SUN JIANQIANG v. CHAN TAI KAU AND ANOTHER

HCPI 1375/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1375 OF 2000

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RESONS FOR DECISION

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1. These are my reasons for refusing the Defendant’ Application in relation to a Summons dated 20 September 2005 for dismissal of this action for want of prosecution.

Background

2. On 25 October 1999 the plaintiff was run down in a bus depot by a vehicle driven by the 1^st defendant, and employee of the 2^nd defendant and suffered personal injuries as a result. 

3. Judgment on liability was entered for the plaintiff against the defendants on 8 January 2001 with damages to be assessed. 

4. There were Check List Review hearings on 9 April 2002 and 5 July 2002.  At the Check List Review hearing in July 2002, a dispute as to Discovery was adjourned for argument on a date to be fixed.  However, no step was taken to fix a date for that argument on discovery, and the action went to sleep until 20 September 2005 when the defendants took out a Summons for this action to be dismissed for want of prosecution.

5. I listened carefully to all the points raised in argument by the defendant and by the plaintiff, and considered those matters in the light of the relevant legal principles.

The Legal Principles

6. The relevant legal principles were conveniently encapsulated by Neil LJ in Trill v Sacher [1993] 1 WLR 1379 at page 1398. These principles and guidelines were adopted by our Court of Appeal in The Hong Kong and Shanghai Banking Corporation Ltd v Kuan Tao Sheng and Others, Civil Appeal Nos. 101 & 105 of 1997, where they were set out in full.  I shall do the same. They are:-

“	(1)	The basic rule is that an action may be struck out where the court is satisfied (a) ‘that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers,’ and (b) ‘that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party:’ see Birkett v. James [1978] A.C. 297, 318.
	(2)	The general burden of proof on an application to strike out for want of prosecution is on the defendant.
	(3)	Inordinate delay cannot be precisely defined.  ‘What is or is not inordinate delay must depend upon the facts of each particular case:’ Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229, 268F.  It is clear, however, (a) that for delay to be inordinate it must exceed, and probably by a substantial margin, the times prescribed by the rules of court for the taking of steps in the action; and (b) that delay in issuing the writ cannot be classified as ‘inordinate’ provided the writ is issued within the relevant period of limitation.
	(4)	Delay which is inordinate is prima facie inexcusable: see Allen’s  case at p. 268F.  It is for the plaintiff to make out a credible excuse.  For example, difficulties with regard to obtaining legal aid may provide such an excuse.
	(5)	Where a plaintiff delays issuing proceedings until towards the end of the period of limitation he is then under an obligation to proceed with the case with reasonable diligence: Birkett v. James [1978] A.C. 297, 323D.  Accordingly, a court is likely to look strictly at any subsequent delay which is in excess of the period allowed by rules of court for taking the relevant step, and may regard such subsequent delay as inordinate even though a similar lapse of time might have been treated less strictly had the action been started earlier.
	(6)	A defendant cannot rely on a period of delay for which he has himself been responsible.
	(7)	A defendant cannot rely on a period of delay if at the end of the period be ‘so conducts himself as to induce the plaintiff to incur further costs in the reasonable belief that the defendant intends to exercise his right to proceed to trial notwithstanding the plaintiff’s delay:’ Allen’s case [1968] 2 Q.B. 229, 260.  It has been said that this rule is based on waiver or acquiescence, but the better view appears to be that the defendant is estopped: see County & District Properties Ltd. v. Lyell (Note) [1991] 1 W.L.R. 683, 690F.
	(8)	Save in exceptional cases an action will not be struck out for want of prosecution before the expiry of the relevant limitation period: Birkett v. James [1978] A.C. 297, 321D.  It is not altogether clear how this rule is best explained.  It may be that before the limitation period has expired the delay cannot properly be regarded as ‘inordinate:’ cf. Birkett’s case, at p. 321DE Alternatively, it may be that, though the delay is both inordinate and inexcusable, the court would not in the ordinary case exercise its discretion to strike the action out if a fresh writ could be issued at once.  To do so would only delay the trial.
	(9)	Once the limitation period has expired the court is entitled to take account of all the earlier periods of inexcusable delay since the issue of the writ.  These periods can include: (a) periods of delay occurring before the expiry of the limitation period which at an earlier stage could not be treated as ‘inordinate’ (see (8) above), and (b) periods of delay on which at an earlier stage the defendant could not rely because he was estopped from doing so by including the plaintiff to incur further costs in the reasonable belief that the action was going to proceed to trial, but which have been revived by subsequent inordinate and inexcusable delay.  This proposition seems to follow from Diplock L.J.’s proviso in Allen’s case [1968] 2 Q.B. 229 260c: ‘unless the plaintiff has thereafter been guilty of further unreasonable delay.’  It is also supported by a later passage in his judgment, at p. 260:
		‘	But it must be remembered that the evils of delay are cumulative, and even where there is active conduct by the defendant which would debar him from obtaining dismissal of the action for excessive delay by the plaintiff anterior to that conduct, the anterior delay will not be irrelevant if the plaintiff is subsequently guilty of further unreasonable delay.’
	(10)	A defendant cannot rely on any prejudice caused to him by the late issue of a writ.  Thus such prejudice is not due to delay which can be characterized as inordinate or inexcusable.  Some additional prejudice after the issue of the writ must be shown.  The additional prejudice need not be great compared with that which may have been already caused by the time elapsed before the writ was issued,’ but it ‘must be more than minimal; and the delay in taking a step in the action if it is to qualify as inordinate as well as prejudicial must exceed the period allowed by rules of court for taking that step:’ Birkett v. James [1978] A.C. 297, 323.
	(11)	Prejudice to the defendant may take different forms.  In many cases the lapse of time will impair the memory of witnesses.  In other cases witnesses may die or move away and become untraceable.
	(12)	The prejudicial effect of delay may depend in large measure on the nature of the issues in the case.  Thus the evidence of an eyewitnesses or of a witness who will testify to the words used when an oral representation was made is likely to be much more seriously impaired by the lapse of time than the evidence of someone who can rely on contemporary documents.  A defendant may also suffer some prejudice from prolonged delay in an action which involves imputations against his reputation, though this factor by itself is unlikely to provide a ground for striking out.
	(13)	When considering the question of prejudice and, if it is raised, the question whether there is a substantial risk that it will not be possible to have a fair trial of the issues in the action, the court will look at all the circumstances.  It will look at the periods of inordinate and inexcusable delay for which the plaintiff or his advisers are responsible and will then seek to answer the questions: has this delay caused, or is it likely to cause, serious prejudice, or is there a substantial risk that because of this delay it is not possible to have a fair trial of the issues in the action?  As Slade L.J. stressed in Rath v. C. S. Lawrence & Partners [1991] 1 W.L.R. 399, 410: ‘a causal link must be proved between the delay and the inability to have a fair trial or other prejudice, as the case may be.’
	(14)	An appellate court should regard its function as primarily a reviewing function and should recognise that the decision below involved a balancing of a variety of different considerations on which the opinions of individual judges may reasonably differ as to their relative weight.  Accordingly, unless intervention is necessary or desirable in order to achieve consistency where there appear to be conflicting schools of judicial opinion, the appellate court should only interfere where the judge has erred in principle: Birkett v. James [1978] A.C. 297, 317.”

7. I shall apply the principles to this action. As stated above in Trill v Sacher, the court should balance and weigh the relevant matters.

8. I bear in mind that according to Trill, “delay which is inordinate is prima facie inexcusable”; and the burden is on the plaintiff to make out a credible excuse. In the present case, the plaintiff readily admitted that there has been “inordinate” delay, but not “inexcusable delay”. There is no evidence to show why the plaintiff is not guilty of “inexcusable delay”. No affirmation was filed by the plaintiff in relation to this striking out application despite being given 2 chances.

9. The general burden of proof on an application to strike out for want of prosecution is on the defendant, see principle No.2 in Trill. So it is for the defendant to adduce sufficient evidence to show that the delay “will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action” or “the delay is such as is likely to cause or has caused serious prejudice to the defendants”.

10. The whole of the evidence adduced by the defendant in support of the striking out application is contained in paragraph 11 of Ms Kwan’s affirmation dated 20.9.05. That paragraph states :-

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11.

It causes substantial prejudice to the defendants when the plaintiff has left his proceedings dormant for such substantial period of time. Witness recollection of the evidence involved will fade as time passes. Records such as comparable earnings pre-accident and post-accident becomes unreliable and inaccurate as time goes. Also, the position of the defendants in the context of its already formulated exposure on damages and costs to be paid becomes uncertain when the time for concluding the proceedings is unknown, the ever-changing economic and social conditions will have bearings on court’s assessment of many issues involved. ”

11. The complaints listed in the paragraph above are: (a) the memories of witnesses will fade; (b) records of earnings will become unreliable and inaccurate; (c) if the defendant does not know when the action will conclude, it’s position as to its “already formulated exposure on damages and costs” will become uncertain; (d) the changing economic condition will have an effect on the court’s assessment of the issues on quantum.

12. It is at once apparent that paragraph 11 of the defendant’s solicitor’s affirmations contained no details or particulars of the delay. The allegations were stated in rather general terms. The paucity of detail therein prompted the plaintiff to submit that the application should be dismissed, citing the authority of Hornagold v Fairclough Building Ltd & Anor [1993] PIQR 400, where the Court of Appeal held that the mere assertion in an affidavit of prejudice was insufficient; and that to succeed in an application to strike out for want of prosecution a defendant must produce some evidence that there has been a significant risk there cannot be a fair trial; and since there was no evidence of more than minimal prejudice, the Court of Appeal in Hornagold allowed the plaintiff’s appeal.

13. But aside from the lack of detail relating to allegations of delay, the defendant’s stated complaints on delay do not stand up to close scrutiny.

14. As to the complaint that the memories of witnesses will fade: (a) there is no reason why those witnesses cannot refresh their memories from the witness statements ordered by Master Cannon on 17.5.01. As to the complaint that the records of earnings will become unreliable and inaccurate: (b) no reason is given why statistics will become stale and inaccurate. The Government’s annual statistics of earnings of certain trades may become out-of-date, but records do not fade with the passage of time. The complaint that if the defendant is unable to know the date of the conclusion of this action, then it’s position as to its “already formulated exposure on damages and costs” will become uncertain” (c) is difficult to comprehend. I take that to mean that, since liability has been admitted, there is a risk that the defendant will have to pay an excessive amount of interest on quantum. If my interpretation is correct, then it should pose no real detriment to the defendant, as the trial judge can always order that no interest be payable in relation to any period of delay. As to the complaint that “the changing economic condition will have an effect on the court’s assessment of the issues on quantum”: (d) I take it to mean that awards in general in personal injury cases tend to increase with inflation, as time passes and this upward drift could work to the defendant’s detriment. If the interpretation is correct, the solution would be to submit to the trial judge to make the necessary adjustments as to quantum, in the interests of justice.  For the reasons given, I find it appropriate that I ought to decline to strike out this action for want of prosecution.

15. In the circumstances, I think it appropriate to remind the plaintiff of the residual and inherent power of the court to ensure that justice is done. The circumstances dictate that the court should not condone any further delay, therefore the plaintiff’s solicitor should fix a date for a Check List Review within 7 days of the handing down of these Reasons, in order for directions to be given in relation to assessment of damages as soon as practicable.

16. There shall be a costs order nisi that the costs of this striking out application shall be to the plaintiff in any event. This costs order shall be made absolute unless the court receives written submissions to the contrary within 7 days of the handing down of the Reasons.