This is an application by summons made by Counsel on behalf of the defendant seekingan order to strike out the Action brought by the plaintiff
on several grounds:
Forwant of prosecution; or by reason of the prolonged and/or inordinate and/orinexcusable delay and also on the ground that a fair trial is no longer possible in the particular circumstances of this case and/or the plaintiffsabuse of the process of the Court.
Theplaintiff began this Action by writ generally endorsed on the 14th December,1995. The defendant filed a notice of intention to defend on the l0th January,1995. A Statement of [1] was not filed until 3rdSeptember, 1996. The Court notes thatthis was in clear breach of Order 18 rule 1 in that the statement of claim wasfiled more than 14 days after the notice to defend and it was also filedwithout leave of the Court. The defendant contends that the statement of claimfiled on the 3rd September, 1996 was in respect of an incident which allegedly occurred on the 5th January, 1991,The Court observes that this filing was nevertheless within the period oflimitation of actions for personal injury. The defendant is now relying on theplaintiff s conduct of the action as cause for striking out. But the defendant did not file a defence tothe statement of claim
filed on the 3rdSeptember, 1996 until 2nd July 1997. Here too, the Court observes that the defendant was in breach of Order18 rule 2. The defence should have beenfiled within 14 days. The plaintiff filed no reply to the defence. There wasthen an implied joinder of issuepursuant to order 18 rule 14 and the pleadings were deemed closed under order18 rule 20. Thereafter it was open toeither the plaintiff or the defendant to set the matter down for hearing, oralternatively the defendant may apply to the Court to dismiss the action forwant of prosecution,
Neither the plaintiff or the defendant did take any further step to set the matter downfor trial or to strike the action out until 23rd March 2000 when the defendantmade this application which now engages the Court's attention, The matter wasset down for
hearing of thesummons on the 16th May, 2000. Thedefendant filed a supplemental affidavit on the 11th day of May, 2000. Since the lodging of the statement of claimby the plaintiff there had been a [2] further change of attorney and anaffidavit in reply to the summons to strike out was filed on behalf of theplaintiff on December 5, 2001.
This affidavitdisclosed that the plaintiff in the interim had been pursuing a claim forinjury benefit from National Insurance with the knowledge of the defendant inwhich the defendant acknowledged that the injury did occur in the course of theplaintiff’s employment. Also exhibited to the said affidavit is a letter dated28th May, 1997 in which the plaintiff’s attorney called upon the defendant'sattorney to file its defence and which as before stated was not filed until the2nd July, 1997.
In all the circumstances and given the conduct of both parties I am not preparedto exercise my discretion to strike the action out. The matter is to
be setdown before the Registrar at the next motions day hearing.
Therewill be no order as to costs on the application. [3]
Lionel D. Greenidge,
Judge of the High Court.
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