Hopcroft & Anor v Olsen & Ors No. Scgrg-87-2112

HOPCROFT and ANOR v OLSEN and ORS
[2000] SASC 287

Civil

1................ PERRY J. (ex tempore) In this matter Mr Hopcroft was one of a number of plaintiffs whose actions were listed together for a joint trial which I commenced in February this year. At an early stage of the hearing Mr Hopcroft intimated, through his counsel, that the action had been settled.

There were some delays associated with his execution of formal documents recording settlement, but I was later informed that he had done so. It appears that the settlement moneys, the amount of which has not been disclosed to me, were paid over to him or his solicitors.
More recently, he has come to court to ask that the settlement be set aside. He is no longer represented by solicitors. I intimated that I would not entertain any application until the settlement moneys were paid into the court, and I made orders accordingly.
An amount of money, less costs previously deducted and retained by the solicitors, has been paid into court in accordance with my order. Again, I have not been informed as to the precise amount paid in, although obviously it does not equal the full amount of the settlement moneys, but only that part of the settlement moneys remaining after allowing for the deductions made by Mr Hopcroft’s former solicitors.
To avoid multiplicity of proceedings, I intimated to Mr Hopcroft that I would be prepared to entertain an application by him within the present action to set aside the settlement. This is contrary to the ordinary rule that actions to set aside a settlement should be separately instituted, but I took the view that I had the power to allow the application to be made in that way.
In the result, Mr Hopcroft has filed an application dated 7 August 2000 seeking an order setting aside the settlement of the action. That application is supported by an affidavit which, by all accounts, could not be regarded as setting out sufficient grounds to justify the order sought.
The affidavit simply deposes to the fact that Mr Hopcroft seeks the order:
“... inter-alia, on my medical condition at the time of acceptance [of the settlement offer] and the undue influence by my solicitor.”
I called the matter on today in effect to give directions as to how the application was to be proceeded with. Mr Hopcroft took the occasion then to inform me across the bar table of circumstances which he said led to his acceptance of the settlement proposal which was advanced by the defendants. What he had to say in that regard is set out in the transcript, and it is unnecessary for me to attempt to summarise it again.
What it boils down to, however, is that he asserts that he was subjected to undue pressure by his legal advisers, and that the situation was complicated by reason of his mental condition at the time.
While he remains unrepresented there are obviously difficulties associated with securing an adequate pleading which would enable his application to proceed in a satisfactory way.
Mr Bell for the defendant applies for an order to set aside the application, and also seeks an order for the dismissal of the proceedings instituted by Mr Hopcroft.
When I invited Mr Bell to indicate if there would be any prejudice to the defendants if I stood all matters over until the completion of the trial upon which I am presently engaged, being the trial of the actions brought by Mr Edwards and Mr Murphy, he intimated that there were several matters which would be of concern to the defendants in that respect.
One of them is of minor significance, namely the question of interest on that part of the settlement moneys which have been retained and applied by solicitors towards costs.
More importantly, he quite rightly points out that Mr Hopcroft’s action was originally listed for joint hearing with the other two, which I am now in the throes of trying, and that the advantage of the joint trial would be lost if Mr Hopcroft’s action abides the outcome of those proceedings.
This, he submits, would mean that witnesses might have to be recalled if Mr Hopcroft’s action proceeds at a later stage. Furthermore, he submits that on all the material which has been put to the court so far by Mr Hopcroft, it is the solicitors, rather than Mr Bell’s clients, that is, the defendants in these proceedings, who should be the target of any further action by Mr Hopcroft.
They are all weighty considerations and I have taken them into account.
However, there are a number of other matters not yet brought to trial, and if I was to stand over Mr Hopcroft’s proceedings it would simply mean that the pool of actions awaiting the outcome of this trial would be increased by one. In the long term I do not think that this would make much difference in disposing of all the matters.
The Court is clearly not in a position to address the merits of Mr Hopcroft’s application without embarking on a lengthy hearing, which would distract me from the process of completing the trial of the Edwards and Murphy matters.
I do not accept Mr Bell’s submission that as a matter of law Mr Hopcroft is clearly out of court in bringing his present application, as the opportunity has not yet been presented for Mr Hopcroft to present full legal and factual arguments. It would be premature to dismiss the action on the basis that, with the limited amount of information available at this stage, the application is hopeless.
While it must be accepted that its prospects of success do not appear substantial, it is far too early to attempt to reach a view as to whether it is so lacking in merit that it should be dismissed out of hand.
I am concerned at the necessity to complete the Edwards and Murphy trial. It has become attenuated, and the process of the presentation of the defendants’ case is occupying considerably more time than was originally anticipated.
I am of the view that the overriding consideration which should dictate the outcome of the present application by Mr Hopcroft is to complete the trial of the Edwards and Murphy proceedings. It may be that the outcome of that trial will induce Mr Hopcroft to consider his position. Whether or not that eventuates is yet to be seen, but after all, I was persuaded by the arguments advanced by the defendants that I should proceed with the joint trial in the expectation that the outcomes which eventuated might well be adopted by the other parties as a basis upon which they could resolve the other claims, without further trials being embarked upon.
While it is true that Mr Hopcroft’s claim now stands in somewhat a different position, it may well be that the outcome of the trial in the Edwards and Murphy matters will provide a basis upon which Mr Hopcroft and the other matters yet to be heard might be dealt with, short of a further lengthy hearing.
It seems to me that the balance of convenience strongly favours putting on one side Mr Hopcroft’s application for the time being, to abide the event of the completion of the proceedings in the Edwards and Murphy matters.
The whole situation can then be re-assessed. If Mr Hopcroft wishes at that stage to proceed with his application, there is no reason to suppose that it cannot then be dealt with on its merits, with whatever consequences might then ensue.
I am not satisfied that there is sufficient urgency in dealing with his application as would justify disrupting the orderly completion of the trial of the Edwards and Murphy proceedings in order to deal with Mr Hopcroft’s claim at this stage.
I order that Mr Hopcroft’s application dated 7 August 2000 be stood over for hearing to a date to be fixed, following the completion of the Edwards and Murphy matters.
If Mr Hopcroft then wishes to proceed with his application, I will give such further directions as may at that stage be necessary to bring it on for hearing and determination.

[2000] SASC 287

22 August 2000