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South Pacific Marketing (NZ) Ltd v Maile [1987] SBHC 12; [1987] SILR 81 (9 November 1987)

[1987] SILR 81

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 318 of 1986

SOUTH PACIFIC MARKETING (N.Z.) LTD

v

DANIEL MAILE

High Court of Solomon Islands
(Ward C.J.)
Civil Case No. 318 of 1986

Hearing: 4th November 1987
Judgment: 9th November 1987

Civil procedure - striking out for want of prosecution - High Court (Civil Procedure) Rules,O.32 r.8 - basis on which court to exercise its discretion - relevance of non-expiry of limitation period - need for stringent peremptory orders

Facts:

The Appellant/Plaintiff appealed against an order of the Registrar striking the action out for want of prosecution, the Plaintiff having delayed for eight months to take out a summons for directions.

Held:

In the absence of evidence of substantial risk that a fair trial was not possible or that serious prejudice might be caused to the defence, the case ought not to have been struck out.

Observed:

The Registrar should consider peremptory orders for strict time limits for all further steps in the prosecution of the action, and that once an action stands dismissed for failure to comply with such an order any fresh writ may be struck out as an abuse of process even within the limitation period.

Appeal allowed, with an order that the Plaintiff take out a summons for directions within fourteen days and the action stand dismissed in the event of failure to comply.

Cases referred to:

Lo Shiu Tang v. John Lo (High Court civil Case No. 8/81, unreported)
Birkett v. James [1977] 3 WLR 38
Allen v. McAlpine [1968] 1 All E.R. 543
Kayuken Pacific v. Harper [1987] SILR 54

Jennifer Corrin for Appellant/Plaintiff
Francis Waleilia for Respondent/Defendant

Ward CJ: This action was commenced by writ served on the Defendant on 17th December 1986 for specific performance of an agreement to lease an island owned by the Defendant. A defence was filed on 28th January 1987.

No summons for directions has been taken out and, on 15th September 1987, the Defendant issued a summons to strike the action out for want of prosecution under O.32 r.8. The application was heard on 2nd October 1987 by the Registrar and the action was struck out.

This is an appeal against that order, leave having been granted to appeal out of time.

The grounds of appeal are:-

"1. That the Registrar erred in law in dismissing the action for want of prosecution whilst the action was still within the time limited for issuing a new writ with respect thereto;

2. That the Registrar erred in law in not requiring the Defendant to discharge the burden of proof on him to show that the delay gave rise to a substantial risk that a fair trial would not be possible or to serious prejudice to the defendant;

3. That the Registrar erred in holding that the Defendant had discharged the burden of proof on him to show that the delay in proceeding with the action was inordinate;

4. That the Registrar erred in holding that the Plaintiff had not discharged the burden of proof on it to show that there was a reasonable excuse for the delay".

The history can be gleaned from the affidavits of Mr Waleilia, counsel for the Respondent/Defendant and of Miss Corrin who is now counsel for the Appellant/Plaintiff.

On 15th June 1987, Mr Waleilia wrote to the Public Solicitor who was acting as agent for the Plaintiffs’ solicitor advising that he would apply to strike out the action unless the Plaintiff took out a summons for directions within fourteen days. He was advised the solicitor dealing with the case was on leave and, with some forbearance, awaited his return. Once the Public Solicitor had returned, he wrote to the Honiara agents for the Plaintiff Company stating in the clearest terms the need for urgent action. That letter was dated 20th July 1987 and it was not until Mr Waleilia had waited a further two months that he took out the summons to dismiss the action.

On 2nd October 1987, the Registrar ordered that it be struck out. After summarising the history I have set out, he continued his ruling:-

"The only question is whether to strike out now or on terms that matter will be struck out in short period unless Summons for Directions taken out. I can treat this hearing as Summons for Directions under O.32.

Plaintiffs have pointed out that action can be recommenced. They have also said a common order is to give a final period failing action it will be struck out.

In my judgment the Plaintiffs have delayed over 6 months in taking out a Summons for Directions. They were put on notice this application would be brought two and a half months ago. Nothing has happened. I find this delay is inordinate and the Defendants are entitled to an order striking out this action."

Miss Corrin, who was only instructed by the Plaintiff on 6th October, has by affidavit, explained further details.

It appears that the solicitor representing the Plaintiff is a Suva lawyer, Marquadt-Gray, and there had been no contact with him for some months. When Miss Corrin spoke to the Plaintiffs on 14th October, they did not know the action had been struck out and stated that someone in the office in Suva had told them Marquadt-Gray had fled from Suva because of the military coup. No date has been given for his departure but Miss Corrin urges the court to accept, despite it, that the delay in appealing was due to communication difficulties caused by the political situation in Fiji and not by tardiness or fault on the part of the Plaintiffs or their former solicitors. Whilst I accept that the delay in appealing may well be attributable to this, I cannot accept that it covers the delay in taking out the summons for directions.

In this case, the Plaintiff lodged a caveat with the Registrar of Titles on 6th August 1986. Having taken such a step, inactivity by the Plaintiff and the Suva Solicitor strikes me as indicating tardiness or even a deliberate intention to hold the matter up. My opinion is reinforced by Miss Corrin’s information to the court that, despite the failure to take out a summons for directions, Marquadt-Gray had been in correspondence with the Commissioner of Lands here in March, April, July and August, and with the Court in March, April and July 1987. Had the Registrar known that, I am sure he would have felt even more strongly that the delay was excessive.

It is clear that Miss Corrin has acted promptly and correctly since she was instructed by the Plaintiff but I feel the delays caused by the Plaintiff and their former solicitor are totally unjustified. I resist the temptation to speculate further on their probable motives. Had I felt that was the only basis for the appeal and had I felt that the order striking out this action could finally dispose of it, I would not hesitate to endorse the Registrar’s decision.

As far as grounds three and four are concerned, there was perfectly adequate evidence from the Defendant to satisfy the Registrar that there had been unnecessary delay although, for reasons that will appear later in this judgment, he was wrong to find it was inordinate and the Plaintiff showed no reasonable excuse for that delay.

Miss Corrin has asked this court to consider that five months in the context of civil litigation is hardly excessive delay. She suggests that three years is an acceptable minimum period before an action such as this is brought. It may well be that is the case in many actions and frequently for good reason. In this case, the delay was not five months, but eight months for a preliminary step that should have been completed in fourteen days. Of those eight months of inactivity, half have slipped by since the Defendant sent a very clear warning that he intended to seek to have the action struck out. Any suggestion that is not unreasonable in a jurisdiction fortunate enough to have no problem with listing delays is likely to receive little sympathy from the court. There is very little merit to be found in the Plaintiffs’ conduct so far in this case and it is clear that problems caused by the coup in Fiji do not account for it.

The question of striking out for want of prosecution has been considered in this court by Daly CJ in the unreported case of La Shiu Tang v. John Tang (Civil Case No. 8/81) in which there had been a failure to set down for trial.

In deciding the basis upon which the court should exercise its discretion to strike out, he adopted the principles referred to by Lord Diplock in Birkett v. James [1977] 3 WLR 38:

"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 between them and a third party."

Those principles had been laid down in the case of Allen v. McAlpine [1968] 1 All E.R. 543 and the House of Lords went on to consider further matters in Birkett v. James one of which is especially pertinent to this case and is referred to in ground one, namely, the relevance of the fact that the limitation period had not expired by the time the application to dismiss for want of prosecution was heard.

At p. 48 and 49 Lord Diplock said:

"Crucial to the question whether an action ought to be dismissed for want of prosecution before the expiry of the limitation period is the answer to a question that lies beyond it, viz., whether a plaintiff whose action has been so dismissed may issue a fresh writ for the same cause of action. If he does so within the limitation period, the effect of dismissing the previous action can only be to prolong the time which must elapse before the trial can take place beyond the date when it could have been held if the previous action had remained on foot. Upon issuing his new writ the plaintiff would have the benefit of additional time for repeating such procedural steps as he had already completed before the action was dismissed. This can only aggravate; it can never mitigate the prejudice to the defendant from delay....

The court may and ought to exercise such powers as it possesses under the rules to make the plaintiff pursue his action with all proper diligence, particularly where at the trial the case will turn upon the recollection of witnesses to past events. For this purpose the court may make peremptory orders providing for the dismissal of the action for non-compliance with its order as to the time by which a particular step in the proceedings is to be taken. Disobedience to such an order would qualify as "intentional and contumelious" within the meaning of the first principle laid down in Allen v. McAlpine. But where no question of non-compliance with a peremptory order is involved the court is not in my view entitled to treat as "inordinate delay" justifying dismissal of the action in accordance with the second principle in Allen v. McAlpine a total time elapsed since the accrual of the cause of action which is no greater than the limitation period within which the statute allows plaintiffs to start that action. To dismiss the action in such circumstances would, in my view, involve an error in principle in the exercise of judicial "discretion" which it is the function of the appellate court to correct."

In adopting the latter part of these comments, Daly CJ stated:-

"This is, of course, of the strongest persuasive authority in this court and one must, albeit with some reluctance, accept that it is the only conclusion compatible with the logic of the situation. I say "with some reluctance" as such acceptance must mean that in the majority of cases the jurisdiction of the court to dismiss for want of prosecution under (2) is distinctly limited. If anything this should lead courts to make, in cases where it looks as though plaintiffs are dragging their feet, more stringent peremptory orders. As the plaintiff is not at present in default of such an order and the limitation period has not expired, it follows that the orders sought in this summons should not be granted."

The case I am considering is well within the limitation period.

On the strength of the comments of Daly CJ, it is clear that the learned Registrar did not apply the proper test.

It is clear from the record, he was relying on the fact of inordinate delay. In a case so well within the limitation period, that was not correct but I accept that, on the information before him, he would have been justified in finding it inexcusable. However, in such cases, before the court exercises its discretion to strike out, it must then move on to consider whether the delay gave rise to a substantial risk that a fair trial is not possible or that serious prejudice may be caused to the defence.

In this case, there was little or no evidence of that. Whilst I sympathise with the Defendant’s frustration at the Plaintiffs’ delay, the burden falls on him in such an application to satisfy the court that one of those conditions is present. In this case, the evidence suggests that, on the contrary, as a fresh action is likely to be started following striking out, the result will probably be to cause further delay and inconvenience to the Defendant.

In all these circumstances, I must allow the appeal and quash the Registrar’s order dismissing the action for want of prosecution.

I order that the Plaintiff take out a summons for directions within fourteen days and the action shall stand dismissed in the event of failure to comply.

The Registrar should consider peremptory orders for strict time limits for all further steps in the prosecution of this action.

No order was made by the Registrar for costs of the application to strike out. I order that the costs of those proceedings be paid by the Plaintiff and the costs of this appeal be costs in the cause.

Before leaving this matter, I would like to endorse the comment by Daly CJ quoted above that the court should not hesitate in any case where the Plaintiff is dragging his feet to make stringent peremptory orders. Once an action stands dismissed for failure to comply with such an order any fresh writ issued may be struck out as an abuse of the process of the court even though the limitation period has not expired.

I have already referred in Kayuken Pacific v. Harper [1987] SILR 54 to the need for expedition in civil proceedings and the attitude the courts are now adopting where there has been failure to comply with the time limit set out in the Rules. Delay always carries the risk of prejudice - witnesses may die or disappear and memories will fade making it more difficult or even impossible for the court to reach a fair conclusion. The delays that caused the judges in the English courts to adopt a more stringent approach over the last decade and half were frequently exceedingly long and had been allowed to grow because of the problems of increasingly long civil cause lists. Such cases cannot and will not be acceptable as a measure of what would be considered reasonable in this jurisdiction where listing of all matters, both interlocutory and final, can be achieved promptly.