HIGH COURT OF SOLOMON
ISLANDS
Civil Case No: 245 of 1997
v
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NATIONAL INSURANCE & POTI
WALE
High Court of SolIslands
Before: F.
O. Kabui, J
Civil Case No: 245 of 1997
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Hearing: 27th
February, 2001
Judgment: 1st
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Mrs. M. Samuel for the
Plaintiff
Mr. A. Radclyffe for the 1st Defendant
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JUDGMENT
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(Kabui, J):
The 1 Defendant came to t to the Court on Monday 20th
November, 2000 by way of Summons filed that day seeking the following
orders:-
1. that the Writ filed on
9th October 1997 be struck out on the grounds that it has not
been served on the First Defendant within 1 months of issue and discloses
no
cause of action against the First Defendant;
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2. alternatively that
service, if effected, be set aside on the grounds that:
(a) the First Defendant
being a limited company, is not correctly named and has not been validly
served in accordance
with the High Court Rules and the Companies Act;
(b) the writ and
statement ofm disclose no cause of acti action against the First Defendant.
3. such further or other
orders as thas the Court thinks fit.
The hearing of the 1st
Defendant�s Summons had been adjourned twice previously due to the Plaintiff
not being able to contact his Solicitor.
The hearing of the 1st
Defendant�s Summons took place before me on 27th February, 2001.
The Facts
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The Plaintiff commenced his
action by a Writ of Summons filed on >th October 1997 agai against
National Insurance, the 1st Defendant and Poti Wale, the 2nd
Defendant of White River, Honiara. The Plaintiff�s Statement of claim was
also filed on that same day.
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The Plaintiff aken no
further action to prosecute his claim in Court since 9th October
ber
1997. This fact caused the 1st Defendant to come to Court to ask that the
Plaintiff�s Writ of Summons be
struck out on the grounds set out in the 1st
Defendant�s Summons filed on 20th November 2000.
The 1st Defendant�s
Summons
In the first place the 1st
Defendant sought to strike out the Plaintiff�s Writ of Summons on two
grounds. First, the Writ of Summons had not been
served within 12 months of
its issue. Second, the Writ of Summons disclosed no cause of action against
the 1st Defendant. As to the first ground, Order 8, rule 1 of the
High Court (Civil Procedure) Rules 1964 (the High Court Rules) states
�
�No original writ of
summons shall be in force for more than twelve months from from the day of the
date thereof, including
the day of such date; but if any defendant therein
named shall not have been served therewith, the plaintiff may, before the
expiration of the twelve months, apply to the Court for leave to renew the
writ; ...�
In this case, the service of
Wf Summons upon the 1st Defendant is in dispute. ute. Whilst the
1st Defendant denied being served with the Writ of Summons, the
Plaintiff�s Solicitor said the Writ of Summons had been served
upon the 1st
Defendant. The rules governing service are set out in Order 9, rule 14 of
the High Court Rules. Rule 14 states -
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�(1) Service of a notice,
summons, order or other dher document, shall wherever it is practicable, be
effected personally on
the person to be served and service thereof shall be
completely effected by the delivery of a duplicate or attested copy of
any
such notice, summons, order or document without the exhibition of any
original:
Provthat where
service as aforesaid cannot be effected thed the provisions of Rule 2 of this
Order as to substituted service
shall, mutatis mutant is, apply.
(2) Service on the
advocate cate or recognised agent of the person to be served shall be deemed to
be effective service
on such person.�
The application of these rules
wercussed in Leslie Allison v Monique Medlin by the Coue Court of
Appeal (Civil Appeal No. 7 of 1996). I also quoted these rules and cited
Leslie Allinson v Monique Medlin in Allan Qurusu v Manaseh Sogavare
(Civil Case No. 190 of 1999). These rules should now be known by lawyers
inside out. They are basic rules of practice.
In this case, the evidence of
service was by affidavit filed by the Plaintiff�s Solicitor and Counsel on
27th February
2001. The relevant paragraphs are these �
�1.............�............
2.
............................
3. I could remember that
the then Office Clerk, one Francis Loea Loea had served the Summons in these
proceedings on the
First Defendant at their Anthony Saru Building in
Honiara. I could not now recall the date service was done.
4. I could also remember
that an AffidAffidavit of Service was prepared but was not filed in Court.
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5. We have tried to
locate the wherewhereabouts of the said Francis Loea but have not been successful
to date.
6. If we were able to
to
locate him then he would be in a position to confirm the position as stated
above.�
Apart from these paragr
there is no evidence of service in this case. The Office Clerk, Mr. Loea,
has has not filed a
Certificate of Service as proof of service. There is no
record of any Certificate of Service in the Court File. This confirms
the
fact that no affidavit of service has ever been filed in the High Court.
This fact leads me to conclude that the
Plaintiff�s Writ of Summons has
never been served upon the 1st Defendant up to date. It has not
been done for a period of over 3 years since the Writ was filed in the High
Court. In
terms of Order 8, rule 1 of the High Court Rules cited above, the
Plaintiff�s Writ of Summons has now become stale and is no
longer in force.
Whilst a stale Writ is not a nullity, it is irregular and does entitle the
Defendant to argue that the
Writ should not be renewed. The matter of
renewal of a stale Writ is another and separate matter to be taken up by the
Plaintiff if he so wishes. Its renewal would of course not be automatic but
may be granted depending upon the facts of the
case. As to the second
ground, I must look at the Plaintiff�s Writ of Summons to decide it. As I
have said, the Plaintiff�s
Writ of Summons was filed on 9th
October 1997.
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I do not think the Writ of
Summons was defective in any way at all. The Statement of claim was attached
to the Writ of
Summons and filed on the same day. This is unlike the case of
Pontin v Wood [1962] 1 WLR 258 where the Plaintiff issued a Writ
indorsed with the words �the plaintiffs� claim is for damages for
personal injuries� by reason of which the Writ was defective. The proper
Statement of Claim was filed about 3 months later which correctly stated
the
cause of action. The Defendant took out a Summons to set aside the Writ and
its service etc on the ground that the
Writ disclosed no cause of action.
The Court of Appeal held that though the Writ was defective, it was not a
nullity
because its defect was subsequently corrected by a proper Statement
of Claim. This is not the case here.
In this case, the Statement of
Claim in this case is as follows -
2. The First Defendant is
thurer and the Second span>
Defendant is the driver
of vehicle registration number 5775.
3. On the 9th
Octo1991 the Plaintiff was trav travelling along the Kola�a Ridge road when
he was hit by vehicle registration number
5775. He sustained injuries as a
result.
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4. It is alleged that the
nd defendant was negligent gent whereby causing the accident in which the
Plaintiff had sustained
the injuries.
5. The Second Defendant
was negligent in that: -
(i) He had driven the
vehicle at highd.
(ii) He had failed to
exercise due care tor road users.
(iii) He had f to
take extra care ware when approaching a bend on the road.
6. Upon the claim for
negligence, nce, the Plaintiff seeks an order for damages, interest and costs.�
In my view, there is a cause of
action disclosed. The cause of action clearly lienegligence. I do not
think the Plaintiff�s
Writ of Summons can be struck out on this basis of
there being no cause of action. A Writ can only be set aside which discloses
no cause of action if the indorsement shows that the action is an abuse of
the Court process (See Pontin v Wood cited above). In this
case, whilst the Writ of Summons and the Statement of Claim may lack
procedural correctness, if any, the
Writ itself is not a nullity because if
it is so, there can be no cause of action. For example, in Marchioness of
Huntly v Gaskell [1905] UKLawRpCh 122; [1905] 2 Ch 656, the Court struck out a Writ because it
disclosed no cause of action. In that case, the Plaintiff had lost twice in
the
Courts in Scotland on the same issue and her attempt to invoke the
jurisdiction of the Court of Chancery in England was an
abuse of the Court
process. The filing of the Writ was therefore an abuse of the Court process
and therefore was struck
out.
However, the point as set out
in the 1st Defendant�s Summons and argued by Counsel for the 1st
Defendant is that the Writ of Summons disclosed no cause of action against
the 1st Defendant as the third party insurer. Supporting this
stand is the allegation by the 1st Defendant that the insured
were Dick Oli and Harold Mamatekwa and not Poti Wale. In other words, the
Plaintiff should
not have cited the National Insurance as the 1st
Defendant. In my view, this point is not fatal to the Plaintiffs case. The 1st
Defendant could have applied to the Court to strike out National Insurance
as the 1st Defendant at any time. This would be the appropriate
remedy than attacking the validity of the Plaintiff�s Writ of Summons.
It would be misleadin
allege that there is no cause of action because to do so would also have the
ef effect of absolving
the 2nd Defendant from liability. Extrication
process by Summons is the appropriate method of remedy for the 1st
Defendant in this case. I do not now need to consider the 1st
Defendant�s alternative relief of setting aside service on the ground set
out in the 1st Defendant�s Summons. I have already found in
favour of the 1st Defendant on this matter. The correct treatment
of these sort of cases is stated by Holroyd Pearce L.J. in Pontin v Wood
cited above at page 264 in these terms
�I accept as correct a
passrom the notes to Order 3, rr. 2 and 3, in the erstwhile yeae yearly
Practice of the Supreme
Court (known as the Red Book): �A writ cannot be set
aside on the ground that the indorsement does not disclose a cause of
action
(Auster Ltd. v. London Motor Coach Works Ltd.[11].
But if the indorsement shows that the plaintiffs case is unfounded or that
the action is an abuse of the process of the
court it may be struck out and
the action dismissed. It then quotes the Marchioness of Huntly�s case
[12] and refers to Order 25, r. 4: �If the indorsement on a writ is
irregular or informal the defendant may apply to set aside the
service of
the writ ... but not to set aside the writ itself. ...
[11] (1914) 112 L.T.99;31
L.R. 26 CA.<
[12] [1905] 2 ch. 656.�
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Applying the principles in the
above passage to this case, I can see no reason for me to set aside or
strike out the Plaintiff�s
Writ of Summons. The Plaintiff's Claim in
negligence may be a genuine one and must not be defeated by reasons of
technicalities.
I would refuse to set aside or strike out the Plaintiff�s
Writ of Summons as sought by the 1st Defendant. The 1st
Defendants� Application is therefore refused. I would however rule that the
Plaintiff's Writ of Summons has now become
stale and is no longer in force.
This case is a sad one. The
ntiff had put his case in the hands of his Solicitor for acor action. His
Solicitor acted by
filing a Writ of Summons and a Statement of Claim on 10th
October 1997. It is more than 3 years ago. The Plaintiff�s Writ and
Statement of Claim were never served upon the 1st and 2nd
Defendants. The 1st and 2nd Defendants never knew that
the Plaintiff had sued them for damages on the ground of negligence. Who was
at fault? I do
not think the Plaintiff was at fault because he was not
responsible for service of the Writ and the Statement of Claim. Nothing
was
done about this case for more than 3 years. No wonder the Plaintiff became
frustrated and took up his frustration
against Mr. Radclyffe in October 2000
who was acting for the 1st Defendant in this case. It is
unfortunate that this happened. But this incident left a clear message. The
message was
that the Plaintiff�s Solicitor had failed to effect service and
so was not doing enough to prosecute the Plaintiff�s claim
within a
reasonable time. I reach no conclusion here but certainly something was
amiss between the Plaintiff and his
Solicitor. In this regard, I would like
to echo part of the remarks of Lord Denning, M.R. in Allen v Sir Alfred
McAlpine & Sons [1968] 2 WLR 366 at 370 - 71 cited in my ruling in
Solomon Islands National Provident Fund v Solomon Islands Electricity
Authority (Civil Case No. 55/2000). The relevant part is this
... �Whenever a
Soli, by his inexcusable delay, deprives a client of his cause ause of
action, the client can claim damages
against him; as, for instance, when a
Solicitor does not issue a Writ in time, or serve in time, or does not renew
it
properly. We have seen, I regret to say, several such cases lately. Not a
few are legally aided. In all of them the Solicitors
have, I believe, been
quick to compensate the suffering client; or at least their insurers have.
So the wrong done by
the delay has been remedied as much as can be. I hope
this will always be done.�
This is the risk that
Solicitors muard themselves against in the course of their practice.
As to this case, the omission
to serve the 1st nd Defendants ints in time by the
Plaintiffs Solicitor in 1997 is the cause of the delay in the Plaintiff�s
case. The 1st Defendant, its Solicitor, Mr. Radclyffe and the 2nd
Defendant played no role in the delay in the Plaintiff�s case. They are
innocent of any wrong doing. I have considered
the matter of cost in this
case. I feel that the Plaintiff should pay the cost of this Application but
recognising also
that this Application arose because the Plaintiff�s
Solicitor had failed to serve the Writ of Summons and never attempted to
correct this error until the 1st Defendant�s Solicitor spotted it
more than 3 years later and came to Court to challenge the Writ of Summons.
How the
1st Defendant came to know about the existence of the
Writ and so instructed its Solicitor, Mr. Radclyffe, to enter conditional
appearance on 19th October 2000 remains a mystery. It may be that
the 1st Defendant had in fact received service of the Writ
although to say so would be nothing more than speculation. Or, it may be
that the Plaintiff had been making inquiry of the 1st Defendant
privately as to the payment of his claim. To do so, the Plaintiff must have
been told by someone that the 1st Defendant was responsible for
his claim and should pay. All in all, the fault would seem to lie in the
failure of the
Plaintiff�s Solicitor to properly serve the Writ of Summons
in time. I can understand why the 1st Defendant choose to come to
Court. The Plaintiff had tried to obtain payment from the 1st
Defendant outside of the Court process by being aggressive towards the 1st
Defendant�s Solicitor, Mr. Radclyffe. The only way to bring an end to this
matter was for the 1st Defendant to come to Court and challenge
the validity of the Plaintiff�s Writ of Summons so that the 1st
Defendant would no longer be troubled by the Plaintiff�s claim for damages.
The 1st Defendant was forced to come to Court because of the
behaviour of the Plaintiff caused by his frustration over the delay of
his
claim which in turn had been caused by his own Solicitor�s delay. I feel
that the cost of this application should
be paid by the Plaintiff or his
Solicitor. For this reason, I would like to put to the Plaintiff�s Solicitor
to show
cause why Order 65, rule 8 of the High Court (Civil Procedure) Rules
1964 should not be applied to her in this case. That is
to say, why I should
not disallow cost between herself and her client and why she should not
reimburse the Plaintiff's
cost in meeting the 1st Defendant�s
cost.
F. O. Kabuin>
Judge
