XCHRX WONG MIU KWAN v. LAM KAM PUI

1998 No. P. I. 427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 427 OF 1998

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CHECK LIST REVIEW PRACTICE

REASONS FOR DECISION

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1. On the 3rd February 1999 this came before me on its Check List Review. For some reason not yet clear, the Defendant's solicitors failed to attend. The Plaintiff's case is being conducted by the Legal Aid Department. Public funds are involved. She sues as administratrix of the estate of her deceased daughter. It is a "running down" action. The deceased suffered fatal injuries in December 1996, when she was riding as a pillion passenger on the Defendant's motorcycle. In overtaking a motor vehicle on a left hand bend he drove onto the offside of the road and collided with an oncoming motorist who was at all times on his nearside of the road.

2. The Defendant pleaded guilty before the Magistrate to careless driving. He was fined, but for some unclear reason, not disqualified. It was a clear case of causing death by reckless or dangerous driving. He was overtaking on a bend and he was travelling too fast.

3. The Defence filed alleges 'volenti non fit injuria" on the part of the deceased. In this case it is entirely inappropriate.

4. The Practice Direction requires the parties to file specified documents no later than 7 days prior to the Review hearing. The Plaintiff's solicitor complied. The Defendant's solicitor did not. In fact apart from filing a check list on the 2nd February - only one day prior to the hearing and therefore well out of time - not one other document was filed. There was not one iota of material to support the Defendant's allegation against the deceased.

5. I entered judgment for the Plaintiff for damages to be assessed. I then made the necessary directions for this assessment to be made as soon as possible.

6. When I read the papers in advance of the hearing, I chanced across a summons taken out by the Defendant's solicitors seeking an order against the Plaintiff for further discovery. An examination of existing discovery and the affirmation of the Defendant's solicitor shows that there is no merit in the application whatsoever. There are no documents. The matters raised are matters of evidence and argument.

7. The summons was taken out on the 12th November 1998 returnable on the 26th November. It was given a time estimate of 3 minutes. That was quite unrealistic. The Check List Review hearing was a little over 2 months away. There was no urgency or relevance. When it came before the Master, the estimate was revised to 1 1/2 hours. That was as unrealistic an estimate as the first.

8. The Master had to adjourn it for argument. The parties had to obtain a date. The Registry gave the 11th March 1999, five weeks after the Check List Review, being the earliest date available. The Defendant's solicitors must have known that at the Check List Review any outstanding matters of discovery could be dealt with. It is in the Practice Direction. It is a matter of common sense. They should not have allowed such an appointment to be made.

9. I dismissed the summons with costs. There is no order or need for further discovery. It is to be hoped that no pointless interlocutory applications will be made prior to the Check List Review. If there are urgent matters which are holding up the proper progress of an action which the timing of the Check List Review cannot properly remedy, then an interlocutory application can be justified. However an application of the nature of the one I have described is a waste of money, time and Court resources.