TAM CHI KOK GABRIEL v. FOK EUGINA

HCA 1859/1992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1859 OF 1992

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J U D G M E N T

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1. I have before me today an application by the Defendant to strike out the writ of summons for want of prosecution and also on the ground that the causes of action appearing in the general endorsement are time-barred.

2. This application to strike out was taken out in August 2000 whereas the writ of summons was issued on 16 March 1992. Thus far no statement of claim has been filed. All this illustrates the delay involved in the present case. Without prejudging the application of the Defendant, all that I would say is that this is by no means a normal case.

3. Directions have been given for the filing of evidence in relation to this application. According to a consent order made by Mr Registrar Chan on 12 November 2001, which was more than one year after the application to strike out was made, the Plaintiff, the sole judicial trustee of the subject estate in replacement of the original Plaintiffs, had to file an affidavit or affirmation in reply, if any, within 60 days after the filing of the Defendant's supporting affidavit or affirmation in relation to the strike out application, as well as in response to an earlier summons taken out by the judicial trustee for the amendment of the writ of summons and for the filing of a statement of claim out of time.

4. The affirmation in support of the Defendant's summons to strike out was filed on 2 January 2002 and 60 days expired on 2 March 2002. No affidavit or affirmation was filed by the sole judicial trustee.

5. As I said, today is the hearing day fixed for the striking out application. I was told by Mr Horace Wong appearing for the Defendant that 15 minutes prior to the commencement of today's hearing, he was given two affirmations by his opponent, one being a short affirmation by the sole judicial trustee summarizing his difficulties encountered in obtaining instructions from the original Plaintiffs, one of whom passed away earlier this year whilst conducting in person a related litigation before the Court of Appeal; the other one being an affirmation by the original 4th Plaintiff which is a very lengthy affirmation with many exhibits.

6. The lengthy affirmation seeks to set out the background of this very unusual case, going back to the 70's and relating to previous and other proceedings between the parties.

7. It also discloses the most extraordinary fact that in all these years the original Plaintiffs have changed many lawyers and have engaged and changed many many leading and prominent counsel, both local and overseas.

8. In a nutshell, the explanation for the failure to file the necessary affirmations within time is that the original 4th Plaintiff and apparently the other original Plaintiffs have had disagreements with their many lawyers relating to how best to put forward the real case of the original Plaintiffs. It was only until very recently that the original Plaintiffs have found a team of lawyers who are prepared to put forward their case on their behalf in a way approved of by them, and time was expended in the original 4th Plaintiff approving the draft affirmation, she having returned from the United States where she has been residing to Hong Kong apparently for the purpose of this litigation.

9. There is no dispute that I have a discretion to exercise in this matter. I take into account the fact that this is a lengthy period of delay, particularly against the background of a subject matter which went back to the 70's and a writ that was issued in the early 90's.

10. I take into account the explanation offered by the original 4th Plaintiff regarding the delay, namely the disagreement between the original Plaintiffs and their previous lawyers regarding the best way to put forward the Plaintiffs' case. It is not for me at this stage to judge whether the lawyers or the previous lawyers were right or the original Plaintiffs were right relating to this disagreement.

11. On the one hand, the disagreement cannot form a very good explanation for the delay. On the other, I cannot say at this stage that the delay is inexcusable. All that I would say is that the original 4th Plaintiff has put forward an understandable explanation for the delay.

12. In this regard, I also take into account the fact that in deciding this application, I am not being asked to decide the substantive application of the Defendant, namely whether the whole action should be struck out for want of prosecution. Certainly, the delay involved in the filing of the present affirmations may be relied on, if so advised, by the Defendant as a further reason for saying that the action should be struck out for want of prosecution; that will have to await the hearing of the substantive application.

13. All that I am concerned with is whether the Plaintiff has managed to persuade the Court that an indulgence should be given to the Plaintiff to put in the evidence out of time in order to defend, if he can, the application to strike out. I bear in mind the serious consequence to the original Plaintiffs if I do not allow the judicial trustee put in the affirmations which would constitute their only evidence in opposition to the application. To do so would mean that the Plaintiff would have to face the Defendant's application to strike out, which is a very draconian step to adopt, without any evidence in opposition. This is a serious matter.

14. On the other hand, of course, I must bear in mind any potential prejudice to the Defendant. Given the general delay in the present action, any further delay in the proceedings in this action is a prejudice. I bear that in mind. However, I also bear in mind that if I allow this application, it would, as was indicated by Mr Wong appearing for the Defendant, lead to an adjournment and the filing of evidence, and all this, in my judgment, would have the effect of delaying the matter by another few months. But if the Defendant is correct with her substantive application, these few months' wait would be worth the waiting because at the end of the few months' waiting, there will be a hearing of the Defendant's application, and ex hypothesi, upon the conclusion of the application, the whole litigation will come to an end. That I believe is something that I can also take into account.

15. Of course, if I allow today's application, the matter will have to be adjourned and the Defendant would have to be compensated fully for costs. This, I am convinced, I have the jurisdiction to achieve by way of imposing a condition to the admission of evidence. In view of the argument that I have heard, I should emphasize that if I impose such a condition relating to costs on a full indemnity basis, this will not be done pursuant to the court's jurisdiction relating to the granting of costs, and the basis of taxation of costs, but rather on the basis that in the exercise of the court's discretion in granting an indulgence to the Plaintiffs to put in evidence late, the court has the jurisdiction to impose whatever conditions that are fair and reasonable in the circumstances of the case; and I do consider that if I allow the Plaintiff to put in the evidence, one of the conditions should be that the Defendant be fully compensated for the costs thrown away by the adjournment resulting from the admission of late evidence.

16. Another potential prejudice is that in the affirmation of the original 4th Plaintiff, there are allegations of fraud against the original executor of the will, i.e. the late husband of the originally named Defendant and the late father of the presently named Defendant, in relation to the alleged mistranslation of the will in question. It is patently clear from the endorsement of claim and the draft statement of claim that these very serious allegations, which are allegations of fraud, have never formed part of the case or intended case of the original Plaintiffs in this action. This is certainly scandalous and embarrassing to the Defendant.

17. I can understand why these allegations have been included, in so far as they were included to form part of the explanation for the pre-writ delay and perhaps the post-writ disagreements between the original Plaintiffs and their previous lawyers. But this is no excuse for allowing those allegations to remain in the affirmation if I am to allow the affirmation to go in. So I would also impose a condition, if I am with the Plaintiff, that paragraph 58 (1) and (2) of the affirmation of Sine Yee Lee, the original 4th Plaintiff, be expunged.

18. Having borne the above matters in mind and having generally considered the present case, in the exercise of my discretion, I am prepared to grant the Plaintiff leave to file and serve the 2nd affirmation of Tam Chi Kwok Gabriel and the affirmation of Sine Yee Lee out of time on the following conditions:

(1) Paragraph 58 (1) and (2) of the affirmation of Sine Yee Lee be expunged from the affirmation to be filed.

(2) The hearing of the Defendant's application to strike out be adjourned to a new date to be fixed in consultation with counsel's diaries, estimated time: one day, before a bilingual judge.

(3) Leave to the Defendant to file and serve evidence in reply within 45 days from the date hereof.

(4) The costs of and occasioned by the application to admit the aforesaid evidence out of time, as well as the costs thrown away by the application and today's adjournment be paid by the Plaintiff to the Defendant in the sum of $100,000 within seven days from the date hereof.

19. Mr Alexander Wong, counsel for the Plaintiff, having indicated his client's acceptance of those conditions imposed by me, I make an order that leave be granted to the Plaintiff to file and serve those two affirmations within three days from the date hereof, and I also make an order in terms of the above conditions. I also order that no further evidence be filed by either side without leave of the court, and I further order that the Plaintiff's outstanding application to amend the writ of summons and to file the statement of claim out of time be heard immediately after the hearing of the Defendant's application to strike out the action.