TANG KIN MAN v. KWOK YU PING AND OTHERS

HCPI 378/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 378 OF 2005

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J U D G M E N T

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1. The Plaintiff in this action is “Personal Representative of TANG KIN MAN deceased” without any person being named.  The 3^rd Defendant took out an application dated 26^th May 2006 to strike out the Plaintiff’s claim for want of authority to sue.  The Plaintiff sought to rectify the irregularity which the Plaintiff admits by taking out three summonses one after another as follows:

(a)	Application dated 2nd June 2006 to appoint Tang Chi Man, the father of the deceased, to be the personal representative (“the father”) and also to amend the name of the 1st Defendant due to wrong spelling;
(b)	As infant interest is involved, the Plaintiff considers it necessary to appoint an additional person as personal representative.  Another application dated 16th October 2006 was made to appoint the father and a certain Wu Wing Yan (“Miss Wu”) who is the mother of the infant to be the personal representatives of the deceased in this action.
(c)	On 18th October 2006 letters of administration was granted to the father and Miss Wu as the administrators of the estate of the deceased.  On 21st October 2006 the administrators applied to amend the Plaintiff from “Personal Representative of Tang Kin Man, deceased” to “Wu Wing Yan and Tang Chi Lai, the administrators of the estate of Tang Kin Man, deceased.”

2. Part of the application dated 2^nd June 2006 and the whole of the application dated 16^th October 2006 relating to the change of the Plaintiff were withdrawn.  After the withdrawal in essence the following matters are before me to be dealt with:

3. Ms. Lee, counsel for the 3^rd Defendant, did not say that she opposed the amendments mentioned in paragraph 2(d) above.  I take it that she has no objection to those amendments.

4. Ms. Lee did oppose to the amendment of the name of the 1^st Defendant on the ground that the Plaintiff should have known the correct name of the 1^st Defendant.  I accept that such mistake should not have been made.  It is a bit late in making the application but I find no one is prejudiced.  The 1^st Defendant knew that he had been sued and at the last hearing he personally appeared in court.  I allow the amendment.

5. It now leaves with me the 3^rd Defendant’s application to strike out the claim and the Plaintiff’s application to amend the name of the Plaintiff.  I intend to take both matters together as the issues for the two applications are the same.

6. The main arguments advanced by Ms. Lee for the 3^rd Defendant in support of her application to strike out and in opposition to the Plaintiff’s application to amend can be classified under two statutory provisions:

(a)	Order 15 rule 6A; and
(b)	Section 5 of the Fatal Accidents Ordinance (Cap. 22).

Order 15 rule 6A

7. Ms. Lee refers me to Order 15 rule 6A and argues that the Plaintiff in its existing form does not have the authority to maintain the action.  The relevant parts of Order 15 rule 6A state that:

“	(1)	Where any person against whom an action would have lain has died but the cause of action survives, the action may, if no grant of probate or administration has been made, be brought against the estate of the deceased.
	(2)	Without prejudice to the generality of paragraph (1), an action brought against “the personal representatives of A.B. deceased” shall be treated, for the purposes of that paragraph, as having been brought against his estate.
	(3)	An action purporting to have been commenced by or against a person shall be treated, if he was dead at its commencement and the cause of action survives, as having been commenced by his estate or against it in accordance with paragraph (1) as the case may be, whether or not a grant of probate or administration was made before its commencement.
	(4)	In any such action as is referred to in paragraph (1) or (3) -
		(a)	the plaintiff shall, and the defendant, the personal representatives of the deceased or any person interested in the deceased’s estate may, during the period of validity for service of the writ or originating summons, apply to the Court for an order appointing a person to represent the deceased’s estate for the purpose of the proceedings or, if a grant of probate or administration has been made, for an order that the personal representative of the deceased be made a party to the proceedings, and in either case for an order that the proceedings be carried on against the person so appointed or, as the case may be, against the personal representative, as if he had been substituted for the estate;”

8. She draws my attention to the difference in the rules governing the death of the Plaintiff and the death of the Defendant when the action commences.  Subrules 6A(1) and (2), if read together, allow a plaintiff to commence an action against a defendant in the form “the personal representative of a deceased” as if it were brought against the estate of the defendant deceased.  No leave is required.

9. If it is the plaintiff who has passed away before the commencement of the action and before a grant of probate or administration, an action can still be commenced but according to Subrule 6A(4)(a) the Plaintiff must during the period of validity for service of the writ apply to court for an order appointing a person to represent the deceased’s estate for the purpose of the proceeding.  The Plaintiff has not done so in this action.

Facts of the Case

10. The facts of the case can be briefly summarized in the following chronology:

28th April 2002	The deceased was a passenger sitting in the front seat of the vehicle driven by the 1st Defendant and owned by the 2nd Defendant.  The 2nd Defendant was the mother of the deceased.  An accident happened and the deceased died.
21st April 2005	The writ with general endorsement was issued with the plaintiff named as “personal representative of Tang Kin Man deceased” against the 1st Defendant and the 2nd Defendant.
6th January 2006	Statement of Claim filed and served together with Notice to Insurer served on the 3rd Defendant who is the insurer.
13th January 2006	The 3rd Defendant applied to join in as the 3rd Defendant.
18th January 2006	Leave was granted for that joinder.
27th January 2006	The 3rd Defendant filed a Defence.

11. The parties took out the various summonses as stated in paragraph 1 hereof.  The 1^st Defendant was a friend of the deceased and the 2^nd Defendant was the mother of the deceased.  As expected, they did not file any intention to defend or any defence at all.  The 3^rd Defendant as insurer vigorously defend the action.

12. Ms. Lee argued that the writ is irregular: according to the learned editor’s note in Section 6/1/3 of the Hong Kong Civil Procedure 2006, the Plaintiff must give his name.  Ms. Lee did not read to me Section 6/1/2 of the editor’s note which states: “Failure to complete a form in accordance with those rule does not render the proceeding void …”.  Order 2 rule 1 confirms my view.  I cannot say the writ and the service are of no effect because of the irregularities.

Section 5 of Cap. 22

13. Ms. Lee raises another issue relating to the commencement of the proceeding by the Plaintiff.  Section 5 seems to suggest two ways of commencing proceedings under the Fatal Accidents Ordinance (Cap. 22):

14. It is my view that Order 15 rule 6A(4) is a way to implement the 2^nd method above mentioned.  Up to this point the action has not been properly constituted because of the Plaintiff’s failure to observe S. 5(2) of the Ordinance and also to apply for appointment under Order 15 rule 6A(4).

15. By summons of 21^st October 2006 the administrators apply to become the Plaintiff.  According to Order 15 rule 6A(4), the application must be made within “the period of validity for service of the writ”.  The present application is very late: nearly half a year after the validity for service has expired.

16. I accept that the writ was served on all the Defendants within the period of validity for service.  But, no application for appointment has been made within time.  I believe under Order 3 rule 5 I have the power to extend the time for the application.

17. Order 3 rule 5(1) & (2) state:

“	(1)	The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these rules, or by any judgment, order or direction, to do any act in any proceedings.
	(2)	The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.”

18. In the summonses the Plaintiff has not applied for extension of time but in response to my questions the parties have put forward their views.  Although I note the use of the word “shall” in the case of the plaintiff under Order 15 rule 6A(4), I am of the view that the Order 3 rule 5 gives me power to extend the time.

19. I also note the ruling of the Court of Appeal in the case of Wo Fung Paper Making Factory Ltd v Sappi Kraft (Pty) Ltd [1988] 2 HKLR 346 at 347A in which the court held that:

“Section 72 of the Interpretation and General Clauses Ordinance (Cap. 1) (which provides that a power to extend time may be exercised even though the application for extension is not made until after the expiration of the time prescribed) applied to the Rules of the Supreme Court, but not to an application in respect of the time limit for bringing an application under Order 12, rule 8.”

20. I have tried to understand why in that judgment the extension of time was not allowed.  I find the wording in Order 12 rule 8(2) (repealed) is quite different from Order 15 rule 6A.  The former provision states:

“

(2)

Order 3, rule 5, shall apply in relation to the period of 14 days mentioned in paragraph (1) with the modification that the said period may be extended by the Court only on an application made before the expiration of the period.”

It is expressly stated that the period of application for extension can only be made before the expiration of the period.  I find no such stipulation in Order 15 rule 6A.

21. When I exercise my discretion of extending time, I must exercise it judicially.  Mr. Chou for the Plaintiff does not give me any reason for the delay.  From the papers it is quite obvious that the solicitors for the Plaintiff including those who have ceased to act were not aware of the necessity of making the application under Order 15 rule 6A(4) until the 3^rd Defendant made an application to strike out on 26^th May 2006.  Obviously, it was a mistake on the part of the Plaintiff’s legal advisors; “this may be regarded as a sufficient ground for justifying delay” according to the editor’s notes in Section 3/5/2 of the Hong Kong Civil Procedure 2006 by referring to the judgment in Mobil Petroleum Co. Inc. & another v the Registrar of Trade Marks [2001] 1 HKLR&D 225.

22. I agree that no Defendants will be prejudiced by allowing the application: the 1^st and 2^nd Defendant in any event will not contest the proceedings while the 3^rd Defendant without the assistance of the other Defendants can only defend in the manner they have pleaded in its Defence.  Ms. Lee has not pointed out to me what prejudice the 3^rd Defendant may suffer.  I assume there is none.

23. I allow an order that the administrators to be appointed as the Plaintiff in this action to carry on with the action.  I intend not to make any order relating to the 3^rd Defendant’s application to strike out the claim and to dismiss the action as the summons has been overtaken by the subsequent summonses taken by the Plaintiff and also by this decision of mine.  In case the 3^rd Defendant is successful in its appeal against my decision, the application can be restored.  It also avoids the questions of costs in respect of that application which was taken out because of the Plaintiff’s irregularity.

24. As to the orders for each summons, I specify them as follows:

(a)	As to Plaintiff’s summons dated 26th May 2006 to strike out, I make no order for reasons aforesaid;
(b)	As to the Plaintiff’s application dated 2nd June 2006, I grant leave to withdraw prayers 1, 2 and 3 and also grant leave to amend the name of the 1st Defendant to “Kwok Yu Pan” in all court proceedings;
(c)	As to the Plaintiff’s application dated 16th October 2006, I grant leave to withdraw; and
(d)	21st October 2006, I make order in term of paragraphs 1, 2, 3 and 4 of the Summons.

25. I make an order nisi as to costs of the 3 summonses mentioned in paragraph 24(b), (c) and (d) above as follows:

(a)	Costs be to the 3rd Defendant to be borne by the Plaintiff with certificate for counsel on party and party basis to be assessed by me with the following directions:
	(i)	That the 3rd Defendant shall at least 21 days before hearing of the assessment file and serve a Statement of Costs in the form contained in the Law Society’s Circular No. 06-2;
	(ii)	That the Plaintiff shall within 14 days thereafter file and serve their objections;
and	(iii)	That a date be fixed for hearing of the assessment with an estimated length of one hour.
(b)	That there is no order as to costs as between the Plaintiff and the 1st Defendant and the 2nd Defendant.
(c)	That this order nisi shall become absolute unless a written application is made to vary this order within 14 days hereof.