptable standard of medical care and/or breached the standard of care by lacerating the Plaintiff’s stomach and failing to stitch the Plaintiff’s stomach , causing the Plaintiff physical injury including incision hernia and deteriorating health.
7.	The Defendants have denied all the allegations made, stating that the operation was an appropriate and mandatory treatment as the Plaintiff was admitted to the CWM Hospital for his abdominal distention and Pneumonia, and had a swelling stomach.  
(B)	THE LAW AND PRACTICE
8.	Order 25 Rule 9 of the High Court Rules 1988, which inter-alia states as follows:
“9. – (1) If no step has been taken in any cause or matter for six months then any party on application or the Court of its own motion may list the cause or matter for the parties to show cause why it should not be struck out for want of prosecution or as an abuse of the process of the Court.
(2) Upon hearing the application the Court may either dismiss the cause [or] matter on such terms as may be just or deal with the application as if it were a summons for directions.’

(C)	ANALYSIS and DETERMINATION
9.	The Plaintiff is required to show cause herein and the Court to determine as to why the Plaintiff’s action ought not to be struck out for want of prosecution or an abuse of the process of the Court.
10.	The principles to be applied on the basis upon which the discretion to strike out proceedings for want of prosecution should be exercised is well established in the decision of the House of Lords in the case of Birkett v James [1978] AC 297 and in particular the statement by Lord Diplock at 318: 
“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.”
11.	In the present case the court is concerned with the application of both principles (1) and (2) within the Birkett v James [1978] AC 297 case. 
12.	‘Intentional’ and ‘Contumelious’ default ‘within Birkett v James [1978] AC 297 in the context of want of prosecution refers to the disobedience of any orders or directions of this court or the conduct as such amounting to an abuse of the process of the court. 
13.	‘Inordinate’ and ‘inexcusable’ within Birkett v James have their ordinary meaning. Whether delay can be described as inordinate or inexcusable is a matter of fact to be determined in the circumstances of each individual case. The New India Assurance Company Limited –v- Rajesh K. Singh and Anr. Civil Appeal no: ABU 0031 of 1996S (26 November 1999) C.A.
14.	Where principle (2) is also relied on, both grounds of inordinate and inexcusable delay needs to be established before an action is struck out. There must be both delay of the kind described and a risk of an unfair trial or serious prejudice to the defendants.
15.	Reference is therefore made to the case Department of Transport v Smaller (Transport) Limited [1989] 1 All ER 897.
The House of Lords did not accept a submission that the decision in Birkett should be reviewed by holding that where there had been inordinate and inexcusable delay, the action should be struck out, even if there can still be a fair trial of the issues and even if the defendant has suffered       no prejudice as a result of the delay.
Lord Griffiths, after a review of the authorities and relevant principles, said at 903 that he had not been persuaded that a case had been made out to abandon the need to show that post-writ delay will either make a fair trial impossible or prejudice the defendant. He went on to affirm the principle that the burden is on the defendant to establish that serious prejudice would be caused to it by the delay.  (In this case the burden is on the Defendants to establish any prejudice).
16.	I have perused the court file in terms of the documents filed as required by the set down procedures and the High Court Rules 1988 and cited the Chronology of Events that has taken place in this case accordingly.	
Delay
17.	In considering whether delay of the kind required in terms of Birkett v James case has been established, the court is concerned only with delay on the part of the Plaintiff or his lawyer. It is that delay which must be shown to be inordinate and inexcusable.

18.	It can be clearly ascertained from the court record in terms of the chronology of events as to what documents, pleadings and applications were filed and what proactive steps were taken by the parties to this proceedings to ensure that the pleadings were expeditiously completed and the file was ready to be allocated to a Hon. Judge for hearing and determination accordingly.

19.	The Defendant submitted that the first issue to determine is whether the Plaintiff’s default in advancing the litigation in this case has been intentional and contumelious default on the part of the Plaintiff, since the Plaintiff made considerable delay in filing the Summons for Directions on     29th April, 2014, which eventuated after a lapse of 9 months’ timeframe. Further the orders granted on the Summons for Directions on 03rd June, 2014 were not adhered to in its entirety. 

20.	Upon the perusal of the Court file, it does confirm that the Plaintiff has disobeyed the orders made on the Summons for Directions and only filed the Plaintiff’s Affidavit Verifying List of Documents (AVLD) as its final document rather than complying with the orders made on the summons for directions in its entirety. The Plaintiff failed to carry out the inspection of documents within     14 days from the service of the documents and enter the action for trial in terms of the High Court Rules, 1988. Thus the directions were unattended to and the action remained pending before this court until the court on its own motion issued the Order 25 Rule 9 Notice for the Plaintiff to show cause.  

21.	Apart from the above, the Plaintiff has enumerated and explained the reasons for the delay at paragraphs 6-17 inclusive of his Affidavit filed on 28th July, 2015.

In summary he cited his medical condition and address of abode which has contributed to this Delay but adds that he had no intention of delaying the matter and wants his case to be finally determined. It is noted that there is no medical report furnished to court to confirm the Plaintiff’s medical condition.

22.	Upon a careful perusal of the court record together with the chronology of events, I find that the the Defendant has admitted to the fact that there was delay on the Defendant’s part to file and serve their Statement of Defence within the stipulated timeframe allocated by the High Court Rules. 

23.	Therefore, the Defendant has also contributed to the delay at this stage of the proceedings as well and should be equally blamed for the Plaintiff’s delay. I note the delay in proceeding with the matter by the Plaintiff from the time of filing the Plaintiff’s Affidavit Verifying List of Documents on    20th June, 2014 to the time of the issuance of the O25 Rule 9 Notice by the Court Registry on    29th January, 2015, adds up to a delay of 7 months.  

24.	It is only appropriate that the parties must now adhere to expedite the remaining cause of action and complete the pleadings. This will allow the matter to be entered for trial and allocated to a Hon. Judge for hearing and determination once and for all.
25.	The overriding objective of the procedural rule and the requirement in ‘Birkett v James is to enable the court “to deal with cases justly”. Dealing with a case justly includes “allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases”.
26.	Further, these resources are not infinite and for every case which takes up time, another case is potentially delayed. If the case which takes up time and delays another case is, on any view, an utter waste of time and resources and stands in the way of other more deserving being heard at an earlier time, then that is a factor which the courts cannot ignore. 
27.	I find for the aforesaid rational that the Plaintiff has satisfactorily explained the Delay of the shorter period of 7 months mentioned herein. Therefore, the period of inactivity is short and excusable.  Inexcusable and inordinate Delay has not been established against the Plaintiff as per the requirement in Birkett –v- James accordingly.
Prejudice and fair trial
28.	Prejudice can be of two kinds.  It can be either specific that is arising from particular events that may or may not have occurred during the relevant period, or general, that is prejudice that is implied from the extent of the delay. 
29.	In order to establish prejudice, the Defendants are required to show that the Delay has prejudiced them in the conduct of their Defence. This will involve them in having to demonstrate, for example, that they have lost contact with their witnesses, their witnesses are untraceable, death of their witnesses, the witnesses recollections have been adversely affected, the destruction of documentary evidence without fault on the part of the Defendants.
30.	The Defendants submitted that the cause of action arose on 12th February, 2010 and the Plaintiff commenced proceedings in 2012. Five and half years have lapsed and the matter remains pending in court. It is due to the Plaintiff’s inordinate and inexcusable in progressing with the matter, that parties have yet to initiate the discovery process or come close to hearing of the matter. The Plaintiff further submitted that in view of the delays, this certainly increases the prejudice caused towards the Defendants and reduces the possibility of a fair trial eventuating. 
31.	The Plaintiff relied on his affidavit filed on 28th July, 2015 and did not mention anything in terms of prejudice but admitted that some time have passed by and are close to finishing all the pre-trial matters and having the matter listed before a Judge. He added that strict timetable be given for directions and the parties to comply with bearing in mind the Plaintiff having a strong case of medical negligence.
32.	Parties must note that the presumption of prejudice is not a presumption of law. It is a presumption of fact in the sense that, in most cases, it will only be the Defendant who is in a position to offer evidence as to the existence of specific prejudice. The presumption is rebuttable.
33.	I have taken into consideration the nature of the substantive matter impending hearing and determination and reiterate that the delay by the Plaintiff has been for a shorter period of 7 months. 
34.	Therefore, I find that the Defendants have not made out a case for prejudice against them in one way or the other.
Interest of Justice
35.	The demonstration of inordinate Delay, inexcusable Delay and Serious Prejudice does not lead necessarily to a dismissal of the action. Further, even if the Defendants satisfy the requirements in Birkett v James, the courts in exercise of its jurisdiction must decide as to whether a fair trial is still possible. The Court of Appeal in Chandar Deo v Ramendra Sharma and Anor: Civil Appeal No. ABU 0041 of (23 March 2007) (Unrep) stated as follows:-
[15] A more fundamental difficulty for the Respondent is that the judge failed to make any finding at all on the final question to be asked when applying the Birkett v. James principles namely: ‘In view of the delays which have occurred, is a fair trial now possible?’ (Also case of Department of Transport v, Chris Smaller (Transport Limited [1989] AC 1197 refers.
36.	In Lovie v Medical Assurance Society Limited [1992] 2 NZLR 244 at 248. Eichelbaum CJ reviewed the authorities and concluded:
‘The applicant must show that the plaintiff has been guilty of inordinate delay, that such delay is inexcusable, and that it has seriously prejudiced the defendant. Although these considerations are not necessarily exclusive, and at the end one must always stand back and have regard to the interests of justice, in this country, ever since NZ Industrial Gases Ltd v Andersons Ltd [1970] NZLR 58 it has been accepted that if the application is to be successful, the applicant must commence by proving the three factors listed.’
37.	Even the courts are reluctant to strike-out any matter summarily which has certain merits in it on the grounds of abuse of process. In Dey v. Victorian Railway Commissioners (1949) 78 CLR 62, at 91 Dixon J said:-
’26. This principle was restated by the Court of Appeal of Fiji in Pratap v Kristian Mission Fellowship [2006] FJCA 41. Also refer to; New India Assurance Co Ltd v Singh [1999] FJCA 69.
The principle as enunciated in these cases reflects the principles on this topic in other common law jurisdictions. These decisions include; Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210; Dey v. Victorian Railway Commissioners (1949) HCA 1; (1949) 78 CLR 62; Birkett v James [1978] AC 297; Lovie v Medical Assurance Society Limited [1992] 2 NZLR 244; Agar v Hyde (2000) 201 CLR 552. Indeed the passage from Abdul Kadeer Kuddus Hussein v Pacific Forum Line reflects closely Birkett v James (above). These authorities also make the point that in exercising a peremptory power of the kind under contemplation in these proceedings, the court must be cautious and to put the matter in another way, the court must stand back and ensure that sufficient regard is ahead of the interests of justice.’
38.	I find from the contents of the Plaintiff’s Affidavit filed on 28th July, 2015, that the Plaintiff has the desire and concrete intention to pursue the litigation further expeditiously when stating that the parties have yet to organise the pre-trial conference and get the process towards trial and its finality. He further sought and pleaded court to make directions for parties to adhere to and order any costs in cause. 
39.	Taking into consideration the Defendant’s written submissions and the Plaintiff’s Affidavit filed on 28th July, 2015, a fair trial is still very much possible in the interest of justice.  
40.	I will allow the matter to proceed but the Plaintiff must assure that the litigation is brought to its conclusion in terms of hearing and determination by the Court expeditiously. 
	Abuse of Court Process
41.	Inordinate and inexcusable delay alone, however great, does not amount to an abuse of the Court process. Reference is made to Abbuthnot Latham Bank Ltd v Trafalgar Holdings [1998] 1 WLR 1426 (per Lord Woolf).
42.	For this purpose, Delay alone, even delay of 11 years does not amount to an abuse of process. Reference made to Barclays Bank Plc v Mailing (Unreported) 23 April 1997; CA (Civil Division) cited in Abbuthnot (supra) at pg 1432, para G-H. 
43.	However, Delay which involves complete, total or wholesale disregard of the Rules of the Court with full awareness of the consequences is capable of amounting to such an abuse, so that, if it is fair to do so, the action will be struck out or dismissed on that ground. Case Reference Choraria v Sethia [1998] CLC 625 9 per Nourse LJ) [1998] EWCA Civ 24.
44.	In the present case, I find from the pleadings and Affidavits that the Plaintiff had delayed the matter for a period of 7 months’ timeframe but has the intention of pursuing this matter and bring the litigation to its conclusion. It cannot be said in one way or the other from the evidence on the Court Record that the Plaintiff has deliberately commenced this action without any intention whatsoever of bringing it to a conclusion.
45.	For the aforesaid rational, I find that there is no abuse of court process.   
46.	Bearing in mind the conduct of the Plaintiff in this proceedings that has prompted this court to hear and determine the Order 25 Rule 9 Notice issued by the Court’s own motion since there was a delay of 7 months and explanation was sought on this delay obviously attracts Court to impose costs against the Plaintiff summarily assessed at $650.
47.	Further, it has now become appropriate that I must impose some strict timetable in terms of the directions and an unless order against the Plaintiff in order to ensure that this matter is expedited on directions and costs and brought to its finality accordingly.  	
48.	Following are the final orders of this court:-
FINAL ORDERS
(i)	The delay in terms of inordinate and intentional has not been established against the Plaintiff.
(ii)	Explanation has been satisfactorily provided by the Plaintiff for any delay of 7 months and as such the Plaintiff has overcome the factor of inexcusable.
(iii)	The Defendants have not suffered any real prejudice; and
(iv)	In the interest of justice, a fair trial is still possible to the current.
(v)	There is no abuse of the Court process by the Plaintiff.
(vi)	The Order 25 Rule 9 Notice is hereby struck out accordingly; and
(vii)	The substantive matter remains very much intact.
(viii)	There will be an order for costs summarily assessed at $650 and to be paid within     14 days timeframe.
(ix)	Matter stands adjourned to 22nd May for further directions and imposition of the Unless orders accordingly.

Dated at Suva this   22nd   Day of May, 2018

 
……………………………………………….……….
								Master
VISHWA DATT SHARMA
					
cc:	Mamlakah Lawyers, Suva
	Office of the Attorney General, Suva