LUNG POK TUNG v. LAU HA WILLIAM

HCPI 263/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 263 OF 2012

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D E C I S I O N

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1.  This is a personal injury case.

2.  I have previously granted leave to plaintiff to, amongst others, adduce evidence from a new witness.  The defendant is applying to set this Order aside by claiming procedural irregularity and prejudice.

I.  Background

3.  The plaintiff originally took out an application on 7 June 2013 for, amongst others, leave to file and serve a witness statement from a new witness, Wong Ka Shing (“MrWong”), and to amend the Revised Statement of  Damages in line with the new evidence.

4.  On 10 June 2013, the day before the hearing, the plaintiff filed his supporting Affidavit which was dated 8 June 2013 (“the Affidavit”).

5.  The plaintiff claimed that this was released to the defendant’s attending legal representative (who happened to be a trainee solicitor, this being a 3-minutes hearing) in court prior to the call-over hearing on 11 June 2013 but the defendant denied this.

6.  The call-over hearing was heard by me.

7.  Essentially, the evidence from the new witness, Mr Wong, concerned just one aspect on damages: the likely future career path and salary of the plaintiff but for the injury.

8.  Before the accident, the plaintiff was a car technician apprentice at BMW Concessionaires (HK) Limited. He is now a Trainee Train Captain at the MTR Corporation.  It was the plaintiff’s case that he could not complete his car technician training due to his injuries otherwise he would have continued in the car industry and would be promoted to a “supervisory grade” job in the future.

9.  The plaintiff had previously served a witness statement by Leung Ho Wing (“Mr Leung”) on this matter.  Although Mr Leung was similarly trained as a car technician, he had since become an aircraft technician.  Mr Wong, on the other hand, is currently a car technician at BMW Concessionaires (HK) Limited.

10.  As such, it was clear that Mr Wong’s evidence would be more helpful to the Court than Mr Leung’s.

11.  As for the Affidavit, the gist of it was to explain how the plaintiff belatedly chance upon Mr Wong.

12.  During the call over hearing, the defendant’s representative did not object to the plaintiff’s application to adduce Mr Wong’s witness statement except to seek costs.  The content of the Affidavit was discussed but the defendant’s representative did not raise objections regarding any late or failed service of the Affidavit.

13.  Therefore, I granted leave for the plaintiff to, amongst others, withdraw the evidence of Mr Leung and to serve the witness statement of Mr Wong.

14.  The defendant’s lawyers then wrote to the Court on 17 June 2013 seeking leave to search the index of the Court file for the Affidavit.  I directed the plaintiff to belatedly serve the same.

15.  In the meantime, on 24 June 2013, the plaintiff had filed and served his Amended Revised Statement of Damages to bring it in line with Mr Wong’s evidence.

16.  By this time, the defendant must be aware of the issues with the Affidavit.  Nevertheless, he filed and served a Re-Amended Answer to Revised Statement of Damages on 26 June 2013.

17.  Following a series of correspondence between the parties, the defendant took out the current application on 3 July 2013 seeking leave to set aside various paragraphs of the Order of 11 June 2013.

II.  The issues in dispute

18.  The defendant’s case is based upon allegations of procedural irregularity and prejudice.

III.  Procedural irregularity

19.  Mr Koo, Counsel for the defendant, submitted that under Order 32 rule 1 of the RHC, the plaintiff “must file with the Summons an affidavit in support”, and that under Order 32 rule 3 of the RHC “a summons must be served on every other party not less than 2 clear days before the day specified”.

20.  Thus, Mr Koo suggested that the affidavit in support must be served on the defendant 2 clear days before the hearing, which, in either parties’ case (concerning when the Affidavit was served), the plaintiff failed to do.  Further, Order 32 rule 17 specified that any party intending use an affidavit filed must give notice to other parties of his intention to do so.

21.  Ms Mok for the plaintiff rightly pointed out that Order 32 rule 1 did not require a party to file an affidavit for every summons, but only for those summons which were taken out under the rules that specified that they must be supported by affidavit :-

“…where, under the provisions of these rules, summons must be supported by affidavit, such affidavit shall be filed at the same time as the summons.”

22.  Ms Mok also rightly submitted that the plaintiff’s application for leave to file and serve Mr Wong’s witness statement was made under Order 38 rule 2A which did not specify the need for an affidavit in support.

23.  Mr Koo did not address these points at the hearing.

24.  In general, the spirit of the CJR is to encourage the parties, as far as evidence is concerned, to place “all cards on the table, facing up” at an early stage.  However, the Court must also envisage situations when useful evidence may be uncovered, by sheer luck or persistent investigation, at a later stage of the proceedings.

25.  In such situations, in assessing whether such evidence should be adduced, the Court must perform a balancing exercise: the overriding consideration for allowing such evidence to be adduced is the quality of the assistance it can provide to the Court: for example, its relevance to the matters in dispute, and whether such evidence is uniquely helpful and not merely an unnecessary duplication of evidence already adduced or which cannot otherwise be reasonably addressed by any existing witness.

26.  This benefit should be balanced against possible risks, for example, of unreasonable delay, prejudice to the other parties, disproportionate cost implications or disproportionate disruption of the legal proceedings.

27.  In this balancing exercise, exactly how the party came upon such evidence is a somewhat secondary consideration unless there is an issue of unreasonable delay, disproportionate disruption of legal proceedings, or any other prejudice to the other party etc..

28.  If such issues had arisen in the current case, or if the defendant had raised such issues during the call over hearing, I would have adjourned the hearing to seek submission of evidence by way of affidavit from both parties for substantive arguments.

29.  I saw no such issues in this case at the time of the call-over hearing, and, after hearing extensive arguments from the parties in the current application, I still see no such issues now.

30.  My decision at the time was based upon the over-riding consideration that the quality of Mr Wong’s evidence would be of much more assistance to the Court compared to Mr Leung’s as discussed above, and that any delay caused was largely non-prejudicial and non-consequential to the defendant’s case and, if anything, could be (and was) adequately compensated by the award of costs.

31.  As for the dispute of whether the defendant received notice of the plaintiff intending to use the Affidavit in the hearing (under Order 32 Rule 7), this was a “he says, she says” scenario.

32.  Without further evidence, I cannot resolve this but I see no need to do so.

33.  The defendant had seen the draft witness statement of Mr Wong before the call over hearing and did not object to the plaintiff adducing it.  There was no requirement for the plaintiff to file and serve a supporting affidavit in the first place, and, as stated before, the content of the Affidavit was largely irrelevant to my decision to grant leave.

IV.  Prejudice

34.  Mr Koo submitted that without the Affidavit, the defendant did not have a fair opportunity to respond to the Affidavit to oppose the plaintiff’s application.

35.  However, Mr Koo’s opposition was based upon what he saw as an inconsistency between the accounts of how the plaintiff chance upon Mr Wong in the Affidavit and Mr Wong’s witness statement.

36.  I do not agree that there are necessarily inconsistencies but it is not for either the Court or Mr Koo to speculate at this stage without the benefit of hearing the evidence at trial.  More importantly, as discussed before, how the plaintiff chanced upon Mr Wong played little or no part in my consideration on whether Mr Wong’s evidence should be adduced.

37.  If Mr Koo thought that this, somehow, would be important for the question of credibility, then it would be for him to cross-examine Mr Wong and the plaintiff on such matters at trial.

38.  Mr Koo also submitted that Mr Wong’s evidence went beyond the pleaded case in the Amended Revised Statement of Damages.  He claimed that Mr Wong’s evidence pointed to two career pathways (as a car technician and as a supervisor) but the plaintiff only pleaded one of them (as a supervisor).

39.  I do not agree with Mr Koo’s interpretation from my own plain reading of Mr Wong’s witness statement, but again, it is not for either the Court or Mr Koo to speculate at this stage.

40.  Nevertheless, even if Mr Koo was correct, it was entirely proper for the plaintiff to plead that he would achieve one of the two career pathways proposed by Mr Wong. It would be, of course, for the plaintiff to prove that at trial.

41.  More importantly, I cannot see how the defendant would be prejudiced by all this, especially when the amendments made by the plaintiff in the Amended Revised Statement of Damages based on Mr Wong’s evidence did not even alter the actual amount of earnings claimed.

42.  Mr Koo had asked this Court to set aside the previous Order which, in effect, was to reinstate Mr Leung as the plaintiff witness.

43.  When I asked Mr Koo why he thought Mr Leung, an aircraft engineer, would be in a better position to assist the Court regarding the salary of a car technician and supervisor as oppose to Mr Wong, a car technician, Mr Koo was unable to provide any satisfactory answer.

V.  Conclusion

44.  As such, the defendant’s application was entirely without merit.  It was no more than “an argument for argument’s sake”.

45.  The spirit of the CJR discourages such “satellite” litigation procedures. All parties should strive to take a sensible and pragmatic approach when minor technicalities with little or no consequences arose during the litigation process.

46.  In fact, this was exactly what the defendant’s representative did at the call-over hearing and the matters should have been left at that.

47.  I have considered seriously whether to award costs to the plaintiff on an indemnity basis.  However, I would not do so on this occasion given that the plaintiff was somewhat at fault for not serving (or late in serving) the Affidavit in the first place.

48.  I would therefore make the following order: -

(a) The Defendant’s application be dismissed; and

(b) There be an order nisi for costs of and occasioned by the application be paid to the Plaintiff forthwith.

(c) If no application is made to vary the above cost order within 14 days of this Decision, and if costs is not agreed, the said costs will be summarily assessed by the Court by paper disposal as follows :-

i. The Plaintiff is to submit to Court a statement of costs 7 days thereafter and serve the same to the Defendant;

ii. The Defendant is to submit a list of objections to Court 7 days thereafter.

(d)   The Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.