[(7)] He further said (13b) the exercise of the Court's discretion should not be fettered "by rigid rules", but required "a decision to be reached, upon a balance of the relevant circumstances". It is of assistance to quote at length what he ultimately said (13b): "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 …"
31 For completeness, I should observe that what was said in Stollznow was made in the context of the discretionary power to dismiss for want of prosecution. However, for present purposes, that is not of significance.
32 The plaintiff has submitted that the Magistrate found that it had a bona fide defence on the merits. Whilst there may be room for contention on the matter, it seems to me that she did not make such a finding. I consider that she first observed that it was a matter in issue between the parties and then proceeded to deal with the application on the assumption that there was a bona fide defence on the merits. Her initial concentration was on what she described as the argument about the failure to file a defence.
33 She dealt with that argument as earlier mentioned. I do not consider that she was in error in reaching that view. All that she had been given by the insurer was a narrative of events (what it did).
34 Further, in the circumstances of this case, I consider that she was entitled to accord significant weight to the conduct of the insurer.
35 I should mention certain of the matters deposed to by the insurer's Litigation Operations Consultant (Archana Naidu). The matter had been referred to the assessment department subsequent to the letter of demand and prior to 5 September 2005. It was given priority according to the date it "hit the work list". It was in the hands of the litigation department by about 5 October 2005. The insurer was aware of the writ of execution by about 25 November 2005. A solicitor was not instructed until about 21 December 2005 (this was not done until after it received the assessment from its assessor).
36 An aspect of the business of this insurer was to deal with claims and litigation of this nature. It had set up facilities to process the same. It was not suggested that there was a lack of knowledge of litigation procedures or the relevant rules.
37 There was no evidence that the insurer had any regard to the time limits imposed by the rules for the filing of a defence. Indeed, it would seem that they were either disregarded entirely or treated with distain or indifference (preferring to concentrate on internal procedures concerning priority observed in respect of litigation work).
38 A court could not be expected to favourably view an application for indulgence in circumstances where the applicant takes such an approach. To do so, would bring about injustice.
39 Rule 36.16 is the successor to Part 40 Rule 9 of the Supreme Court Rules 1970. It has a similarity in terminology. However, it appears in a context which is different from that of its predecessor (despite the introduction of Part 1 Rule 3 in 1995).
40 The power conferred by it has to be exercised in the context of the Civil Procedure Act 2005 (the Act) and the Rules. Part 6 of the Act is headed "Case Management and Interlocutory Matters" and contains, inter alia, section 56. This is the overriding purpose provision referred to by the Magistrate. It is in the following terms:-
56 Overriding purpose
(cf SCR Part 1, rule 3)
"(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
(4) A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified in subsection (3).
(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs."
41 Where it has application (such as when the Court exercises any power given to it by the Act or the Rules), the Court must seek to give effect to the overriding purpose.
42 Before concluding this judgment, I should mention one other matter. It concerns the question of prejudice (which may not have been material to the decision reached by Her Honour, as it appears to have been founded on the weight she gave to the deficiency of explanation and failure to discharge the onus). Leaving aside what was said by Her Honour on this matter, if the application had been granted on the basis sought, the defendants, would have been kept out of their monetary entitlement to the undisputed part of the claim until the small amount in issue had been resolved.
43 Where an appeal is brought on the basis of alleged error in point of law, the onus is on the plaintiff to demonstrate that there has been error in point of law that justifies the disturbing of the decision of the Magistrate. In my view, the plaintiff has failed to discharge that onus in this case. Further, I consider that the Magistrate reached the right result.
44 In these circumstances, even though there be consensus between the parties that the appeal throws up important questions of law, the application for leave must fail. It would be futile to grant it. If the Magistrate has erred (and I do not need to dwell on that matter), it is not of materiality in this case. It may be added that what was in issue involved a small sum which went to part only of the claim.
45 The summons is dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned.
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