LEADING WELL LTD v. SECRETARY FOR JUSTICE

HCA 1266/2019

[2022] HKCFI 2329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1266 OF 2019

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DECISION

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1.  I dismiss the plaintiff’s summons dated 19 May 2022 for leave to file and serve the supplemental witness statement of Cheng Kam Chiu Stewart as per the draft annexed to the summons.  It is not for the witness to refer to and recite the contents of documents which have already disclosed by the parties in this action. Insofar as the plaintiff seeks to introduce new documents by the statement (namely the two plans referred to in para 5 of the statement and annexed thereto), this is impermissible.  The plaintiff has to make proper disclosure and justify its lateness, following the guidelines set out in various established case authorities.

2.  I dismiss the plaintiff’s summons dated 20 May 2022 for leave to adduce expert evidence.  The plaintiff’s change of counsel team in March 2022 does not justify the lateness in the application.

3.  At the hearing, Mr Chang SC who appeared for the plaintiff has not been able to articulate clearly why the proposed expert evidence is necessary.  The highest he put is that the proposed expert evidence may be “helpful” which is not sufficient to justify leave for expert evidence to be granted so late in the day.

4.  Crucially, if leave is granted for the plaintiff to adduce expert evidence, the defendant must be given a fair opportunity and sufficient time to consider the expert evidence, and search for and engage a suitable expert to prepare its own expert report. The experts must also be given sufficient time to meet up and prepare a joint expert report.  It is impossible to complete all these steps before trial commences on 16 August 2022.  The defendant should not be held to gunpoint to meet the tight timetable set by the plaintiff.  This means the trial dates will have to be vacated and re-fixed.  The plaintiff contends that in such circumstances the party “suffering real prejudice” would be itself. This misses the point that the defendant has a fair expectation that the dispute would be fully and finally resolved at the scheduled trial, particularly when the action was commenced in 2019 and it involves the grant of land use rights in Hong Kong.  Re-fixing the trial dates is also inefficient use of precious Court time and resources, and is unfair to other Court litigants in the pipeline.  All these prejudice could not possibly be quantified let alone adequately compensated by a costs order even on an indemnity basis against the plaintiff.

5.  I grant leave to the plaintiff to re-amend the Statement of Claim as per the draft annexed to the plaintiff’s summons dated 10 May 2022.  The proposed re-amendments are textual or refer to documents that are already disclosed by the parties, or are legal matters or conclusions, which do not require new evidence or witness and will not derail the trial.  Whilst the defendant contends that the proposed re-amendments have no merits and are likely to fail, this is a matter for trial.  I should not refuse the re-amendments unless it is plain and obvious that the new pleas are unsustainable, and this is not a conclusion that I can safely and summarily reach at this stage.

6.  There will be consequential leave to the defendant to file and serve its Re-Amended Defence (if any) on or before 8 August 2022, and leave to the plaintiff to file its Reply (if any) within 3 days thereafter.  I am imposing a tight timetable to ensure that all the pleadings are in order by the first day of trial on 16 August 2022.  Whilst the defendant will as a result only have 11 days to prepare its Re-Amended Defence, it was provided with the draft Re-Amended Statement of Claim in May 2022, and Ms Ling who appeared for the defendant today was also able to address on the merits of the new pleas in her skeleton. I will also extend the time for the defendant to file and serve its trial opening submissions and authorities to 4 pm on 11 August 2022 to give more time for the defendant to address the new pleas raised in the Re-Amended Statement of Claim.

7.  Post-CJR, late interlocutory applications without justification (such as the present applications by the plaintiff) are conventionally met with an indemnity costs order.  I order the plaintiff to pay the defendant’s costs of the three summonses, including the costs of today’s hearing, and also costs of and occasioned by the re-amendment to the Statement of Claim, on an indemnity basis, to be summarily assessed and paid forthwith.