LI SHIU TO v. LI SHIU TSANG AND ANOTHER

HCA 416/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 416 OF 2003

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D E C I S I O N

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1.  Today is the restored case management conference (“CMC”). I am faced with two consent summonses in which the parties have come to terms. One of them is to adjourn the 1^st defendant’s second strikeout summons, the other to seek leave for the 1^st defendant to amend its re-re-re-amended defence.

2.  I have declined to grant an order in terms of the consent summonses.  My preliminary view upon reading them was that there had been too many interlocutory applications in this case, which was commenced in 2003, when it ought to have been set down for trial.  I therefore invited the parties to come and make representation as to whether or not I should entertain that second application for strikeout.  I am informed by the parties that there will not be much dispute on the amendment summons.  I have taken the opportunity today to hear the parties’ submission on whether or not I should allow the second strikeout summons to proceed.

3.  Mr Chu for the 1st defendant invites me to go on.  Originally, I was concerned as to why this second strikeout summons was not taken out earlier when the third party proceedings were dealt with.  However, for present purposes, I accept that the grounds now relied on by the 1^st defendant might not have existed at the time the third party proceedings were taken out.

4.  In principle, the court does have power to entertain a second interlocutory application of the same kind if there is a significant change of circumstances (see the principles in the cases of Chanel Ltd v Woolworths & Co [1981] 1 WLR 485; Beacon College Limited v Yiu Man Hau & Ors HCA 4273/2001, 17 December 2012, Chu J (as she then was).

5.  In the present application, the 1^st defendant relies largely on three reasons:  firstly, the plaintiff’s change of stance; secondly, the death of the 1^st defendant, LST, on 27 December 2012 pending the hearing of the third party proceedings; and thirdly, the issuance of the third party notice which was subsequently dismissed by me in April 2014.

6.  I have sought clarification with Mr Chu today on which limb of Order 18 rule 19 he relies on for the striking-out.  Obviously, he cannot rely on the limb of lack of reasonable cause of action or the frivolous and vexatious ground.  If those grounds were available, they ought to have been relied on in the application before Master Ho.  It has now been clarified that the 1^st defendant seeks to strike out on the abuse of process or delay ground, of course, due to the significant or material change of circumstances.

First ground

7.  The plaintiff’s change of stance can be described as “misrepresentation” to Master Ho who dealt with the first application for striking-out but did not give an order for strikeout.  It was submitted that the plaintiff told Master Ho that the case was ready for trial when it was not really so.  It was evidenced by the fact that the plaintiff sought to amend the statement of claim subsequent to the strikeout hearing.  Leave was granted by Deputy Judge Lok but there was no appeal therefrom against the leave to amend.

Second ground

8.  Next came the 1^st defendant’s application to join LSK as a third party.  Pending a disposal of that application, the 1^st defendant died.  Accordingly, the most important witness for the 1^st defendant cannot give evidence.  This formed the second ground of the present application.

9.  Mr Chu also relies on the various paragraphs in my decision on 4 March 2014, namely paragraphs 29, 30, 32 and 34, which I shall not repeat in the interests of time.

10.  With respect to Mr Chu, when one talks about strikeout, one has to see what the fault or default of the plaintiff was.  What happened after the striking-out, at most, was the application to amend the statement of claim which was granted without any appeal.  The application to join the third party was the 1^st defendant’s own application, not the plaintiff’s. Any delay was not of the plaintiff’s making.  I can hardly see how the 1^st defendant can make out a case of delay on the part of the plaintiff under Order 18 rule 19 as to amount to an abuse of process.

11.  The death of a party in itself cannot be a good ground for striking out. 

12.  Therefore, even if I were to accept all the facts set out in the 1^st defendant’s supporting affirmation for this second striking-out application, I fail to see any prospect of success on any of the grounds advanced by the 1^st defendant.

13.  Furthermore, I have taken into account the fact that, as set out in the consent summons, the parties ask for the second striking-out summons to be adjourned to a date to be heard with one day reserved.  That, in my view, was of course an overestimation.  Be that as it may, one has to compare that with the situation if this case were to be set down for trial.  On the materials before me, there is only going to be one witness, ie the plaintiff.  The rest of the 1^st defendant’s witnesses will not be called:  one has passed away; another has been admitted into an elderly home; the 1^st defendant himself has also passed away.  Looking at the witness statements of the plaintiff before me, I can hardly see cross-examination of him which will take more than one day.  So if the case were to be set down for trial today, I cannot see anything beyond two days for trial.

14.  In view of this situation, to set down the present summons for another day’s argument is wholly disproportionate to the way in which this case has been managed up to today.  Considering all circumstances, the lack of merits and the overall picture in terms of case management of this case, I will not allow the striking-out summons to proceed and I therefore dismiss it.

15.  Insofar as the case management is concerned, I adjourn it for a paper disposal which will be on a date 14 days after the handing down of the Court of Appeal’s judgment in relation to the appeal against the refusal to join a third party.  The 1^st defendant is to submit a certificate of counsel as to trial estimates before that adjourned CMC hearing.  Unless I order otherwise, it will not be necessary for the parties to appear before me on the next occasion for the CMC.

Order

16.  (1) Leave to amend and serve the re-re-re-amended defence within 7 days.  Costs of and occasioned by the amendment be to the plaintiff and the 3^rd defendant.

(2) Leave to amend the reply within 21 days of the service of the last version of the defence.

(3) All consequential matters, including discovery, further witness statements if so advised, and other interlocutory matters are to be dealt with before the hearing of the appeal in October.  When I say ‘dealt with’, I mean filed and served.

(4) Costs of the striking-out summons be to the plaintiff and the 3^rd defendant.

(5) Ten minutes of today’s hearing is apportioned to the costs of the CMC, which shall be in the cause.

(6) Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.