SEK MAN LAI v. WILLIAM ENGINEERING LTD AND OTHERS

DCPI 3266/2019

[2023] HKDC 1251

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3266 OF 2019

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BETWEEN

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DECISION

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INTRODUCTION

1.  By a summons dated 1 March 2023 (“the Summons”) and a supporting affirmation dated 1 March 2023, the plaintiff seeks the following:-

(a) leave be granted to the plaintiff (“P”) to file and serve the amended statement of claim (“ASOC”) annexed to the Summons within 14 days from the date of the Order to be made;

(b) leave be granted to the 1^st, 2^nd and 3^rd defendants (“Ds”) to file their amended defence thereto within 28 days thereafter;

(c) leave for P to file and serve his signed supplemental witness statement (“Supp WS”) as annexed to the Summons within 14 days from the date of the Order to be made;

(d) leave be granted to the Ds to file and serve their Supp WS (if any) within 28 days thereafter;

(e) costs of the Summons be to Ds in any event, to be taxed if not agreed; and

(f) P’s own costs be taxed in accordance with the Legal Aid Regulations.

2.  Ds opposed to the Summons on the grounds of prejudice, delays, vagueness and contradictory evidence.

BACKGROUND

3.  This is a personal injury (“PI”) claim brought by P. Both issues of liability and quantum are in dispute. Both parties are legally represented. P was originally represented by another firm of solicitors assigned by the Director of Legal Aid (“the DLA”) under a certificate of legal aid dated 7 July 2020.

4.  P was employed by the 2^nd defendant (“D2”) as an air-conditioner installation worker and claims that at the time of the accident he was working on the 9^th floor of Sun Hung Kei Logistics Centre, 8 – 12 Wong Chuk Yeung Street, Fo Tan, New Territories, Hong Kong (“the Scene”).

5.  P claims in the statement of claim (“the SOC”) that on 21 June 2017, he and his co-workers were responsible for installing air-conditioners at the Scene and for carrying out water leakage prevention measures. P further claims that upon discovering signs of water leakage, he and one of his colleagues manually tightened some screws. He sustained a multiple left acromioclavicular joint sprain injury in the process (“the Accident”).

6.  Ds were sued under the writ of summons issued by P on 3 October 2019 and the SOC filed on 13 December 2019 for various breaches of statutory, common law and contractual duties. In short, P claims that an electric screw tightener would have prevented the Accident.

7.  In the defence filed on 24 January 2020, Ds denies any accident at all occurred to P in the course of his employment with Ds and that no notice or report had been made by P to Ds thereof, whether on the alleged day of the Accident or within any reasonable time immediately thereafter. Ds by way of the defence and the witness statement of Mr Lee Kwok Hung (李國雄) (“Lee”), the director of the 1^st defendant (“D1”), filed on behalf of Ds in the present proceedings, allege that an electric screw tightener as described by P was provided to him at the material time.

8.  Pursuant to a notice of re-assignment of solicitor dated 26 August 2021, Mr To Leong Pong (“P’s Assigned Solicitor”) of Messrs Alex To & Co Solicitors (“P’s Solicitors”) begun acting on behalf of P on the instructions of the DLA in substitution of the previous assigned solicitor. Counsel Mr Tim Wong (“Mr Wong”) was assigned by the DLA as P’s counsel in the case on 17 June 2022.

9.  Upon a joint application of the parties, HH Judge H Au-Yeung on 25 February 2022 ordered the parties to file and exchange their witness statements on or before 4 April 2022 and P to file and serve a revised statement of damages (“the RSOD”) on or before 10 May 2022.

10.  On 28 June 2022, due to delays on the part of P’s Solicitors, HH Judge Levy granted retrospective leave to the parties to file and exchange their witness statements on 11 May 2022 and retrospective leave to P to file and serve the RSOD dated 14 June 2022.

11.  On 26 July 2022, as per the joint application made by the parties by way of a consent summons, HH Judge Levy made an Order stating, inter alia:-

“4. The parties shall ensure that (a) Counsel’s advice on evidence, liability and quantum have been obtained; and (b) all outstanding interlocutory applications as advised by Counsel have been sought by 15 September 2022.”

5. The action be set down for Trial before a bilingual Judge in the Running List not to be warned before 1 November 2022 with an estimate time of 2 days”. [emphasis added]

12.  P’s Assigned Solicitor received Mr Wong’s written advice on 26 August 2022, allegedly highlighting the need to adduce a Supp WS and file an ASOC in order to deal with substantial factual disputes raised in Lee’s witness statement (“D1’s WS”) relating to the electric screw tightener issue.

13.  On 5 September 2022, HH Judge Levy ordered the action be removed from the running list and fixed on the fixture list due to Lee’s emigration to Canada. The parties were ordered to attend the Registry within 7 days for the purpose of fixing the trial dates in consultation with counsel’s diary.

14.  On 19 September 2022, the trial was subsequently fixed in the fixture list to commence on 12 October 2023 (with 13 October 2023 reserved).

15.  After the deadline for interlocutory applications had passed, HH Judge Levy further ordered on 22 September 2022 that “any interlocutory application shall be issued forthwith, returnable to the EC Judge”. [emphasis added]

16.  On 15 December 2022, which was almost 3 months after the last order issued by HH Judge Levy, P’s Solicitors sent a draft copy of the Supp WS of P along with a proposed consent summons to Ds’ Solicitors, raising new factual issues, including claiming that the Accident would have been prevented by providing P with “a pneumatic screw tightener” rather than “an electric one”. It also stated for the first time of the presence of some worker(s) from Ds at the Accident which had never been stated in the SOC or P’s witness statement before.

17.  On 30 December 2022, Ds’ Solicitors wrote to P’s Solicitors formally objecting to the filing of the Supp WS.

18.  On 20 January 2023, P’s Solicitors sent a letter to Ds’ Solicitors asking them to reconsider their position, along with a copy of the ASOC which was only provided to Ds for the first time.

19.  On 1 March 2023, the Summons was issued by P.

20.  On 12 April 2023, by way of consent summons filed on 6 April 2023, HH Judge MK Liu ordered a hearing to be fixed before a Judge in chambers to hear the arguments (with 2 hours reserved).

21.  On 24 April 2023, both parties’ representatives attended the listing office at the Registry and fixed the hearing of the Summons to be held on 17 August 2023.

DISCUSSION

(i) Delays

22.  In this case, P has clearly failed to comply with the two Orders made by HH Judge Levy dated 26 July 2022 and 22 September 2022. Those Orders stated that all outstanding interlocutory applications should be taken out by 15 September 2022 and “forthwith” respectively. Mr Wong, P’s assigned counsel, who represented P at the hearing of the Summons on 17 and 21 August 2023 before me, submitted that “it is necessary to take reasonable time” to seek instructions, draft the proposed amendments and obtain the necessary approval from the DLA.

23.  I have no quarrel with that as a matter of principle. I consider that “reasonable time” should be allowed in each case for the above. However, I totally disagree with Mr Wong that this was what had happened in this case. I noticed that the witness statements in this case were exchanged as early as 11 May 2022 and it was abundantly clear that D1’s account raised substantial factual disputes. Thus, the need for amending the SOC and filing a Supp WS of P should have been obvious to any reasonably competent and diligent solicitor upon reading D1’s WS.

24.  By any stretch of imagination, it should not have taken more than 7 months for P’s Assigned Solicitor to issue the present application. Seeking instructions, drafting the proposed amendments and obtaining approval from the DLA simply would not take that long. Even if somehow the need to amend the SOC and filing of the Supp WS had only became clear after the assigned counsel’s advice was provided to them on 26 August 2022 (as now claimed by P), there was still a lapse of more than 4 months before the application was taken out. Having considered the chronological order of events, I think it is fair to say that P’s Assigned Solicitor showed absolutely no sense of urgency to make such an application and/or to ask for an earlier date of hearing for the Summons. This is despite the clear and unequivocal Orders of HH Judge Levy. Thus, in my judgment, the time P’s Assigned Solicitor had used to issue the Summons was by no means “reasonable” as submitted by Mr Wong. I have no hesitation to reject his submission on this matter.

25.  I also do not accept the explanations offered by P’s Assigned Solicitor and/or Mr Wong regarding the alleged difficulties in seeking instructions from P or approval from the DLA. Under O 25 r 3(3) of the Rules of the District Court (“the RDC”), “exceptional circumstances” must exist in order to justify the variation of a milestone date. It is not disputed that the trial dates fixed on 12 and 13 October 2023 are milestone dates. It was held in Chun Shing v Chang Chen Chin t/a Tong Tak Co (HCPI 395/2008; 4 May 2009) that a legal aid application was not an exceptional reason[1]. Late instructions from clients are also not considered exceptional under §42 of Practice Direction 5.2. A fortiori, obtaining approval from the DLA, particularly on a simple proposed amendment and filing a Supp WS does not in my view amount to “exceptional circumstances”.

26.  Mr Wong further submits that the existing case law refers to the “lateness” of any application with reference to the length of time between the date of application and the date of trial. In P’s reply submissions, referring to the case of Chan Ying Wai v Secretary for Justice for and on behalf of Commissioner of Correctional Services [2019] HKCFI 988, Mr Wong submits that in that case the late application was made after the pre-trial review hearing, and that the present application was made more than 7 months before the trial. Thus, P says that there was no delay in making the present application.

27.  With respect, I find this is not a proper reading of Chan Ying Wai. I agree with Ds’ counsel Mr Leon Ho that Chan Ying Wai, at §§47 & 49, states clearly that “the Summons and the ramifications of acceding to the application thereunder must be viewed through the prism of an imminent trial that would start and proceed in/about 2½ months.”. Seen in such light, the ramifications of acceding to the present application would be even more time constrained.

28.  In my judgment, the delays of an application must be considered on a case-by-case basis and seen through the lens of all the events which occurred during the course of the entire proceedings. Both the assigned solicitor and assigned counsel by the DLA must take their responsibility seriously and conscientiously by regularly updating and making replies to basic enquiries raised by the DLA; not to waste time in seeking permission from the DLA on a piecemeal basis particularly when it is clear that the application would likely be objected to; and for failing to take instructions from their client in a timely fashion after the needs arise.

29.  In my view, P’s Assigned Solicitor has consistently failed to treat this case with any sense of urgency that is to be expected of any diligent and competent solicitors assigned by the DLA. This is particularly the case when considering the two very clear deadlines imposed under HH Judge Levy’s Orders back on 26 July 2022 and 22 September 2022 and the “milestone date” of the impending trial which was fixed as early as on 19 September 2022, ie 13 months before. As assigned counsel by the DLA, Mr Wong is also under a duty to remind P’s Assigned Solicitor of the need to issue the application and fix the hearing as early as possible and well before any “milestone dates”.

30.  I find this pattern of behaviour on the part of P’s Assigned Solicitor has continued even after the Summons had been issued in this case. Mr Wong is right to say that normally 7 months is more than sufficient for the Summons to be heard and for consequential directions to be made. However, despite the fact that the Summons was issued on 1 March 2023, the hearing date for it was only fixed for 17 August 2023, ie less than 2 months before the scheduled trial dates. Instead of accepting responsibility that they have failed to obtain an earlier hearing date, P’s Solicitors filed an affirmation (without leave) prepared by their filing clerk on 18 August 2023 (“the Filing Clerk’s Affirmation”), purportedly trying to shift the blame on the listing officer at the Registry.

31.  In my opinion, it is highly improper to seek to pass responsibility onto those who have no right of reply. Even more so to do it by way of an affirmation filed merely 5 minutes before the close of business on the last working day before the adjourned hearing. I note that the contents of the Filing Clerk’s Affirmation made allegations of the fact that they had requested for an earlier hearing date but was denied once. However, there was nothing in writing produced by P’s Solicitors by way of contemporaneous evidence like attendance notes or letters to the Court or Ds to support these claims.

32.  I would like to take this opportunity to describe what I understand to be the usual practice of fixing a hearing date with the listing officer at the Registry in the District Court when parties try to obtain an earlier date(s) for hearing. This is for future reference for PI practitioners in other cases as well as to refute such baseless allegations made in the Filing Clerk’s Affirmation prepared by P’s Assigned Solicitor in this particular case.

33.  First, I understand that the first available date(s) will be offered to the parties by the listing officer. If the date does not suit one or more parties, a second and a later date will be offered. If the second date is also not suitable, a third date will be offered until both parties have finally come to a date suitable to both parties.

34.  Second, the listing officer will ask if both parties agree before the hearing date is confirmed, particularly if the date is later than the first available date offered to them.

35.  If both parties confirm that they accept the date, it will be fixed accordingly. If any party is dissatisfied that the date is either too late or too early, the listing officer will fix the first available date and ask the party who disagrees to write directly to the hearing judge for directions and to request for an earlier date, if necessary.

36.  Although the listing officer at the Registry has no independent recollection of the events on 24 April 2023 when the clerks from P and Ds’ solicitors appeared before her for the purpose of fixing a hearing date for the Summons, there is nothing contained in the Filing Clerk’s Affirmation in my view to indicate that the above usual practice was not followed in this case. However, the more pertinent point remains that P’s Solicitors had never asked for an earlier date in writing, whether from the Court or from Ds’ Solicitors, for the hearing of the Summons after the hearing was fixed. They were happy to let the Summons to be fixed to be heard less than 2 months prior to the “milestone date” of trial.

37.  Had P’s Solicitors written to me, whether as the PI Judge or the judge assigned to hear the Summons in this case, I would have been happy to accommodate them and to fix an earlier date to hear the Summons so as to avoid affecting the “milestone date”. This is common practice for PI cases in the District Court. In my experience, such situations arise on a regular basis. Either the judge hearing the application or the PI judge, or one of the PI masters, would be willing to accommodate the parties’ request for an earlier hearing date under such circumstances if it is a PI case.

38.  In my judgment, the present situation is similar to that described by Marlene Ng J at §54 of Nam Ching Wun v Tsun Un Pawn Shop and Others (07/10/2014, HCA2151/2008), where:-

“54. [i]f the predicament that the applicant finds himself in is of his own making and the applicant has only himself to blame and the applicant has only himself to blame for the delay and inactivity, eg when the need for additional witness evidence is already evident at an earlier stage of the proceedings and the applicant for no good reason waited until the last possible moment to introduce a new witness statement that contains substantial matters, then the court is unlikely to grant indulgence. Even before the CJR and more so afterwards, it would be rare for the court to grant late indulgence even on terms as to costs without a satisfactory explanation being given to justify the delay and the grant of indulgence.”

39.  In this case, I find any delays during the course of making the present application, whether before or after the Summons was issued, has been solely caused by P or P’s Assigned Solicitor.

40.  I therefore would dismiss the Summons on the ground of delays, firstly in making the present application; and secondly in fixing a very late date of the hearing thereafter in this case.

(ii) Prejudice

41.  Ds claim prejudice by this application, citing §56 – 59 of Nam Ching Wun, supra, by way of insufficient remaining time until the milestone event to accommodate the other party’s response, being unfairly or oppressively burdened by having to scramble up a response and shifting the litigation goalposts at a late stage. Mr Ho cited Marlene Ng J’s judgment in Nam Ching Wun where she stated at §54 that “such procedural prejudice can amount to real and serious prejudice, and may overshadow any prejudice the applicant may suffer by, say, not having an additional witness statement admitted into evidence”.

42.  Mr Ho also submits that the intervening events of the emigration of Lee in 2022 and the untimely death of D2 (“the Deceased”) in 2021 will cause Ds to suffer additional prejudice if the application is allowed due to difficulties in taking instructions with respect to the new allegations; and in locating the new material witness(es) named only in the Supp WS by their nickname who was allegedly employed by the Deceased at the time of the Accident. However, Mr Ho has fairly pointed out that Ds would be able to communicate with Lee by email and he is willing to come back to Hong Kong to act as a witness provided sufficient notice is given to him.

43.  In this regard, I find that the emigration of Lee will not cause any additional prejudice to be suffered by Ds provided reasonable notice can be given to Ds to allow Lee to make travel arrangements. Additionally, the death of the Deceased ought not to have affected the preparation of Ds’ amended case because he was not due to act as a witness, unless he was the only remaining link to locate the new material witnesses mentioned in the ASOC and the Supp WS.

44.  Mr Wong at §15 of his reply submissions stated that under §20/8/6 of Hong Kong Civil Procedure 2023, citing Ketteman v Hansel Properties Ltd [1987] AC 189, 220, the amendment should be allowed if it can be made without injustice to the other side and there is no injustice if the other side can be compensated by costs.

45.  While the principle quoted thereunder originates from Tildesley v Harper (1878) 10 Ch D 393, 396, 397, it is adopted under Ketteman as one of the four principles as summarised by Lord Brandon. However, in my judgment, that can be distinguished in certain circumstances after the introduction of the Civil Justice Reform (“the CJR”) in Hong Kong in 2009.

46.  The relevant legal principles for late amendment of pleadings after the introduction of the CJR as cited by Mr Ho for Ds are helpfully set out by Marlene Ng J at §§39 – 46 of Chan Ying Wai, supra in the following paragraphs.

47.  At §43 of Chan Ying Wai, Marlene Ng J quoted the Court of Appeal of Topwell Corp Ltd v Kwan Kam Kee [2014] 5 HKLRD 1, P13 at §39 as follows:-

“39. …in the exercise of discretion, the Court must of course have regard to the underlying objectives in O.1A of the RHC…, so it cannot be assumed that once the principles in Ketteman are satisfied, the amendment would be allowed. The court would need to balance all relevant factors to decide how its discretion should be exercised, if the application is made in circumstances offending one or more of the underlying objectives. In this particular case, a pertinent consideration in giving effect to the underlying objectives is that the Court “shall always recognise that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties” (O.1A rule 2(2) of the RDC).”

48.  At §44 of Chan Ying Wai, the learned judge also cited DHCJ Lok (as he then was) in Li Shiu To v Li Shiu Tsang and Others (14/08/2012, HCA416/2003):-

“17. Second, there is heightened concern to guard against late applications after the implementation of the CJR. For case management purpose, there are now certain milestone dates in the course of litigation, and one of which would be the trial date. If a party makes a late application to amend the pleading with the effect that the trial date may have to be adjourned, the court would be very reluctant in allowing the application unless there are exceptional circumstances. Indeed, adjournment of the trial is now considered as a serious prejudice to the parties involved in litigation. Hence, one should not assume that, once the Ketteman principles are satisfied, the court would automatically grant an application for amendment of pleading in particular at a very late stage of the proceedings.”

49.  In conducting the balancing exercise under its case management power, the Court must do so in a fair manner, having regard to all the circumstances and the explanations given by the parties for the delays of the application. Regrettably, I do not find P or P’s Assigned Solicitor has provided any good explanation for the multiple and inordinate delays in this case. In my view, it would be unfair to grant leave for this application at this stage. While arriving at this conclusion, I consider whether, if leave be granted, it would likely to lead to an adjournment of the trial.

50.  I agree with DHCJ Lok (as he then was) that adjournment is considered a “serious prejudice” that the Court would be very reluctant to allow without “exceptional circumstances” as described in O 25 r 3 of the RDC. For the reasons stated at §§28 – 39 above, I do not accept Mr Wong’s submissions that the circumstances surrounding the taking of instructions from P or obtaining approval from the DLA are exceptional or even atypical at all. I simply cannot see how it would take them more than 7 months before they issue the Summons when the needs to do so were apparent to them since the exchange of the witness statements in May 2022. In my opinion, it would not be just under the balancing exercise as stated in O 1A r2(2) of the RDC to accept them as reasons for the late application or fixing of the date of hearing for the Summons.

51.  Further, I would respectfully adopt the position advanced by Mr Ho for Ds, in citing Nam Ching Wun at §56 where Marlene Ng J states:-

“56. delay itself can amount to real prejudice, and the later the applicant makes the application to adduce additional witness evidence, the more likely it is to cause real prejudice to the other party, especially when a milestone date is likely to be jeopardised by (a) insufficient remaining time until the milestone event to accommodate the other party’s response if the application is granted, (b) the other party being unfairly or oppressively burdened by having to scramble up a response is granted which thereby adversely affects necessary efforts on his part to meet any milestone event/requirement…”

52.  As previously stated at §39, I find that the delays and subsequent prejudice thereunder have all been caused by P or P’s Assigned Solicitor’s failure to diligently pursue this application. The time between the final day of the hearing of the Summons (ie 21 August 2023) and first day of trial (ie 12 October 2023) is only 52 days. Even with Mr Ho’s offer of 35 days to prepare the amended defence, in my opinion, this would create an oppressive and heavy burden to ask Ds to prepare for the trial. In the draft ASOC, P seeks extensive amendments and mentions a new material witness identified only by his nickname. Ds’ Solicitors obviously cannot seek further particulars from D2 who is dead. To allow the case to proceed to trial now would in my view cause unfairness and serious prejudice to Ds, which is contrary to O 1A r 2(2) of the RDC, particularly where P has had the luxury of more than 9 months since the exchange of witness statements on 11 May 2022 to make the application.

53.  For these reasons, I shall dismiss the Summons on the second ground of prejudice caused by the delays on the part of P.

54.  Accordingly, I do not need to consider the arguments raised by Mr Ho with regard to adequate particularity or contradictory evidence.

Duty of solicitors when making affirmation

55.  In support of the present application, P’s Assigned Solicitor filed has filed an affirmation dated 1 March 2023.

56.  At §§6 – 9, Mr To deposes of matters regarding dealings between P and his former assigned solicitors, matters to which only P has the most direct knowledge.

57.  According to §41/5/4 of Hong Kong Civil Practice 2023, an affidavit should, where possible, be sworn by the person with the most direct knowledge of the matters deposed to, and solicitors should only give evidence on behalf of their client in “exceptional circumstances” which should be justified.

58.  I do not see any justification why P’s Assigned Solicitor had to affirm factual matters on behalf of P when there is no reason why P could not have done that by himself. Such practice, particularly in legally aided cases, should be avoided if at all possible. I would like to remind PI practitioners not to do this in future unless there are exceptional circumstances to justify it.

CONCLUSION

59.  In conclusion, based on the aforesaid, I would dismiss the Summons with costs in favour of Ds, such costs to be taxed if not agreed and to be paid on indemnity basis, with certificate for counsel. P’s own costs to be taxed in accordance with the Legal Aid Regulations.

60.  Judging from the unreasonable and persistent delays caused by P’s Assigned Solicitor which have led to this application being heard within less than two months from the trial date and the blatant disregard of HH Judge Levy’s Orders, I consider that there is a prima facie case for the P’s Assigned Solicitor to explain to the Court as to why he should not be made personally liable for the wasted costs caused by the late application.

61.  I therefore make a costs order nisi that P’s Assigned Solicitor, namely, Mr To Leong Pong, do show cause within 28 days as to why he should not pay the costs of the present application, on an indemnity basis, such costs as to be summarily assessed by the Court and to be paid forthwith. Should any party wish to vary the above order nisi, an application should be made within 14 days from the date of handing down of this decision. The matter will be dealt with by the Court by way of paper disposal in order to avoid any further unnecessary incurrence of costs.

62.  While writing this decision, I have received a consent summons dated 6 September 2023 seeking leave to withdraw and discontinue P’s action against Ds with no order as to costs. However, based on the above discussions, I consider that the above conclusions on the Summons and the costs order nisi still stand. I thus further direct the parties to report to the Court in writing within 14 days from the date hereof and make submissions as to the basis upon which the costs of this action shall be dealt with in light of my decision herein. The Court will also deal with this matter by way of paper disposal.

63.  Lastly, I would ask my clerk to provide a copy of this decision to the DLA for his reference and to take further actions, as he deems fit.