XCHRX WONG KAM LEE v. SHIMIZU CORPORATION and Others

1995, No.P.I. 467

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is an appeal against the Order made by Master Jones on 13 September 1996 giving leave to the plaintiff to amend the writ and Statement of Claim in order to join Lee Ping as the 4th defendant and to raise a claim against him. By the appeal, the defendants seek to have the Master's Order set aside and the name of the 4th defendant in both the amended writ and the Amended Statement of Claim expunged.

THE RELEVANT PROVISIONS

2. The appeal turns mainly on whether it was proper to join the 4th defendant as a party to the action, under Order 15, rule 6 of the Rules of Supreme Court ("RSC") and the relevant provisions of the Limitation Ordinance, Cap. 347.

3. The relevant paragraphs of Order 15, rule 6 provide as follows :

"(1) No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

(2) Subject to the provision of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application :-

(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b) order any of the following persons to be added as a party, namely :-

(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

(3) .....

(4) .....

(5) No person shall be added or substituted as a party after the expiry of any relevant period of limitation unless either :-

(a) ..... ; or

(b) the relevant period arises under the provisions of section 27 or 28 of the Limitation Ordinance (Cap. 347) and the Court directs that those provisions should not apply to the action by or against the new party.

In this paragraph "any relevant period of limitation" means a time limit under the Limitation Ordinance (Cap. 347).

(6) ....."

4. For the purpose of the appeal, certain provisions in sections 27 and 35 of the Limitation Ordinance must be examined closely. Section 27 reads as follows :

"(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under an Ordinance or imperial enactment or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

(2) .....

(3) Subject to section 30, an action to which this section applies shall not be brought after the expiration of the period specified in subsections (4) and (5).

(4) Except where subsection (5) applies, the said period is 3 years from :-

(a) the date on which the cause of action accrued; or

(b) the date (if later) of the plaintiff's knowledge.

(5) .....

(6) In this section, and in section 28, references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts -

(a) .....

(b) .....

(c) the identity of the defendant; and

(d) .....

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

(7) .....

(8) For the purpose of this section and section 28 a person's knowledge includes knowledge which he might reasonably have been expected to acquire -

(a) from facts observable or ascertainable by him; or

(b) ....."

5. Section 35 of the Limitation Ordinance, where relevant, provides :

"(1) For the purposes of this Ordinance, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced -

(a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and

(b) in the case of any other new claim, on the same date as the original action.

(2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either -

(a) the addition or substitution of a new cause of action; or

(b) the addition or substitution of a new party,

.....

(3) Except as provided by section 30 or by rules of court, the court shall not allow a new claim within subsection (1)(b), other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Ordinance which would affect a new action to enforce that claim.

(4) ....."

6. For brevity, Order 15, rule 6 of the RSC is hereinafter referred to as O.15, r.6 and the sections in the Limitation Ordinance simply as s.27, s.30, s.35, etc.

THE FACTS

7. The writ in this action was issued on 6 September 1994 together with the Statement of Claim whereby the plaintiff claims against the 1st, 2nd and 3rd defendants damages for personal injuries based on negligence, breach of statutory duties and common duty of care on the part of all three defendants. It also raises a claim against the 3rd defendant for breach of contract of employment. The relevant allegations are that the plaintiff was a caisson worker at a construction site in Lockhart Road ("the site") at which the 1st defendant was the principal contractor, the 2nd defendant was the 1st defendant's sub-contractor and the 3rd defendant was in turn the 2nd defendant's sub-contractor, that the plaintiff was employed by the 3rd defendant as a caisson worker (paragraph 2(i) of the Statement of Claim), and that the plaintiff sustained personal injuries at the site on 24 April 1992.

8. In paragraph 2(c) of their Defence filed on 7 November 1994, the 1st, 2nd and 3rd defendants plead that the plaintiff was employed as a caisson digger by one Lee Ping who was the sub-contractor of the 3rd defendant for caisson work at the site. Save that, no admission is made to paragraph 2 of the Statement of Claim.

9. By the amendment to the writ and Statement of Claim granted by the Order under appeal, the plaintiff has caused the name of the 4th defendant (i.e., Lee Ping) to be added in his claims as a defendant alternative to the 1st, 2nd and 3rd defendants based on the added allegation that "the Plaintiff was employed by the 3rd Defendant and/or by the 4th Defendant as a caisson worker."

THE APPELLANTS' ARGUMENTS

10. Mr Lai for the defendants raised a number of grounds in support of the appeal. Those material for my determination are set out below :

(a) The cause of action relied on by the plaintiff in the Statement of Claim accrued at the time of the accident, namely, 24 April 1992, wherefore the limitation period in respect of any claim against the 4th defendant relating to the plaintiff's alleged personal injuries must have expired by 24 April 1995, under s.27(4)(a).

(b) The application to amend to add the 4th defendant was made on 7 June 1996, and therefore any such claim against him has been time-barred.

(c) Unless the plaintiff proves that the date of his knowledge of the identity of the 4th defendant was within three years preceding 7 June 1996 so that his claim against the 4th defendant is within time under s.27(4)(b) and s.27(8), the 4th defendant cannot be joined as a party to the action.

(d) As an alternative to (c), in the event that the plaintiff's claim against the 4th defendant is time-barred, unless the Court exercises its discretion under s.30 to disapply s.27, O.15, r.6(5) makes it imperative that the 4th defendant cannot be joined.

(e) Since the plaintiff has the onus but failed to prove that his date of knowledge of the identity of the 4th defendant was within three years before 7 June 1996, the amendment to add the 4th defendant should not have been allowed.

(f) The plaintiff having proceeded on the basis of an amendment to add a new claim, s.35(1)(b) and s.35(3) and O.15, r.6(5), which provide a comprehensive scheme regarding limitation, preclude the plaintiff from succeeding.

THE RELEVANT PERIOD OF LIMITATION

11. O.15, r.6(5) provides that no person shall be added as a party after the expiry of any relevant period of limitation unless the court disapplies s.27. Mr Lai submitted that the relevant period of limitation should as a starting point be three years from the date on which the cause of action accrued under s.27(4)(a), and that it was only when the plaintiff proved that he first had knowledge of the identity of the 4th defendant on a date later than the time of the accrual of the cause of action that the relevant period of limitation would be three years from the date of that knowledge. As the plaintiff had not adduced any or any sufficient evidence to prove the date of that knowledge, the relevant period must be three years from the date of the accident. In the circumstances, so Mr Lai's arguments developed, the amendment to add the 4th defendant as a party should not have been allowed.

12. As I see it, s.27(4) provides for two periods of limitation, each for three years, one calculated from the date of the accrual of the cause of action, and the other from the date of the plaintiff's knowledge of the identity of the 4th defendant. By virtue of s.27(8), such knowledge includes knowledge which the plaintiff might reasonably have been expected to acquire from the facts observable or ascertainable by him. In a case where the plaintiff does not seek to rely on his knowledge acquired later than the date of the accrual of his cause of action, the court is left with only this date. However, where the plaintiff has alleged his late knowledge, the court will have to consider which is the relevant period of limitation under O.15, r.6(5) that is applicable to the matter. In Nash v. Eli Lilly & Co. [1993] 4 All ER 383, an appeal from the decisions of a judge on preliminary issues as to whether the plaintiffs' claims were statute-barred, at 396f-g, Purchas LJ, delivering the judgment of the Court of Appeal had this to say on the onus of proof :

"Finally it is important to remember where the onus of proof lies. If the writ is not issued within three years of the date when the cause of action arose (see s.11(4)(a) [equivalent to s.27(4)(a) of our Ordinance]), the onus is on the plaintiff to plead and prove a date within the three years preceding the date of the issue of the writ (see s.11(4)(b) [equivalent to our s.27(4)(b)]). If the defendant wishes to rely on a date prior to the three year period immediately preceding the issue of the writ, the onus is on the defendant to prove that the plaintiff had or ought to have had knowledge by that date."

13. In the present case, by paragraph 2A of the Amended Statement of Claim which was added pursuant to the Order of the Master, the plaintiff pleads :

"The Plaintiff only knew of the allegation that the 4th Defendant was the employer of the Plaintiff upon receipt of the 1st, 2nd and 3rd Defendants' solicitors letter dated the 8th day of April 1994."

14. Mr Lai, however, challenged that the plaintiff had failed to adduce sufficient evidence to support the alleged late knowledge. In support of the plaintiff's application dated 7 June 1996 to amend the writ and Statement of Claim, his solicitor, David Norman Brettell swore an affidavit on 6 June 1996. Regarding the identity of the plaintiff's employer at the site, Mr Brettell produced pages 1 and 2 of the plaintiff's statement dated 21 August 1995. That statement was filed with the Court pursuant to an Order of Master Woolley made on 26 May 1995 ordering that statements of the parties' witnesses be exchanged and filed and that unless the trial judge ordered to the contrary, the statements were to stand as evidence in chief of their makers. The relevant parts of the plaintiff's witness statement read as follows :

"3. In March 1992 I commenced working at a construction site at 530-540 Lockhart Road ('the site'). Also working on the site was Lee Ping ('Mr Lee') whom I believe was employed by Hop Shing Foundation Caisson Engineering Co. ('Hop Shing') as a site supervisor. In April 1992, Mr Lee introduced me to Hop Shing and I had an interview with a Mr Luk a chief supervisor of Hop Shing. I produced my identity card to him and he confirmed that Hop Shing would employ me. It was agreed by Mr Luk that my daily wage would be $640.00.

4. I commenced working for Hop Shing on 13th April 1992 and worked for this firm until the accident on 24th April 1992. I now produce wage records covering this period which show that I worked 11 and 1/2 days and 18 hours of overtime, and received a total of $10,240.00. I received this payment from Hop Shing, through its supervisor Lee Ping."

15. Mr Brettell also stated that at the time of the commencement of this action the only documentation regarding the employment issue available was a Form 2 dated 29 July 1993, the Accident Record dated 29 April 1992 and two wage receipts signed by the plaintiff and one Pang. The Form 2 was a notice by employer of an accident to an employee filed under the Employees' Compensation Ordinance, Cap. 282. It was apparently signed by a manager of the 2nd defendant and therein the plaintiff was stated to be the employee while the 2nd defendant was stated to be the employing company. The Accident Record was in a form on a letterhead of the 1st defendant filled in by one Luk Kwok-ching, and the employer's name was stated to be the 2nd defendant. On the top of the two wage receipts, the name of the 3rd defendant was written. In none of these documents does the name of Lee Ping, the 4th defendant, appear. On or about 21 August 1995, when the exchange of witness statements took place, Mr Brettell received Lee Ping's statement together with a draft contract dated 11 April 1992 between the 3rd defendant and the 4th defendant (Lee Ping) whereby the 4th defendant became the 3rd defendant's sub-contractor regarding the caisson work at the site. It was thereafter that the plaintiff wished to join the 4th defendant as a party so that the 4th defendant be alleged as an alternative to the 3rd defendant as his employer.

16. It appears, therefore, that the plaintiff and his legal advisers had been operating under the belief that the 3rd defendant was his employer at the material time until they saw the draft contract in August 1995. Before that, however, the 1st, 2nd and 3rd defendants' solicitors had mentioned in their letter dated 8 April 1994 to the plaintiff's solicitors that he "was directly employed and paid by Lee Ping, an independent sub-contractor" of the 3rd defendant. That apparently is the basis for the plea in paragraph 2A of the Amended Statement of Claim referred to above.

17. I have also looked at the witness statements of Lee Ping and Luk Kwok-ching filed pursuant to the Order of Master Woolley dated 27 April 1995. Lee Ping stated that he engaged the plaintiff at the site as a sub-contractor for caisson work at a linear metre rate. He also expressed that the Mr Pang who signed the two wage receipts was working for him, but he did not know how those documents came about. Luk Kwok-ching's statement stated that he was the 3rd defendant's foreman on the site, and that the supply of manual labour for building the caisson wells on the accident site was sub-contracted to Lee Ping.

18. In the affidavit of Ms Teresa Leung filed on 3 September 1996 to oppose the plaintiff's application to amend, the defendants' stance on the plaintiff's knowledge of the identity of the 4th defendant was put as follows :

"6. I ... humbly point out that the alleged 'belief' of the Plaintiff that he was employed by the 3rd Defendant could have no factual basis. It was the Plaintiff's unequivocal case in his statement ... under paragraph 3 that he was interviewed by Mr Luk, a chief supervisor of the 3rd Defendant who examined his identity card and confirmed his employment by the 3rd Defendant. According to the instructions from Mr Luk, no such event happened. It was the evidence of Lee under paragraph 2 of his statement dated 6th July, 1995 that he was looking for skilled and experienced workmen for his sub-contract works and the Plaintiff was introduced to him by another workman. It was Lee who interviewed the Plaintiff and agreed to take him on linear metre rate in lieu of a day wage.

7. The question is therefore not the Plaintiff having any mistaken 'belief' as to the identity of his employer, but a crude question of whether the Plaintiff on the one side or Lee and Luk on the other side was trying to lie about the true employment situation. In the face of consistent and repeated averments of the Defendants that he was employed by the sub-contractor Lee, the Plaintiff had elected to insist for reasons best known to himself that he was employed by the 3rd Defendant. It is only very recently well past the eleventh hour that the Plaintiff wants to change his course and seek to join Lee in the action."

19. Mr Lai argued that if the plaintiff were to be proven correct at the trial of this action that the 3rd defendant was his employer, then it would be futile to have joined the 4th defendant. On the other hand, if the trial judge preferred the evidence of Lee and Luk to that of the plaintiff, then the plaintiff must have known the 4th defendant's identity at the time of, if not before, the accident. Mr Lai, as his instructing solicitor Ms Leung did, put it as a case of which side was lying on the issue. I am of the view the approach of simply considering the matter as which side is lying is too simplistic. There can be room that there was confusion or misunderstanding. Even if the court eventually finds as a fact that the 4th defendant was the employer of the plaintiff, it may not as a matter of certainty rule out the plaintiff's belief that he was employed by the 3rd defendant as having not been honestly or firmly held. One can find an interesting discussion about knowledge, suspicion and belief in Nash, supra at 391f to 396g.

20. The conflict of the evidence between the plaintiff and the defendants cannot and should not be resolved without hearing viva voce evidence. One of the possible ways to resolve the matter is for a preliminary issue to be framed and tried. Trials of preliminary issues in this regard can be found in Nash, supra; Thompson v. Brown & Anr [1981] 1 WLR 744; Hung Man-Ping v. Wing Yick & Co. & Ors (HCA 12824/83, 5 February 1991, Jones J., unreported); and Leung Chak Tung v. East Joint Ltd. & Ors (HCA 6405/89 and HCA 126/91 (consolidated), 28 January 1994, Rhind J., unreported). Another avenue suggested by Mr Lai as being open to the 4th defendant is for him to apply to strike out the plaintiff's claim as against him. However, I do not feel that an application for striking out without viva voce evidence would be fruitful to the 4th defendant. In the light of the conflict in the evidence, I cannot form a firm view as to the relevant period of limitation under O.15, r.6(5) that is applicable. If I reject the plaintiff's evidence, then the relevant period must be three years from the date of accrual of the cause of action under s.27(4)(a); otherwise the relevant period should be three years from the date of the plaintiff's knowledge of the identity of the 4th defendant as his employer under s.27(4)(b). While the relevant period of limitation has not been determined, the "expiry" of the period referred to in O.15, r.6(5) and s.35(3) cannot be decided either.

21. For the purpose of my determination of the matter before me, I think it suffices to say that the plaintiff has raised sufficient material, supported by sufficient evidence, to show that the applicable relevant period of limitation may be that commencing from the date of his knowledge or constructive knowledge that the 4th defendant was his employer. The date of that knowledge being disputed by the defendants has the effect of rendering the determination of the relevant period impossible at this stage, but it does not preclude the plaintiff from seeking to join the 4th defendant as a party or the court from exercising its discretion under O.15, r.6(2). The plaintiff has shown that the 4th defendant is a necessary party to the action "to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon" under O.15, r.6(2)(b)(i), or that the 4th defendant is a person "between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter" under O.15, r.6(2)(b)(ii).

THE SCHEME UNDER THE LIMITATION ORDINANCE AND THE RSC

22. Another main basis of Mr Lai's contention that the amendment to add the 4th defendant should not have been allowed is that the Limitation Ordinance and the RSC have by their provisions designed a scheme to deal with such an amendment regarding the question of limitation. The arguments run as follows. O.15, r.6(5) provides that no person shall be added as a party after the expiry of any relevant period of limitation unless the court directs that the provisions of s.27 should not apply to the action against the new party. This rule makes it abundantly clear that the court must take into account the question of limitation when an amendment to add a new party is sought. S.35(3) provides that except as provided by s.30 or by rules of court, the court shall not allow a new claim within subsection (1)(b) to be made in the course of any action after the expiry of any time limit under the Ordinance. As the amendment is to add a new claim (i.e., a new party) within subsection 1(b), the court is again required to look into the limitation question and determine whether the new claim has been time-barred. Therefore the provisions of the Order and the sections are consistent and they create a comprehensive scheme that is applicable to the plaintiff's amendment to join the 4th defendant. The scheme may not apply to a new action being brought by the plaintiff against the 4th defendant, which is one of the alternative ways available to the plaintiff but which the plaintiff has chosen not to pursue.

23. Mr Lai also contended that s.35(1) was exhaustive as far as a new claim was raised against a new party, in that if the claim did not fall within paragraph (a) of the subsection, it must fall within paragraph (b) thereof. When as in the present case, the amendment fell within subsection (1)(b), then except where the court exercised its discretion under s.30 to disapply s.27 or except as provided by the RSC, the court must not allow the amendment.

24. Mr Lai argued that had the plaintiff instituted a new action against the 4th defendant, the scheme regarding amendments to add a new party would not apply. However, since the plaintiff had chosen to proceed under the amendment rules, the scheme precluded the plaintiff from succeeding. The reasoning proffered was that s.35(1)(b) deemed the new claim against the 4th defendant to have been commenced on the same date as the original action, i.e., the date of the issue of the writ herein on 6 September 1994. Section 35(3) excluded the court's power from allowing a new claim under s.35(1)(b) except as provided by s.30 (the court exercising its power to disapply s.27) or by rules of court. For "rules of court", Mr Lai referred back to O.15, r.6(5) which disallowed the court to add a party after the expiry of any relevant period of limitation save where the court exercised its power under s.30.

25. I do not accept Mr Lai's arguments. Although s.35(1) appears to be exhaustive relating to the nature of all new claims and that a new claim must be deemed to have been commenced at the date of the original action, and s.35(3) applies to a new claim within s.35(1)(b), insofar as the court has not expressly ruled on the questions as to what was the relevant period of limitation and whether such period had expired, s.35(3) and the deeming provision of s.35(1) do not come into operation. The court has power under O.15, r.6(2) to add a party, because no decision has yet been made by the court under O.15, r.6(5), to which O.15, r.6(2) is subject.

26. At para. 15/6/3 of the Supreme Court Practice, 1997, Vol. 1, on the operation of s.35(1) and (3) of the Limitation Act, which consists of similar provisions as in s.35(1) and (3) of our Limitation Ordinance, and O.15, r.6(5) of the English RSC which is, mutatis mutandis, identical to the same rule in our RSC, the learned editors state :

"Notwithstanding what appear to be the imperative terms of s.35(3) of the 1980 Act and of r.6(5) above, a new claim falling within s.35(1)(b) made after the expiry of the relevant limitation period will not be struck out as being statute barred, since those provisions do not mean that no action can be brought, but that no action shall succeed. It will then be for the defendant to raise the issue of limitation, not by reference to the date when the cause of action arose but by setting up s.35(3) of the Act as a bar to the claim. At that stage, if appropriate, the plaintiff may apply under s.33 of the Act [equivalent to s.30 of our Ordinance] to disapply the Act."

27. In the absence of a decision on the relevant period of limitation and on the expiry or otherwise of the period, the above-cited passage in the White Book must be right. In such circumstances, the defendant is not precluded from raising limitation as a defence or as a ground that the plaintiff's claim against him cannot succeed. In Liff v. Peasley and Anr [1980] 1 WLR 781, where the plaintiff on ex parte application joined a person as an added defendant 5 years after the accident and the defendant thereafter entered an unconditional appearance to the writ, the Court of Appeal held that the defendant should cease to be a party. At 789H, Stephenson L.J. made observation on the ex parte application thus :

"I can go back to consider the question whether Mr Spinks was properly or improperly joined. I have no doubt that he was properly joined by Master Warren's order of March 2, 1978. Whatever the defects in the form of that order, it was properly made, because when made it was not known whether Mr Spinks would plead section 2 of the Act of 1939, and it was properly made ex parte: see for example Marubeni Corporation v. Pearlstone Shipping Corporation (The Puerto Acevedo) [1978] 1 Lloyd's Rep. 38 and Ashley v. Taylor (1878) 10 Ch. D. 768."

28. In relation to the defendant's right to rely on limitation, the learned judge said at 791C-G as follows :

"There is no doubt about the practice long established before the Limitation Act 1975. It is not to permit a person to be made a defendant in an existing action at a time when he could have relied on a statute of limitation as barring the plaintiff from bringing a fresh action against him. The reason for this practice - or rather the way in which this practice is justified or the legal basis on which it is rested - is, curiously, more doubtful. There appears to be two alternative bases. (1) The action against the added defendant relates back to the date of the original writ, the plaintiff is deemed to have begun his action against the defendant when he began it against the original defendant, and so that the defendant is deprived of his right to rely on the statute of limitation. (2) The action against the added defendant is begun at the date of the amendment joining him in the action, and so he can rely on the statute as barring the plaintiff from suing him. In most cases it will not matter which of the two possible dates is regarded as the date of the commencement of the action brought against the added defendant. If he applies to set aside the order joining him as co-defendant, he will succeed, either because he would be deprived of his right to rely on the statute if the earlier date were preferred or because he would be able to rely on the statute and defeat the plaintiff's claim if the later date were preferred. But in this case the added defendant has elected to plead the statute in answer to the plaintiff's claim before challenging the plaintiff's right to make him a defendant. Can he at that later stage allege that his joinder, though properly made in the first instance, is improper if, and only if, he can successfully rely on the statute because he was not sued until the later date, so that it would be pointless and unnecessary that he should be, or remain, a defendant? But if he cannot rely on the statute because he is deemed to have been sued from the earlier date, how can he then deny that he is, and remains, a proper and necessary party to the action?"

At 796A, the learned judge continued:

"The settled practice is, in my judgment, the important matter, not the legal basis of it, which in most cases is of no relevance. But if that basis is of importance, there is, I think, high, if not overriding, authority for the opinion that for the purpose of considering whether an action is statute-barred it is brought or begun against an additional defendant at the date of his being brought into it."

29. In a case where the person applied to be added as a defendant has made known his wish to rely on limitation, in most cases the following will take place. Where there is no dispute on evidence on the issues of (1) the relevant period of limitation, (2) the expiry of that period and (3) whether the court should direct a disapplication of s.27 or s.28, the application for amendment can be decided under O.15, r.6(5) and s.35(3) straight-away whereby the decision will also be binding on the plaintiff and the added defendant in respect of the issues. Where, as in the present case, there is a dispute on the evidence on those issues and the dispute cannot be resolved without hearing viva voce evidence, the application can be granted first pursuant to the power of the court under O.15, r.6(2), and at least the following courses are then open :

(a) The issues can be reserved by the court for the determination of the trial judge, or be tried as preliminary issues;

(b) The plaintiff or the added defendant can make an application to determine the issues as preliminary issues;

(c) The added defendant can apply to court to strike out the plaintiff's claim against him if he has a very strong case on limitation as to be able to bar the plaintiff's claim in limine; or

(d) The added defendant can raise the limitation point in his defence and let the issues be determined by the trial judge.

30. Mr Lai conceded that his contended operation of s.35(3) and O.15, r.6(5) would not avail the defendants if the plaintiff had taken out a new action against Lee Ping (the 4th defendant herein) as the sole defendant. The various courses in the sub-paragraphs of the preceding paragraph are, mutatis mutandis, applicable to such a new action if the defendant claims that the plaintiff's claim against him is time-barred.

31. Where the evidence on the issues on limitation conflicts as in the present case, no determination can or should be made without hearing viva voce evidence. I am in agreement with Mr Remedios in his submission that it is unjust to exclude the plaintiff from joining the 4th defendant at the present stage when those issues have not been finally determined. There can be no fetter on the court's discretion to allow an amendment to add a new party under O.15, r.6(2) in the circumstances. Section 35(3) expressly reserves "the rules of court" as an exception to its own provisions. The plaintiff should not be prejudiced by the procedure that he has followed. In Tam Oi-kau v. Tacksen Shui Hing Godwon Co. Ltd. & Anr [1986] HKLR 288, at 296A-B, Rhind J. had this to say, albeit on a slightly different topic, which I respectfully adopt :

"Procedurally, someone in the plaintiff's position has a choice. She can issue fresh proceedings against the defendant, as she has done here, or she can apply to have the defendant joined in the existing proceedings, being H.C.A. 9200/83. Exactly the same considerations apply under each procedure when considering the issue of whether it would be equitable to disapply the time-bar. Whichever procedure she chooses, the merits alone will dictate the result. Long gone are the days when a party might lose an application by choosing the wrong procedure. Procedure these days is a servant, not a master. Modern judges are in the happy position of having to look up to a just result alone as the master."

32. The Order appealed against did not specify whether a determination had been made regarding the issues concerning limitation. Nor did it express whether s.35(1)(b) governed the matter. Although that is not the defendants' complaint, for the sake of clarity I think it is preferable in such circumstances to state that the action against the 4th defendant should be treated as having commenced at the time of the application to amend to add him as a new party.

CONCLUSIONS

33. For all the reasons stated above, I am of the view that the application to add the 4th defendant as a party and amending the writ and Statement of Claim accordingly was properly made. However, it is preferable for the Master to have made known that the action against the 4th defendant should be treated as having commenced at the time of the application to add him as a party. In the result, the appeal is dismissed with an order nisi that the defendants do bear the costs of the appeal. I further order that the plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.

(K H Woo)

Judge of the High Court