GREAT LOYAL LOGISTICS LTD v. CHAN YICK YUI t/a MING FAI MOTOR CAR ENGINEERING

DCCJ 2415/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2415 OF 2013

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DECISION ON COSTS

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1.  At this Pre-trial Review hearing for the trial to commence on 23 August 2016 with 4 days reserved, the plaintiff applied by way of a very late Summons filed only at 4:30 pm yesterday (21 June 2016) for leave to file and serve Witness Statement of Kwong Chee Mun (“Kwong’s Witness Statement”) within 14 days, and surprisingly, despite the plaintiff’s such late request for indulgence, for costs of the application to be in the cause. Equally surprisingly, the Summons is not supported by any affidavit evidence to explain the reason for the lateness.

2.  Ms Karen Cheung, acting for the plaintiff, explained from the bar table that the reason for the lateness was that she received the papers in the middle of last week, and upon perusal and consideration, came to the conclusion that Kwong’s Witness Statement is needed.  This of course is not an acceptable reason.  Be that as it may, Mr Paul Wong, acting for the defendant, did not oppose the Summons.

Substantive disputes between the parties

3.  Although Mr Wong did not oppose the Summons, I still have to be satisfied that the introduction of Kwong’s Witness Statement would not cause any delay to the milestone event, that is, the trial, as the court has proactively to exercise its case-management discretion.

4.  In order to determine this issue, one of course has to understand the nature of the dispute between the parties as crystallised by the pleadings.  In the Statement of Claim, the plaintiff pleads in gist that (1) on 21 December 2012, the plaintiff delivered a truck (the “Truck”) to the defendant for the purpose of routine maintenance; (2) the defendant carried out and completed the maintenance and returned the Truck to the plaintiff on 24 December 2012; (3) however, within a few hours after the return, the Truck suddenly broke down when being driven by the plaintiff; and (4) the Truck was then sent to Dah Chong Hong (Motor Service Centre) Limited (“DCH”) for repair, which discovered that there was “a plastic bag enclosing the oil pressure switch inside the engine causing the break down of the same and consequentially, the breakdown of the Truck” (Statement of Claim §9).  By Writ of Summons dated 3 July 2013, the plaintiff therefore claims that the defendant’s negligence caused, inter alia, the plastic bag to be inside the engine, and claims damages including repair costs and loss of income.

5.  The defendant denies liability.  In the Defence and Counterclaim (the counterclaim of which does not concern us here), it pleads that the defendant’s appointed surveyor found that the breakdown of the engine and/or the Truck was caused by “the revolution velocity of the engine being changed from higher to lower suddenly, resulting in irregular reciprocation of the engine mechanism which broke down” (Defence and Counterclaim §8).  It further avers that “the engine and/or Truck was damaged as a result of incorrect driving factors of the plaintiff’s driver”. (Defence and Counterclaim §9)

6.  Thus, the issues, broadly, are (1) the cause of the breakdown of the engine and the Truck; and (2) the quantum of damages. 

Procedural history

7.  In March 2015, the parties exchanged witness statements as to facts.  In paragraph 7 of the Witness Statement of Lam Pak Kin filed for the plaintiff, the witness said that after inspection, DCH informed him that they discovered a plastic bag in the engine and thought that this was the cause of the damage to the engine.  The witness then exhibited a report prepared by Kwong Chee Mun of DCH on 12 April 2013 (the “DCH Report”).  The DCH Report stated, inter alia,

“B. FINDING

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-  Checked a plastic bag enclosed the oil pressure switch.”

8.  By Master D Ho’s Order of 18 September 2015, “the time for all further interlocutory application be extended to 11 December 2015”. 

9.  By March 2016, the parties have filed expert reports and reply expert reports, with the court’s leave, on (1) the cause of the breakdown of the Truck and (2) the necessary repair costs.

10.  By the Summons filed late at 4:30 yesterday (more than 6 months beyond the deadline of 11 December 2015 imposed by Master D Ho’s Order of 18 September 2015 mentioned above), the plaintiff now seeks leave to file Kwong’s Witness Statement, with the DCH Report exhibited thereto.  His Witness Statement would say that (1) he prepared the DCH Report; (2) he discovered the plastic bag in the engine after he opened the engine; and (3) unless the engine had been opened previously, the plastic bag would not have been in the engine.

Legal principles

11.  The relevant legal principles in relation to an application of late filing of witness statements have been summarised by DHCJ Marlene Ng in Nam Ching Wun v Tsun Un Pawn Shop & ors, unreported, HCA 2151/2008, 7 October 2014 at §§53-59.  In gist,

(1) Whether to allow late filing of witness statement is a case-management decision made after the court considers all the circumstances and the explanation for the lateness.

(2) The court is unlikely to grant indulgence if it is the applicant to blame for the lateness.

(3) The case-management decision is reached after a balancing exercise bearing in mind the objectives of, inter alia,  (a) reaching a just resolution of disputes in accordance with the substantive rights of the parties; and (b) dealing with cases expeditiously, cost-effectively and proportionately.

(4) Presence or absence of any real prejudice is a consideration.  The later the is application, the more likely it is to cause real prejudice especially when a milestone date is likely to be jeopardised by “(a) insufficient remaining time until the milestone event to accommodate the other party’s response if the application is granted, (b) the other party being unfairly or oppressively burdened by having to scramble up a response if the application is granted which thereby adversely affects necessary efforts on his part to meet any milestone event/requirement, and/or (c) significant time that will be taken up by the new matters at trial such that the trial dates are likely to be compromised.”

(5) The court is not sympathetic towards disobedience to the rules of court and court-imposed case management directions and timetable without good reason.

(6) In applying the above principles, the court has bear in mind that each case turns on its own fact.

Analysis

12.  First and foremost, I should express my displeasure that the plaintiff has not filed any evidence to explain the lateness.  The court is not a rubber-stamp.  Here, the plaintiff has failed to comply with a court-imposed deadline for making interlocutory applications, but the plaintiff has not seen fit properly to explain the non-compliance to the court.  Making such an application in such manner should be discouraged and met with appropriate costs consequence.

13.  That said, I bear in mind that one of the objective of litigation is to reach a just resolution of the disputes in accordance with the substantive rights of the parties.  Thus, I shall consider the relevance of Kwong’s Witness Statement and any real prejudice caused by the late filing thereof.

14.  All along, the issue about the plastic bag has been a live issue since the beginning of the proceeding.  All along, the plaintiff has been claiming that the defendant’s negligence caused the plastic bag to be in the engine.  Kwong’s Witness Statement clearly is relevant to the resolution of the disputes between the parties.  It seems to me that this piece of evidence is to make good the chain of evidence to prevent the defendant from arguing that the plastic bag was put into the engine by Kwong Chee Mun or DCH.

15.  Would there be any delay caused to the trial?  Kwong’s Witness Statement is limited to this very narrow issue – whether the plastic bag had already been in the engine prior to DCH’s inspection.  I think that the 4 days reserved for the trial would still be sufficient.  The defendant of course is entitled to reply to this fresh evidence relating to this very narrow issue.  As the issue is very narrow, realistically, the defendant would not need more than 1 month to prepare a reply.  Mr Wong asked for 28 days, carrying us to 20 July 2016, which is more than 1 month before the commencement of the trial.  In other words, the milestone dates for the trial would not have to be changed.

Conclusion

16.  In the circumstances, though unsympathetic towards the plaintiff, I grant leave to the plaintiff to file and serve Kwong’s Witness Statement as per the draft attached to the plaintiff’s late Summons.  As there is no evidence explaining why 14 days as sought in the Summons is needed, I would have allowed only 7 days but for Mr Wong’s non-objection to the plaintiff’s Summons.  I also grant leave to the defendant to file witness statements only in reply to Kwong’s Witness Statement on or before 20 July 2016.  As the plaintiff’s Summons was taken only yesterday, I also order that the time for service of the Summons be abridged.

Costs

17.  I have said above that such late Summons without any evidence to explain the lateness should be discouraged and met with appropriate costs consequence. Ms Cheung contended that if the Kwong’s Witness Statement were filed in the first round of exchange of witness statement, the costs would be in the cause. That is of course correct, but here, Kwong’s Witness Statement were not so filed; instead, the plaintiff seeks the court’s indulgence without proper explanation for the lateness.  Thus, first, I think costs of and occasioned by the plaintiff’s Summons should be paid by the plaintiff to the defendant to be taxed if not agreed, instead of costs in the cause sought in the Summons. Second, taking into account the fact that the plaintiff has failed to comply with a court-imposed deadline for making interlocutory applications, that the plaintiff took out this Summons so late, and that the plaintiff has not even attempted properly to explain such lateness, I think it is appropriate to order that the costs should be taxed on an indemnity basis.

Order

18.  In the circumstances, in respect of the plaintiff’s Summons, my order is as follows:-

(1) Leave be to the plaintiff to file and serve the signed Witness Statement of Kwong Chee Mun as per the draft attached to the plaintiff’s Summons dated 21 June 2016 within 14 days.

(2) Leave be to the defendant to file and serve supplemental witness statements only in reply to the Witness Statement of Kwong Chee Mun on or before 20 July 2016.

(3) Time for the service of the plaintiff’s Summons be abridged.

(4) Cost of and occasioned by the plaintiff’s Summons be to the defendants in any event, to be taxed if not agreed, on an indemnity basis.  For taxation purpose, I note that the time for the hearing of the plaintiff’s Summons is 5 minutes.