MALLA SHER BAHADUR v. PACIFIC CROWN ENGINEERING LTD AND ANOTHER

HCPI 942 /2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 942 OF 2006

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D E C I S I O N

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1. On the 15^th of March 2007, the present firm of Solicitors for the plaintiff took out a Summons pursuant to O25 r7 for, inter alia, joinder of Bauer Hong Kong Limited (“Bauer”)as the 2^nd Defendant, and for the Costs of the Application of the joinder to be borne by the 1^st Defendant Pacific Crown Engineering Limited (“Pacific Crown”).

2. The application came before me on 22 March 2007. I gave leave for the joinder of Bauer as the 2^nd Defendant herein, and, as the 1^st Defendant (Pacific Crown) objected on the issue of costs, I gave directions that the argument on costs against Pacific Crown to be heard on a date to be fixed.

Background

3. The plaintiff is Nepalese. He was employed by Pacific Crown as a welder on 17 September 2004 when he was injured in an accident.  At the time, he was helping a German supervisor Mr Heinz and a crane operator Mr Sum to stack some large steel pipes called “silos”.  One of the silos rolled down and injured the plaintiff’s right leg.

4. On 3 March 2006 the plaintiff obtained legal aid to pursue his claim. He was assigned a firm of solicitors and a counsel, Messrs Weir & Associates (“W&A”) and assigned a Counsel Mr John Wright.

5. On 10 October 2006, W&A sent instructions to counsel. It was stated in those instructions that the claim was intended to be brought against two defendants, Pacific Crown and Bauer, and that counsel was also to advise on “the parties to the suit”.

6. Mr Wright advised on or about 27 October 2006 that it was only necessary to pursue against Pacific Crown because “there was no evidence that Bauer Hong Kong Ltd had any physical presence on the construction site where the plaintiff’s injury occurred.”  The Writ was issued from the High Court on 1 November 2006, suing Pacific Crown only. On or about 12 December 2006 Mr Wright submitted his “Advice on Parties and Venue” and repeated his advice against joining Bauer in the action. On or about 27 December 2006, Pacific Crown issued a Third Party Notice against Bauer.

7. The present solicitors for the plaintiff filed the Notice of change of solicitors on 22 February 2007.  They filed the subject Summons on 15 March 2007.

The case of the plaintiff

8. Mr So submitted that Pacific Crown should bear all the costs of the amendment of the claim and joinder of Bauer as the 2^nd defendant because:

(1)       The plaintiff had been misled by Pacific Crown. It was Pacific Crown’s duty to fill out the Form 2 correctly by inserting Bauer as the principal contractor. Pacific Crown left that section blank when the Form 2 was submitted to the Labour Department in 2004. Pacific Crown only provided that piece of information to the Labour Department on or about 15 December 2006, in a “Revised Form 2”.  By that time the Writ had already been issued, and pleadings had been filed and served.

(2)       A defendant such as Pacific Crown has a duty to provide accurate information to a plaintiff, and Pacific Crown had failed in that duty.  In a letter from W&A to Pacific Crown dated 20 April 2006, W&A had specifically sought information as to the existence of a principle contractor by asking “We should be grateful if you would clarify whether there is any principle contractor or you have assumed that role of the principle contractor”.  The letter concluded by stating “We should be grateful if you would let us have an answer as soon as possible.  We expect a constructive reply to this letter within 7 days by yourselves, failing which we shall forthwith commence legal proceedings against you.”  Mr So argued that since Pacific Crown did not provide the information as to whether Bauer was its principle contractor or not, Pacific Crown was in breach of its duty of disclosure to the plaintiff.

(3)       The duty of disclosure to the plaintiff is based on the Norwich Pharmacal principal, as applied in the case of JOHN SHAM otherwise known as SHUM KIT FUN, JOHN v EASTWEEK PUBLISHER LIMITED, CACV 95 of 1994.

The case of the 1^st Defendant

9. The plaintiff knew the identity of the occupier of that construction site.  In filling out his Questionnaire to the Legal Aid Department, the plaintiff named Bauer as the occupier. It is clear from the documents filed by the plaintiff in support of this application, the plaintiff’s former solicitor W&A made a conscious decision not to include Bauer.  This decision was made after obtaining counsel’s advice.  We know this because a copy of counsel’s advice is exhibited to the plaintiff’s 1^st Affirmation filed in Court on 15 March 2007.  In the circumstances the plaintiff cannot say that he had been misled.

Reasons for Decision

10. In an adversarial system, absent any legislative intervention, one party to litigation is not under a duty to assist his opponent.

11. It is impossible for me to understand how the Norwich Pharmacal principle can apply in present circumstances. The plaintiff cannot use that principle to say that, in the absence of a formal application to the Court, a general duty exists at the pre-action stage whereby a potential defendant must assist the potential plaintiff make out a case against oneself or a third party.  The Norwich Pharmacal principle relates to an application for Discovery against a non-party.  It was formulated by Lord Reid in that famous case, and enables a plaintiff under certain circumstances to obtain information from a non-party in the process of an interlocutory application.  It is an exception to the general rule that a non-party cannot be compelled to give discovery, and it is strictly applied, for instance, the Court will not grant discovery unless the applicant has deposed that “there is no other means of obtaining that information”, see Lonrho plc v Fayed (No.2) [1992] 1 WLR 1 at 13-14.

12. The basis of the argument on costs against Pacific Crown is that Pacific Crown had somehow misled W&A, the former solicitor for the plaintiff.  The time the alleged misleading took place relates to the period prior to the filing of the Writ and/or the pleadings.  At that time the present solicitors for the plaintiff were not yet in the picture.

13. Unfortunately for Mr So, there is no evidence to show that W&A, the solicitors at the material time were “misled” by the omission in the Form 2, or indeed that W&A considered that the information (or mis-information) in the Form 2 was material or relevant in respect of their decision not to sue Bauer.  In the circumstances Mr So has no basis for arguing that W&A would have reacted to the situation as he believes he himself would have acted, had he been in the shoes of W&A at the material time.

14. In the circumstances I find no merit at all in the plaintiff’s assertions that the acts of omissions of Pacific Crown would justify the making of a costs order against it.  This application for costs against Pacific Crown is dismissed.

15. Costs should follow the event, but as the plaintiff is legally aided, and this Court does not think that the legally aided plaintiff should suffer any detriment by agreeing to his present solicitor’s advice, I order that the appropriate scope and wording of the costs order be argued on a date to be fixed before me, with half an hour reserved.  At that hearing, consideration shall be given as to whether Paragraph 8 of the Order made on 22 March 2007 should be amended.