XCHRX MICHAEL JOSEPH NETHERBY v. THE PERSONAL REPRESENTATIVE OF DEREK GEOFFREY HININGS, deceased

1993, No. A2418

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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Background

1. Mr Hinings died following injuries sustained in a motoring accident on 17 April 1990. The plaintiff was also injured in that same accident. He says that Mr Hinings was to blame for his injuries, and he is seeking to recover damages from Mr Hinings' estate.

2. The plaintiff issued a writ on 23 March 1993. That writ cites the personal representative of Derek Geoffrey Hinings, deceased, as the defendant, and is addressed to "the Intended Personal Representative of Derek Geoffrey Hinings, deceased, - Grey Crichton c/o House No. 8, Red Hill Park, No. 12 Pak Pat Shan Road, Red Hill, Tai Tam, Hong Kong." This citation was in accordance with Order 15, rule 6A(1) and (2), which says that an action such as this may, if no grant of probate or administration has been made, be brought against the estate of the deceased, and that an action brought against "the personal representatives of A.B. deceased" shall be treated as having been brought against his estate. The address to which the writ was directed makes it clear that the plaintiff's solicitors thought that, at that time, there was no personal representative.

3. The original period of validity of this writ was, in accordance with Order 7, rule 8, 12 months; that is, until 22 March 1994. An application to extend the validity of the writ was made on 22 March 1994, but no order was made. The plaintiff's solicitors applied again on 4 May 1994, and an extension of 6 months, until 22 September 1994, was granted. There was another application for an extension on 22 September 1994, and the validity was further extended until 22 December 1994. The plaintiff's solicitors purported to make yet another application on 16 December 1994. This was by letter unsupported by any evidence. Naturally, the plaintiff's solicitors were told to make the application by affidavit. The plaintiff's solicitors applied for another extension on 6 January 1995. This was not granted. On 18 April 1995, the plaintiff applied for another extension inter partes. This is the application before me.

The Chronology

4. Before issuing the writ, the plaintiff's Australian solicitors wrote to the widow of Mr Hinings, who lives in that country. They mentioned the need to have a representative of the estate in Hong Kong for the purposes of service. This letter was sent to Mr Crichton in Hong Kong.

5. These solicitors wrote to the plaintiff's solicitors in this action saying that Mrs Hinings had nominated Mr Crichton as personal representative of the estate. The plaintiff's solicitors then wrote to Mr Crichton, who said, in a letter dated 20 July 1992, that he did not have instructions to accept service.

6. On 16 September 1992, the Union Insurance Society of Hong Kong, Limited (the insurer) wrote to the plaintiff's solicitors, showing that it was aware of the claim.

7. In spite of Mr Crichton's statement that he did not have instructions to accept service, the writ was served on him by post at some time before 30 June 1993. A copy of the writ and the notice to insurer was served on the insurer shortly after it was issued.

8. On 2 July 1993, the insurer's solicitors wrote to Mrs Hinings saying that the statement of claim alleged that the defendant was the executor of the estate of Derek Geoffrey Hinings. They asked if she had obtained a grant of probate, and, if not, whether she had any objection to being appointed as personal representative of the estate for the purpose of defending the action under Order 15, rule 6A. They reported that they had done this to the plaintiff's solicitors.

9. On 20 July 1993, the insurer's solicitors wrote to the plaintiff's solicitors pointing out that it would be necessary for them to apply for the appointment of a representative of the estate if letters of administration or probate had not been taken out.

10. On 15 September 1993, the plaintiff's solicitors wrote to the insurer's solicitors. They inquired whether any application for letters of administration or probate had been taken out by the personal representative of the deceased. They also asked for Mrs Hinings address so that, if necessary, they could apply to the court to appoint her as the personal representative.

11. On 6 October 1993, the plaintiff's solicitors wrote to the Official Solicitor requesting that he consent to act for the deceased, saying that they could find no application for letters of administration or probate.

12. The Official Solicitor replied on 7 October 1993 asking if the insurance company had been approached "pursuant to Order 15 rule 6A" to ask if it was willing to be appointed to represent the estate.

13. On 26 January 1994, as suggested by the Official Solicitor, the plaintiff's solicitors wrote to the insurer's solicitors asking whether letters of administration or probate had been granted and if the insurer was willing to be appointed. The insurer's solicitors replied on 29 January 1994, saying that they had no information whether letters of administration or probate had been applied for and that they would inquire if their client was willing to be appointed.

14. On 2 March 1994, the insurer's solicitors wrote saying that the insurer was willing to represent the estate in the action, asking that the plaintiff's solicitors prepare a summons for their endorsement so the action could proceed.

15. On 15 March 1994, the plaintiff's solicitors sent a draft consent summons to the insurer's solicitors. This summons sought leave to amend the writ and statement of claim and to appoint the insurer "as the personal representative of Derek Geoffrey Hingings, deceased, limiting to defend and to carry on these proceedings." The plaintiff's solicitors also asked if the insurer's solicitors had instructions to accept service on behalf of the insurer.

16. On 16 March 1994, the plaintiff's solicitors told the Official Solicitor that his services would not be needed.

17. This consent summons was signed by both sets of solicitors; the insurer's solicitors signing as solicitors for the defendant. The insurer's solicitors must have signed before 18 March 1994 because it was on this date that Master Bokhary had the signed consent summons before her.

18. The papers submitted to the court were confused and confusing. The consent summons referred to Order 42 rule 5A, which deals generally with orders by consent, and not with orders under Order 15 rule 6A. It applied for the insurer to be appointed as the personal representative of the deceased, instead of as a person to represent the estate, which is a different thing. It made no express application for an order that the proceedings be carried on against the insurer. The summons was signed by the insurer's solicitors purporting to be the solicitors for "the Defendant" The amendments proposed to the writ were that the insurer's name should be inserted as a party, or, possibly, as "personal representative" of the deceased. The amendments proposed to the statement of claim were to delete the allegation that the defendant was the executor, to include an allegation that the defendant was an insurance company, and to allege that the defendant consented to represent the deceased.

19. Not surprisingly, in my view, Master Bokhary had some questions to ask about these papers. She asked under what authority the insurer may be appointed as personal representative of the deceased, if a grant of representation had been issued so that the insurer's solicitors could act for the personal representative, if all persons interested in the estate were agreeable, and for the consent of the insurer.

20. On 25 March 1994, the insurer's solicitors filed an acknowledgement of service of the writ as solicitors for the defendant, stating that the defendant did not intend to defendant the proceedings. This was done, according to the insurer's solicitors, because they believed that, by that date, an order in terms of the consent summons had been made. They had not been told otherwise by the plaintiff's solicitors.

21. In the affirmation for the purpose of the proceedings before me, the plaintiff's solicitor says that he produces, as Exhibit IT-5, a draft order, implying that this was submitted with the draft consent order. This draft order, however, refers to an affirmation by the solicitor filed on 22 March 1994 and seeks a renewal of the writ for 12 months.

22. In this affirmation, the plaintiff's solicitor says, immediately after speaking about the first consent summons - "Since, the original period of validity of the Writ was about to expire, I therefore applied to the Court for an extension of the validity of the Writ and Master C. B. Chan ordered that the writ be renewed for 6 months." In fact, this is not what happened. At this time, the plaintiff's solicitors did apply for an extension supported by an affirmation dated 21 March 1994, but this was not granted. The affirmation was endorsed with the note - "See also (6). [A reference to the first consent summons endorsed with Master Bokhary's comments] Please state what efforts were made and why were they not successful". This note seemed to be addressed to the plaintiff's solicitors, and it bears the additional note "informed 28/3" indicating that the plaintiff's solicitors were informed of the comment on 28 March 1994.

23. Following this, by affirmation dated 4 May 1994 - that is, after the original period of the validity of the writ had expired - the plaintiff's solicitors applied again for the extension. They explained the efforts to find someone to represent the estate, and that the insurer was prepared to do so. On this application, the writ was renewed for 6 months from the date of expiry by Master Chan; that is, until 22 September 1994.

24. On 22 September 1994, the plaintiff's solicitors applied for another extension. The affirmation in support of this application referred to the affirmation of 4 May 1994, explained that since the earlier renewal the deponent had "still not manage to trace the personal representative of the estate" "Nothing has been changed and further inquiries were impracticable I still did not have any news regarding the personal representative of the Estate", said that the insurer insured "the Defendant" and asked, "in these circumstances" for a further extension of 6 months from 22 September 1994 and that "pursuant to O. 65 r.4" for substituted service "by leaving the same at" the offices of the insurer.

25. In response to this, Master Cannon renewed the writ for 3 months - that is, until 21 December 1994 - asked how the suggested mode of service might bring the writ to the notice of the personal representative of the decease, suggested that the appointment of the insurer to represent the estate should be made by inter partes summons, and that the person having an interest in the estate should be served.

26. On 16 December 1994, the plaintiff's solicitors wrote in response to Master Cannon's comments. They suggested that perhaps the writ might also be served on the widow and Mr Crichton. They said that they did not think an inter partes summons was necessary because the insurer had consented "to be appointed as the Personal Representative of the Deceased Defendant", and drew attention to the consent summons and to Master Bokhary's comments. They asked, "in the meantime" for a further extension for a period of 3 months from 21 December 1994.

27. On 21 December 1994, Master Chan pointed out that the application for a renewal should be made by affidavit, asked what efforts had been made to apply for an order under Order 15 rule 6A and said that further consideration would be given to the matter after a "carry on" order had been obtained.

28. The plaintiff's solicitors say in the affirmation filed for the purpose of the proceedings before me - "As the renewed writ was due to expire again in December 1994, I, therefore, applied to the Court for a further renewal". In fact, the plaintiff's solicitors applied for this only under an affirmation dated 5 January 1995 - after the renewal period had expired. In this affirmation, the deponent referred back to his affirmation of 20 September 1994 and to Master Chan's comments of 21 December 1994. The deponent repeated what he had said about attempts to trace the personal representative of the estate. He asked for a further renewal for 6 months from 22 December 1994. On 9 January 1994, Master Jennings asked why a summons had not been issued under Order 15 rule 6A.

29. The plaintiff's solicitors then wrote to the insurer's solicitors on 16 January 1995, sending another draft consent summons and order, seeking the appointment of the insurer as "Personal Representative" limited to defend and carry on the action. Eventually, on 27 March 1995, the insurer's solicitors replied, saying that their client was not prepared to sign the consent summons and the plaintiff should apply to the court for an appointment.

30. On 18 April 1995, the plaintiff took out an inter partes summons addressed to the insurer's solicitors as "Solicitors for the Defendant" asking for the validity of the writ to be extended for 6 months from 20 December 1994, that the insurer be appointed as personal representative and for ancillary relief. On 26 September 1995, this summons was amended so as to apply for an extension of 12 months and to apply for an appointment to represent the estate rather than as personal representative. This is the summons now before me.

The Law

31. The law relating the exercise of the discretion to extend the validity of a writ is contained in two House of Lords decisions; Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597 and Waddon v Whitecroft Scovell Ltd [1988] 1 WLR 309.

32. In his speech, Lord Brandon reviewed the authorities. He concluded that "the power to extend shall only be exercised for good reason", and the rule "should be interpreted as requiring 'good reason' and no more." He said, at 622H - "Whether there is or is not good reason in any particular case must depend on the circumstances of that case, and must therefore be left to the judgment of the judge who deals either with an ex parte application by the plaintiff for the grant of an extension, or with an inter partes application by the defendant to set aside an extension previously granted ex parte." At 623C, he said - ". . . the judge is entitled to have regard to the balance of hardship. In doing so, he may well need to consider whether allowing an extension will cause prejudice to the defendant in all the circumstances of the case."

33. In Waddon, Lord Brandon repeated the principles stated in Kleinwort Benson. He did, however, expand on the aspect of the "balance of hardship". At 317H, he said - "This House was not saying that the balance of hardship could of itself constitute good reason for extending the validity of the writ. What it was saying was that, where there were matters which could, potentially at least, constitute good reason for extension, balance of hardship might be a relevant consideration in deciding whether an extension should be granted or refused." If there were no matters which could, even potentially, amount to good reason, "the question of balance of hardship did not arise."

34. In this case, Lord Brandon considered whether there was a difference between a good reason for an extension of the period of the validity of the writ, on the one hand, and a good reason for failing to serve it during that period, on the other. Lord Brandon said - "While it may be possible to visualise a case in which the establishment of the second matter is not a necessary step to establishment of the first, I do not find it easy to do so. In the present case at any rate it seems to me that the two matters are inextricably bound together." I think that they are so inextricably bound in this case also.

35. Lord Brandon said that in cases where the application for extension is made at a time when the writ has ceased to be valid and the relevant period of limitation has expired, it can be said that the defendant has an accrued right of limitation. In these cases, Lord Brandon said that the plaintiff has an extra difficulty to overcome; he must also give a satisfactory explanation for his failure to apply for an extension before the validity of the writ has expired.

Good Reason

36. I have looked in vain for evidence from the plaintiff's solicitors of any explanation, satisfactory or otherwise, for the failure to make a proper application before the validity of the writ last expired on 22 December 1994. By proper application, I mean one that is by affidavit and purports to advance some good reason for yet another extension.

37. I have also looked in vain for any attempt to advance evidence of any reason, good or otherwise, why the writ was not served before 22 December 1994.

38. I have looked hard because my personal inclination, I must admit, is to allow the action to proceed if this is at all possible. But I cannot do this if there is no good reason, or the plaintiff has not adduced one that is apparent to me.

39. The affirmation filed in support of the summons before me is dated 13 April 1995. It refers to the affirmation dated 5 January 1995 and to the comments by Master Jennings. Apart from this, the affirmation merely recites the events that followed the receipt of Master Jennings comments, and the deponent's surprise at the attitude of the insurer. It is alleged that the insurer is in breach of a binding agreement that the insurer was prepared to represent the estate. There is no attempt to explain why it was that the plaintiff did not apply under Order 15 earlier so that the writ could be served.

40. The solicitors for the insurer filed an affirmation dated 28 May 1995. This recites the relevant events. It explains that the acknowledgement of service was filed in the belief that an order had been made in terms of the signed consent summons.

41. The plaintiff's solicitors filed another affirmation dated 5 September 1995 in reply. The deponent describes the events leading up to the submission of the signed consent summons in March 1994, and the comments by Master Bokhary. There is no explanation as why no attempt was made to deal with Master Bokhary's comments. It is said that, in September 1994, the plaintiff's solicitors sought an order that service on the insurer be good and sufficient service because the insurer had acknowledged service and said that liability was not in dispute. The comments by Master Cannon are recited, and the response to these in December 1994. The deponent recites Master Chan's response. Nothing is said about what was done to deal with Master Chan's queries. It is only when Master Jennings asked why Order 15 could not be followed that the plaintiff's solicitors sought to obtain another signed consent summons from the insurer's solicitors. There is no explanation why it was thought that this course, which had been followed earlier with no success, should be adopted again.

42. The plaintiff's solicitors have not attempted to explain their reasons for failing to serve the writ during the periods of its validity. I suppose, however, it could be said that the reason is perfectly obvious. The plaintiff's solicitors did not serve the writ because they were unable to do so; there was no one upon whom they could properly serve it. That is the reason, but it does not follow that it was a good reason. Clearly, the plaintiff's solicitors could not legitimately shrug their shoulders, saying that they could not find anyone upon whom they could serve the writ, and obtain orders extending the validity of the writ indefinitely. If it was within their power, they were bound to do something about this situation so that they could serve the writ. And it was within their power to do something. The Rules provided the way out; not only provided the way out, but gave a mandatory direction on the route to be followed. Order 15 rule 6A says that "the plaintiff shall . . . during the period of validity for the service of the writ . . . apply to the Court for an order appointing a person to represent the deceased's estate for the purpose of the proceedings . . . and . . . for an order that the proceedings be carried on against the person so appointed . . ."

43. This, of course, is just what the plaintiff's solicitors did, or tried to do in a somewhat strange way. But, because Master Bokhary made some comments, which, to me, seem perfectly sensible having regard to the odd features about the papers, which I have outlined above. In the face of these comments, the plaintiff's solicitors were, it seems, unable to decide what to do next to achieve their objective, which had to be achieved if they were to proceed further. They applied for extensions on 21 March 1993, which was not granted, and on 4 May 1993, which was granted for 6 months; that is, until 22 September 1994. The plaintiff's solicitors did nothing about obtaining the necessary appointment of someone to receive service of the writ. On 22 September 1994, the writ was extended until 21 December 1994, with the advice that the plaintiff's solicitors should apply under Order 15. They did not do so. They left the matter until 16 December 1994, when they said, amongst other things, that they had already applied for the appointment, albeit unsuccessfully. They, however, did nothing about proceeding to apply for an appointment until 16 January 1995, when they acted on the repeated advice to apply under Order 15. Even then, they simply sought to repeat the process that had given rise the original comments by Master Bokhary. Why they did this instead of dealing with Master Bokhary's concerns is not explained. Only after the insurer's solicitors refused their consent did they apply in April 1995 for an order.

44. In the circumstances of this case, the search for a good reason for not serving the writ translates into seeking a good reason for not obtaining an order under Order 15 so that the writ could be served.

45. Mr Mills-Owen, recognising that there could be no service of the writ in this case until an order under Order 15 had been obtained, says that the reason why such an order was not obtained was, to paraphrase his argument, because the court erroneously failed to make such an order. In this respect, he relies on such cases as Ward-Lee v Lineham [1993] 1 WLR 754 and Kelliher v EH Savill Engineering Ltd., The Times, May 10 1994. But those cases are not in point. In these cases, it was entirely the fault of an officer of the court that the summonses were not served. In the case before me, Master Bokhary did not refuse the application; she raised what I regard, in the circumstances of the confusing nature of the application, as reasonable questions. It was for the plaintiff's solicitors to attempt to deal with those questions. There is nothing to indicate that they ever attempted to do so, and there is no explanation why they did not. This could have been done easily. The plaintiff's solicitors should have responded saying something like: "Sorry; we did not mean to apply for the appointment of the insurer as personal representative, but as a person to represent the estate under Order 15 rule 6A. The insurer has consented to this, so it has notice. The only other person interested in the estate is the widow, and, if you wish, we can give her notice. And we would also like an order to carry on the action." If the solicitor responsible did not know what to do in response to the Master's questions, he should have taken advice. The solicitor was pointed in the right direction, but he chose not to go that way. In fact, he did not go any way at all. The indications are that he dithered. He could think of nothing to do but apply for extension after extension, which did not help at all.

46. This is the plaintiff's main argument. It is also said that the insurer's solicitors were to blame because there was a substantial delay by them -

in taking issue with the matter of service of the writ after they had served the acknowledgement of service; and

in failing to respond to the plaintiff's solicitors request in December 1994 to sign another consent summons.

47. It is clear, however, that these arguments cannot provide good reasons for the plaintiff's failure to empower himself to serve the writ. In the first place, the insurer's solicitors did not know that the service was bad until the plaintiff's solicitors sought their signature to another consent summons. They thought, and were entitled to think, that an order had been made following the first consent summons. In any event, the plaintiff's solicitors were not misled in any way. They knew, although the insurer's solicitors did not, that they had not obtained an order under Order 15, and had to do so before they could properly serve the writ. The delay after the insurer's solicitors knew that an order under Order 15 had not been obtained equally cannot provide a reason for the inactivity of the plaintiff's solicitors. The plaintiff's solicitors knew, or should have known, that it was not necessary to obtain the insurer's consent to enable them to obtain an order under Order 15. In fact, they had gone this way before without success. And if, as Mr Mills-Owen submits, one could not expect a junior solicitor to know what to do in the face of his problems with the Masters, one can expect that he would know enough to consider that it would be a good idea to seek advice from those who would know, including, if he was unable to get that help within his firm, seeking counsel's advice. It is clear, at all stages, that the plaintiff's solicitors knew that the writ had not been properly served, that they could not serve the writ without first obtaining an order under Order 15 and that they needed extensions to keep the writ alive. Nothing the insurer's solicitors did altered that position.

48. Mr Mill-Owen also argued that the balance of hardship dictated that I should exercise my discretion in favour of the plaintiff. The law on this is quite clear. I cannot consider the balance of hardship until, potentially at least, there is a good reason for the failure. I do not see one.

49. Mr Mills-Owen also submits that the consent summons of 16 March 1994 can be restored, and an order made upon it now. I doubt if this is the case. I do not see how I can make an order by consent when it is quite clear that the other party does not consent at the time the order is to be made. In any event, it does not help the plaintiff to have such an order without an extension of the period of validity of the writ, and he cannot have such an extension without a good reason.

50. Mr Mills-Owen also relies on Foster v Turnbull (English Court of Appeal; 15 May 1990), and, in particular, a statement by Slade LJ, who said -

"Even at that late date, they could perhaps have put matters in order if, before late 23rd May 1988, they had applied to court for

(a) an order extending the validity of the writ under O 6, r 8 AND

(b) an order under O 15 r 6A(4)(a) appointing Norwich Union to represent the respective estates of the two deceased defendants and ordering that the proceedings be carried on against Norwich Union."

51. That, says Mr Mills-Owen, is just what the plaintiff is doing here. The significance of the date 23 May 1988 mentioned by Slade LJ was that it was on this date that the period of 12 months after the expiry of the time available for service expired. The plaintiff in the case before me did apply within this period. I do not read Slade LJ as saying anything more than this was a course open to the plaintiff in the case before him. It would have remained necessary for the plaintiff to establish that there was a good reason for an extension, and, if there was no good reason for an extension, there was no point in appointing anyone to represent the estates.

Estoppel

52. Mr Mills-Owen also raises an argument based on estoppel. He says that the insurer is estopped from denying that they had authority to accept service of the writ and that the service of the writ was effective because its solicitors said that the insurer was prepared to represent the estate and they filed an acknowledgement of service. But estoppel cannot validate a nullity; it cannot make no service into good service. The insurer's solicitors accepted service because they thought that the insurer had been appointed to represent the estate. As the plaintiff's solicitors well knew, this was not the case. It follows that, to the full knowledge of the plaintiff's solicitors, the writ was served on someone who was not a party, and had not be appointed to represent a party. So the service had no effect whatsoever. In any event, it is as clear as crystal that the plaintiff did not rely on anything the insurer's solicitors did to believe that service had been validly effected. It cannot possibly be said that the insurer's solicitors represented that there had been good service on them, when they did not know the facts, but the plaintiff's solicitors did. The plaintiff's solicitors did not believe that the service was effective; they knew it was not - hence their efforts to achieve proper service. If anyone was induced into believing something that was not the case, it was the insurer's solicitors, not the plaintiff's solicitors.

Conclusion

53. For the reasons I have given, I must reluctantly conclude that there is no good reason for not serving the writ within the periods of validity, or, at least, one has not been explained to me. Accordingly, the plaintiff's appeal against the Master's decision is dismissed.

Costs

54. On the face of it, there seems no reason why costs should not follow the event. I make an order nisi that the plaintiff pay the insurer's costs, with a certificate for counsel.