GOAL SETTING CONSULTING CO LTD v. UNIGRAPHICS SOLUTIONS ASIA/PACIFIC INCORPORATED

HCA 994/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 994 OF 2003

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D E C I S I O N

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1. This is an application by the defendant for leave to make further amendments to the defence.  The whole tenor of the amendments is to plead Delaware law.

2. It has been obvious to the parties that matters of foreign law are facts which have to be pleaded.  That has been recognised by the defendant in both the interlocutory applications before me in 2004 and 2006.  The reason I was told why the foreign law had not yet been pleaded was due to an oversight of the solicitors for the defendant.  At the hearing in July 2006 I was informed of this by leading counsel for the defendant.  However, it was plain that the pleading would have to be amended to plead Delaware law.  This is not a matter that takes the plaintiff by surprise.

3. The plaintiff complains of prejudice.  This is more particularly set out at paragraph 15 of the fifth affirmation of Peter Ha Wing Ho, which was as follows:

“The Defendant’s application to re-amend the Amended Defence at this late stage has highly prejudiced the Plaintiff’s case and causes injustice to the Plaintiff.  The Plaintiff would obviously need to engage a Delaware law expert and seek his availability for the trial dates.  In the meanwhile it would need to amend its Reply and seek Delaware law advice to do so.  In addition, the plaintiff will need to review all of its evidence should foreign law be one of the issues at the trial.  It is probable that it will need to file supplemental witness statements on issues of fact.  Quite apart that it will require a lot of time, and will also cost a lot of money.”

4. Mr Maurellet has informed me that even if all these steps had to be taken that would not cause an adjournment of the trial which has been fixed to commence in September this year.

5. In my view the prejudice to the plaintiff has been exaggerated.  I say this because in the checklist of the plaintiff dated 13 October 2006 the plaintiff anticipated calling one expert.  In the application to set the case down for trial dated 26 October 2006 it was also stated again that the plaintiff anticipated calling one expert witness.  That expert witness can only be an expert on Delaware law.

6. The general principles on granting leave to amend are well settled and it is not necessary to repeat the same here.  It seems to me that for the purpose of determining the real question in controversy between the parties I ought to grant leave to the defendant to make the amendments that it seeks provided the plaintiff can be compensated for the prejudice that it suffers by an order for costs.  I am satisfied that it can be so compensated and I give leave to the defendant subject to hearing counsel on the question of costs.

7. I would also observe that although the parties have indicated that they anticipated calling an expert witness, in fact no directions for expert evidence have yet been given.  Without such directions, the parties will not be in a position to call any expert evidence.  The parties will have to address this matter and seek the appropriate directions.