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Kimisopa v Kamen [2021] PGNC 284; N9151 (20 September 2021)

N9151

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 213 OF 2011 (CC2)

BETWEEN:
ELIZABETH KIMISOPA
Plaintiff

AND:
DARRYL KAMEN
First Defendant

AND:
PETER KUMAN trading as KUMAN LAWYERS
Second Defendant

Waigani: Shepherd J
2018: 18^th May
2021: 20^th September

PRACTICE AND PROCEDURE - notice of motion to dismiss for want of prosecution – National Court Rules, Order 4 Rule 49(17) - motion to dismiss application for review of taxing officer’s decision on taxed costs - delay of 21 months between filing of plaintiff’s application for review and filing of defendants’ motion for dismissal - Court’s discretion – relevant considerations – reasonable explanation given for delay – relevance of conduct of plaintiff’s counsel - no issue of prejudice raised by defendants – interests of justice in favour of plaintiff – motion for dismissal refused.

Cases Cited:

Nicholas v Commonwealth Niugini Timbers Pty Ltd [1986] PNGLR 133
Waink v Motor Vehicles Insurance (PNG) Trust (1997) N1630
Seravo v Bahafo (2001) N2078
Niale v Sepik Coffee Producers Ltd (2004) N2637
Mission v Bank of South Pacific Ltd (2005) N2845
Anopari v Motor Vehicles Insurance Ltd (2009) N3697

Counsel:

Mr Mathew Wenge, for the Plaintiff
Mr Maron Boas, for the Defendants

DECISION

20^th September, 2021

1. SHEPHERD J: The defendants filed an amended notice of motion on 20 February 2018 seeking an order, among others, that a notice of motion filed by the plaintiff some two years earlier on 22 February 2016 be dismissed for want of prosecution pursuant to O.4 r.49(17) of the National Court Rules (NCR). The plaintiff’s earlier notice of motion was an application made pursuant to Order 22 Rule 60(1) NCR for the Court to review a costs decision of the taxing officer made in this proceeding on 2 February 2016 whereby the plaintiff’s costs had been taxed at K78,075, an amount which the plaintiff contended was unjustifiably low because of errors made by the taxing officer.

Background

2. The plaintiff instituted this National Court proceeding by writ of summons filed on 23 March 2011 alleging that she had been defamed as the result of a letter dated 4 October 2010 sent to her by second defendant Kuman Lawyers, the author of which letter was first defendant Darryl Kamen, an employed lawyer of Kuman Lawyers. The letter, which was copied to three government officials, informed the plaintiff that Kuman Lawyers had received instructions from a client to the effect that the plaintiff had fraudulently obtained title to a property which should instead have been transferred to the late husband of the client of Kuman Lawyers. The plaintiff was requested by the letter to re-transfer the property to Kuman Lawyers’ client. The plaintiff denied any fraud on her part and alleged that by publication of copies of the letter to three government officials, one of whom was the Registrar of Titles, her reputation as a fair and honest business person had been damaged.
3. The trial of the plaintiff’s claim in defamation was conducted by the late Justice Davani on 30 September 2013. Her Honour delivered the Court’s reserved decision on 9 January 2015 and found that the defendants had acted without malice and that the letter complained of by the plaintiff had merely conveyed the gist of instructions received by the defendants from their client, which the defendants were duty bound to do, subject to the cloak of legal privilege. Her Honour accepted the defendants’ statutory defences of qualified privilege and good faith under ss.11 and 12 of the Defamation Act Chapter 293 and dismissed the plaintiff’s claim. In so doing, the plaintiff was ordered to pay the defendants’ costs, to be taxed if not agreed.
4. The defendants filed an application for taxation and a bill of their costs in taxable form on 23 March 2015. The amount of costs claimed by the defendants in their bill was the sum of K235,987 plus disbursements of K3,090, a total of K239,077. The Registrar of the National Court appointed 5 May 2015 as the date for the hearing of the defendants’ application for taxation.
5. After a series of adjournments, the defendants’ application for taxation came on for hearing and assessment by taxing officer Mr David Gonol on 7 October 2015. The defendants/applicants were represented at that hearing by counsel Ms Flora Matiabe of Kuman Lawyers. The plaintiff/respondent was represented by counsel Mr Terry Injia then of Steeles Lawyers. Taxing officer Mr Gonol reserved his decision and advised counsel that he would deliver a written decision in due course.
6. On 2 February 2016 taxing officer Mr Gonol delivered his written reserved decision whereby the defendants’ claim for costs and disbursements in the aggregate sum of K239,077 was taxed and reduced to an amount certified by Mr Gonal at K78,050.
7. A certificate of taxation in the sum of K78,050 was filed and served by Kuman Lawyers on Steeles Lawyers on 9 February 2016.
8. On 22 February 2016 Steeles Lawyers filed a motion on behalf of the plaintiff pursuant to O.22 r.60(1) NCR (the taxation review application) for the Court to review taxing officer Mr Gonol’s decision of 2 February 2016. The taxation review application was supported by a document filed on the same date styled “Statement Pursuant to Order 22 Rule 60(3) of the National Court Rules” which set out the plaintiff’s various objections to certain of the taxing officer’s decisions on costs as not being justifiable under the costings rules contained in Table 1 of Schedule 2 NCR.
9. On 7 July 2016 Ashurst Lawyers filed a notice of change of lawyers for the
   plaintiff, replacing Steeles Lawyers as the lawyers on the record for Elizabeth Kimisopa. The notice of change of lawyers came about because counsel for the plaintiff, Mr Terry Injia, had changed employment and had moved to Ashurst Lawyers.
10. After a series of adjournments, the plaintiff’s taxation review application came on for mention before Justice Kandakasi (as he then was) on 4 July 2017, at which time his Honour ordered that the application be adjourned to return before me for hearing on 17 July 2017 at 1.30 pm. However, neither my Associate nor I were notified of his Honour’s order at the time and the taxation review application remained with the Registry, waiting for action to be taken to bring the matter to my attention.
11. By November 2017 the plaintiff’s taxation review application was still in abeyance at the Registry as the Court’s file for WS No. 213 of 2011 and Justice Kandakasi’s order of 4 July 2017 had not been conveyed to me. By this stage almost 21 months had elapsed since the filing of the taxation review application on 22 February 2016.
12. On or about 17 November 2017 Kuman Lawyers lodged a motion with the Registry seeking dismissal of the plaintiff’s taxation review application on the ground of want of prosecution and for judgment to be entered against the plaintiff for the certified taxed costs of K78,075. My records show that my Associate brought that motion and the Court’s file for WS No. 213 of 2011 to me for the first time on 7 December 2017. On perusing the Court’s file and the motion, I directed the listings clerks at the Registry to set the defendants’ motion for dismissal down for hearing before me on 14 February 2018, after the commencement of the 2018 legal year, because I had no available dates to deal with the plaintiff’s motion for the remainder of December 2017 and the Court was going to be on vacation during January 2018. The plaintiff’s motion seeking dismissal of the defendants’ taxation review application was accordingly filed at my direction on 7 December 2017, with a notation that it had been set down for hearing on 14 February 2018 at 9.30 am.
13. On 7 February 2018 my Associate notified Mr Injia of Ashurst Lawyers and Ms Matiabe of Kuman Lawyers by email that the hearing for the defendants’ motion filed on 7 December 2017 seeking dismissal of the plaintiff’s taxation review application was deferred from 14 February 2018 to 23 February 2018 at 9.30 am.
14. On 22 February 2018 Kuman Lawyers filed an amended notice of motion seeking an order, which was in addition to the orders sought for dismissal of the plaintiff’s taxation review application and judgment for certified costs K78,075, that interest be awarded at 8% per annum on the certified costs from 2 February 2016 to date of payment by the plaintiff of those costs.
15. On 23 February 2018 Mr Injia from Ashurst Lawyers and Mr Maron Boas of Kuman Lawyers appeared before me. I directed that the plaintiff’s taxation review application filed on 22 February 2016 and the defendants’ amended motion seeking dismissal of the former application be adjourned to 16 April 2018 at 9.30 am for hearing. The adjournment was necessary because of the late filing of the defendants’ amended notice of motion the day before.
16. On 16 April 2018 a further deferral of the hearing was necessary and the plaintiff’s taxation review application and the defendants’ motion for dismissal were adjourned to 18 May 2018 for hearing, the defendants’ motion for dismissal to be heard first in time.
17. The defendants’ motion for dismissal was heard by me on 18 May 2018. Mr Boas of Kuman Lawyers appeared for the defendants. Mr Mathew Wenge of Ashurst Lawyers appeared for the plaintiff.
18. At the hearing on 18 May 2018, Mr Boas relied on the affidavit of his colleague Ms Flora Matiabe of Kuman Lawyers which had been filed on 7 December 2017 in support of the defendants’ motion for dismissal. Mr Wenge for the plaintiff relied on the affidavit of his colleague Mr Terry Injia filed on 22 February 2018 in response to the defendants’ motion for dismissal.
19. After hearing submissions from both counsel on 18 May 2018, I reserved the Court’s decision on the defendants’ motion for dismissal to 30 May 2018 unless the parties were notified otherwise, and adjourned the hearing of the plaintiff’s taxation review application pending delivery of the Court’s decision on the defendants’ motion for dismissal. However, an urgent matter intervened on 30 May 2018 and delivery of the Court’s decision on the defendants’ motion for dismissal had to be deferred and has been pending ever since. This is the Court’s reserved decision on the defendants’ motion for dismissal.

Relevant Law

20. The defendants rely on Order 4 Rule 49(17) NCR as the source of the jurisdiction for the Court in this instance to dismiss the plaintiff’s taxation review application. That sub-rule provides:

49(17) Dismissal/Striking Out of Motions

The Court may of its own motion or upon application strike out or dismiss a Motion which is not prosecuted within one (1) month after it is filed or if it is adjourned twice.

21. The power of the Court to dismiss a motion for want of prosecution is discretionary.
22. The Court has a similar discretionary power to dismiss proceedings, not just a motion, where writ proceedings have not been set down for trial within 6 weeks after pleadings have closed: Order 10 Rule 5 NCR.
23. It is well settled procedural law that an application for dismissal of a motion or proceedings generally may be granted if:
    1. The plaintiff’s default is intentional or there has been inordinate and inexcusable delay in prosecution of the plaintiff’s claim.
    2. There is no reasonable explanation given by the plaintiff for the delay.
       3. The delay has caused injustice or prejudice to the defendant.

See Nicholas v Commonwealth Niugini Timbers Pty Ltd [1986] PNGLR 133 (Woods J), Waink v Motor Vehicles Insurance (PNG) Trust (1997) (Lenalia AJ) N1630; Seravo v Bahafo (2001) N2078 (Kandakasi J, as he then was).

There are two further considerations which have been added to the above three factors or principles:

4. The conduct of the parties and their lawyers: see Niale v Sepik Coffee Producers Ltd (2004) N2637 (Cannings J).
5. The duty of the Court to give paramount consideration to the dispensation of justice under s.158(2) of the Constitution: see Mission v Bank of South Pacific Ltd (2005) N2845 (Cannings J); Anopari v Motor Vehicles Insurance Ltd (2009) N3697 (David J).

Relevant Considerations

24. There is no doubt that there has been a lengthy delay in the plaintiff prosecuting her taxation review application. The application was filed on 22 February 2016 and it had still not been heard 21 months later, when the defendants filed their motion for dismissal on 7 December 2021.
25. The plaintiff’s explanation for the delay is given in the affidavit of the plaintiff’s counsel Mr Terry Injia filed on 22 February 2018. Mr Injia points to the following facts:
    • The taxation review application filed on 22 February 2016 was given a return date of 14 March 2016. This return date was extended to 11 July 2016.

• On 26 April 2016 the plaintiff’s Supreme Court appeal SCA 18 of 2015 against the late Justice Davani’s decision in WS No. 213 of 2011 was heard by Justices Manuhu, Hartshorn and Makail. Ms Matiabe from Kuman Lawyers and Mr Injia from Ashurst Lawyers each appeared at that Supreme Court hearing and made submissions. Their Honours reserved their decision to a later date.
• On 11 July 2016 Mr Injia from Ashurst Lawyers and Mr Boas from Kuman Lawyers appeared before Justice Polume-Kiele. However, her Honour did not hear the taxation review application on that occasion and adjourned it to the Registry for reallocation to another judge.
• Mr Injia says that thereafter he instructed Ashurst Lawyers’ legal clerk Allan Dian to attend on several occasions at the National Court Registry to request for the taxation review application to be relisted before another judge but that Mr Dian had reported back to him on each occasion that the Court’s file was apparently in Justice Polume-Kiele’s chamber and that a date for the relisting of the application could not be allocated until the file was returned to the Registry.
• On 18 October 2016 Mr Injia wrote to the Registrar and formally requested that the plaintiff’s taxation review application be relisted before a judge other than Justice Polume-Kiele. A copy of that request on Ashurst Lawyers’ letterhead is annexure “A” to Mr Injia’s affidavit.
• On 28 November 2016, the decision of the Supreme Court in SCA 18 of 2015 was handed down. Their Honours dismissed the appeal and awarded costs in favour of Daryl Kamen and Kuman Lawyers.
• As there was no response to Mr Injia’s letter dated 18 October 2016 to the Registrar, Mr Injia wrote again to the Registrar on 23 January 2017, requesting that the plaintiff’s taxation review application be relisted before another judge. A copy of that letter is annexure “C” to Mr Injia’s affidavit.
• Faced with no response to his previous two letters, Mr Injia sent a follow-up letter dated 17 May 2017 to the Registrar requesting a relisting of the plaintiff’s taxation review application before another judge. That third letter is annexure “D” to Mr Injia’s affidavit.
• An Ashurst Lawyers’ interoffice memo dated 31 May 2017 from lawyer Mathew Wenge to legal clerk Mr Allan Dian, which is annexure “E” to Mr Injia’s affidavit, requested Mr Dian to attend at the National Court Registry and enquire of Mr Mathew Bae if the plaintiff’s taxation review application had been listed for hearing. That memo drew no result other than that Mr Bae was awaiting a response from staff at the Registry, who were in turn waiting on a response from the Registrar.
• By letter dated 13 June 2017, Deputy Registrar the late Mr Samuel Ikiso wrote to Ashurst Lawyers giving notice that the plaintiff’s taxation review application would be listed for hearing in the Civil Court 2 Track on 21 June 2017 at 9.30 am. A copy of this letter is annexure “F” to Mr Injia’s affidavit.
• Mr Injia deposes in paragraph 17 of his affidavit to the effect that he did not receive this letter in time to enable him to attend before the Court on 21 June 2017 but that the very next day, 22 June 2017, after finding out about the listing, he instructed Mr Dian to attend at the Registry and obtain a copy of the Associate’s file endorsement as to what transpired at Court on 21 June 2017. A copy of that file endorsement is annexure “G” to Mr Injia’s affidavit. It shows that the application returned before Justice Kandakasi (as he then was) on 21 June 2017, at which time His Honour adjourned the application to return before the Court on 4 July 2017 at 9.30 am, the adjournment having been ordered because there had been no appearance on that occasion by counsel for any of the parties. The file endorsement states to the effect that if there were to be any failure by the plaintiff to comply by the next return date with the order made that day and with previous Court orders, the case would be dismissed for want of prosecution and for failure to comply with Court orders.
• Mr Injia then caused a sealed copy of a minute of Justice Kandakasi’s Order of 21 June 2017 to be served on the office of Kuman Lawyers under cover of a letter from Ashurst Lawyers dated 30 June 2017. A copy of that letter is annexure “H” to Mr Injia’s affidavit. The letter states: “Unfortunately, both parties did not attend the hearing on 21 June 2017 and the proceeding was adjourned to 4 July 2017 at 9.30 am for hearing of our client’s Notice of Motion filed 22 February 2016.”
• Mr Injia says in paragraph 20 of his affidavit that he forgot about the return date of 4 July 2017 for the plaintiff’s taxation review application because he was then on leave in Enga Province on 4 July 2017 as he was attending scheduled polling for the National General Elections of 2017. I have more to say about this later in this decision.
• Mr Injia states that he returned to Ashurst Lawyers on 13 July 2017 but that thereafter he “lost track of the matter” until he was served a letter dated 16 November 2017 from Kuman Lawyers giving notice of that law firm’s intention to file an application to dismiss the plaintiff’s taxation review application for want of prosecution. A copy of Kuman Lawyers letter of 16 November 2017 is annexure ‘FM7” to Ms Matiabe’s affidavit filed on 7 December 2017 in support of the defendant’s motion to dismiss.
• Mr Injia deposes in paragraphs 21 and 22 of his affidavit to the effect that he has been ready to move the plaintiff’s taxation review application and that he would have done so were it not for the difficulties he faced in having the application relisted for hearing before another judge after Justice Polume-Kiele adjourned the application back to the Registry for relisting on 11 July 2016. Annexed to Mr Injia’s affidavit and marked “H” is a copy of the Extract of Submissions dated July 2016 which Mr Injia says he will be relying on if the Court is minded to refuse the defendants’ motion to dismiss.

26. Mr Boas for the defendants has challenged a number of Mr Injia’s assertions in his affidavit. Mr Boas submitted that overall Mr Injia has failed to give any satisfactory explanation for the delay which had occurred preventing the plaintiff’s taxation review application from being moved during the two-year interval between 22 February 2016 and the filing of Mr Injia’s affidavit on 22 February 2018. In particular Mr Boas points to the concession in paragraph 21 of Mr Injia’s affidavit that he lost track of the status of the plaintiff’s taxation review application for over 4 months between mid-July 2017 until Mr Injia received the letter from Kuman Lawyers dated 16 November 2017 foreshadowing the filing of the defendant’s motion for dismissal, which motion was filed on 7 December 2017.
27. Mr Boas relied for his submissions on the affidavit of his colleague Ms Matiabe filed on 7 December 2017 in support of the defendants’ motion for dismissal. However, Ms Matiabe’s affidavit simply says in paragraph 12 that 21 months had elapsed since the plaintiff’s taxation review application was filed on 22 February 2016 and that the plaintiff “has not shown any interest to prosecute its application”.
28. Mr Boas referred to Mr Injia’s statement in his affidavit that he did not attend Court on the return of the plaintiff’s application before Justice Kandakasi on 4 July 2017. Mr Boas urged me to consider this as being indicative of a lack of concern on Mr Injia’s part to prosecute the taxation review application. The transcript of the proceedings before me on 18 May 2018 contains this submission from Mr Boas at page 7 lines 25 to 34:
    

MR BOAS: You will note that in relation to our preliminary issue which we raised on the date which the matter was to return on 4 July [2017], Mr Injia says he did not attend. He had to go for polling. He had to go on leave during the election period for polling. Now, that is not a reasonable explanation. Orders of the court have been made and those orders must be complied with. And the reasons – if he was not going to attend, there were other lawyers in his firm who could have attended and moved that motion and since, they failed to move that motion. And basically, it is our submission that there is a want to prosecute the motion and no reasonable explanation to show that delay in moving that motion and we submit that it should be dismissed for want of prosecution and the orders in our notice of motion be granted.

29. After hearing this submission from Mr Boas, I immediately checked the file endorsements on the Court’s file during the course of the hearing of the plaintiff’s motion on 18 May 2018. The file endorsement of the associate for Justice Kandakasi for what transpired at Court on 4 July 2017 clearly states that the counsel who appeared before his Honour on that occasion were Mr Injia for the plaintiff and Ms Matiabe for the defendants. The file endorsement then gives the text of the order which was made by his Honour on that date in these terms:

THE COURT ORDERS THAT:-

1. The Plaintiff’s Notice of Motion filed on 22 February 2017 is adjourned to return before His Honour Shepherd J for hearing on 17^th July 2017 at 1.30 pm or soon thereafter.
2. The rest of the orders of 21 June 2017 are extended.
3. The time of entry of these orders is abridged to take place forthwith upon the Court signing them.
30. As the file endorsement for the Order which was made by Justice Kandakasi on 4 July 2021 as to Mr Injia’s appearance that day conflicted with Mr Injia’s assertion at paragraph 20 of his affidavit that he did not appear before his Honour on that date, the transcript shows at page 9 lines 15-19 that I responded to the submission made by Mr Boas regarding Mr Injia’s alleged non-appearance as follows:

HIS HONOUR: Well, the Court record shows that [Mr Injia] appeared on 4 July. No appearance by either party on the preceding occasion on 21 June 2017. So ... there was no appearance on behalf of your client on 21 June .. neither for the plaintiff and that is why Judge Kandakasi obviously stood it over to 4 July.

31. Mr Injia was not in Court at the subsequent hearing by me of the plaintiff’s motion for dismissal which took place on 18 May 2018. Mr Injia was therefore not available on that occasion to be questioned on oath as to the apparent conflict between the Court’s record and his own evidence that he did not appear before Justice Kandakasi on the return of the plaintiff’s taxation review application on 4 July 2017. The conflict derives from the file endorsement on the Court’s record, which unambiguously states that Mr Injia did in fact appear before his Honour on that date.
32. After forewarning counsel at the hearing on 18 May 2018 that I would be later checking the Court’s record on this and other factual issues, I requested the Court Reporting Service to advise what the audio recording of the proceedings before Justice Kandakasi on 4 July 2017 disclosed as to which counsel appeared before his Honour on the return of the taxation review application on that date.
33. I have ascertained that the audio recording of the Court Reporting Service for the proceedings heard by Justice Kandakasi on 4 July 2017 for this case, WS No. 213 of 2011, contains a clear announcement by Mr Injia of his appearance for the plaintiff before his Honour at 10.04 am. This was followed at 10.05 am by Ms Matiabe’s announcement of her appearance for the defendants. The Court Reporting Service’s code for this case is ZAKUM. The hearing before his Honour on 4 July 2017 commenced at 10.04 am with Mr Injia’s announcement of his appearance. The hearing concluded at 10.09 am with the making by his Honour of the Order which was recorded in the file endorsement prepared by his Honour’s associate.
34. There can be no doubt therefore that Mr Injia was mistaken when he deposed in paragraph 20 of his affidavit that he was on leave in Enga Province on 4 July 2017 and that no-one from Ashurst Lawyers appeared before Justice Kandakasi on that date on the return of the plaintiff’s taxation review application. Mr Injia did appear before his Honour on 4 July 2017, as did Ms Matiabe. Mr Injia has obviously forgotten his appearance on that occasion. He must have left on leave for Enga Province shortly after making his court appearance before Justice Kandakasi on 4 July 2017.
35. Be that as it may, I accept the remainder of the chronology of events deposed to by Mr Injia in his affidavit as being a truthful explanation of the reasons for delay in prosecuting the plaintiff’s application. That chronology is corroborated by the documentary evidence provided by annexures “A” to “G” of Mr Injia’s affidavit, which collectively accounts for his efforts to prosecute the application after Justice Polume-Kiele directed on 11 July 2016 that the plaintiff’s taxation review application stand adjourned to the Registry for allocation to another judge.
36. I find that the Registry’s reallocation of this matter to another judge was delayed by the return of the Court’s file from Justice Polume-Kiele’s chamber to the Registry. It was not until Deputy Registrar the late Mr Ikiso received Mr Injia’s third reminder letter dated 17 May 2017, annexure “D” to Mr Injia’s affidavit, that the Registry finally responded. Deputy Registrar Ikiso’s letter to Ashurst Lawyers dated 13 June 2017, annexure “F” to Mr Injia’s affidavit, is the first notification from the Registry of a fresh return date for the plaintiff’s application, that return date being 21 June 2017.
37. It is not in contention between the parties that there was no appearance by Mr Injia, Ms Matiabe or any other counsel before Justice Kandakasi when this matter returned before the Court on 21 June 2017. The non-appearance of any counsel was the very reason His Honour directed that the return of the plaintiff’s application be further adjourned to 4 July 2017. Mr Injia and Ms Matiabe then appeared before his Honour on 4 July 2017, at which time the plaintiff’s application was further adjourned to return before me on 17 July 2017. Thereafter there was no fault on the part of Mr Injia for the further delay in this matter coming before me. It was the fault of the Registry in not conveying notice of his Honour’s order of 4 July 2017 to me until 7 December 2017, which only occurred when the defendants’ motion for dismissal lodged at the Registry some weeks earlier was brought to me to allocate a date for hearing. The events which then transpired after 7 December 2017 to the date of my hearing of the defendants’ motion for dismissal on 18 May 2018 have already been summarized in the background to this decision, none of which events were attributable to any fault on the part of Mr Injia but were caused by yet further administrative delays within the Registry itself and by unavoidable Court adjournments due to other pressing cases.
38. In short, given Mr Injia’s chronology, I am satisfied that he has given a reasonable and credible explanation for the delay which occurred between the filing of the plaintiff’s taxation review application on 22 February 2016 and the filing of the defendants’ motion for dismissal on 7 December 2017 and thereafter to the date of the hearing of the dismissal motion on 18 May 2018. Most of the delays which occurred were attributable to administrative delays at the Registry. The only delay which was substantially the fault of Mr Injia was the 4-month delay which occurred between 4 July 2017, the date of Justice Kandakasi’s order referring the case to me, and 7 December 2017, the date of the filing of the defendants’ motion for dismissal. Mr Injia has conceded in his affidavit that this was the only period of time when he lost track of the status of the matter. Taken in the context of the overall delays, this delay of 4 months on the part of Mr Injia does not in my view constitute inordinate and inexcusable delay. Mr Injia’s conduct for this period was remiss but his inattention to the plaintiff’s application was not intentional or contumelious. The plaintiff should not be penalized by the dismissal of her taxation review application for the oversight of her counsel for those few months if that oversight were the only basis for the dismissal.
39. As to any prejudice which the defendants might have sustained caused by the delay in bringing the plaintiff’s taxation review application on for hearing, Mr Boas in his submissions was silent on this important consideration. Mr Boas made no reference at all in his submissions to any prejudice which the defendants sustained or may have sustained by the overall delay.
40. I have found that the plaintiff’s delay in prosecuting her taxation review application, was not occasioned by the plaintiff herself. The delay was primarily caused by the difficulties which Mr Injia faced when he was initially at Steeles Lawyers and then later at Ashurst Lawyers in having the plaintiff’s application set down for hearing by the Registry. Mr Injia, in his capacity as counsel having the main conduct of this case for the plaintiff, has given a reasonable explanation for the overall delay. The delay was not intentional. Furthermore, no issue of prejudice to the defendants was raised by counsel for the defendants.
41. Given all of these circumstances, I am of the opinion that the interests of justice favour the Court’s refusal of the defendants’ motion for dismissal so as to allow the plaintiff’s taxation review application to proceed. However, I add this caveat. The plaintiff is seeking judicial review by this Court of the reasons for the taxing officer’s decision to reduce the defendants’ costs claimed at K239,077 down to taxed costs K78,050. The plaintiff is seeking by her application to have those certified taxed costs of K78,050 reduced even further. I seriously question whether the Court’s limited time and overstretched resources could not be more productively spent by the Court dealing with issues of law presented by far more serious cases. To that end I will order the parties’ legal representatives to constructively consult with each other to endeavour to resolve a compromise to forestall further expensive litigation, failing which the plaintiff’s application will be referred to mediation under Rule 5(2) of the ADR Rules. The plaintiff’s application will only proceed to substantive hearing by this Court if negotiation and mediation do not succeed.
42. Costs will follow the event. The defendants shall pay the plaintiff’s costs of and incidental to the defendants’ motion for dismissal, such costs to be taxed if not agreed.

ORDER

43. For the reasons set out above, the Court orders as follows:
    1. The defendants’ motion for dismissal of the plaintiff’s taxation review application is itself dismissed.
    2. Counsel for the parties shall forthwith consult with their respective clients and then with each other with the view to the parties reaching a compromise, enforceable by Court order if the parties so agree, as to the amount of taxable costs payable by the plaintiff to the defendants for these proceedings, including the costs referred to in term 1 of this Order.
    3. In the event that no compromise on costs is reached by the parties by Friday 1 October 2021, the parties shall return to Court on Thursday 7 October 2021 at 1.30 pm with an agreed draft order for mediation of the costs issue in dispute between the parties for the Court to consider before referring that costs issue to mediation pursuant to Rule 5(2) of the ADR Rules.
4. The plaintiff’s taxation review application filed on 22 February 2016 is stood over to return before the Court on Thursday 7 October 2021 at 1.30 pm for mention and/or directions pending the outcome of the parties’ compromise negotiations.
5. The time for entry of this Order is abridged to the time of signing by the Court which shall take place forthwith.

_______________________________________________________________
Ashurst Lawyers: Lawyers for the Plaintiff
Kuman Lawyers: Lawyers for the Defendants