M.A. Brown and Company Ltd et Al v Daito Kogyo Company Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Gopeesingh, J. |
| Judgment Date | 19 December 1986 |
| Neutral Citation | TT 1986 HC 177 |
| Docket Number | No. 367 of 1983 |
| Court | High Court (Trinidad and Tobago) |
| Date | 19 December 1986 |
High Court
Gopeesingh, J.
No. 367 of 1983
Mr. R. Hamel-Smith for plaintiffs.
Mr. D. Fitzwilliam for 3rd named defendant.
Practice and procedure - Application by third defendant for plaintiff's action to be dismissed for want of prosecution because of plaintiff's failure to serve a statement of claim on the said third defendant — Rules of the Supreme Court, Order 19, rule 1 — Whether plaintiff guilty of inordinate and inexcusable delay to prejudice of third-named defendant — Principles which guide court — Birkett v. James [1978] A.C. 297 — Finding that plaintiff took no action from date of filing of writ of summons for nearly three years — Plaintiff's dilatoriness both reprehensible and oppressive and his action should be dismissed.
By a summons dated and filed on 6th January, 1986, the third-named defendant seeks an order that the plaintiffs' action be dismissed for want of prosecution, the plaintiffs having failed to serve a statement of claim on the third-named defendant.
The summons is brought pursuant to Order 19 Rule 1 of the Orders and Rules of the Supreme Court of Trinidad and Tobago (1975) which reads as follows: –
“1. Where the plaintiff is required by these Rules to serve a Statement of Claim on a defendant and he fails to serve it on him, the defendant may, after the expiration of the period fixed by or under these Rules for service of the statement of claim, apply to the court for an order to dismiss the action, and the court may by order dismiss the action or make such other order on such terms as it thinks just.”
In support of this summons the third-named defendant filed two affidavits, namely that of Daniel John Fitzwilliam, Solicitor, sworn to and filed on 6th January, 1986 and that of Stephen Gardiner sworn to on 9th July, 1986 and filed on 10th July, 1986. In opposition the plaintiffs filed two affidavits sworn to by Phillip Hamel-Smith, Solicitor, the principal affidavit sworn to on 4th March, 1986 and file on 13th March, 1986 and a supplemental affidavit sworn to on 16th July, 1986 and filed on the said date.
The facts which emerge from the record of proceedings and from the affidavit evidence in this matter reveal that the date of accrual of the cause of action in this matter was 2nd February, 1979. The writ of summons was filed by the plaintiffs on 1st February, 1983, one day before the statutory limitation period in an action of this nature will have expired Appearance was entered by the third-named defendant on 7th February, 1983, No statement of claim was, however infact served. However, on 27th January, 1986 an attempt was made by the plaintiffs to serve a statement of claim but service was not accepted by the third-named defendant. Although more than a year had elapsed since the last proceeding in this matter the plaintiffs did not file a notice of intention to proceed pursuant to Order 3 the Rule 6 of the Orders and Rules of the Supreme Court of Trinidad and Tobago (1975), before attempting to effect service of this Statement of Claim. In fact such notice was only filed subsequently, on 16th May, 1986. Despite this refusal to accept service of the statement of claim the plaintiffs have not applied, under Order 3 Rule 5 of the Orders and Rules of the Supreme Court of Trinidad and Tobago (1975) for an extension of time to serve same.
In his submissions to the court in support of its summons solicitor for the third-named defendant submitted that on the facts of this matter it is uncontrovertible that the plaintiffs have been guilty of inordinate and inexcusable delay to the prejudice of the third-named defendant and therefore the plaintiffs' action should be dismissed. He cited the cases of Clough v. Clough [1968] 1 All E.R. 1179 and Fitzpatrick v. Batger & Co. Ltd. [1967] 2 All E.R. 657 in support of his contention. He also referred to the case of Birkett v. James [1977] 2 All E.R. 801 as authority for the proposition that an delay on the part of the plaintiffs between the date of accrual of the cause of action and the date of filing the writ of summons should also be taken into consideration in determining whether or not the court should conclude that there has been such inordinate and inexcusable delay to the prejudice of the third-named defendant. He pointed out that up to the date of hearing of this summons there has been a delay of some seven years and four months from the date of accrual of the cause of action and that in the affidavit of Stephen Gardiner the prejudice occasioned to the third-named defendant has bean reflected. He submitted that the reasons which the plaintiffs have advanced for their delay insufficient to justify the exercise of the court's discretion in favour of the plaintiffs.
On the other hand, solicitor for the plaintiffs submitted that in the affidavit evidence filed by the plaintiffs in opposition to the instant summons the plaintiffs have advanced a sufficient explanation for the delay. He contended that such explanation need only be confined to the period between the date of entry of appearance and the date of the instant application, any delay prior to the date of entry of appearance being irrelevant. He submitted further that the prejudice of which the third-named defendant complains, as reflected in the affidavit of Stephen Gardiner, is not maintainable since the endorsement of claim on the writ of summons furnished the third-named defendant with sufficient particulars of the plaintiffs' intended claim from the time of service of the writ of summons and that paragraphs 1, 2, 3 and the first sentence of paragraph 4 of the statement of claim merely repeat what was contained in the endorsement of claim on the writ of summons. In any case, he submitted, the prejudice which the third-named defendant contends it is likely to suffer is insufficient to entitle it to the order sought. He contended that if the court accepted the explanation advanced by the plaintiffs as being credible then the court should not grant the order sought but rather make a “conditional” or unless order.”
The principles, upon which the jurisdiction of the court will be exercised, in determining whether an action should be dismissed for want of prosecution were clearly laid down in the case of Allen v. Sir Alfred Mc Alpine & Sons Ltd. And Anr. [1968] 2 Q.B. 229 and were expressly approved in The House of Lord decision of Birkett v. James [1978] A.C. 297. At page 318 of his judgment in Birkett's cases Lord Diplock stated as follows:
“The power should he exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory under 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 or between them and a third party.”
It seems, also, since the decision in Allen v. Sir Alfred Mc Alpine & Sons Ltd, And Another [1968] 2 Q.B. 229, that there is no doubt that, on an application to dismiss an action for want of prosecution, once a court finds that the delay complained of was prolonged and inexcusable and likely to cause serious prejudice to the applicant, a court has a discretion to dismiss an action on the first application. As a matter of fact, Lord Denning, in his judgment in this case, at page 245, expressly rejected the argument advanced on behalf of the appellant that the court should never on the first application, dismiss the action and that even if there was long delay the court should always give the dilatory party one more chance. In fact, Lord Denning went on to distinguish Eaton v. Storer (1882) 22 Ch. D, 91. This case was cited by counsel for the plaintiff, in support of his proposition that as a general rule, at all events on the first application; a court will not make an order dismissing an action without giving the plaintiff an opportunity to serve a statement of claim. Lord Denning rejected counsel's contention on the ground that the practice described by Sir George Jessel, M.R., applied only to moderate delays of two or three months and that it does not apply when “there is some special circumstance such as excessive delay”. He went on to spy:
“The principle upon which we go is clear:
When the delay is prolonged and inexcusable, and is such as to do grave injustice to one side or the other or to both, the court may in its discretion dismiss the action straightaway, leaving the plaintiff to his remedy against his own solicitor who has brought him to this plight.”
It seems to me that in the instant matter, the third-named defendant is relying upon the second principle enunciated by Lord Diplock in Birkett v. James (supra) and consequently, the first question which I have to decide is whether, having regard to all the circumstances surrounding this matter, the third-named defendant's contention that the delay on the part of the plaintiffs in serving their statement of claim is prolonged and inordinate, is tenable.
In Birkett v. James [1978] A.C. 297, in which the defendant applied for an order to dismiss the plaintiff's action for want of prosecution on the ground that the plaintiff failed to have his matter set down for trial within the time prescribed by order, the District Registrar refused the order and the defendant appealed, Between the conclusion of the hearing of the appeal before Cobb, J. and the delivery of his judgment, the plaintiff took the precaution of issuing a fresh writ in...
To continue reading
Request your trial