LU GUO XIANG v. HONG KONG MING WAH SHIPPING CO LTD

HCMP 52/2010 & HCMP 53/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NOS. 52 AND 53 OF 2010

(ON AN INTENDED APPEAL FROM HCPI NO. 254 OF 2006)

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REASONS FOR JUDGMENT

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Hon Tang VP:

1.  In HCPI 254/2006, the plaintiff claimed damages for personal injuries suffered on 6 November 2000 whilst serving on board an 80,000 metric ton bulk freighter as its captain.

2.  The writ was issued on 17 March 2006.  In the statement of claim, the plaintiff initially claimed damages for personal injuries on tort.  A contractual claim for damages under a Seaman’s Employment Contract dated 8 December 1999, which incorporated the International Transport Workers’ Federation’s Uniform “TCC” Collective Agreement (“ITF” contract) was added on 22 April 2008.

3.  The defendant relied on section 27 of the Limitation Ordinance, Cap. 347 and asserted that the claims had become statute-barred.  In turn, the plaintiff invoked the court’s power to override the limitation period pursuant to section 30 of the Limitation Ordinance. 

4.  On 29 March 2007, a consent order was made by Master B Kwan which ordered a split trial of liability and quantum.  The issues regarding limitation was ordered to be heard at the same time as the hearing on liability.

5.  The matter was heard before Yam J in December 2008 over a period of 10 days.  At the end of a 10-day hearing on 17 December 2008, Yam J announced his decision.  Reasons for the judgment was handed down on 9 January 2009.  The order as drawn up provided, where relevant, as follows:

“1.   Under the Defendant's Defence to time-bar to Common Law Personal Injuries case, this Court would exercise his discretion under s.30 of Limitation Ordinance that the provision of s.27 shall not apply to his action.

2.    The Plaintiff's claim under the ITF Contract is not time-barred.

3.    The Defendant is liable to the Plaintiff in negligence and breach of implied terms of the employment contract and the Plaintiff is not liable to any contributory negligence.

4.    Damages to be assessed on a day to be fixed in consultation with Counsel's diaries.”

6.  That decision is the subject of an appeal: CACV 14/2009.  The hearing of that appeal is scheduled to take place on 27 April 2010. 

7.  By an order dated 26 June 2009, Yam J granted, inter alia, leave to the plaintiff to fix a date for the assessment of damages, and ordered that the trial for an assessment of damages should commence on 27 July 2009 with three days preserved before Suffiad J.  The hearing was fixed before Suffiad J and not Yam J so that the assessment could take place at an earlier date. 

8.  However, as a result of Suffiad J’s other commitments, the assessment went to hearing before Mr Recorder P Fung instead.  The hearing before Mr Recorder P Fung was aborted on 29 July 2009 when he acceded to the plaintiff’s application to recuse himself.  He also said in his ruling of the same date that:

“5.   Furthermore, in light of the latest discovery about salary structure and matters like that, I am not confident that the trial can be completed within the time slot allocated to it.  If there is to be an adjournment of the case part-heard over a long period, which is likely, the situation will be very undesirable for all parties concerned.”

9.  The formal order of Mr Recorder P Fung provided as follows:

“1.   The assessment of damages be adjourned to be heard by another judge (not before Mr. Recorder Patrick Fung, S.C.) on a date to be fixed in consultation with Counsel’s diary, such date shall not be earlier than 1 June 2010.

2.    The estimated length of the assessment of damages hearing be 5 days.”

10.  The skeleton submission of counsel for the plaintiff before Mr Recorder P Fung stated:

“6.   For the contractual claim, Yam J held that there was no time bar to stop the Plaintiff from pursuing the action.  However, no declaration has been made to render the Defendant liable to pay contractual compensation/damages in accordance with the specific provisions of the employment contract as set out in the Further Re-Amended Statement of Claim.  By its Further Re-Amended Defence, the Defendant disputes its obligation to pay compensation/damages under such specific provisions.  Liability for breach of such specific contract provisions remains to be tried. 

7.    This Assessment Hearing accordingly concerns the PI common law claims only.”

11.  Following Mr Recorder P Fung’s order, by summons dated 3 August 2009, the plaintiff applied for an order to amend “Judgment for the Plaintiff in respect of his contractual claim against the Defendant”.  By a summons dated 17 August 2009, the plaintiff asked that the quantum hearing (with 5 days reserved) be reserved to and fixed before Yam J.  These summons were heard before Yam J on 27 August 2009.  On 10 December 2009, Yam J handed down his second judgment.  Effectively, para. 2 of the judgment entered on 17 December 2008 was amended so that it would read:

“2.   The plaintiff’s claim under the ITF contact is not time-barred, … and the defendant is therefore liable to the plaintiff under the ITF contract.”

12.  In respect of the summons of 17 August 2009, Yam J ordered that the quantum hearing be reserved to himself.

13.  On 24 December 2009, the defendant applied by summons for leave to appeal against the order of Yam J dated 10 December 2009 to fix the quantum hearing before him.  On the same day, the defendant appealed against Yam J’s second judgment of 10 December 2009: CACV 280/2009.

14.  By a notice of hearing dated 28 December 2009, the parties were informed that the quantum hearing would take place before Yam J on 15 September 2010, the estimated length of hearing being 5 days.  I should add that the quantum hearing is not straightforward, the issues include: whether the parties had earlier settled the matter, as well as whether the defendant was the plaintiff’s employer.  Apart from these issues, the assessment of quantum appears to be fraught with difficulties.

15.  By letter dated 11 January 2010, the clerk to Yam J wrote to the parties stating:

“The Hon. Mr. Justice Yam would like to suggest the assessment of damages to be re-fixed and heard on Monday, 18 January 2010 to 22 January 2010 (with 5 days reserved).

2.    Please take instructions from counsel and revert to me as soon as possible.”

16.  On 12 January 2010, Yam J dismissed the application for leave to appeal from his decision that the quantum hearing be reserved to and fixed before him.  On the same day, Yam J ordered, after hearing the counsel for the parties, that the quantum hearing be brought forward to 18 to 22 January 2010.  He also gave leave to the plaintiff to file and serve the plaintiff’s witness statement in reply on or before 14 January 2010.

17.  On 12 January 2010, the defendant applied to this Court for leave to appeal from Yam J’s order of 10 December 2009 as well as his order on 12 January 2010 bringing forward the quantum hearing.

18.  On 15 January 2010, we dismissed the application for leave to appeal from Yam J’s order of 10 December 2009.  We granted leave to appeal against Yam J’s order of 12 January 2010, and by consent of the parties treated the hearing as the hearing of the appeal and allowed the appeal.

19.  The defendant’s objection to the quantum hearing to be heard before Yam J was based on one ground only, namely that the plaintiff was guilty of forum shopping.  Yam J refused leave to appeal on the basis that the appeal was bound to fail.  With respect, I agree.  There is no suggestion of bias on the part of Yam J or any other reason why he should not deal with the assessment.  Given the history of the proceedings that I have endeavoured to set out, his order was fully justified.  Indeed Yam J would have dealt with quantum in July 2009 had he been available then.  There was no forum shopping. 

20.  I turn to the bringing-forward of the quantum hearing to Monday, 18 January 2010.  As noted, the first intimation that Yam J was minded to do so was Monday, 11 January 2010.  It is quite clear from the defendant’s submission that they would be put into a severe disadvantage if the hearing dates were to be brought forward.  Their principal witness will, by reason of work commitments, need to be away from Hong Kong until at least the end of January 2010.  Ms Lau, appearing for the defendant, said that in order to enable the defence to properly conduct this case, the defence requires that witness to be available not only to give his own evidence, but also to be present throughout the course of the assessment and in particular during the plaintiff’s evidence, so as to enable the defence’s legal team to take instructions on matters as they arise.  It is also said that the defendant’s counsel would be unable to prepare properly for the assessment, and in particular the cross-examination of the plaintiff due to other work commitments and the shortness of the time available.  It is said that the discovery of a number of important documents in the possession of the plaintiff is still outstanding.  She submitted the inability of the defence to properly prepare for the conduct of assessment would not only result in gross unfairness and prejudice to the defendant, but also adversely affect the efficiency with which the assessment may otherwise be conducted leading to waste in time and cost.

21.  I have been supplied with a transcript of the learned judge’s ruling in the application for leave to appeal.  He said:

“In my view, in the interest of justice, the assessment should be tried before me if my diary can accommodate an early disposal of the matter. The direction of Recorder Fung was just a direction of case management there and then. There is a change of circumstances now. The issue of ITF contract has been clarified, assessment can be made right away. In fact the parties were ready for such an assessment way back in July last year. Since I am available from 18 January Monday onward, the assessment should be made right away. The direction of Recorder Fung is just an incident of case management.

Now I have decided that the chance of success of any appeal from my decision in the wake of CJR is very low.

……

The only issue in respect of re- fixing of the hearing of assessment to 18 January next week is the availability of the defence's witnesses, Fu Ying (符英) and Yu Yun Ngo (余潤娥). In this respect I would accommodate them as much as possible between18th and 26th of January (the following Tuesday) when they will be available for what they called the minor part of next week or beyond.”

22.  The learned judge also said that he understood that bring the hearing forward would:

“… create certain difficulty on Ms Lau for the defence as she has other commitments to meet.  This is one of the occupational hazards of counsel specially on the civil side and I hope she can find other ways to alleviate the situation”.

23.  I agree with the learned judge that the direction of Mr Recorder P Fung was a matter of case management and that the court may depart from it if circumstances warrant.  I also agree with Yam J that the fact that there is/are pending appeals is not a good reason not to proceed with the quantum hearing.  But just as litigants are expected to obey the orders of the Court, I believe it is important for the Court not to take litigants by surprise.  Certainty and predictability are important for the fair administration of justice.  Mr Recorder P Fung’s order was made in July 2009.  In December the parties were informed of the hearing dates in September 2010.  In such circumstances, I believe in the absence of the consent of the parties or other compelling reasons, the court should not ignore orders that have already been made. 

24.  Civil Justice Reform is designed to improve the administration of justice.  The underlying objectives of the Civil Justice Reform are:

“(b) to ensure that a case is dealt with as expeditiously as is reasonably practicable;

……

(d)   to ensure fairness between the parties;”

25.  Also, active case management includes:

“(g)  fixing timetables or otherwise controlling the progress of the case; and

(l)    giving directions to ensure that the trial of a case proceeds quickly and efficiently.”

26.  But the Court must also act with due consideration for the parties and their legal representatives.  Litigants will be expected to give litigation priority.  But, carried too far, this will deter them, and result in a denial of justice.  The legal profession also must be able to plan ahead, if they are to operate efficiently.  In the circumstances of this case, having regard to the complexity of the issues involved in the quantum hearing, I have no doubt that Yam J’s order should be set aside.  I feel sure that Yam J thought that an earlier hearing date was in the interest of justice.  But the parties must be given adequate warning, given the difficulties which Ms Lau has indicated, the short notice in this case is not acceptable.

Hon Cheung JA:

27.  I agree.