CHEUNG SAU CHU ROSANNA v. 魯珉軒 AND OTHERS

HCPI 497/2020

[2021] HKCFI 3356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 497 OF 2020

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DECISION

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Introduction

1.  By summons dated 31 May 2021, the plaintiff sought an extension of time to file and serve her statement of claim and statement of damages “by 6 months to 1^st December 2021”.

2.  On 2 September 2021, Master Kot ordered that unless the plaintiff do by 4pm on 1 December 2021 file and serve her statement of claim, statement of damages and the medical reports as required under Practice Direction 18.1, her action be dismissed with no order as to costs.

3.  Before me this morning is the plaintiff’s appeal against the master’s order.  She asks for the order to be set aside and seeks an order that time be extended for her to file and serve the documents on or before 29 January 2022 and not on an “unless” basis.

4.  The 1^st, 2^nd and 3^rd defendants are not present today.  The plaintiff has confirmed to the court, with supporting documents, that the notice of appeal was sent to them by ordinary post on 14 September 2021.  I am satisfied that the three defendants ought to have notice of today’s hearing.  The court has therefore proceeded in their absence.

Procedural history

5.  The plaintiff commenced this action in the District Court in DCPI 187/2020.  The writ was issued on 20 January 2020.

6.  By order dated 2 November 2020, the action was transferred to the Court of First Instance.

7.  According to the plaintiff’s affirmation evidence, the writ was served on the 1^st, 2^nd and 3^rd defendants by registered post in January 2021.  The post sent to the 1^st defendant was however later returned in February 2021.  The writ was subsequently renewed upon its expiry.  It was then served on the 1^st defendant by registered post in July 2021.

8.  The writ sent to the 2^nd and 3^rd defendants was not returned.

9.  The 1^st defendant has not lodged an acknowledgment of service to date.  However, he was present in person at the checklist review hearing before Master Roy Yu on 21 June 2021 and the hearing before Master Kot on 2 September 2021.

10.  It would appear from the court records that in late January 2021, the 2^nd and 3^rd defendants, acting in person, lodged their acknowledgments of service with the District Court.  As the action had by then been transferred to the Court of First Instance, the acknowledgments were expunged by the Registry pursuant to a direction of a District Court master.  It would also appear that the 2^nd and 3^rd defendants might have sent their acknowledgments of service to the District Court as the writ might have still referred to the District Court action number.

11.  The writ was served on the Department of Justice, who acts for the 4^th and 5^th defendants, in January 2021.  They lodged their acknowledgment of service with the court on 29 January 2021.

12.  Pursuant to Order 18, rule 1, the plaintiff should serve her statement of claim on the 4^th and 5^th defendants by mid-February 2021.  The plaintiff did not comply with the rule.

13.  By summons filed on 16 February 2021, the plaintiff sought an extension of time of 6 months.  The summons was served on all the five defendants.

14.  By order dated 1 March 2021, Master Yu extended the time for the plaintiff to file and serve the statement of claim, statement of damages and the medical reports to 1 June 2021.  At that hearing, the 1^st, 2^nd and 3^rd defendants were absent.

15.  That would be the first time extension granted to the plaintiff.

16.  Then, on 31 May 2021, the plaintiff took out a summons to further extend the time for another 6 months.  That is the summons to which the present appeal relates.  The summons was served on all the five defendants.  The return date was 21 June 2021, which was the scheduled date for the checklist review hearing.

17.  At that hearing, Master Yu adjourned the time extension summons to 2 September 2021.  All the five defendants were present.  It would appear that the adjournment was ordered because of pending legal aid applications made by the 2^nd and 3^rd defendants and also because at that time, the 1^st defendant was not yet properly served with the writ.

18.  Lastly, at the adjourned hearing on 2 September 2021, Master Kot made the unless order, which is the subject-matter of the present appeal.

19.  I was informed by the parties this morning that at that hearing, Master Kot told the parties that a memorandum of notification of an application for legal aid with respect to the 1^st defendant was filed with the court just before that hearing.

20.  Notwithstanding that, master proceeded with hearing submissions from the parties and making the unless order in the end.  In the circumstances, while there was no express order appearing in the sealed order lifting the legal aid stay, in substance, master effectively lifted the stay for the hearing to continue.

Discussion

21.  It is plain from the procedural history recounted above that the statement of claim, together with the statement of damages and the medical reports which are required to be served together with the statement of claim under Order 18, rule 12(1A), have long been overdue at the time the unless order was made as far as the 4^th and 5^th defendants are concerned.  The plaintiff was then already late by almost seven months.

22.  As regards the 1^st, 2^nd and 3^rd defendants, the prima facie position is that time for serving the statement of claim does not start to run until after the acknowledgment of service is lodged unless the court directs to the contrary: see Order 18, rule 1. 

23.  There has to date been no (or no effective) acknowledgment of service lodged by the three defendants.

24.  However, in the present case, the plaintiff chose to serve her two time extension summonses on all the defendants. 

25.  Effectively, by her summons dated 31 May 2021, the plaintiff was seeking a time limit of 1 December 2021 to file and serve the documents on all the five defendants.

26.  In the circumstances, given the plaintiff’s own application, it was open to the master to treat the statement of claim as due as against all the defendants under the rules and extend time accordingly to 1 December 2021.

27.  According to the general indorsement on the writ, the plaintiff is claiming damages against the defendants out of an incident which took place on 27 January 2017.

28.  When the unless order was made in September this year, it was about 4 years and 7 months after the event.  Yet the plaintiff was still not able to inform the defendants her case against them save for what is stated in the general indorsement. 

29.  Under the rules, the statement of claim, the statement of damages and the medical reports were then overdue in terms of months.  In the circumstances, where the plaintiff sought an extension of time, I consider that it was eminently proper for the extension to be granted on an “unless” basis. It must be noted that the new deadline granted was in fact the very same one sought in the plaintiff’s own summons. 

30.  I am of the view that the making of the unless order is a proper exercise of the court’s case management power and it facilitates the underlying objectives set out in Order 1A, in particular rule 1(b) and (d), namely that the case should be dealt with as expeditiously as is reasonably practicable and to ensure fairness between the parties.

31.  This morning, the plaintiff explains that she has been having health issues and she has had difficulties in obtaining the medical reports from Ruttonjee Hospital and Queen Mary Hospital.  All she has now obtained are a bundle of medical treatment records.  Furthermore, in her consultation with the doctor on 28 October 2021, she was told that it would usually take about three months for the hospital to prepare her medical reports.  And that is why she now asks for an extension of time until 29 January 2022.  She has been trying her best to obtain the medical reports to comply with the court deadline but the hospitals have not been able to deal with her request in a timely manner. Lastly, she is due to undergo a surgery and some medical tests in late November and early December. 

32.  Mr Louie Chan, who appears for the 4^th and 5^th defendants, submits that the preparation of the statement of claim and the statement of damages does not depend on the medical reports.  However, he acknowledges that the compilation of the medical reports may be beyond the control of the plaintiff. 

33.  Hence, the 4^th and 5^th defendants’ position in this appeal is that the master’s order in relation to the statement of claim and statement of damages should stand but they are prepared to agree to a time extension for the medical reports until 1 February 2022, and not on an “unless” basis.

34.  As I have tried to explain to the plaintiff at the hearing, when making case management decisions, the court does not only have in mind her personal circumstances as a factor, it would also take into account the position of all the five defendants.  The action was commenced back in January 2020.  Almost two years later, the defendants are still not being told the plaintiff’s case, save for a general indorsement.  The unless order should stay.  The defendants are entitled to a final deadline by which the plaintiff should present a properly formulated claim, both in terms of the alleged incident and the injuries, to them.

35.  On the other hand, given the agreement of the 4^th and 5^th defendants, I am prepared to vary the master’s order as suggested by Mr Chan.

Conclusion

36.  The appeal is allowed to the limited extent that the time for the filing and serving of the medical reports be extended to 1 February 2022 and the extension of time is not on an unless basis.  Subject to that, the rest of the master’s order do stand.

[Submissions on costs]

37.  The plaintiff and the 4^th and 5^th defendants have no application for costs for this appeal.  I make no order on costs accordingly.