CHINA MEDICAL TECHNOLOGIES, INC. (IN LIQUIDATION) v. THE BANK OF EAST ASIA, LTD

HCA 2449/2014

[2019] HKCFI 2143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2449 OF 2014

________________________

________________________

________________________

J U D G M E N T

________________________

A. Introduction

1.  This is the hearing of the defendant (“BEA”)’s application by Summons dated 25 July 2017 to:

(1)  Set aside the Order of Master J Wong dated 7 December 2015 (“Extension Order”) extending the validity of the Writ of Summons (“Writ”) issued by the plaintiff, China Medical Technologies, Inc (In Liquidation) (“CMT”) on 2 December 2014, from 2 December 2015 to 2 December 2016, and accordingly set aside service of the Writ;

(2)  In the alternative, to strike out the Writ on the ground that it is an abuse of process.

2.  In March 2018, Au-Yeung J had heard a very similar application in a closely related action by CMT against Bank of China (Hong Kong) Limited (“BOC”) in HCA 2448/2014 (“BOC Action”).  By a Decision dated 20 June 2018 (see China Medical Technologies, Inc. v Bank of China (Hong Kong) Ltd [2018] HKCFI 1395) (“BOC Decision”), Au-Yeung J ordered that the extension of the writ in that action to be set aside on the following grounds:

(1)  There had been “no good reasons to extend the Writ” (§§37-64);

(2)  CMT had misled the court in relation to the limitation position on its claims (§§90-110).

3.  The evidence relied on by CMT in support of its application for an extension of the Writ in the present case was materially identical to that relied on in the BOC Action.

4.  The relevant background facts are identical to those in the BOC Action: see BOC Decision §§2-26.  The relevant events pertaining to BEA are as follows:

(1)  CMT issued its Writ against BEA on 2 December 2014 (the same day it issued its writ against BOC (“BOC Writ”)).

(2)  By that stage a number of the claims included in the Writ were already statute barred, as was the case in the BOC Action.

(3)  On 30 November 2015 (one day before the expiry of the Writ and on the same day as the application in the BOC Action), CMT made an ex parte application to extend the validity of the Writ for 12 months.

(4)  The grounds relied on were the same as those relied on in the BOC Action – that CMT’s liquidators (the “Liquidators”) needed to: “carry out the necessary investigations before they are in a position to determine whether or not any cause of action lies against the Defendant”.

(5)  In particular, (in both the BOC Action and the present case) CMT relied on “its application against BOC (and BEA) for production of documents and oral examination of certain employees of the banks pursuant to s. 221 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance, Cap 32” (“s. 221 Application”).

(6)  The affidavit evidence also made various incorrect and incomplete statements as to the limitation position.

(7)  On 7 December 2015 (after the expiry of the validity of the Writ), a Master made the Extension Order extending the validity of the Writ for 12 months.  The equivalent order was made on the same day extending the validity of the BOC Writ.

(8)  Eight days later, on 15 December 2015, Harris J handed down his decision (“Harris J Decision”) largely dismissing the s. 221 Application but ordering interrogatories to be served on the employees of BOC and BEA.  In particular, Harris J held at that the Liquidators had “sufficient information to make an informed assessment, sufficient for the purposes of deciding whether or not to proceed” (§30), and “do not need any more information in order to decide whether or not they have a viable claim” (§31). 

(9)  Despite this, CMT did not inform the court of the Harris J Decision and instead delayed serving the Writ until 29 November 2016, shortly before even its extended period of validity was to expire.

B.  No good reason for extension of Writ / Material non-disclosure

5.  CMT’s appeal against the BOC Decision (CACV 320/2018) was heard before the Court of Appeal on 22 March 2019 and was dismissed at the conclusion of the hearing.  The reasons for judgment were handed down on 2 April 2019: [2019] HKCA 402 (“BOC CA Judgment”). The Court of Appeal upheld the BOC Decision in respect of all of the grounds upon which Au-Yeung J set aside the extension of the Writ in the BOC Action.

6.  Kwan JA (as she then was), who gave the main judgment, upheld the conclusion of Au-Yeung J that there were no good reasons for the extension of the Writ: BOC CA Judgment §§39-63.  In particular:

(1)  She upheld Au-Yeung J’s finding that the Liquidators did have sufficient information to decide whether to proceed with the claim at the time of the Extension Order, and held that Au-Yeung J was entitled to give great weight to the Harris J Decision in coming to this view: §§46-56.

(2)  She upheld Au-Yeung J’s view that the fact that the Liquidators were conducting other investigation in addition to the s. 221 Application had little relevance to their decision in assessing the viability of the claim against BOC and accordingly, did not amount to a good reason: §§57-58.

(3)  She agreed with Au-Yeung J that the fact that additional information was obtained by the Liquidators from investigations carried out after the Extension Order was not a good reason.  This is because, if a plaintiff has sufficient information to decide whether to proceed, it could not be a good reason to extend the writ to enable the plaintiff to obtain further information: §§59-61.

(4)  She also held that the fact that after the Harris J Decision, the Liquidators continued to be of the view that they did not have sufficient information to proceed with the claims could not be a good reason, as that view had been found to be objectively unreasonable by Harris J: §62.

7.  As to material non-disclosure of the Harris J Decision:

(1)  Kwan JA held that there is a continuing duty of full and frank disclosure after a party has obtained an ex parte extension of a writ: BOC CA Judgment §§69-70, 73.

(2)  She also held that this continuing duty applies for as long as the proceedings remain on an ex parte basis (ie before service of the writ).  In doing so, she recognized that unless and until the party on the receiving end of an ex parte writ extension application is fully and properly apprised of what had occurred on that application, it is under a continuing disability as it could not have taken any meaningful measure to protect its own interests: §70 and FN16.

(3)  She also agreed that the non-disclosure of the Harris J Decision was material: §71.

8.  Kwan JA also upheld Au-Yeung J’s finding that there was serious and egregious misrepresentation as to the limitation position, and her refusal to re-grant the extension: BOC CA Judgment §§74-86.  In particular:

(1)  It is incumbent on the Liquidators to present the relevant limitation points clearly, unequivocally and comprehensibly, and that this was not done in the 1^st Affidavit of Cosimo Borrelli (“Borrelli 1”) in the BOC Action (which is materially identical to Borrelli 1 herein).  It is beside the point whether the master would have granted the extension if the limitation position had been correctly presented: §84.

(2)  Specifically on the category 4 claims, it is not an answer that extension would not affect the category 4 claims as the defendant would still have to deal with those claims which it would not have to deal with but for the extension: §84.

(3)  As to the provisions for postponing the limitation period, Kwan JA held that the Judge was merely pointing out the evidential difficulties involved, and had not erroneously proceeded on the basis that there would definitely not be any postponement: §85. 

9.  As correctly submitted by BEA, the BOC CA Judgment is obviously binding on this court.  It follows that CMT’s submissions on the following matters cannot succeed, and are rejected accordingly:

(1)  The existence of good reasons.

(2)  The existence of a continuing duty to disclose and failure to disclose the Harris J Decision.

(3)  Material non-disclosure of the limitation position.

(4)  Whether there should be a re-grant where there is material non-disclosure.  In this regard, the explanation given by the Liquidators in the 3^rd Affidavit of Cosimo Borrelli, in particular, that the second sentence of paragraph 89 in Borrelli 1 was a mistake, would not make a difference, bearing in mind the Court of Appeal’s reasons for decision summarised at paragraph 8 above.

C.  Submission to Jurisdiction and Waiver

10.  CMT further alleges that BEA has lost the right to challenge the Extension Order as it had taken “substantive steps” in the proceedings and had thereby submitted to the court’s jurisdiction or waived any objection to the validity of the Writ or its service.

C1.    The relevant legal principles

11.  The starting point is Order 12, rules 7 and 8 of the Rules of the High Court which, as far as is relevant, provide:

“7. The acknowledgment by a defendant of service of a writ shall not be treated as a waiver by him of any irregularity in the writ or service thereof or in any order giving leave to serve the writ or extending the validity of the writ for the purpose of service.

8. A defendant who wishes to dispute the jurisdiction of the court in the proceedings by reason of any such irregularity as is mentioned in rule 7 or on any other ground shall give notice of intention to defend the proceedings and shall, within the time limited for service of a defence, apply to the Court for … (d) the discharge of any order extending the validity of the writ for the purpose of service” (emphasis added)

12.  The test for when a particular step will give rise to such a waiver was addressed in Global Multimedia International Ltd v Ara Media Services[2007] 1 All ER (Comm) 1160 at §§27-28 and can be summarised as follows:

(1)  A person voluntarily submits to the jurisdiction of the court if he voluntarily recognises, or has voluntarily recognised, that the court has jurisdiction to hear and determine the claim which is the subject matter of the relevant proceedings.  In particular, he makes a voluntary submission to the jurisdiction if he takes a step in the proceedings which in all the circumstances amounts to a recognition of the court’s jurisdiction in respect of the claim which is the subject matter of those proceedings.

(2)  There will be an effective waiver, or a submission to the jurisdiction, only where the step relied upon as a waiver, or a submission to the jurisdiction, cannot be explained, except on the assumption that the party in question accepts that the court should be given jurisdiction.

(3)  If the step relied upon, although consistent with the acceptance of jurisdiction, is a step which can be explained also because it was necessary or useful for some purpose other than acceptance of the jurisdiction, there will, on the authorities, be no submission.

(4)  The representation derived from the conduct of the party said to have submitted must be capable of only one meaning.

13.  In particular, where the time to make an application under Order 12, rule 8 has not yet expired the court will be slow to find that a defendant has submitted, in that: “any conduct on his part said to amount to a submission to jurisdiction, and therefore a waiver of that right of challenge, must be wholly unequivocal”: SMAY Investments Ltd v Sachdev [2003] 1 WLR 1973 at §41 (Patten J).

14.  It is well-established that seeking a time extension for filing a defence does not amount to a submission to jurisdiction or a waiver: see Binning Bros Ltd (in Liquidation) v Thomas Eggar Verrall Bowles (a firm) [1998] 1 All ER 409, 420e-g; Heliopolis Co Ltd v Euroscan Express (HK) Ltd [1998] 1 HKC 323, 333A-B (Stone J).

15.  The meaning of a step in the proceedings was explained by Lindley LJ in Ives & Barker v Williams[1894] 2 Ch 478 at 484 as follows:

“The authorities shew that a step in the proceedings means something in the nature of an application to the Court, and not mere talk between solicitors or solicitors’ clerks, nor the writing of letters, but the taking of some step, such as taking out a summons or something of that kind, which is, in the technical sense, a step in the proceedings.”

16.  Although the case concerns the words as used in the Arbitration Act 1889, this is clearly a general concept, and this meaning has been followed in cases of general jurisdiction challenges: see Deak Perera Far East Ltd v Deak [1988] 2 HKLR 95, 101I-102A (Barnes J).

17.  Thus, the decided cases suggest that, short of an express abandonment of the right to challenge jurisdiction or the service of the writ, a mere indication in correspondence of an intention to file a defence is not sufficient to constitute a waiver: see Binning Bros, Supra,422d-e (Hutchison LJ); Kurz v Stella Musical Veranstaltungs GmbH [1992] Ch 196, 202B-D (Hoffmann J, as he then was).

C2.    Alleged “substantial steps”

18.  In light of Order 12, rules 7 and 8, I agree there can be no doubt that the acceptance of service of the Writ, and the mere filing of an acknowledgment of service by BEA, do not amount to submission or waiver.

19.  CMT relies on broadly four matters as “substantial steps in the proceedings”.  I agree with BEA’s submission that none of those matters is such a step or evidences any waiver.

20.  First, CMT seeks to rely on the fact that CMT (not BEA) requested an extension of the date for the filing of its Statement of Claim and BEA agreed to this, and was paid costs of the application.  That plainly is not any form of submission or waiver:

(1)  This is a “step” taken by CMT not BEA.  It cannot possibly be right to say that BEA has taken a step because it consented, rather than contested the time extension sought by CMT.  Given that the time for making an application under Order 12, rule 8 had not yet expired, such a step was not inconsistent with BEA later making the application.  The fact that BEA was paid costs plainly does not take the matter any further.

(2)  Indeed, even if BEA had demanded a statement of claim, that would not amount to a step in the proceedings: see Ives & Barker, Supra, at 483.

21.  Secondly, CMT relies on BEA’s seeking an extension of the date for the filing of its defence.  This is contrary to well-established authority: see paragraph 14 above.

22.  CMT appears to also rely on the terms of the letters from BEA’s solicitors seeking time extension (both to CMT and to the court), which gave explanations why a long extension was needed.  The point appears to be that by referring to the need to take instructions, this indicated an intention to file a defence. 

23.  Such an argument has been rejected in both Kurz v Stella Musical and Binning Bros referred to above.  In Kurz v Stella Musical, the argument was that the request for time extension for filing a defence was to be read against the background of correspondence which gave the impression that the defendant intended to file a defence on merits: 202C.  Hoffmann J (at 202C-D) rejected the argument, and held that such expression of intention:

“… does not in my judgment amount to a representation that the defendant is abandoning the option which, as the plaintiff must have known, it had under the rules to challenge the jurisdiction at any time until 19 March.”

24.  As submitted by BEA, this equally applies to the present case.  BEA’s letters clearly did not amount to a representation that it would abandon the option to challenge jurisdiction/service, when the time for an Order 12, rule 8 application had not expired.

25.  Similarly, in Binning Bros, the letter seeking a time extension stated that the defendant “will… be endeavouring to serve a Defence as soon as reasonably possible”: 418c-f.  Hutchison LJ held that the letters read as a whole: (1) the request for an extension of time was not of itself a waiver; (2) the fact that it was accompanied by an expression of intention to serve a defence did not make it so; (3) nor would the expression of intention, viewed separately, amount to a waiver: 422d.

26.  Further, following Ives & Barker and Deak Perera referred to above, such letters cannot amount to a step in the proceedings or submission to jurisdiction.

27.  Thirdly, CMT relies on various correspondence between the parties:

(1)  In March 2017, where BEA proposed consolidation with the BOC Action and stay of proceedings pending BOC’s application to set aside the BOC Writ; and

(2)  In May 2017 (after service of the Statement of Claim), where BEA sought security for costs from CMT. 

28.  Again, the point appears to be that these letters expressed an intention that BEA would be defending the matter substantively. However, I agree with BEA’s submission that again, these letters cannot amount to a waiver, as they would not amount to an abandonment of the option of challenging jurisdiction/service, nor can the letters constitute a “step in the proceedings”.

29.  In this respect, CMT further relies on a letter from BEA dated 5 September 2017on security for costs which was sent after BEA had issued the Summons challenging the Extension Order.  The point appears to be that in this letter, BEA did expressly state that the request for security was without prejudice to the challenge to the Extension Order, whereas this was absent in all previous letters.  As submitted by BEA, the same argument was raised in Binning Bros, Supra,and was not accepted: 419a-d, 420g-j.

30.  Fourthly, the Liquidators also allege that BEA had relied on the continued validity of the Writ in 2016 when resisting the Liquidators’ application for leave to appeal in the s. 221 Application.  This is clearly wrong.  I agree that whatever BEA said in the s. 221 Application cannot be a step in the current proceedings.  Further, the s. 221 Application was taken out and heard in 2015, when the Writ had not expired.  When the Liquidators applied for leave to appeal, the issue was whether the Harris J Decision was correct on the evidence which was then before Harris J.  Whether the Writ was valid in 2016 was not a consideration at all, and the renewed Writ was not in evidence.  I agree that such an argument by the Liquidators is clearly an afterthought and has no merit.

31.  For the above reasons, I hold that there is no basis to suggest that BEA has waived its right to challenge the Extension Order.

D.  Abuse of Process

32.  As pointed out at paragraph 1 above, BEA seeks, in the alternative, to strike out the Writ on the ground that it is an abuse of process, in that at the time of the issuance of the Writ, CMT was unaware of any valid basis for a claim against BEA.

33.  In view of my finding above that the Extension Order extending the validity of the Writ should be set aside, it is not necessary for me, and I do not propose to deal with BEA’s alternative contention of abuse of process.

34.  However, in passing, I note the strength of CMT’s contention in this regard, that BEA’s argument on abuse is indeed inconsistent with BEA’s primary case as to the existence or otherwise of “good reasons” for an extension of the Writ.

E.  Conclusion

35.  For the reasons set out above, I set aside the Extension Order extending the validity of the Writ.  Accordingly, I set aside service of the Writ and order that this action be dismissed.

36.  On a nisi basis, I order that the costs of BEA’s Summons and the action be to BEA with a certificate for 2 counsel.

37.  As the action is dismissed, also on a nisi basis, I order that the above costs are to be borne by the Liquidators personally.

38.  The above orders as to costs shall become absolute in the absence of any application within 21 days to vary the same.

39.  Lastly, I express my gratitude to counsel and Mr Karas for their helpful assistance in this matter.