Hearing: 18th April,
2001
Ruling: 24th April,
2001
Mrs A. N. Tongaturu for
laintiff
>
Mr. A. Nori for Defendants
RULING
(Kabui, J):
By Notice of Motion tion filed on 2nd March, 2001, the Defendant has asked the
Court for the following orders -
(1) The Plaintiff's
action be struck out for want of prosecution;
las class="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
(2) In the alternative an
order that - /b>
(a) the Plaintiff to file
a certificate of readiness for trial within 14 days; and
(b) the said Plaintiff to
meet the costs of the Defendant�s incurred to date on a client/Solicitor
bases and that such
payment be made within 28 days, failing which the action
to be struck out.
(3) Costs to be paid by
the Plai or her Solicitor.
This Notice of Motion is based
upon Order 33, rule 21 of the High Court (Civil Procedurees 1964 (the
High Couh Court Rules).
Rule 21 of Order 33 above states �if any party
fails to comply with any order to answer interrogatories, or for discovery
or production or inspection of
documents, he shall be liable to attachment.
He shall also, if a plaintiff be liable to have his action dismissed for
want of prosecution, and, if a defendant, to have his defence, if any,
struck out, and to be placed in the same position as
if he had not defended,
and the party interrogating may apply to the Court for an order to that
effect, and an order
may be made accordingly.�
I event that I do not
grant Order (1) above based upon Order 33, rule 21 of the High Cigh Court Rules,
I should still
however consider and grant Order (2) as an alternative
remedy. This is the second time the Defendant has complained against
the
Plaintiff, this time, for delaying to file a certificate of readiness for
trial accompanied by a bundle of pleading.
The first complaint was in May
2000 when the Defendant filed a Notice of Intention to Proceed under Order
64, rule 9
of the High Court Rules. He filed the actual Notice of Motion on
14th July, 2000 seeking the determination of the issues set
out in that
Notice of Motion. I ruled against the Defendant on 21st November, 2000.
The Background/p>
There was a Consent Order for
directions dated 22nd December, 1998 signed by the Registrar of the High
Court. The terms
of the Consent Order were that each party was to file and
deliver an affidavit of documents within 42 days from the date of
the Order,
interrogatories, if any, to be filed and delivered within 28 days thereafter
and answers to interrogatories,
if any, be filed and delivered within 14
days thereafter. Furthermore, the Plaintiff was to apply for the matter to
be
listed for trial within 30 days thereafter by production of a certificate
of readiness for trial accompanied by a bundle of
pleading. The Plaintiff
filed her affidavit of documents on 29th January, 1999 whilst the Defendant
did likewise on 15th
February, 1999. There was a long delay until Mrs
Tongarutu filed a Notice of Change of Advocate on 8th August, 2000. As I
have said, an attempt by the Defendant to short cut the Plaintiff�s journey
to justice was rejected in my ruling on 21st
November, 2000. Since then the
journey to justice had suffered some set - backs. The Defendant has pointed
fingers at
the Plaintiff for delaying the progress of the case. The
Defendant has again come to the Court for an Order to strike out the
Plaintiff�s action for want of prosecution or in the alternative for orders
to force the Plaintiff to prosecute her case
speedily and for costs.
The Plaintiff�s Case
The Plaintiff�s positiems
to be heavily affected by the lien placed upon the Plaintiffs File in the
c custody of Sol
- Law, her former Solicitors. The File will not be released
to the Plaintiff until the Plaintiff pays off her outstanding fees
for the
service provided by Sol - Law, her former Solicitors. The fees are in the
sum of $20,013.17 plus 14% interest
per annum from 20th May, 1999 until
payment. This is a huge sum of money for any ordinary Solomon Islander to
pay if
he or she does not have the resources to pay on demand. The release
of the Plaintiff�s File and the listed documents in it
depends upon the
payment in full of the fees plus interest. Sol - Law has refused even to
release copies of the documents
(See Exhibit �CR4� attached to the
Plaintiff�s affidavit filed on 17th April, 2001). The Plaintiff is currently
making
an effort to find funds in order to pay off the fees she owes to Sol
- Law, her former Solicitors. The Plaintiff's effort has
not yet paid off as
she is yet to receive the necessary funds from the shipment of logs. She now
expects funds from that
source. She also expects the lien on her File in the
custody of Sol - Law, her former Solicitors, to be lifted at the end of
April, 2001. The Certificate of readiness for trial should then be filed.
The Defendant's Case
The dant�s case is that
whilst the Plaintiff's difficulty in having her File released frod from Sol -
Law, her former
Solicitors, she has not done enough to persuade them to
release the File and the documents therein. She must therefore, for
this,
suffer whatever consequences that may flow from the Court�s ruling if such
ruling is in favour of the Defendant.
The Law/Practice
The issues raised in this case
make it necessary for me to revisit the case of Al Sir Alfred
Mc McAlpine & Sons [1968] 2 W.L.R. 366 I cited in Solomon Islands
National Provident Fund Board v Solomon Islands Electricity Authority
(Civil Case No. 55/2000). Diplock L.J. at pages 378 - 379 said, �There
are three stages between cause of action and trial: the first from cause of
action to service of writ, which may
include application for legal aid; the
second from service of writ to setting down for trial; the third from
setting
down to the trial itself. Each of these stages inevitably takes
time. The plaintiff�s solicitor has no control over the time
taken before he
is consulted or after the action has been set down for trial. The former
depends upon the client: the
latter upon the state of business of the
courts. But what the plaintiff�s solicitor can control and should avoid is
any
delay between being first consulted and setting the action
down for trial which is not reasonably necessary for the proper preparation
of his client�s
case.�
Diplock L. J. again at
382 - 384 said �What then are the principles which the court should
appl apply in exercising its discretion to dismiss an action for want of
prosecution upon a defendant's application? The application is not usually
made until the period of limitation for the
plaintiff�s cause of action has
expired. It is then a Draconian order and will not be lightly made. It
should not in
any event be exercised without giving the plaintiff an
opportunity to remedy his default, unless the court is satisfied either
that
the default has been intentional and contumelious, or that the inexcusable
delay for which the plaintiff or his
lawyers have been responsible has been
such as to give rise to a substantial risk that a fair trial of the issues
in
the litigation will not be possible at the earliest date at which, as a
result of the delay, the action would come to trial
if it were allowed to
continue. It is for the defendant to satisfy the court that one or other of
these two conditions
is fulfilled. Disobedience to a peremptory order of the
court would be sufficient to satisfy the first condition. Whether the
second
alternative condition is satisfied will depend upon the circumstances of the
particular case; but the length of
the delay may of itself suffice to
satisfy this condition if the relevant issues would depend upon the
recollection of
witnesses of events which happened long ago.
Next as to the pel
position of the plaintiff. He may, of course, have been personally to blame
f for the delay; but
generally the ordinary litigant, once he has consulted
his solicitor, is helpless before the mysterious arcana of the law.
Delay,
when it occurs from this stage onwards, is usually not his own fault but
that of his solicitor. If, as a result
of his solicitor's default, he has a
remedy in an action for negligence against his solicitor, and, as already
pointed
out, if the solicitor is financially able to meet the damages, this
remedy is an adequate one. But if the solicitor would be
unable to meet the
damages, the hardship to the plaintiff, whose action against the defendant
is dismissed for want of
prosecution, is grave indeed. In strict logic, the
impecuniosity of the plaintiff�s solicitor would not affect the defendant's
right to have the action dismissed. But in exercising a discretion, even a
judicial one, the court can temper logic with
humanity and the prospect that
an innocent plaintiff will be left without any effective remedy for the loss
of his cause
of action against the defendant is a factor to be taken into
consideration in weighing, on the one hand, the hardship to the
plaintiff if
the action is dismissed, and, on the other hand, the hardship to the
defendant and the prejudice to the
due administration of justice if it is
allowed to proceed.�
With the remarks made by
DipL. J. Salmon L. J. agreed. Denning L. J. did not disagree eree either.
My Ruling
The evidence so far shows tha the Plaintiff is in a weak position financially from them the start. Her
inability to meet the
professional fees of Sol - Law, her former Solicitors,
has resulted in a lien being placed over her File. This inability to
pay her
fees in turn affects the progress of her case because without the release of
her File, the listed documents in
her affidavit of documents filed on 29th
January, 1999 cannot be inspected and produced within 28 days specified in
the Consent Order of 22nd December, 1998. The Plaintiff�s
financial position is clearly set out in her affidavit filed on 17th April,
2001. That
is to say, she is not being paid anything from the operation of
the 3rd Defendant. The 2nd and 4th Defendants are no longer
in operation.
Her only source of revenue is the logging operation in Makira from which she
expects to receive money and
be able to pay off her fees from Sol - Law, her
former Solicitors, to effect the release of the long awaited File and
documents. I do sympathise with the Plaintiff�s plight but the law is not
blind to justice. If justice calls, the law is always
willing and ready to
respond to the call of justice. If the Plaintiff finds that 28 days imposed
by the Consent Order
of 22nd December, 1998 cannot be fulfilled
due to the lien imposed upon the Plaintiff�s File, the Plaintiff is at
liberty to
vary that Order to give her more time under Order 33, rule 28 of
the High Court (Civil Procedure) Rules. Rule 28 above states
�Any
order under any of the Rules of thus Order (including an order made on
appeal) may, on sufficient cause being shown,
be revoked or varied by a
subsequent order or direction of the Court or a Judge made or given at or
before trial.� The fact is that the 28 days time limit had long
expired without being extended. The case must be conducted within the rules
of practice to ensure that each Solicitor knows exactly the position of each
other and for the preparation to progress
well to trial stage. In this case,
whilst the Defendant�s Solicitor does recognise the Plaintiff�s difficulty,
the Plaintiff�s
Solicitor has not done the correct thing by applying to the
Court for an Order under Order 33, rule 28 of the High Court Rules.
At
least, variation by consent would suffice. For the Plaintiff�s Solicitor to
continue an open - ended correspondence
over the issue of inspection and
production of documents without extending the 28 days time limit could well
lead to
the idea that the Plaintiff was deliberately stalling the progress
of the case. If one is in default under the rules of practice,
one needs to
beg the Court or the other party for liency in the interest of justice. The
Defendant's Notice of Motion
is an attempt by the Defendant to force the
Plaintiff to act but on the terms of the Defendant as set out in the
Defendant's
Notice of Motion. In the light of the evidence produced by the
Plaintiff, I do not think the Plaintiff can be penalized in
terms of Order
33, rule 21 of the High Court Rules. True, there is a failure by the
Plaintiff in not complying with the
28 days time limit but such failure has
been explained and the reason is genuine. It is a technical failure that can
be corrected under Order 33, rule 28 of the High Court Rules. There is no
evidence to suggest that the Plaintiff has shown
the intention at least by
implication that she is not interested in proceeding with her case. In fact,
the opposite is
the truth. The delay caused by the lien imposed upon the
Plaintiffs File is regrettable. However, the Plaintiff is conscious
of this
fact and is doing all she can to remove the lien. This is a rather unusual
case in that any extension obtained
to vary the 28 days time limit under
Order 33, rule 28 of the High Court Rules may well lapse without the release
of
the Plaintiff�s File so long as the Plaintiff is not in a position to pay
off her legal fees to Sol - Law, her former Solicitors.
I suppose as a
matter of proper procedure, further extension of time may be applied for and
granted or otherwise by the
Court. As against these possibilities, the
Plaintiff has said in her affidavit that her account with Sol - Law, her former
Solicitorcitors, should be settled next week at the end of April. If
things do turn out in the Plaintiff�s favour next week
and her File is duly
released by Sol - Law, her former Solicitors, the matter of inspection and
production of the Plaintiff�s
documents should then be resolved. If not, the
Plaintiff may have to consider proceeding with the issue of the validity of
her marriage first and the matter of property settlement to be proceeded
with later. However, having said that, the control
of the Plaintiff�s case
is in the hands of her Solicitor. However, for the purposes of the
Defendant's Notice of Motion,
I find that the Plaintiff's conduct has not
been intentional and contumelious nor the delay alleged would prejudice the
fair trial of the issues in this case. Mr. Nori, argued that the delay by
the Plaintiff had caused difficulties to the Defendant
in that his
properties were being held up by the Plaintiff's action. There is evidence
to substantiate that claim. The
Plaintiff denies any other caveat other than
the one placed on Parcel No. 191 - 028 - 42, the property at Vara Creek. She
agrees to remove that caveat provided the proceeds of any sale of that
property be held in a joint trust account. There
is however documentary
evidence showing caveats in respect of Parcel Nos. 191 � 010 - 68, 191 - 017
- 58, 191 - 010 - 40 and 191 - 026 - 10. These caveats
are however measures
to enable justice to be attained at the end of the trial. They serve the
same purpose as injunctions.
In balancing the interest of the Plaintiff as
against the Defendant, I feel the Plaintiff should be given the chance to
pursue her case in Court. In cases of this sort, settlement of property is
always a burning issue. I do sympathize with
the Defendant in this regard
but in such things, justice of the case must always be maintained at all
times. The Defendant's
application to strike out the Plaintiff�s action for
want of prosecution is refused. The alternative orders sought in the
Defendant�s Notice of Motion are also refused. There is the question as to
what should the Defendant do if the delay is
on the part of the Plaintiff?
Diplock L.J. at page 381 said �Where the delay is on the part of the
plaintiff, there are some steps, such as obtaining an order for directions
or setting
down the action for trial, which the defendant may take himself;
but it is seldom in the defendant�s interest to press on with
the trial of
the action, whatever view he takes of the plaintiff�s chances of success.�
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In this case, whilst the
Defendant has askr orders for directions in the alternative, I find
my myself unable to grant
the Orders sought. The effect of 14 days within which
the certificate of readiness is to be filed is inconsistent with the
terms
of the Consent Order of 22nd December, 1998 in that it disregards the need
for the inspection and production of
the Plaintiff�s documents by the
Defendant, contrary to the terms of the Consent Order of 22nd December,
1998. How can
there be a certificate of readiness filed in the absence of
inspection and production of the Plaintiff�s documents? The fact
is that the
File and the documents therein are not in the possession of the Plaintiff
but in possession of Sol - Law,
her former Solicitors. The success of her
action may well depend upon her documents being transferred to her
possession
to enable her to conduct her case efficiently and at the end of
the trial attain justice. As I have said, justice is what the
law is all
about and so be it in this case. I can understand Counsel for the Defendant,
Mr. Nori's frustration over this
but I do have a discretion to rule in
favour of the Plaintiff in the interest of justice. The Order for costs
asked for
by the Defendant can also cause injustice to the Plaintiffs
action. In the result, I refuse the Defendant's application and
order that
cost be in the cause.
F. O. Kabui
Judge
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