Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Iputu v Maximus International Ltd [2003] SBHC 112; HC-CC 289 of 2001 (18 July 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 289 of 2001

AMBROSE MOTUI IPUTU, LESLEY TANO, CHARLES BICE THEGNA, HOPKINS PETER NOMI AND ISABEL DEVELOPMENT AUTHORITY AND ROSEWOOD (SI) LIMITED

V.

MAXIMUS INTERNATIONAL LIMITED AND REUBENSON HAVI AND MARTIN MATAI (trading as Pogu Enterprises Company)

High Court of Solomon Islands
(Palmer J.)

Date of Hearing: 10^th July 2003
Date of Judgement: 18^th July 2003

J. Apaniai for the Plaintiffs
Pacific Lawyers for the First Defendant
P.T. Legal Services for the Second Defendant

PALMER J: This is an application by summons filed 10^th June 2003 under Order 33 rule 21 of the High Court (Civil Procedure) Rules, 1964 (“the Rules”) for orders inter alia as follows:

“1. That the Defence and the Amended Defence filed herein by the Second Defendants on 11^th March and 9^th July 2002 respectively be struck out and that the Second Defendants be placed in the same position as if they had not defended.”

The Court had issued Orders for directions in the above action on 16^th August 2002. Those orders included discovery by list to be done within 14 days and inspection 14 days thereafter. The dead line for discovery by lists was on 31^st August 2002. The second Defendants did not comply until 27^th September 2002 (27 days later). The Plaintiffs suggested inspection to be done on 15^th November 2002 in its letter of 8^th November 2002. No response was received. On 10^th February 2003 another letter was sent suggesting another date for inspection for 14^th February 2003. Again no response was received. On 2^nd June 2003 a final letter was sent suggesting 6^th June 2003 as the last date for inspection to take place. When no response was received, the Plaintiffs filed this summons.

Order 33 Rule 21 of the Rules

Order 33 rule 21 of the Rules allows a plaintiff to apply to the court for orders to have the defence of a defendant struck out and to be placed in the same position as if he had not defended apart from an action for attachment, where there has been failure on the part of the defendant to comply with any order inter alia for discovery or production or inspection of documents. The rationale for this rule is that public policy demands that the business of the courts should be conducted with expedition^[1]. Orders of the court are to be complied with, not broken. It gives the court power to consider whether to strike out a defence of the defendant where there has been a failure to comply with its orders issued under rule 21. That power of the court however is discretionary. There are two distinct situations in which the discretion of the court may be exercised:

(i) where there has been intentional and contumelious default; and

(ii) where there has been inordinate and inexcusable delay by the defaulting party (see Allen v. Sir Alfred McAlpine & Sons Ltd.^[2], approved in Birkett v. James^[3]).

These principles have been applied in this jurisdiction in numerous instances. One such case was Solomon Islands National Provident Fund Board v. Solomon Islands Electricity Authority^[4] per Kabui J. The facts in that case are similar to this case. A summons for directions had been taken out on 9^th August 2000. Orders issued were in the usual format:

“1. Discovery by list within 14 days;

2. Inspection within 14 days thereafter;

...”

Numerous communications were made by counsel for the plaintiff with counsel for the defendant for the Defendant’s List of Documents to be filed within a certain date, but to no avail. At one stage counsel for the defendant had advised that he would file his list of documents by 27^th October 2000 but failed to comply. On 1^st November 2000 the plaintiff filed summons to strike out the defence of the defendant. Meanwhile on 11^th November 2000 defendant filed its list of documents. Defendant was well overdue; 83 days out of time in filing its list. No affidavit was filed to provide explanation for the delay and no satisfactory explanation either was provided from the Bar table by counsel for the defendant.

In his ruling, Kabui J. did not find any evidence of intentional and contumelious conduct or evidence of inordinate and inexcusable delay, as well of prejudice to the trial of the plaintiff’s case and declined to grant the orders sought.

Application

The ground relied on in this case by the Plaintiffs for orders to strike out Defence and Amended Defence is that of inordinate and inexcusable delay. In order for this application to succeed it is important to appreciate that establishing inordinate and inexcusable delay alone is not sufficient. This was made clear in Allen v. Sir Alfred McAlpine & Sons^[5] by Lord Denning M.R. when he said:

“If you read Eaton v. Storer [1882] UKLawRpCh 230; 22 Ch. D. 91 carefully, you will see that the practice described by Sir George Jessel applies only to moderate delays to two or three months. It does not apply when “there is some special circumstance such as excessive delay”. The principle upon which we go is clear: When the delay is prolonged and inexcusable, and is such as to do grave injustice to one side or the other or to both, the court may in its discretion dismiss the action straightaway, leaving the plaintiff to his remedy against his own solicitor who has brought him to this plight.” (emphasis added)

Not only must delay be inordinate and inexcusable but it is necessary to show 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 likely to cause or to have caused serious prejudice to the plaintiffs as between themselves and the Defendant or between each other or between them and a third party (see Birkett v. James^[6]).

In his submissions opposing the application of the Plaintiffs, Mr. Tegavota cited two cases authorities, Harold Tarasel v. Edwin Kariuvi and Others^[7] (“Harold Tarasel’s Case”) and Peter Tahani v. Attorney-General and Commissioner of Police^[8]. Harold Tarasel’s Case (supra) entailed an application for judgment in default of appearance to be entered. The Writ of Summons together with the Statement of Claim had been served upon the Defendants on 9^th November 1997. No appearance had been entered. On 2^nd April 1998 the Plaintiff filed application for judgment under Order 13 rule 9 of the Rules. His Lordship Kabui J. held that the use of Order 13 rule 9 was inappropriate. Instead he dealt with this case on the basis of Order 23 rule 6 as read with Order 42 rule 6 of the Rules. Rule 6 of Order 42 required him to draw such inferences of fact based on the materials before him whether judgment may be entered, or to direct that the matter be allowed to stand over for further consideration. His Lordship held that there was insufficient material before him and ordered that the matter be allowed to continue. The issue of delay was not so much the basis on which the decision to allow the action to continue was made.

The second case Peter Tahani v. Attorney-General and Commissioner of Police (supra) entailed another application for judgment in default of defence to be entered under Order 29 rule 14 of the Rules. The Writ and Statement of Claim had been served on the Defendants on 19^th September 2001. Plaintiff’s summons was heard on 4^th February 2002. His Lordship Kabui J. accepted that the delay was bad and inexcusable but refused to grant the application for judgment. Instead he granted the Defendant extension of time to file defence.

Has there been inordinate delay; delay which is “materially longer than the time usually regarded by the profession and Courts as an acceptable period” [Birkett v. James (supra)]? I think this must be answered in the affirmative. Repeated requests have been made for inspection to be done but with little success. Not only that but that the Defendants had already not complied with the first orders for List of Documents to be filed by 31^st August 2002.

Was the delay inexcusable? Again I must answer this in the affirmative. Counsel for the Defendants should know how to manage his office and practice so that such delays are not unnecessarily prolonged. No explanation has been provided for the delay. In the circumstances of this case the delay was unjustifiable.

Having said that, there is one further step which the Plaintiff must take, which is that even if delay had been intentional, inordinate and inexcusable, Plaintiff is required to show 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 likely to cause or to have caused serious prejudice to the plaintiffs as between themselves and the Defendant or between each other or between them and a third party (Birkett v. James (supra)). On this issue of prejudice, with respect no evidence has been adduced. My own assessment of the issues and facts for determination before this court also confirm that no real prejudice is likely to be caused or will occur as a result of this inordinate and inexcusable delay. Having said that, the Defendant must be made to bear the costs of this application and all matters connected thereto.

Decision

The application for the Defence and the Amended Defence of the Second Defendant to be struck out is dismissed. Defendant in any event shall bear the costs of the Plaintiff in this application and all matters connected thereto.

Orders of the Court:

1. Dismiss application for striking out of the second Defendant’s defence and amended defence.
   
2. The second Defendants to pay the costs of the Plaintiffs in this application and all matters connected thereto.
   

THE COURT

^[1] See RSC 1965 pub. in the Supreme Court Practice 1973, Vol. 1 p. 414 quoted in Clara Rebitai v. Francis Chow, R.E.G.S. Limited, Onaga Corporation Limited and F.C. Limited, 21^st November 2000 per Kabui J.
^[2] [1968] 2 Q.B. 229; [1968] 1 All E.R. 543
^[3] [1978] A.C. 297; [1977] 2 All E.R. 801 H.L.
^[4] Civil Case Number 55 of 2000, 23^rd November 2000
^[5] [1968] 2 W.L.R. 366 quoted in Solomon Islands National Provident Fund Board v. Solomon Islands electricity Authority CC 55 of 2000, 23^rd November 2000 per Kabui J at p. 4
^[6] [1978] A.C. 297 at 318; [1977] 3 W.L.R. 38
^[7] CC 262 of 1997, 30^th November 1998
^[8] CC 245 of 2001, 6^th February 2002