IN THE HIGH COURT OF FIJI AT SUVA CIVIL JURISDICTION CIVIL ACTION NO.

297 OF 1995 Between: SHEREEN LATA d/o Bisram Plaintiff and 1. THE PERMANENT SECRETARY FOR HEALTH 2. THE ATTORNEY-GENERAL OF FIJI Defendants Mr A K Singh for the Plaintiff Mr S Sharma for the Defendants DECISION By Summons dated 8 April 1998 the defendants are applying for dismissal of the action for want of prosecution as the 'plaintiff has failed to provide further and better particulars of the Statement of Claim and having incurred an Background facts On 30 March 1995 the plaintiff was admitted to the Maternity Ward at CWM Hospital due to labour pain. She had some complications and was advised by doctors that normal delivery was not possible and that she undergo emergency 'caesarean birth'. After the operation, the plaintiff allegedly discovered that the Doctor had negligently and unlawfully cut her bladder. The plaintiff filed a writ of summons in person against the defendants on 16 June 1995. On 23 June 1995 the defendants duly acknowledged service of the writ and indicated their intention to defend the action. Furthermore, the defendants on 10 July 1995 wrote to the plaintiff and requested further and better particulars of the allegations contained in the general endorsement. The plaintiff replied on 27 July 1995 and sought time to file a Statement of Claim. On 1 August 1995 the defendants filed an application for further and better particulars of the plaintiff's claim. Thereafter, the plaintiff failed to take any active step in the matter for some two years and seven months. On 15 April 1998 the defendants filed a summons for dismissal of the plaintiff's action for want of prosecution which I allowed by dismissing the action on 16 July 1998 as the plaintiff's counsel failed to appear. On 31 August 1998 on the plaintiff's application the action was reinstated. The Defendants' contention inordinate delay in this action'.

Mr Sharma for the defendants contended that the plaintiff's default can be aptly described as 'intentional' or 'contumelious' and the court under its inherent jurisdiction may strike it out for abuse of the process of the Court. The first contention is that the plaintiff has failed to comply with the High Court Rules 1988 namely: 1. Failure to file a Statement of Claim with full particulars that would have enabled the Defendants to file a defence and proceed with the matter. O18r1 prescribes that the plaintiff should serve a Statement of Claim on the defendant before the expiration of fourteen days after the defendants give notice of intention to defend. Alternatively, since the Plaintiff had not sought the leave of the Court, the Defendants under O19r1 are entitled to apply to the Court for an order to dismiss the action. 2. Failure to provide sufficient and better particulars of the alleged unlawful and negligent operation. 3. Failure to state the full facts relied on in support of the allegations contained in the endorsement. 4. Failure to provide further and better particulars of the special damages. The second ground that the defendants relied on is the fact that the delay was 'inordinate' and 'inexcusable' which is likely to give rise to a risk that it is not possible to have a fair trial or is likely to cause or to have caused serious prejudice to the defendants. They say that this delay will have a bearing on the witnesses' recollection of the operation on the plaintiff. It was submitted that a delay of more than three years just to provide further and better particulars must be characterised as inordinate. Furthermore, the conduct of the plaintiff is also inexcusable because no reasonable excuse was put forward to justify the delay. Plaintiff's submission Mr A K Singh advanced the argument that the plaintiff's delay in complying with the defendants' request to furnish further and better particulars did not in the circumstances of this case amount to abuse of the Court process. Instead, the delay is largely attributed to the defendants who had the medical record and were in a better position to know their negligence. It follows that since the 1st defendant had the documentary evidence with them they therefore cannot complain that they did not have further particulars. It was submitted that there was some delay but it cannot be regarded as inordinate and inexcusable. On the question of a fair trial, it was contended that this was a non-issue because the medical record would reasonably serve to refresh the memories of the witnesses. Therefore, Mr Singh says that in the interest of justice the plaintiff should be given the opportunity to pursue the matter to enable her to obtain compensation for the permanent injuries she has sustained as a result of the negligent and unlawful operation by the defendants. Determination of the issue In making the application the defendants are relying on disobedience of the High Court Rules on the part of the plaintiff and delay in pursuing the action. The principles governing

dismissal of an action for want of prosecution are to be found in the Notes to Or25 r1 of the Supreme Court Practice 1979 Vol. 1. Some of the factors to be taken into account have been well summed up by O'Leary J in Patsalidies v Magoulias [(1984) 69 FLR 402 at 403 (Supreme Court of Northern territory) thus: "Dismissal of an action for want of prosecution is the modern equivalent of the old judgment of non pros. (non prosequitur) which was available to the defendant where the plaintiff delayed proceedings in his action more than the rules allowed, for these he was "adjudged not to follow or pursue his remedy as he ought to do": 3B1 Com 295-96. Nowadays there are express provisions in the Rules of Court under which an action may be dismissed for failure by the plaintiff to comply timeously with some of the more important steps in the preparation of action for trial. In addition to any such powers conferred by the rules, it is now clear that there is also inherent power in the court to dismiss an action for want of prosecution" if the delay on the part of the plaintiff or his legal advisers [is] so prolonged that to bring the action on for hearing would involve a substantial risk that a fair trial of the issues would not be possible": Birkett v. James (1978) AC 297 at 318. That power has been seen as part of the Court's inherent jurisdiction to stay or dismiss cases brought before it which are frivolous or vexations or an abuse of the process of the court, for, it is said, that inherent power must extend to purging the court lists of cases which have not been reasonably prosecuted: Duncan v. Laventhal (1969) V.R. ISO at 182: Muto v. Faul (1980) V.R. 26 at 30. Further, it has been held that it is incidental to the jurisdiction of a judge to hear and determine actions that he has power to dismiss an action for want of prosecution or for any other misuse of process: Exell v. Exell (1984) V.R. 1 at 7" The principles applicable in determining application to dismiss an action for want of prosecution under The High Court Rules or under the court's inherent jurisdiction are the same. The court is guided by the following considerations as stated by Salmon L.J. in Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 Q.B 229 at 268, 269 which is the leading case on the unfortunate results of delay in proceeding with litigation. His Lordship said: "A defendant may apply to have an action dismissed for want of prosecution either (a) because of the plaintiff's failure to comply with the Rules of the Supreme Court or (b) under the court's inherent jurisdiction. In my view it matters not whether the application comes under limb (a) or (b), the same principles apply. They are as follows: In order for such a application to succeed, the defendant must show: (1) that there has been inordinate delay . It would be highly undesirable and indeed impossible to attempt to lay down a tariff - so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend on the facts of each particular case. These vary infinitely from case to case, but inordinate delay should not be too difficult to recognise when it occurs.

(2) that this inordinate delay is excusable. As a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable.

(3) that the defendants are likely to be seriously prejudiced by the delay. This may be prejudice at the trial of the issue between themselves and the plaintiff, or between each other, or between themselves and third parties. In addition to any inference that may properly be drawn from the delay itself, prejudice can sometimes be directly proved. As a rule, the longer the delay, the greater the likelihood of serious prejudice at the trial." The court considers the above factors and strikes a balance between the parties after considering the interest of both parties whether justice demands that the action continue or not. All this requires the exercise of discretion and this has to be done in the light of the facts and circumstances of each case. The Rules do not fetter the exercise of that discretion. The following passage from the judgment of Walsh J. in Witten v Lombard Australia Ltd ([1968] 88 W.N. (Pt.1) (NSW) 405 at 534) is applicable on this aspect: "Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised." In any consideration of an application of this nature the Court will consider the conduct of the parties to the action in exercising its discretion whether or not to strike out the claim. The burden of responsibility lies with the plaintiff to move the matter to its conclusion [Zimmer Orthopaedic Ltd v Zimmer Manufacturing Co (1968) 2 ALL E.R. 309]. In moving forward, the plaintiff must comply with The High Court Rules 1988. In this case, the Statement of Claim was never filed by the plaintiff and that is in breach of O18 r1. The affidavit of Dr Mary Schramm, the Medical Superintendent of CWM Hospital states: "... I have never received any request from the Plaintiff for a copy of her medical reports. The only request that I have received were those made by the Plaintiff's solicitors on 11 May 1998. I have been informed by the Attorney-General's Chambers that this request for medical reports was only made after the Attorney-General's Chambers had filed a summon to dismiss the action for want of prosecution. No other request for the reports was ever made by the Plaintiff ..." Again at para 4, she said that "... I deny the allegation made by the Plaintiff that the Hospital authorities had informed the Plaintiff that her medical folder was lost. The Plaintiff's medical folder and reports have always been in my custody, and have never been lost ..." In the present case, the Plaintiff who issued the writ in person has not been diligent in pursuing this matter. Since 16 June 1995 when the writ of summons was filed, the plaintiff

has failed to take further steps in the matter except on 27 July 1995 when she sought time to file the Statement of Claim (which was never submitted) until 27 May 1998 when through her solicitor (Mr A K Singh) who came on record on 13 August 1998 opposed the order I made dismissing the action for want of prosecution dated 21 July 1998. The question that arises is whether based on the afore-mentioned facts, the plaintiff should be permitted to proceed with her case or not. It was said in the reasons for judgment of Cross, J. in the Chancery division of the High Court in Zimmer (Supra) at 311 that: "The essence of the matter, as I understand it, is this. It is for the Plaintiff and his legal advisers to get on with the action and to see that it is brought to trial with reasonable dispatch. The defendant is normally under no duty to stimulate him into action and the plaintiff cannot complain that he gave him no warning before applying to have the action dismissed for want of prosecution. But the court will not take drastic step of dismissing the action unless (a) the delay has been inordinate; (b) there was no excuse for it; and (c) the Defendant is likely to be seriously prejudiced by it if the action is allowed to go on." The plaintiff's argument that she had no funds to engage a solicitor, as stated in paragraph 3 of her affidavit sworn on 27 May 1998, fails to provide any meaningful justification for the delay. Furthermore, the plaintiff's contention that the defendants were in a better position to know their negligence is untenable. As the initiator of the action, the plaintiff is bound by the procedures prescribed in The High Court Rules 1988 to specify the particulars of the relief or remedy claimed. The Plaintiff relied on the following cases to provide guidance on what amounts to inordinate and inexcusable delay: Owen Clive Potter v. Turtle Airways Ltd and Ravindra Singh Minhas. Civil Appeal No. 49 of 1992 FCA; Dr Anirudh Singh v. Sotia Ponijiasi and others Civil Action NO. 371 of 1993 and Mead v. Day (1985) NZLR 100 CA. However, each case has to be looked at on its own merits. There is no doubt that the action did not move with expedition and in compliance with The High Court Rules. There is no doubt that the plaintiff slept on the file for quite some time and for that matter there was inordinate delay . Nevertheless, it can be seen that the plaintiff did not waste any time in instituting the action which was well within the limitation period of three years from the time the cause of action arose but she did not progress as she acted in person and did not have the essential particulars for the filing of the Statement of Claim. After the alleged cause of action she would have been well within the limitation of action time to have issued the writ about March 1998. For some reason even the defendants did not take any steps earlier to strike out the action before this day. However, it is for the plaintiff to keep her action moving and the blame for the delay cannot be passed on to the defendants. In this regard I adopt the following passage from the judgment of SALMON L.J. in FITZPATRICK v BATGER & CO. LTD [1967] 2 All E.R. 657 at 659: "[The defendants] no doubt, however, were relying on the maxim that it is wise to let sleeping dogs lie. They had good reason to suppose that a dog which had remained

unconscious for such long periods as this one, if left alone, might well die a natural death at no expense to themselves; whereas if they were to take out a summons to dismiss the action, they would merely be waking the dog up for the purpose of killing it at the great expense which they would have no chance of recovering. I am not surprised that they did not apply earlier, and I do not think that the plaintiff's advisers should be allowed to derive any advantage from that fact." It is to be borne in mind here as held by the House of Lords in Birkett v James (1928) A.C. 297, that the power to dismiss an action for want of prosecution other than in a case of contumacious conduct on the plaintiff's part should not normally be exercised within the currency of the limitation period. Hence it could not be said here that this was a proper case for the present application. Before striking out an action for want of prosecution the Court has to be satisfied firstly, that there has been an inordinate and inexcusable delay and secondly, that there is a substantial risk of there being a fair trial or there is serious prejudice to the other party to the action. Although the delay has been lengthy and inordinate in proceeding with the action as the plaintiff had been acting in person until recently, on the facts and circumstances of this case the delay is not such as to entitle the defendants to a dismissal of the action. In considering the issue before me I have borne in mind the following passage from the judgment of Diplock L.J. in Allen (supra) at 260 B-F: "Since the power to dismiss an action for want of prosecution is only exercisable upon the application of the defendant, his previous conduct in the action is always relevant. So far as he himself has been responsible for any unnecessary delay, he obviously cannot rely upon it. But also, if after the plaintiff has been guilty of unreasonable delay the defendant so conducts himself as to induce the plaintiff to incur further costs in the reasonable belief that the defendant intends to exercise his right to proceed to trial notwithstanding the plaintiff's delay, he cannot obtain dismissal of the action unless the plaintiff has thereafter been guilty of further unreasonable delay. For the reasons already mentioned, however, mere non-activity on the part of the defendant where no procedural step on his part is called for by the Rules of Court is not to be regarded as conduct capable of inducing the plaintiff reasonably to believe that the defendant intends to exercise his right to proceed to trial. But it must be remembered that the evils of delay are cumulative, and even when there is active conduct by the defendant which would debar him from obtaining dismissal of the action for excessive delay by the plaintiff anterior to that conduct, the anterior delay will not be irrelevant if the plaintiff is subsequently guilty of further unreasonable delay. The question will then be whether as a result of the whole of the unnecessary delay on the part of the plaintiff since the issue of the writ, there is a substantial risk that a fair trial of the issues in the litigation will not be possible." The delay of the kind referred to in this case, I find is not of such a nature as to prejudice the defendants. I do not find the likelihood of any lapse of memory of witnesses arising as the file in the matter is available at the hospital where the operation took place. The defendants have not particularised in what way they will be prejudiced in their defence. In this case it is difficult to see how one could come to a conclusion of prejudice in the absence of evidence as

to loss of memory or unavailability of witness or any other particular circumstances unjust to the defendants. In the absence of any such evidence I must conclude that the defendants will not suffer any prejudice. Also, until the present application there have not been any complaints of the plaintiff's delays and have not previously made any claim of prejudice. On the question of 'prejudice', what was held by the Alberta Court of Appeal (Canada) in LETHBRIDGE MOTORS CO. LTD et al v AMERICAN MOTORS CANADA LTD et al 40 D.L.R. (4th) 544 at 545 is apt as facts were somewhat similar. The Court held: "It is necessary for a defendant to show serious prejudice before the court will exercise its jurisdiction to dismiss for want of prosecution. In the present case, the only prejudice shown by the defendants was fading memories of witnesses over time. While that is an important factor, its impact depends upon the circumstances. In the present case, documentary evidence would be of considerable importance and the issue was such that fading memories would not constitute prejudice. While the individual defendant had died, discovery had been accomplished despite his death and his evidence would not have been decisive." This is a case where as Moffitt P. said in Stollznow v Calvert [1980] N.S.W.L.R 749 at 753, that: "....despite some judicial observations concerning the right of defendants to let sleeping dogs lie and that defendants should not be penalised for earlier inaction when subsequently an application is made to dismiss proceedings for want of prosecution .... inaction by a defendant in the face of impending prejudice to him if delay continues, may render a later claim of actual prejudice less credit-worthy, and the prejudice, if established, a less weighty factor." There is no danger of there not being a fair trial because of the time that has elapsed as a result of the plaintiff not proceeding with due diligence. Conclusion and order To conclude, although the delay in this case is quite inordinate, serious prejudice to the defendants has not been shown if this action is allowed to proceed. In this period of delay nothing of a prejudicial nature has occurred except the suggestion of fading of memories. While that is always an important factor, in this type of case there will often be a considerable lapse of time before the plaintiff, as in this case, is even required to commence an action let alone carry it on to conclusion as I have earlier stated. If the application was granted the plaintiff will have lost her cause of action. Hence on the facts and circumstances of this case, bearing in mind the principles involved in an application of this nature, in the exercise of Court's discretion and being satisfied that the justice of the case demands it I refuse the application to strike out the action for want of prosecution. It is ordered that the plaintiff file Statement of Claim within 28 days from today and proceed with the due diligence in the prosecution of this action. There shall be no order as to costs. D. Pathik Judge

At Suva 6 August 1999 HBC0297D.95S