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Landon v Mola [2012] PGNC 103; N4771 (29 June 2012)

N4771

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 13 OF 2011

BETWEEN:

STEPHEN LANDON
Plaintiff

AND:

DR GLEN MOLA, DR MISI LAM, DR ROBIN SIOS, carrying on business as the PRIVATE HOSPITAL & CLINIC
First Defendant

AND:

DR MURRAY KOKA
Second Defendant

Waigani: Davani, J
2012: 6th, 22nd, 29th June

PRACTICE AND PROCEDURE – Negligence claim by plaintiff against second defendant as employee of first defendant – At date of law suit, second defendant no longer employee of first defendant – Notice of Intention to Defend and Defence filed by law firm acting for the first Defendant for and on behalf of second Defendant, acting on instructions from first defendant.

PRACTICE AND PROCEDURE – Application by motion – Law firm acting for first defendant - seeks leave to withdraw Notice of Intention to Defend and Defence it filed for and on behalf of second defendant – second defendant did not instruct law firm to withdraw Notice of Intention to Defend and Defence - O. 8 R. 60 and R. 62 of National Court Rules.

Facts

The plaintiff filed a claim for medical negligence against the second defendant, a medical doctor. The claim arises during the period the second defendant was employed by the first defendant.

The law firm Young & Williams Lawyers, filed Notice of Intention to Defend and Defence for the first and second Defendant. At the time of filing, the second defendant was no longer an employee of the first defendant. Young & Williams Lawyers filed the second defendant's Notice of Intention to Defend and Defence upon instructions from the named first Defendant.

However, soon after, for various reasons, the first Defendant decided that Young & Williams should not act for the second Defendant, so instructed Young & Williams to withdraw the Notice of Intention to Defend and Defence it had earlier filed for and on behalf of the second Defendant.

Issue

Can a law firm withdraw a Notice of Intention to Defend and Defence filed earlier, on instructions, as opposed to a party seeking leave to withdraw a Notice of Intention to Defend and Defence it had earlier filed?

Reasons

The evidence is that the Notice of Intention to Defend and Defence were not mistakenly filed for the second defendant rather, the law firm had instructions to file for and on behalf of the second defendant.

The Court held that a law firm can withdraw a Notice of Intention to Defend and Defence filed for and on behalf of a party where it has made a mistake in the filing of these documents. However, where it filed upon instructions from its client, it cannot later withdraw but can file Notice of Ceasing to Act for that defendant. The party however, can apply to withdraw. In this case, it is the second defendant who should apply to withdraw the Notice of Intention to Defend and Defence. The first defendant's lawyers should not apply to withdraw the Notice of Intention to Defend and Defence filed for and on behalf of the second defendant when it does not have instructions from the second defendant to do so.

Orders

The Notice of Motion filed by Young and Williams Lawyers on 8th June, 2012 which includes the orders sought therein, is dismissed;

The firm Young and Williams Lawyers has leave to file Notice of Ceasing to Act for the second Defendant, to do so whenever appropriate and on 3 days notice to the Plaintiff; and

The Defendants will pay the Plaintiff's costs of the application, to be taxed if not agreed.

Cases cited

Somportex Ltd v. Philadelphia Chewing Gum Corporation [1968] 34 All E.R 26
Firth v. John Mowlem & Co. Ltd & Anor [1978] 3 All ER 331

Counsel:

Mr I. Shepherd, for the Plaintiff
Mr N. Kera, for the Second Defendant/Applicant

RULING

29th June, 2012

1. DAVANI J: The first Defendant being the Private Hospital and Clinic ("Applicants") have come before me through their lawyers, on two occasions, inclusive of this appearance. The first occasion was by way of notice of motion, filed by Young and Williams Lawyers on 31st May, 2012 and the second occasion was by notice of motion, again filed by Young and Williams Lawyers on 8th June, 2012.

2. In the motion filed on 31st May, 2012, Young and Williams Lawyers sought leave of this Court to withdraw Notice of Intention to Defend and Amended Defence filed on behalf of the second Defendant. I refused and dismissed that application. When I dismissed that application, I also issued further orders that Young and Williams Lawyers were at liberty to re-apply, on seven days notice.

3. The motion filed on 8th June, 2012 by Young and Williams Lawyers seeks orders in the same terms as that filed on 31st May, 2012.

4. When I dismissed the first motion giving liberty to re-apply, I mentioned to both counsel more particularly Mr Frank of Young and Williams Lawyers, who appeared for the applicant, that if he had authorities that would convince me to take a different position from the position I took on 6th June, 2012 then I would hear him further on the orders he was seeking. I said that because Mr Frank's application was not supported by any authorities. Because I was sure that this procedural dilemma faced by Young & Williams was not a rare occurrence, that there would be indeed authorities on that point, more particularly overseas authorities.

5. Mr Kera now appears on the motion before me seeking the same orders. However, he has not put before me any authorities on point. It is Mr Shepherd for the Plaintiff/Respondent (Respondent) who I am indebted to, who has come to Court with authorities that has significantly assisted me in reaching a decision that I consider to be fair and proper under the circumstances.

Background

6. To understand why Young and Williams filed such an application, I set out herein facts taken from Mr Kera's affidavit sworn on 6th June, 2012 and filed on 8th June, 2012. He deposes:

"2. On the 10th day of February, 2011, we received instructions from Dr. Glen Mola to act on his behalf in relation to a Writ of Summons which had been received at their Hospital on 24th January, 2011.

3. I subsequently received instructions from Drs. Mola, Lam and Sios that the name of the Defendant was wrong, and that in 2006, there was a Private Hospital run by Drs Mola, Lam and Sios. I therefore caused a Notice of Intention to Defend the proceedings to be filed on that basis.

4. The Plaintiff subsequently amended the Writ to name Dr. Murray Koka as a Second Defendant. As far as I am aware, the Plaintiff did not serve the Writ on Dr. Koka. However, the other defendants instructed us to file a Notice of Intention to Defend on his behalf, as they believed that this was appropriate.

...

We have never at any time received any instructions from or had any contact with Dr. Murray Koka. He has not instructed our firm to act on his behalf. The Notice of Intention to Defend the proceedings on his behalf was therefore filed in error. We do not know his whereabouts, and we do not have any way of contacting him, as he never contacted us or provided us with any information or instructions.

On the 21st day of May, 2012, I caused a letter to be written to Dr. Koka at the last known address of which the First Defendants are aware, a copy of which is annexed hereto and marked with the letter "A". At the date of swearing this my Affidavit, no response has been received from Dr. Koka, and we still have never received any instructions from him.

The second Defendant was only joined as a party to the proceedings following an amendment to the Writ of Summons made on 1st November, 2011. This Amended Writ was served on us in our capacity as lawyers for the first Defendant. It was not served on the second Defendant.

The Plaintiff has taken no further step in the proceedings since issuing the Amended Writ.

Following an exchange of correspondence with the Plaintiff's lawyers, it became apparent that the Amended Statement of Claim did not plead the basis of a cause of action against our client, the first Defendant. The correspondence from the Plaintiff's lawyers related to an allegation of negligence against the first Defendant for a failure to diagnose malaria, whereas the Amended Statement of Claim only pleads alleged negligence against the Second Defendant for improper insertion of a catheter.

On 18th May, 2012, I caused a letter to be written to the Plaintiff's lawyers, confirming the defective nature of the Amended Statement of Claim, and a copy of that letter is annexed hereto and marked with the letter "B". In that letter, we asked the Plaintiff's lawyers to provide a draft Further Amended Statement of Claim setting out the correct cause of action. At the date of swearing this my Affidavit, I have not received a response from the Plaintiff's lawyers and nor have they made any application for leave to further amend the Statement of Claim.

After reviewing the status of the pleadings, and on becoming aware that we had filed Notice of Intention to Defend the proceedings for the Second Defendant in error, I caused a letter to be written to the Plaintiff's lawyers on 21st May, 2012, a copy of which is annexed hereto and marked with the letter "C".

The matter is far from being ready to be set down for trial. It will be necessary for the Plaintiff to apply for leave to further amend the Statement of Claim, and the first Defendant will then have to file a Further Amended Defence. There will then need to be an application to the Court for leave to obtain discovery of documents, including all the Plaintiff's medical records, which the Plaintiff has not disclosed. Following discovery, it may be necessary to issue interrogatories, to attempt to verify the circumstances leading up to the alleged negligence, which occurred over 6 years ago, and of which the first Defendant has little or no record.

At the date of swearing this my Affidavit, the factual position remains unchanged, namely, that we have no knowledge of the Second Defendant's whereabouts, we have had no contact from him at all, and we have never received instructions from the second Defendant to act on his behalf or represent him in any way."

7. The affidavit in response to Mr Kera's affidavit is that of Mr Ian Raymond Shepherd, lawyer, sworn on 20th June, 2012 and filed on 21st June, 2012. I set out in full relevant paragraphs from Mr Shepherd's affidavit which reads:

"...

(a) As to paragraph 4 I say that Dr Koka wrote a referral with respect to the Plaintiff on 14th March, 2006 on the letterhead of The Private Hospital & Clinic, a true copy of which is annexed hereto and marked with the letter "A". On this document six medical practitioners are shown as the proprietors of this business and, accordingly those six were named, initially as Defendants;

(b) By letter dated 11th February, 2011, the lawyers for the Defendants wrote to me and requested that the names of Drs Amof, Paiva and Natera be removed from the proceedings as they were no longer involved in The Private Hospital & Clinic. Annexed hereto and marked with the letter "B" is a true copy of the letter from Young & Williams dated 11th February, 2011.

(c) By letter dated 24th February, 2011, a copy of which is annexed hereto and marked with the letter "C", Young & Williams advised me that Dr. Koka was "a casual consultant at the date of the incident" as such was not an employee and, accordingly, Young & Williams requested that I institute proceedings against Dr. Koka.

(d) As to paragraph 4 I agree that the Writ was subsequently amended by order of the Court dated 27th October, 2011 to include, inter alia, Dr Koka as Second Defendant. These orders were made by His Honour Justice Kariko after the application had been opposed by Young & Williams.

(e) Under cover of my letter dated 3rd November, 2011, I served Young & Williams with a sealed copy of the Orders made by His Honour Justice Kariko dated 27th October, 2011 and a sealed copy of the Amended Writ of Summons. A true copy of the covering letter displaying the acknowledgement of service is annexed hereto and marked with the letter "D".

(f) At the same time I attempted to effect personal service on Dr. Murray Koka but my clerks were informed he was no longer employed by The Private Hospital & Clinic and that his present whereabouts were unknown.

(g) Under cover of letter dated 1st December, 2011, I received, by way of service, an Amended Defence filed on 30th November, 2011 signed by Noel Kera, a true copy of which is annexed hereto and marked with the letter "E". The Defence was filed on behalf of the first and second Defendants.

(h) By letter dated 5th December, 2011, a true copy of which is annexed hereto and marked with the letter "F", I wrote to Young & Williams acknowledging receipt of the Amended Defence and requesting them to provide a copy of the Notice of Intention to Defend on behalf of the Second Defendant and also asking whether they would consent to a mediation order.

By letter dated 9th December, 2011, a true copy of which is annexed hereto and marked with the letter "G", Young & Williams advised me that they were awaiting their clients' instructions.

(j) By letter dated 16th January, 2012, a copy of which is annexed hereto and marked with the letter "H", Young & Williams advised me that "we confirm that we have instructions to act for the second Defendant".

(k) Under cover of letter dated 23rd January, 2012, a true copy of which is annexed hereto and marked with the letter "I", Young & Williams served an unsealed copy of a Notice of Intention to Defend filed on behalf of the second Defendant signed by Noel Kera.

(l) Under cover of letter dated 24th January, 2012 a copy of which his annexed hereto and marked with the letter "J", Young & Williams served a sealed copy of the Notice of Intention to Defend filed on behalf of the Second Defendant signed by Noel Kera.

(m) I subsequently entered into further correspondence with Young & Williams concerning the claim generally between February and April, 2012 and at no time in this correspondence was the issue of the representation on behalf of Dr Koka mentioned and, in fact, I received no indication that such an application would be made to withdraw representation until we were served with the first Motion which Young & Williams filed, which was subsequently dismissed herein by Her Honour Justice Davani on 6th June, 2012.

(n) As to paragraphs 10 and 11 of the affidavit, I can confirm that the Plaintiff is considering amendments to the Statement of Claim to plead misdiagnosis in addition to negligence with respect to an employee or employees of the First Defendant for improper insertion of a catheter.

(o) As to paragraph 12, I am surprised by the assertion by Mr Kera that the Notice of Intention to Defend was filed in error. The Amended Defence was clearly filed on behalf of the first and second Defendants and remains and will remain on the Court file as a pleading on behalf of the first and second Defendants. If Young & Williams no longer act for Dr. Koka, then it would seem that the appropriate course of action is for them to file a Notice of Ceasing to Act."

Issue

8. Can this Court give leave to Young and Williams Lawyers to withdraw the Notice of Intention to Defend and Amended Defence filed on behalf of the second Defendant?

Analysis of Evidence and the Law

9. As I pointed out to both counsel, the normal thing to do under those prevailing circumstances would be for the Law Firm to file Notices of Ceasing to Act for a party. However, Mr Kera's instructions are to withdraw the Notice of Intention to Defend and Defence filed for and on behalf of the second Defendant.

10. The evidence by Mr Kera as set out above is basically that Young and Williams Lawyers at no time received any instructions to act for the second Defendant. That when Blake Dawson, now Ashurst Lawyers filed the amended Writ of Summons and Statement of Claim on 1st November, 2011, Dr Murray Koka, the named second Defendant, was not included as the second Defendant. Young and Williams Lawyers then filed the Amended Defence for the named first and second Defendants on 30th November, 2011, and on 24th January, 2012, filed Notice of Intention to Defend for the second Defendant.

11. I note that the Notice of Intention to Defend for the second Defendant was filed after the Amended Defence was filed and that this was done at the request of Ashurst Lawyers by letter of 5th December, 2011, a copy of which is attached to Mr Shepherd's affidavit as annexure 'F".

12. In the letters from Young and Williams Lawyers to Blake Dawson, more particularly letter dated 24th February, 2011, Young and Williams advises that a report by a Jan Sheehan mentions a Dr. Murray Koka and that he was an independent consultant having no contract of employment with The Private Hospital and Clinic and did not have an interest in The Private Hospital and Clinic. This letter is attached as annexure 'C' to Mr Shepherd's affidavit sworn on 20th June, 2012.

13. That letter requests that the Plaintiff give consideration to removing the named Defendants and proceeding against Dr. Murray Koka only.

14. That was what the Plaintiff did by applying to amend the Writ of Summons and Statement of Claim which was granted.

15. After several correspondence, Young and Williams advised by letter of 16th January, 2012 that "we confirm that we have instructions to act for the second Defendant" and which was followed by letter from Young and Williams to Blake Dawson of 24th January, 2012 where they enclosed a sealed copy of the Notice of Intention to Defend on behalf of the second Defendant.

Was the Notice of Intention to Defend a conditional notice or was it a permanent notice?

16. Order 7 Rule 7 of the National Court Rules ('NCR') states the following:

"7. Conditional notice.

The giving of notice of intention to defend does not constitute a submission to the jurisdiction of the Court.

A Defendant shall be entitled, either before giving notice of intention to defend or within 14 days after giving that notice, to serve a notice of motion to set aside the service of him of the writ or of notice of the writ or to discharge the order authorizing the service on the ground that-

(a) the Court has no jurisdiction to determine all part of the plaintiff's claim; or

(b) the issue or service of the writ was irregular; or

(c) an order giving leave to serve the writ or notice of the writ out of the jurisdiction ought not to have been made; or

(d) the defendant has been served as a partner in a firm of which he was not a partner or liable as such at any material title

After service of the notice of motion the plaintiff shall not be entitled to enter judgment in default of defence or take any other step in the action without leave of the Court."

17. In this case, it was not a conditional notice, rather a notice filed under Order 7 Rule 1 of NCR, the effect of which is that the Defendant intends to defend the action either by himself or through the Law firm that filed the Notice. The Notice of Intention to Defend filed by Young and Williams Lawyers on 24th January, 2012 reads "Notice of Intention to Defend of the Defendant" "Young and Williams Lawyers of ... intends to defend this action on behalf of DR MURRAY KOKA, the second Defendant."

18. This was followed by the filing of the Amended Defence on 30th November, 2011 by Young and Williams Lawyers for and on behalf of the first and second Defendants.

19. Apart from the notice of motion now before me, no further steps have been taken in the pleadings.

20. I note there is a suggestion by Mr Shepherd in his affidavit that the Plaintiff is considering amendments to the statement of claim to plead misdiagnosis in addition to negligence with respect to an employee or employees of the first Defendant for improper insertion of the catheter. That may occur soon, however there is no indication as to when that will occur or if it will occur at all.

21. Mr Kera submits that the Plaintiff will not suffer any prejudice if the Notice of Intention to Defend and Defence filed for and on behalf of the second Defendant is removed from the Court file or withdrawn.

22. As I stated above, the obvious thing to do under the circumstances is for Young and Williams Lawyers to file Notice of Ceasing to Act for the second Defendant. If the second Defendant, Dr. Koka is aggrieved by the action filed by the Plaintiff, to protect himself, he would have to defend the proceedings either through another law firm or by himself.

23. But are there any other circumstances that would warrant the withdrawal of a Notice of Intention to Defend and Defence by a law firm as opposed to a Defendant?

What is the law on this?

24. Order 8 Rule 60 of the NCR states:

"60. Withdrawal of Notice of Intention to Defend (21/1)

A party who has given notice of his intention to defend may withdraw the notice at any time with leave".

(my emphasis)

25. Order 8 Rule 62 of the NCR state;

"62. Withdrawal of Defence, Reply, etc (21/3)

A party raising any matter in a Defence or subsequent pleading may withdraw the matter at any time.

Sub-rule (1) does not enable a party to withdraw, without the consent of another party or the leave of the Court, an admission or any other matter operating for the benefit of the other party."

(my emphasis)

26. These provisions refer to "a party". In this case, it is not the party that is seeking to withdraw; rather it is the party's lawyer.

27. I have had recourse to English practice to assist me, being the Supreme Court Practise 1985 Vol. 1 (the 'White Book'). I did this because our O. 8 R. 60 and O. 8 R. 62 are based on the English Supreme Court Rules O. 21 R. 1 and O. 21 R. 3 respectively.

28. The commentary in the White Book at O. 20 R. 1 reads;

"The Court has a complete discretion to grant a party leave to withdraw an acknowledgment of service even though it contains a statement of intention to contest the proceedings where such acknowledgment was returned by accident, e.g. a solicitor acting without proper authority or instructions or the facts show that there has been what can properly be called a mistake (Firth v. John Mowlem & Co. Ltd [1978] 1 W.L.R 1184; [1978] 3 All E.R. 331, G.A.). Indeed, the discretion of the Court is unfettered, and is not limited to a case where the defendant acted under mistake, though the discretion will be exercised with caution, and the court will have regard to all the circumstances of the case, and will weigh the balance between the faults of the parties and the prejudice which will or may be occasioned to each of them arising from the grant of refusal of such leave (per Mustill J. in Rothmans of Pall Mall (Overseas Ltd v. Saudi Arabia Airlines Corporation [1981] Q.B. 368; [1980] 3 All E.R. 359)."

(my emphasis)

29. Mr Shepherd referred me to the case mentioned in the White Book commentary, Firth v. John Mowlen & Co. Ltd & Anor. [1978] 3 All ER 331.

30. In that case, the Plaintiff brought an action for negligence against the building contractors. By their defence, the Building Contractors alleged that the injury was caused or contributed to by the suppliers of the material, who at the time of the injury were supervising the unloading at the site. By a Court order dated 12th October, 1976, which was outside the limited period for the action caused, the Plaintiff obtained leave to amend the writ and statement of claim to join the suppliers as Defendants to the action. The suppliers gave their Solicitors authority to enter an appearance in the action and on 8th November, a clerk employed by their Solicitors entered an unconditional appearance. Ten days later, before any further steps in the action was taken, the clerk realized that he had overlooked the fact that the limitation period had expired when the suppliers had been joined as Defendants.

On 18th November, he applied by summons on behalf of the suppliers, for leave either to withdraw the unconditional appearance and make it conditional, or make it conditional, on the ground that had he realized the position, he would have sought leave to enter a conditional appearance as a preliminary in applying to set aside the order of 12th October, 1976.

On 9th March, 1977 the suppliers issued a further summons applying to set aside the amended written statement of claim. The master dismissed both applications.

On the suppliers' appeal, the Judge made an order giving leave to withdraw the unconditional appearance and to enter instead a conditional appearance without prejudice to the application to set aside the amended writ and statement of claim. The Plaintiff appealed contending that the Court's discretion to give leave to withdraw or to substitute an appearance, under RSC O 21 r 1, was limited to those cases where the appearance had been entered by mistake due to absence of authority and that as the clerk's mistake was not of that kind, there was no jurisdiction to withdraw the unconditional appearance.

The Court of Appeal Civil Division Bench comprising Megaw, Shaw and Walter LJJ, held that RSC O 21, r1, gave the Court a complete discretion to give leave to withdraw an appearance, the exercise of which depended on the facts of each case. The Court held that since the clerk had made a mistake in entering an unconditional appearance, the judge had had jurisdiction to make the order which he did, and as he had given proper consideration to all the relevant factors in exercising his discretion he had, in the circumstances, exercised the discretion properly.

The Court of Appeal dismissed that appeal.

31. The commentary in the White Book at O. 21 R. 1 continues:

"On the other hand, where the acknowledgement of service or notice of intention to defend has been returned or given deliberately by solicitors acting on proper advice and doing what they intended to do, leave to withdraw such acknowledgment or notice will be refused (Somportex Ltd v. Philadelphia Chewing Gum Corporation [1968] 3 All E.R. 25, C.A.)."

(my emphasis)

32. In the case Somportex Ltd v. Philadelphia Chewing Gum Corporation [1968] 34 All E.R 26 referred to in the commentary, the Court refused leave to withdraw appearance.

33. In that case, an English company obtained leave to serve on an American company notice of a writ claiming damages for breach of contract. On 9th August, 1967, the American company acting on the advice of an American firm of Attorneys and an English firm of Solicitors entered a conditional appearance under RSC Order 12, Rule 7 in the action. That rules reads:

" 7 (1) A Defendant to an action may with the leave of the Court enter a conditional appearance in the action.

(2) Conditional appearance...is to be treated for all purposes as an unconditional appearance unless the Court otherwise orders or the Defendant applies to the Court within the time limited for the purpose, for an order under Rule 8 and the Court makes an order there under."

34. The time prescribed for this purpose by Rule 8 is within 14 days after entering the conditional appearance.

35. The appearance was entered, according to an affidavit of one of the partners in the firm of attorneys, "on a tentative basis solely to preserve his clients right to contest the jurisdiction of the Court in England if his firm deemed such action desirable..."

36. On August 18, a summons was taken out by the American Company to set aside the Writ. This summons was heard on November 13 and dismissed, time being allowed to the American company to apply for leave to withdraw their appearance under RSC O.21 R.1.

37. On appeal, the Court of Appeal, Civil Division comprising Lord Denning MR, Salmon and Edward Davies LJJ on 27th February, 1968 held:

that the conditional appearance was entered after competent legal advice and not by mistake, and the American Company should not be allowed to resile from the election so made as the Plaintiffs had continued the English action on the basis of the Entry of Appearance; accordingly leave to withdraw appearance would be refused and the conditional appearance would stand as unconditional subject to any appeal from the order dismissing the application to set aside the Writ. (my emphasis)

38. Lord Denning MR and Salmon L.J held also that if an appearance is entered by mistake (or without authority) leave to withdraw the appearance may be given.

39. In this case, the Notice of Intention to Defend and Defence were not mistakenly filed. Young and Williams Lawyers filed the said Notice after it received instructions to do so. Its letter to Ashurst Lawyers of 16th January, 2011 advised and confirmed that it had instructions to act for the second Defendant followed by the letter of 24th January, 2012 from Young and Williams Lawyers to Ashurst Lawyers enclosing a sealed copy of the Notice of Intention to Defend on behalf of the second Defendant.

40. As far as I can tell, there is no evidence before the Court to show that Young and Williams Lawyers had not acted on proper advice or had made a mistake. And it is not the party applying but rather it is the Law Firm that is applying to withdraw. In my view, if it was the party applying, then the Court has a discretion which is unfettered, to be exercised with caution, having regard to all the circumstances of the case (see Firth v. John Mowlem (supra).)

41. This case is similar to Somportex Ltd v. Philadelphia Chewing Gum Corporation (supra) where the lawyers acted on proper advice, confirmed by Young and Williams Lawyers' letter to Blake Dawson dated 24th February, 2011 where Young and Williams clarified that the Plaintiff should consider proceeding against Dr Murray Koka and again, further confirmed by Young and Williams' letter to Blake Dawson Lawyers of 9th December, 2011 where it informed Blake Dawson that it had sought and is waiting on his client's instructions. This was followed by a further letter from Young and Williams to Blake Dawson dated 16th January, 2012 where it confirmed that it had instructions to act for Dr Murray Koka, the second Defendant. The second Defendant's Notice of Intention to Defend was sent by Young and Williams to Blake Dawson under cover of its letter dated 24th January, 2012 and which was received by Blake Dawson on 31st January, 2012.

42. I cannot see where the mistake is. If Young and Williams Lawyers wish to withdraw the Notice of Intention to Defend on behalf of the second Defendant, then they ought to show where the mistake is. But they have not. I cannot give leave to the law firm to withdraw because they have not demonstrated the mistake.

43. Young and Williams Lawyers must file Notice of Ceasing to Act, rather then a Notice of Withdrawal.

44. As for the Plaintiff's intended application to amend, that is a matter for them to consider and to file whenever appropriate.

Conclusion

45. I will not give leave to Young and Williams to withdraw its Notice of Intention to Defend, rather, I will give leave to Young and Williams Lawyers to file Notice of Ceasing to act, if they wish to.

46. As to costs, I will order that the Defendants pay the costs of the application because it is apparent from the Affidavits before me and from Mr Kera's submissions, that the first Defendant do not want their lawyers to represent the second Defendant, notwithstanding the law as it stands today on this issue.

Formal Orders

47. These are the Court's formal orders:

(1) The Notice of Motion filed by Young and Williams Lawyers on 8th June, 2012 and the orders sought therein, is dismissed;

(2) The firm Young and Williams Lawyers has leave to file Notice of Ceasing to Act for the second Defendant, to do whenever appropriate and on 3 days notice to the Plaintiff; and

(3) The Defendants will pay the Plaintiff's costs of the application, to be taxed if not agreed.

____________________________________________________________

Ashurst Lawyers: Lawyers for the Plaintiff/Respondent
Young & Williams Lawyers: Lawyers for the second Defendant/Applicant