Harji v Dalgety and Co. Ltd (Civil Suit No. 1271 of 1953) [1954] EACA 11 (1 January 1954)

ORIGINAL CIVIL

Before CRAM, Ag. J.

## JAFFER M. HARJI, Plaintiff

## v. DALGETY & CO. LTD., Defendant

## Civil Suit No. 1271 of 1953

Civil Procedure and Practice—Order 27, rule 2—Summons for an order for a commission or letter of request for examination of witness in England-Whether evidence material—Delay in making application—Security for expenses of examination—Costs.

On 9th October, 1953, a hearing date was fixed for 28th January, 1954. The defendant's advocates were aware of the date but, although they wrote to the plaintiff's advocates objecting, took no steps to have the date set aside. On 21st January, 1954, defendant's advocates applied for an order for a commission or letter of request for the evidence of a witness, alleged to be material to be taken in England, and for a stay. The plaintiff opposed the application on the ground that other witnesses were available and, alternatively, submitted that if the order were made, it should be only upon strict terms as to security for the expenses of the examination and costs.

Held (28-1-54).-(1) That from the defendant's affidavit the witness appeared to be material and that an order should be made for the issue of a letter of request (the procedure of examination by commission being obsolescent, in England) and for a stay of the suit, until the depositions were filed.

(2) That, there being no evidence that the defendant could not meet the expenses of the examination, or that its application was mala fide, or that the evidence sought was immaterial, security should not be ordered.

(3) That a heavier burden rests upon a defendant than a plaintiff to apply within a reasonable time; that reasonable cause had not been shown for delaying the application for more than three months after issue joined and until a week before the hearing.

The applicant was ordered to pay the costs of the application in any event and forthwith.

Cases referred to: Langen v. Tale, 24 Ch. D. 522; Sheppard v. Dalbiac, 30 Sol. J. 46; Fisher v. Hahn 32, L. J., C. P. 209; Brown v. Mollett, 24 L. J. C. P. 213; Norton v. Melbourne, 3 Bing N. C. 67; 132 E. R. 335.

Harragin for the applicant (defendant).

Mrs. Kean for the respondent (plaintiff).

RULING.—This is an application on the part of the defendant, by summons in chambers, in terms of Order XXVII, rule 2, for an order for a commission or letter of request for the examination of a witness, alleged to be material, now in England. The respondent admits that, while the evidence may be relevant, there is other equally valuable evidence within this jurisdiction and contends that the hearing date, being the 28th day of this month, was fixed as long ago as the 9th of October, 1953, whereas the date of this application was as late as the 21st day of this month and, in consequence, the application should be refused or,

alternatively, if allowed, should be upon strict terms as to costs and security for the expenses of the examination. Having regard to the contents of the affidavit. I am of the view that the evidence of the witness in England may well be material and that an order should be made for the issue of a letter of request, (the procedure of examination by commission being obsolescent). In Langen $v$ . Tate, 24 Ch. D. 522, the Court of Appeal, having let in evidence as to the materiality of a proposed witness, was still in doubt upon the point and required security from the applicant for his opponent's costs of the commission to meet the possibility of the proposed evidence being immaterial but, both in that case and in Sheppard v. Dalbiac, 30 Sol. J. 46 (the report of which is not fully available), I am inclined to the view that there was also some doubt as to the ability of the applicant to pay the costs and that is one of the reasons why security was ordered. In the present suit, no such doubt has been raised and I am unable to see any sufficient reason for making an order for security.

On the issue of costs of this application, the defendant's advocate has explained that he came recently into the firm of advocates having charge of the conduct of the defence and for that reason, it being his decision to apply for the commission, the application was not made earlier. I am, however, unable to separate him from his firm, or indeed the acts of his firm from the acts of the defendant in this matter and, looked at in this light, the defendant is seen to have made this application, involving stay of the suit, a mere seven days before a hearing date of which it was aware more than three months before. It may be that there was a difference between the advocates representing the parties as to the fixing of the hearing date, but, if the defendant wished to raise objections or ask for another date, it had a remedy, which it did not seek<br>to exercise, in applying to the Court. That dispute, several months in the past, in my view, cannot now be invoked to explain, satisfactorily, the lateness of this application. In the case cited, Sheppard $v$ . Dalbiac, a defendant issued a summons for a commission nearly three months after notice of trial had been given. The court made an order for the commission—but upon terms of the defendant paying forthwith the costs of the summons. Moreover, it would seem a heavier burden rests upon a defendant than upon a plaintiff to apply within a reasonable time after issue is joined—Fischer v. Hahn, 32 L. J. C. P. 209; Brown v. Mollett, 24 L. J. C. P. 213 and Norton v. Melbourne, 3 Bing N. C. 67. In my opinion, therefore, the applicant, who is also defendant, has not shown reasonable cause for delaying its application for a period of more than three months after issue was joined; and, particularly in view of its dilatory conduct in holding back until a week before the hearing so as to gain the advantage of a stay and the examination of its witness, ought to be mulcted in costs. I propose therefore to make the following order:-

ORDER.—It is ordered that a letter of request do issue, directed to the proper tribunal for the examination of the following witness, that is to say, Mr. Mehinick, lately manager of the Seychelles Fisheries, of London, as prayed; that the deposition when taken pursuant thereto, when received, be lodged with the Registrar of the Supreme Court of Kenya, at Nairobi, on or before ninety days from this date and may be given in evidence at the hearing of this suit, saving all just exceptions; that the hearing of this suit be stayed until the said depositions have been filed; that the costs of this application be the respondent's in any event and be taxed and paid forthwith.