CHEN CHERYL DEANNA AND ANOTHER v. CHEN PAK-YIN STELLA also known as STELLA LEE

HCA 59/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 59 OF 2011

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D E C I S I O N
(Leave to Appeal)

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Introduction

1.  I made an order on 30 May 2016 dismissing Ps’ summons for leave to file a re-amended statement of claim, and their summons on consequential directions and leave to serve a psychiatric report on P2 (“Order”).  I handed down a decision on the same day setting out the background and the reasons for the Order (“Decision”).

2.  For ease of reference, in the present ruling, I am adopting the same abbreviations in the Decision.

3.  Ps have now issued 2 summonses, the 1^st Summons issued on 10 June 2016 seeking leave to appeal against the Order (“1^st Summons”). 

4.  The 2^nd Summons was issued on 29 June 2016 which states “the 1^st plaintiff legal status in the 2^nd Draft Re-Amended Statement of Claim dated 06 October 2014 to be remained as in previous and further related summonses before the court” (sic) (“2^nd Summons”).

5.  It was not clear what Ps were seeking in their 2^nd Summons and in any event, at the hearing on 8 July, Ps have sought leave to withdraw, and leave is hereby granted.  For avoidance of doubt, in the Decision, I have set out my reasons for dismissing P1’s application for leave to file the draft 2^nd RASOC due to her absence as well as on merits.

Reasons for the intended appeal

6.  Ps have filed an affirmation on 10 June 2016 in support of their 1^st Summons, setting out reasons for seeking leave to appeal (“Reasons”)[1]. No draft grounds or notice of appeal had been attached. The Reasons, in so far I can make out, are briefly as follows:

(I) Ps alleged or maintained that Master Ho had granted leave for them to amend the ASOC as per the draft 2^nd RASOC;

(II) This court erred in stating that if leave was granted to Ps to amend the ASOC, there would be prejudice to D as there had already been a considerable delay in fixing dates for the Trial for over 2 years;

(III) This court erred in paragraphs 26 – 30 inclusive of the Decision, on the merits of the proposed amendments, in stating that the administrator could investigate/recover any assets if necessary; and accepting what D said about D’s experts were going to retire;

(IV) This court erred in paragraphs 25 and 31 of the Decision in that P2 has the right of hearing on his claims on “consequential damages and personal injuries when he reached the age of 18 and before he reached the age of 21 on 26 October 2014”;

(V) This court erred in dismissing paragraphs 1 and 4 of the Leave Summons.

Reason (I)

7.  Ps alleged and appeared to maintain that leave had in fact been granted by Master Ho for her to re-amend the ASOC on 26 November 2014[2].  This court found that this was not correct after reading and checking the transcript of the hearing before Master Ho, and the order of 26 November 2014 was accordingly amended and re-filed on 18 February 2015[3]. No leave for re-amendment was ever given by Master Ho, as pointed out by D.

8.  It had been pointed out and explained to Ps/P1 at a number of previous hearings that what Master Ho had ordered was only that Ps had leave to replace a copy of thier original 1^st draft of the re-amended statement of claim attached to the summons for leave to amend, by the so-called 2^nd draft, namely the draft 2^nd RASOC dated 6 October 2014. Master Ho had not granted Ps any leave to re-amend the ASOC.  In fact, Master Ho had adjourned Ps’ summons for leave to re-amend the ASOC to be heard before the designated Judge[4].

9.  There had already been considerable delay in this action, caused by Ps’ allegations and their application/s to re-amend, and the substantive hearing of the Amendment Summons eventually only took place before this court on 19 May 2016, over 2 years after Ps issued an earlier summons in March 2014 to re-amend.

10.  Ps’ continued reference to Master Ho’s order of 26 November 2014 and arguing that leave had already been granted to them, and that they were only seeking “an extension of time” to file the draft 2^nd RASOC, is in my view deliberately misleading. 

11.  This is more so when a copy of the draft 2^nd RASOC attached to Ps’ present supporting affirmation for the 1^st Summons appears to be yet another different draft, with an additional page 30 attached, as pointed out by D. 

Reason (II)

12.  In paragraph 26 of the Decision, D’s grounds of opposition to Ps’ Amendment Summons had been set out, which had included prejudice to D and delay.

13.  Whether D already had notice of Ps’ intention to re-amend the ASOC as early as March 2014 when a copy of Ps’ 1^st draft re-amended statement of claim was served on D together with their summons, or whether by 6 October 2014, D already had notice and a copy of the draft 2^nd RASOC or the psychiatric report on P2, does not mean if leave were to be granted by this court, D would not be given further time to amend her defence, and time to file further witness statements and/or further list of documents.  What is clear to this court is that there will be further round of pleadings and filing of witness statements and/or expert evidence, as D may challenge P2’s psychiatric report.  As I have said, there will inevitably be further delay.

14.  As I have further stated in the Decision, the proposed amendments do not really affect the key issues in this action, namely the Validity Issue and the Capacity Issue.  Ps alleged that D had at the direction hearing on 4 July 2016 accepted that the Enduring P/A might not be valid as an enduring power of attorney.  I understand D’s case to be that if the enduring power of attorney was not valid as an enduring power of attorney due to non registration, it would still be valid as an ordinary power of attorney, and that D’s acts under the power of attorney would still be valid. The validity of the enduring power of attorney/power of attorney mainly depends on the mental capacity of the Deceased at the time of execution.  Thus, as I have said, the key issues in the present action are the Capacity Issue and the Validity Issue.

15.  In any event, in my view, there should be no prejudice to Ps on the Capacity Issue or the Validity Issue if the proposed amendments were not allowed.  Any further delay in this matter will not assist Ps’ own case, bearing in mind the Deceased died in March 2005, over 11 years ago and it is Ps who are seeking reliefs in this action.  In any event, Ps are merely repeating their previous arguments.

Reason (III)

16.  Ps referred to, among others, Order 18 rule 8 of the Rules of the High Court and argued that they should be allowed to plead specifically issues of facts not arising out of the preceding pleading, that a claim for exemplary damages must be specifically pleaded, and that interest under s 48 of the Ordinance must be specifically pleaded.  

17.  There was no claim for exemplary damages, in so far as I can see in the draft 2^nd RASOC, and the purported claim for interest under s 48 of the Ordinance was only in relation to the proposed new claim for “consequential damages”.  Ps had tried to add in the draft 2^nd RASOC a  pleading that the total benefit payable under the Insurance Policy to the beneficiaries had included a guaranteed rate of interest[5].  Under the current paragraphs 28 – 30 of the ASOC, it has already been pleaded that Ps were totally deprived of their entitlements under the Insurance Policy by D’s acts. 

18.  In the present form of the ASOC, the reliefs claimed are declaratory reliefs, and the damages claimed were caused by D’s acts pursuant to the Enduring P/A.  Ps claim in the draft 2^nd RASOC that there were other acts of D pursuant to the Enduring P/A.  Again the key issues are the Capacity Issue and the Validity Issue, and once these issues have been determined, other issues will fall into place and if necessary, directions can be given by this court for Ps to provide further particulars of alleged acts at that stage. 

Reason (IV)

19.  In the draft 2^nd RASOC, Ps now claim that P2 had/has suffered psychiatric and physical damages during his childhood and development as a result of D’s alleged acts under the Enduring P/A, and that P2 has a right of hearing on his claims on “consequential damages”. 

20.  The present claim for damages do not contain any specific pleading as to whether it is for general or special damages, and there has not been any statement of special damages filed.  There were no particulars of any special damages pleaded in the draft 2^nd RASOC either.

21.  In any event, even though at the time of the commencement of this action about 5 years ago, P2 was still a minor, he was suing in this action by his mother and next friend, namely P1, and the first time he was taken to see a psychiatrist Dr Cheung 29 August 2013, over 8 years after D’s alleged acts in about 2005.  As I have indicated in the Decision, there was no evidence when Ps found out about P2’s alleged psychiatric illness, if any. Further, this is not relevant to the Capacity Issue or Validity Issue.

Reason (V)

22.  This is only repeating generally Ps’ arguments.

Conclusion on the 1^st Summon

23.  For reasons set out in the Decision, I did not allow the amendments.  The amendments were not in my view necessary for disposing of fairly the cause of the action, the main issues of which are the Capacity Issue and the Validity Issue. 

24.  Ps have not demonstrated that I was plainly wrong in coming to my decision.  In any event, I am of the view that this is a case management decision.

25.  As stated in the Decision, this court had fixed a hearing for directions on 4 July 2016, and at this direction hearing, this court had indicated that the court was considering a preliminary hearing on the Capacity Issue and/or the Validity Issue which involve expert evidence, and once these matters have been determined, the other outstanding issues will be clear.  The direction hearing had been adjourned to a further hearing for the parties to indicate to the court the number of witnesses in particular on the Capacity Issue, including the 3 doctors and the length of oral examination/cross examination/re-examination. 

26.  Under s 14 AA(4):

“Leave to appeal for the purpose of subsection (1) shall not be granted unless the court hearing the application for leave is satisfied that—

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

27.  Having considered the circumstances of this case, I am not satisfied that the intended appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

28.  I therefore dismiss the 1^st Summons.

29.  I order costs of both the 1^st Summons and the 2^nd Summons to be paid by Ps, jointly and severally, to be taxed if not agreed.