LAM WING KUEN v. ENPACK (H.K.) LTD

Striking out of claim for want of prosecution inordinate and inexcusable delay - whether defendant prejudiced factors to be considered.

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JUDGMENT

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Preliminary

1. This is an application by the Defendant to strike out the Statement of Claim on the ground of failure to prosecute it.  The deceased was seriously injured in an accident on 9/12/1976 when he was employed by the Defendant as a drilling-rig operator.

2. A writ was filed on 17/11/1979. Very shortly before the 3 year period of limitation expired a defence was delivered on 27/6/1980 (vacation having intervered).

3. No further steps whatever were then taken.  The deceased was paralysed from the waist down and was confined to hospital and there he died on 28/2/1983.  It seems he tried to commit suicide by drinking dettol but it is not clear whether that caused his death or whether he died of pneumonia.

4. The Director of Legal Aid did not become aware of the death of deceased until October 1983 and having advised the deceased's mother of her rights filed a notice of intention to proceed pursuant to Order 3 rule 6 on 26/10/1983.

5. On 26/11/1983 by letter the Defendant was asked for further and better particulars of its defence. There was no reply to that letter but no effort seems to have been made to take further action to get them. On 25/1/84 Letters of Administration were granted to the deceased's mother.  On 12/6/84 the Defendant filed his summons to have the claim struck out.

Considerations

6. There are 3 factors to be considered: The first is whether there was inordinate delay. In this case there are 3 periods of delay (1) betweenn the 17th November 1979 (the filing of the writ) and 27th June 1980, when a Statement of Claim was delivered. (2) between the notional time for close of pleadings i.e. 1st October 1980, and the 25th October 1983 when the Plaintiff served a Notice of Intention to proceed. (3) From 26th October 1983 to 12th June 1984 when the Defendant brought its present application.

7. The first period is just after the limitation period expired, and to my mind this was a substantial period of time but not inordinate.

8. I am however satisfied that the second and third periods are not only inordinate but also inexcusable. Take by way of example the period November 1982 to October 1983 when nothing happened. On Counsel's advice report find been obtained from an engineering expert and this was sent to Counsel to further advise upon.  This was a period of almost a year when there was no evidence to suggest that any steps were taken to hasten the receipt of the opinion or to withdraw the papers from Counsel.  Again in February 1984 to June 1984 the papers were with Counsel to draft a summons. Nothing happened in that time and the papers were eventually returned by that Counsel.

9. I appreciate that in Hong Kong it is often difficult to obtain instructions from clients and to get good and competent expert advice. However, I am satisfied that the two periods I have mentioned are by any view inexcusable.

Prejudice

10. I now move to the third and more difficult factor and that is of prejudice. I have to ask myself will the delay cause a substantial risk that a fair trial cannot now take place or that the Defendant has in some way been seriously prejudiced.  I have been quoted cases which I take as a guide, but those cases themselve say that one must look into the particular circumstances of each matter.  However the facts in the present case are very similar to Allan v. McAlpine [1968] 2 Q.B. 229. The only important factor that is different is that the Defendant in this case has not alleged prejudice to his rights against sub-contractors.  Lord Denning said in that case that the employers of those sub-cohtractors were prejudiced as the accident had occured over 9 years ago. There had been delay and the memories of the witnesses would have been dimmed. That must be right.

11. In the other leading case on this point, Brikett v. James [1978] A.C. 297, the House of Lords considered the questions of that if any, regard should be had to a Plaintiff filing his writ at the very end of the limitation period. At 322 Lord Diplock said -

                 (2) Time elapsed before action brought

He goes on at 323:-

         "Contrary to the later preference expressed by the Court of Appeal I would hold the principle to be that which had been laid down in William C. Parker Ltd. v. F.J. Ham & Son Ltd. [1972] 1 W.L.R. 1583. To justify dismissal of an action for want of prosecution some prejudice to the defendant additional to that inevitably flowing from the plaintiff's tardiness in issuing his writ must be shown to have resulted from his subsequent delay (beyond the period allowed by rules of court) in proceeding promptly with the successive steps in the action. 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. Dicta to the contrary in Thorpe v. Alexander Fork Lft Trucks Ltd. [1975] 1 W. L. R. 1459 are, in my view, wrong.".

Lord Salmon at 331 said:-

            "I entirely agree with my noble and learned friend Lord Diplock that William C. Parker Ltd. v. F.J. Ham & Sons Ltd. [1972] 1 W. L .R. 1583 was correctly decided. When a defendant is seriously prejudiced (as he often is) by a writ being issued long after the cause of action has accrued, before the action can be dismissed for want of procecution (a) the delay subsequent to the issue of the writ must fail to comply with the time table laid down in the rules; (b) it must be inordinate and inexcusable; (c) in deciding whether it is, the delay prior to the issue of the writ should be taken into consideration and (d) the delay after the issue of the writ must increase the prejudice already suffered by the defendant in that he must be worse off than he would have been but for that delay.".

While, therefore a Plaintiff may delay issue of his writ for the full period the law allows him, he must then proceed with dispatch. To succeed in a motion to strike-out the defendant needs to show that the delay after the issue of the writ has prejudiced him.  When an action depends substantially on the evidence of eye-witnesses, as it seems to me this one does, further inordinate delay after the issue of the writ almost inevitably must cause such prejudice and I am satisfied it would do so here if the matter were to proceed.

12. This is an ordinary accident case, it is not a case of interpretation of documents in a commercial case.  Quite a large portion of the evidence has gone.  The site has been re-developed and I doubt very much if any witness can now accurately describe what went on prior to the accident; also it would be difficult to obtain plans and to find out who precisely gave instructions. There must be substantial prejudice because of the inordinate delay that has taken place due to the Plaintiff's failure to push on with the proceedings.  The Defendant says that because of the delay it has destroyed its file.  That was understandable.  The information on it was not vital but would no doubt have been of assistance.

13. In the circumstances of this case I cannot say other than that the delay has seriously prejudiced the Defendant. It is clear that the case falls wihin all 3 of the categories mentioned by Lord Salmon, the delay has been inordinate.  It is inexcusable.   There is a substantial risk that there will not be a fair trial and the Defendant has been seriously prejudiced.

Decision

14. A judge does not strike out an action lightly, but I believe that this is the proper course in this case.  I have set out my views above as being the reasons why I acceed to the Defendant's request. I also would like to add, firstly, that there has been a substantial amount paid to the Plaintiff already by way of Employees Compensation.   As he was in hospital from the time of the accident until the time of payment in 1979, and from that time onwards it seems very likely that the money went to his mother, the Administratrix.

15. Secondly, there seems to me considerable doubt on the pleadings as to whether or not the Plaintiff would be able to show total liability because of the nature of the allocations of contributory negligence. Further there appears to be a substantial element of exaggeration. e.g. in the claim for special damages for special food of $35,000.   The authorities are clear that, apart from token amounts, such claims must be supported by medical evidence that the food was required.  I have never seen such evidence. I only give this by way of illustration of the type and nature of the claim.

16. I note that the amount of Employees' Compensation paid was something in the region of $100,000.00 and that this amount should in any event fall to be deducted.   Probably at the end of the day, bearing in mind the possible element of contributory negligence, the Plaintiff's estate would not be that much better off even after judgment.

17. I only pass the latter comments by way of observation and there are not the main reasons why I have come to the conclusion I have.  I am overall of the view that no fair trial can be conducted now. Accordingly the Defendant's application is granted with costs and the Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.