STAR INDUSTRIAL CO LTD v. JAPAN HOME CENTRE (H.K.) LTD

HCA 2294/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2294 OF 2008

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R U L I N G

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1.  This is a very late application to amend the defence. The history of it really is that the trial was set down in January this year, and of course the whole of 2010 has passed, and there is now this application to amend two weeks before the start of the trial. There was a pre-trial review in November and it was not suggested then that these amendments were going to be sought. Mr Shipp, who appears for the plaintiff, has pointed to the listing questionnaire that had been prepared in January 2010 in which the defendant indicated that it was not proposing to make any amendment to its pleadings, and suddenly it has occurred to those advising the defendant that perhaps it might be a good idea to make these amendments, just two weeks before the trial.

2.  The trouble with late applications of this sort is that the party who would have to suffer the consequences of the amendment would be wishing to concentrate on the final preparations for the case, and these sort of amendments do serve as a great distraction to that important task. It is very much with this in mind that the civil justice reforms are aimed at putting an end to applications of this sort.  Of course, one does not want to do a party an injustice but if I were to refuse this application, it really would be a self-inflicted injustice if it were one.

3.  But there is another aspect to this.  Mr Shipp says that when one looks at these proposed amendments, and I take the first one which is now going to be paragraph 4(h) which seeks to advance a defence under section 88 of the Copyright Ordinance,  Mr Shipp has briefly taken me through the law and he says based on the apparent facts in this case that this defence simply will not get off the ground.

4.  Then there is an amendment which is asked for to paragraph 8 by adding particulars, and Mr Shipp says that when one looks at this that these particulars add no particulars.  In fact, they just take up space on the page. Mr Chan, I think, rather recognises this because he says that if I were to allow him, he would provide voluntary particulars of the similarities in design and the features between the plastic boxes that this trial is going to concern itself with.  So, really, these particulars add nothing, and on that ground alone I am minded to disallow the application for the amendment.  So I am not going to give leave to amend paragraph 8 in the way that is suggested. 

5.  That really leaves this paragraph without particulars as a wholly general allegation, and at the trial, Mr Chan, who is going to be appearing for the defendant, is going to need to be very careful to consider the extent to which he is really able to call any evidence in support of this wholly unparticularised paragraph.  And even if I had let him have his particulars, that would not have advanced the matter at all.  So that then leaves paragraph 4(h).

6.  I am not prepared to go quite as far as Mr Shipp has in saying that even if I were to allow this, it is bound to fail.  It is rather fact-sensitive and one would need to look at the matter.  It may well be that ultimately there is really nothing in it, and so it survives the principal examination by Mr Shipp, which is really on a point of law, in which he submits that these facts and the allegations in paragraph (h) are bound to fail, in which case there is the use in allowing the amendment.

7.  I think that Mr Chan has just about survived that challenge and this leaves the question of delay. As I have already indicated this delay is extremely unimpressive, and for that reason alone, I am not going to allow the amendment.  Really, this should have been dealt with before the questionnaire was prepared in January, and we cannot have this a year later.  And so the application will be refused, and I fear with costs.

(Discussion on costs)

8.  I think in circumstances where Mr Chan is not really resisting this very much, I am going to allow $35,000 to be paid forthwith.