WONG HAK WAI v. KWOK SHIU

1993, No.A11302

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is the trial of a preliminary issue in the plaintiff's action for damages for personal injuries said to be suffered whilst in the defendant's employ. The issue is whether or not the court should disapply in the plaintiff's favour the provisions of S.27 of the Limitation Ordinance, cap.347, pursuant to its discretion under S.30 of the Ordinance. The matter has been argued on the affirmations, save for three letters between the legal representatives handed in by consent of the parties.

2. The accident occurred on 27th September 1985 and the writ in this action was issued on 13th December 1993 - over nine years later. In November 1986, the legally aided plaintiff instituted Employees Compensation proceedings in the District Court, and was awarded $7,917.77 and costs in April 1987. Despite demand, the defendant failed to pay the amount awarded; the plaintiff instituted Bankruptcy proceedings against him, but later discontinued them on a date unspecified in 1988.

3. On 7th September 1988 the legally aided plaintiff instituted common law proceedings against the defendant in the District Court in respect of the same cause of action as that now before me. Pleadings were filed, but the hearing date in August 1990 was later vacated and the defendant's legal aid certificate discharged. I am assured by both counsel that the action in the District Court has not been formally withdrawn, nor are they aware of its being struck out by the Registrar of that Court under his power to do so. From what I am advised the District Court proceedings therefore constitute a pending action commenced within the limitation period.

4. It is these outstanding proceedings which provide Mr. Leung for the defendant with his initial line of argument. Citing powerful authority, Mr. Leung argues that the discretion of the court under S.30 of cap.347 is not available to a plaintiff who has already commenced other proceedings on the same cause of action within the limitation period. In such a case, the plaintiff has not been time-barred by S.27, and S.30 does not therefore arise. Any prejudice suffered to the plaintiff by delay in the earlier timeous action is not prejudice caused by the limitation imposed by S.27.

5. Before I consider this argument, there is the matter of the three letters exchanged between the Legal Aid Department and the defendant's solicitors. The first letter, from the Legal Aid Department to the defendant's solicitors of 17th December 1994, mentions the District Court action and the difficulty of retrieving the file. To avoid delay, the writer suggests that the parties anyway proceed to the present hearing, because - "if we (the plaintiff) lose in the time bar, there is no need for your client to pursue the other issue as to whether there is another action in existence".

6. To this the defendant's solicitor replied - "We would agree to have the issue of time bar determined in the trial of preliminary issue first subject to your client agreeing to undertake that he will not resurrect the common law action in the District Court if your client loses in the time bar application".

7. The Legal Aid Department replied confirming that their - "client undertakes not to restore and/or otherwise continue with the common law action in the District Court if he loses time bar issue".

8. Mr. Lam for the plaintiff submitted that this precluded the defence from arguing that the timeous District Court proceedings removed the issue from the discretion conferred by S.30. It was, he said, an agreement to that effect between the legal representatives. Mr. Leung for the defence said that his arguments in this preliminary issue include submissions as to the existing District Court proceedings. That particular argument, he said, was an essential part of the defence position, and his instructing solicitors had not foregone it.

9. I am satisfied that there is no agreement precluding the defendant's reliance on the existing District Court proceedings at the present hearing. The defendant's solicitors would be unlikely to deprive their client of a strong argument against the application of S.30 merely to avoid delay. The logical meaning of the exchange of correspondence is that the preliminary trial would be decisive, and the plaintiff would not restore the earlier proceedings if he lost on the preliminary issue.

10. I have reached this decision for the sake of completeness, and because the point was argued forcefully by both counsel. It is however a redundant decision, as the parties anyway could not bind the court to ignore a substantive aspect of the law which otherwise would be decisive of the issue.

11. The argument of the existing District Court proceedings is well taken. S.30 of the Ordinance gives the court a discretion to relieve against the consequences of a time-bar raised by S.27. If there are previous proceedings timeously instituted in respect of the same cause of action, there is no time-bar under S.27 and S.30 does not come into play.

12. The leading case is the decision of the House of Lords in Walkley v. Precision Forgings Ltd. [1979] 1 WLR 606, cited in argument by Mr. Leung. This case was discussed and followed in Chappell v. Cooper [1980] 1 WLR 958, where Roskill LJ put the point in these terms:

"It seems to me plainly a decision on principle that if a plaintiff starts but then does not for any reason proceed with an action, whether it is because the plaintiff chooses not to serve or his solicitors fail to serve the writ timeously or because the action is subsequently struck out for want of prosecution, or because for good reason or bad the plaintiff or his solicitors give notice of discontinuance, it is not open to a plaintiff thereafter to -- take advantage of S.2D of (the Act), because -- the cause of his prejudice is not the existence of -- the primary limitation period, but is the act or omission of himself or his solicitors in acting or failing to act as he or they have done in relation to that action."

The reference to S.2D is of course to the equivalent section to S.30 in cap.347.

13. I therefore conclude with respect that the decisions in these two cases are definitive of the position of the parties now before me. There is no prejudice from a S.27 time-bar because no time-bar has arisen. There is consequently no relief available in the present proceedings pursuant to S.30. The proceedings should of course be struck out.

14. In anticipation of this decision, Mr. Lam has sought to place the plaintiff within a narrow exception to this principle. This emerges, obiter, from the speech of Lord Diplock in Walkley in these terms:

"The only exception I can think of where it might be proper to give a direction under S.2D, despite the fact that the plaintiff had previously started an action within the primary limitation period but had subsequently discontinued it, would be a case in which the plaintiff had been induced to discontinue by a misrepresentation or other improper conduct by the defendant."

15. Mr. Lam conceded a lack of positive impropriety on the defendant's part, but argued that there was a "passive inducement" in his failure to pay the E.C. award, which contributed to the plaintiff's abandoning the later common law action in the District Court as fruitless. I do not find any merit in this argument.

16. In the circumstances there is no basis for exercising the court's discretion under S.30 and I accordingly find for the defendant with costs and a certificate for counsel.