YIP KEE WAI v. SO KIM WAH

HCA 1504/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1504 OF 2009

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BETWEEN

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REASONS FOR DECISION

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The third case within a month

1.  This is the third case within a month in the Case Management Summons hearings that I have to give written reasons for my Decision, the purpose of which is to demonstrate to all concerned and the other court users that this court looksfor substantive implementation of the Civil Justice Reform, the success or otherwise of which depends much on the cooperation from the professions and the other court users.

2.  The other 2 cases, viz.: Sherryknoll Enterprises Limited & Others v Grand Power Limited  HCA1599/2009 and Faith Bright Development Limited v Ng Kwok Kuen and Ng Kwok Cheung HCA 9058/1999 were highlighted for their lack of Timetabling Questionnaires for the Case Management Summons hearings..

3.  In this case, the parties have filed and served the Timetabling Questionnaires for the Case Management Summons hearing. On the face of it, they have fully complied with Order 25 rule 1 and Practice Direction 5.2.

Compliance in substance, not in form only

4.  Having considered the Timetabling Questionnaires and having discussed the matter with the solicitors before me at the hearing, I came to a conclusion that, in substance, the Parties’ solicitors had not observed Order 25 rule 1 or Practice Direction 5.2. This court requires substantive compliance with the spirit of the CJR, not only in form. As a result, again I had to adjourn the Case Management Summons hearing to another date, disallowing the costs between the parties and their respective clients. I shall give my reasons as follows.

5.  It is not necessary to go into the details of the facts of this matter. Suffice it to say, the plaintiff claims against the defendant for damages for the sum of about 3 million dollars on the ground that the defendant was in breach of a settlement agreement in respect of a purchase of a piece of land from the defendant coupled with a joint venture agreement to build a village house thereon.

6.  The plaintiff has filed a Timetabling Questionnaire. But at the same time, the plaintiff has also filed a Listing Questionnaire, which is only applicable for the Case Management Conference. Paragraph 24 of Practice Direction 5.2, which provides:

“24. Not less than 7 days before the date fixed for a CMC, each party shall file and serve the Listing Questionnaire at Appendix C and paragraph 25 to 32 below will apply.”

7.  A Case Management Conference will only be fixed by the court at the Case Management Summons hearing after the court has given directions on the timetable for the steps to be taken between the date of the giving of those directions and the date of the trial. See Order 25 rule 1A(1).

8.  When asked to explain why the Listing Questionnaire should be filed before the hearing of the Case Management Summons, Mr Young, solicitor acting for the plaintiff, was unable to give any reasons.

9.  In the plaintiff’s Timetabling Questionnaire, it was stated in part E that the plaintiff would not call any expert evidence at the trial on the issue of liability or on the issue of quantum.

10.  In the defendant’s Timetabling Questionnaire, it was stated in part E that the defendant would not call any expert evidence at the trial on the issue of liability or on the issue of quantum. So far so good.

11.  However, in the Defence and Counterclaim the defendant has pleaded that the plaintiff was in breach of the settlement agreement.  He counterclaimed the plaintiff for loss of mesne profit for the piece of land in question.

12.  When asked how the court would be able to determine the quantum of mesne profit at the trial if the defendant succeeded in his counterclaim, Mr. Chan, the solicitor acting for the defendant, then said that he would ask for leave to adduce expert evidence to assess the quantum of mesne profit.

13.  It is therefore quite apparent that both parties had not considered their case properly before filling in the Timetabling Questionnaires, not to say that those Timetabling Questionnaires are in fact misleading.

14.  There is simply no reason for the defendant’s solicitors to state in the Timetabling Questionnaire that they would not require expert evidence at the trial for the assessment of the quantum of mesne profit.

15.  Had the plaintiff’s solicitors discussed the issues of disputes with the defendant’s solicitors before taking out the Case Management Summons in accordance with paragraphs 8 & 9 of Practice Direction 5.2, the plaintiff’s solicitors should have identified this issue. Though the plaintiff would still decide not to adduce expert evidence to support his case, he would have to consider that he had to have expert evidence to respond to the expert evidence that might be adduced by the defendant for his counterclaim. The plaintiff’s Timetabling Questionnaire would not have stated that the plaintiff would not adduce expert evidence.

16.  This court was unable to give proper directions at the Case Management Summons hearing under those circumstances. For the significance of the Timetabling Questionnaire, I have stated from paragraph 9 to paragraph 21 of my previous Decision in Faith Bright Development Limited v Ng Kwok Kuen and Ng Kwok Cheung HCA 9058/1999. I shall not repeat them here.

17.  The solicitors for the plaintiff and the defendant were unable to give a satisfactory answer to the above situation. They simply said that they would seek counsel’s advice. In such circumstances, I found that the parties’ solicitors had not, in substance, observed the provisions under Order 25 rule 1 and Practice Direction 5.2. I adjourned the Case Management Summons to another date to allow the parties to seek counsel’s advice.

Pleadings by solicitors should preferably be in one language

18.  I would also like to mention here that the plaintiff’s statement of claim was in English. However, the defendant’s solicitors have filed the Defence and counterclaim in Chinese. Asked why they had done so, Mr. Chan said that since his client did not read English, they had prepared the pleadings in Chinese. I explained to the parties that this practice should not be encouraged because this would tie the court’s hands when it came to the stage of setting down and the court would have to assign a bilingual judge for the matter though the case might not require a bilingual judge. The parties should appreciate that the requirement of bilingual judge should be a necessity rather than a matter of convenience or preference only since this court has the duty to ensure that the resources of the Court are distributed fairly under Order 1A rule 1(f) of the Rule of the High Court. In Cheung Kong (Holdings) Limited v Chan Wai Yip, Albert HCA16790/1998, Waung J. had ruled that upon the proper construction of section 5 of the Official Languages Ordinance Cap. 5 and rule 4 of the High Court Civil Procedure (Use of Language) Rules promulgated pursuant to section 5 of the rule-making powers of the Official Languages Ordinance, a party can use both languages in a live proceedings before the judge when the judge is having the similar ability to use one or both languages. But anything other than live court proceedings, that is oral hearing, such as for example with court documents, the language is restricted to one so that there should be at least consistency of language in that document. It was therefore said that in pleadings, use could be made of one language only, i.e. you choose your language in either English or Chinese, but you cannot use both. Although in that case, Waung J. referred to both languages within one document, my view is that the same logic applies equally to this situation where one party has used one language in the pleadings, the other party who is capable of using the same language, should use the same language in the pleadings. Mr. Chan then said that he had already prepared the Defence and Counterclaim in English and the Chinese version was for his client’s reading. He agreed to file and serve the English version in due course.