Mtuwa v Zalira & Ors. (Personal Injury 85 of 2018) [2018] MWHC 19 (10 April 2018)

iG ; -*u- W) B H A H ' * IN THE HIGH C O U R T OF M A L A W I C IV IL D IV IS IO N P R IN C IP A L R E G IS T R Y P E R S O N A L IN JU R Y CASE N U M B E R 85 OF 2018 BETW EEN A N N E S B Y S O N M T U W A (Suing on Her behalf and on behalf o f the Dependants o f Miracle Mtuwa, D eceased)..................................... C L A IM A N T A N D IS A A C Z A L I R A ............................................................... FIR S T D E F E N D A N T A N D R A B PROCESSORS L IM IT E D ................................. SECOND D E F E N D A N T A N D B R IT A M IN S U R A N C E C O M P A N Y L IM IT E D ......... TH IR D D E F E N D A N T C O R AM : HON. JUSTICE J N R IV A Counsel for the claimants, M r Khan Counsel for the defendants, M r A Mussa Ms Mtegha Court official DIRECTIONS AFTER MEDIATION (ORDER 13 RULES 6, 9 (2) AND 12 OF HIGH COURT (CIVIL PROCEDURE) RULES); This matter came for mediation on 20th March, 2018. W e adjourned the matter for a possible out-of-court settlement. W e set down the matter for today, 10th March, 2018. The defendant proposed to pay the claimant some money as damages. The claimant was not agreeable to the amount of money. The defendants did not attend the session for further mediation. The mediation could not therefore proceed beyond this far due to the absence o f the defendants. The attendance o f parties to mediation is o f paramount importance, i f the mediation is to be accorded the seriousness and the mandatory nature it deserves. Under the new regimen o f civil procedure rules, there is need for the parties and the court to resolve matters timelessly and to identify at an early possible stage issues that are in dispute. See order 5 Courts (C ivil Procedure) Rules one way o f achieving that objective, is strictly serious into mediation session. Failure o f party to attend mediation leads to termination o f mediation session. As Order 13 Rule 11 o f the Courts (C ivil Procedure) Rules provides: A mediation session shall end when- (a) the parties execute a settlement agreement; (b) the Judge cancels a mediation session for non-compliance on the part o f any party; or (c) the Judge, after consultation with the parties, makes a declaration to the effect that further mediation is not worthwhile. Order 13 rule 6 o f the Rules empowers the Courts to dismiss a claim or strike out defence where the claimant or defendant, respectively, does not attend a mediation session: (1) Where it is not practical to conduct a scheduled mediation session because a party fails without good cause to attend within the time appointed for the commencement o f the session, the Judge m ay- fa) dismiss the claim, where the non-complying party is a claimant, or strike out the defence, where the non-complying party is a defendant; (b) order a party to pay costs; or (c ) make any other order that is deemed just. In this matter, since the defendants did not attend the re-scheduled mediation session, I feel inclined, which I immediately do, to strike out the defence offered in this case. Much as the defendants made an offer damages, they were not present to conduct further mediation. Thereby, they frustrated the process. Therefore, I strike out the defence of the defendants. The matter shall proceed to determination, unless agreed, on the issue of quantum of damages. M A D E in Chamber the 10th 3