HOMMULLA PATHIRANNAHALAGE KUMARA DOUGLUS v. SECRETARY FOR JUSTICE

DCCJ 2304/2012

[2018] HKDC 1179

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2304 OF 2012

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DECISION

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INTRODUCTION

1.  This is the decision for:

(a)  the plaintiff’s summons dated 2 March 2018 seeking leave to file and serve a statement of claim (“SoC”) out of time (P’s Summons”); and

(b)  the defendant’s summons dated 20 April 2018 seeking an order to dismiss the present action by reason that the plaintiff has failed to serve a SoC pursuant to O19 r1 of the Rules of the District Court (“RDC”) and under the court’s inherent jurisdiction (“D’s Summons”).

BACKGROUND

2.  The plaintiff, a Sri Lanka national, arrived Hong Kong on or around 6 April 2005 and was detained in Castle Peak Bay Immigration Centre (“CIC”) from 16 July 2006 to 25 December 2006.  At that time, CIC was managed by the Correctional Service Department (“CSD”).  However, the management has since 15 April 2010 been taken over by the Immigration Department (“ID”).

3.  The plaintiff was subsequently released on recognizance pending determination of his non-refoulement claims, which were made at different times under different applicable grounds. He was recently married in Hong Kong on 30 June 2017 and is now in the course of applying for a dependent visa.

4.  By a generally indorsed writ of summons issued on 9 July 2012, i.e. shortly before the expiry of the 6-year limitation period counting from the first day of the plaintiff’s detention at CIC, the plaintiff claims against the defendant for damages arising from the period of detention.

5.  On 31 January 2018, the plaintiff filed the SoC out of time without leave of the court.  The same was served on the Department of Justice (“DoJ”) who represents the defendant on the same day.

6.  This was after a number of offers made by the plaintiff to the defendant over a long period of time, including at least 3 without prejudice letters and a number of sanctioned offers.

7.  The defendant through DoJ had only made one sanctioned payment on 25 January 2016 and basically ignored all the other without prejudice letters and sanctioned offers made by the plaintiff.

8.  After the plaintiff filed the SoC without leave, the defendant opposed the late filing and service of the same.

9.  As a result, the plaintiff issued P’s Summons for extension of time to file and serve the SoC out of time on 2 March 2018.

10.  The defendant, on the other hand, issued D’s Summons on 20 April 2018 to dismiss the plaintiff’s action.

Joint Chronology

11.  The parties have produced a joint chronology (“Joint Chronology”) in this case, setting out the history of the proceedings:   

Date	Event
08.07.2011	Legal aid certificate was issued to the plaintiff
23.07.2011	Yip & Liu’s (“Y&L”) letter before action to the defendant inviting the defendant considering settlement in accordance with A & Others
04.08.2011	DoJ who represents the defendant asked for quantification and to withhold instituting legal proceedings pending instructions from their client
19.09.2011	Y&L without prejudice letter with quantification
30.09.2011	DoJ’s letter that they were still taking instructions and asked to withhold legal proceedings pending instructions from the defendant
25.11.2011	DoJ invited the plaintiff to reconsider his position and to withdraw his claim in light of the judgments of Ghulam Rbani DCCJ 531/2010 dated 13.10.2011 and Saeed Muhammad DCCJ 1717/2010 dated 21.10.2011
25.11.2011	Leave to appeal was granted in Ghulam Rbani DCCJ 531/2010
09.07.2012	Writ of summons for this action was issued
09.07.2012	Y&L’s letter to DoJ informing that the writ was issued but Y&L did not intend to serve it until Y&L finish the SoC
28.11.2012	Ghulam Rbani CACV 267/2011 was heard by the Court of Appeal
04.12.2012	Ghulam Rbani CACV 267/2011 was dismissed by the Court of Appeal
09.07.2013	The validity of the writ of summons in this action was extended for 12 months
13.03.2014	Final judgment was handed down by the Court of Final Appeal for Ghulam Rbani FACV 15/2013
07.07.2014	The validity of the writ of summons in this action was extended up to 08.07.2015
09.07.2014	Y&L’s follow-up letter to DoJ stating that the plaintiff should proceed the action as Y&L did not wish to extend the writ further, and that Y&L should issue the SoC immediately without any further notice
23.07.2014	Without prejudice (“W/P”) letter from DoJ to Y&L with an offer to settle the Plaintiff’s claim inclusive of interest and costs
05.09.2014	W/P letter from Y&L to DoJ that Y&L was taking instructions
10.09.2014	W/P letter from Y&L to DoJ with counter offer and supporting documents obtained from the defendant
11.09.2014	W/P letter from DoJ to Y&L with final offer
13.09.2014	W/P letter from Y&L to DoJ with counter offer
24.09.2014	W/P letter from Y&L to DoJ asking for DoJ’s reply by 5 pm on 25.09.2014 failing which Y&L shall instruct counsel and issue SoC without any further notice
20.10.2014 to 18.11.2014	Hearing of Abid Saeed DCCJ 562/2011
15.01.2015	W/P letter from Y&L to DoJ chasing for DoJ’s reply
30.01.2015	Judgment in Abid Saeed DCCJ 562/2011 was handed down
27.04.2015	W/P letter from Y&L to DoJ after the judgment of Abid Saeed DCCJ 562/2011 was handed down
08.07.2015	The validity of the writ of summons was extended for 6 months up to 07.01.2016
28.12.2015	Writ of summons was served on DoJ
28.12.2015	Plaintiff’s notice of sanctioned offer filed
29.12.2015	Acknowledgment of service filed by DoJ
25.01.2016	Defendant’s notice of sanctioned payment filed
05.02.2016	Plaintiff’s mediation certificate filed
29.02.2016	W/P letter from Y&L to DoJ rejecting the sanctioned payment with a revised offer and stating that if no reply was received within 7 days Y&L had the plaintiff’s stand[ing] instructions to proceed with the court action
01.03.2016	Plaintiff’s notice of sanctioned offer filed
11.07.2016	Plaintiff’s notice of sanctioned offer filed
18.11.2016	W/P letter from Y&L to DoJ asking for DoJ’s reply failing which Y&L would issue the statement of claim without further notice
28.11.2016	Plaintiff’s notice of sanctioned offer filed
28.11.2016	W/P letter from Y&L to DoJ inviting them to read Y&L W/P quantification on 10.09.2014 again and stating that Y&L had the Plaintiff’s stand[ing] instructions to proceed with the statement of claim and the court action if DoJ still fail to advise the cefendant to settle the case sensibl[y]
25.07.2017	Plaintiff’s notice of sanctioned offer filed
18.09.2017	Plaintiff’s notice of sanctioned offer filed
26.09.2017	Plaintiff’s notice of sanctioned offer filed
31.01.2018	SoC filed by Y&L without the leave of the Court
31.01.2018	SoC served by Y&L to DoJ without the leave of the Court

The defendant’s case

12.  Mr Lewis Law, counsel for the defendant, has highlighted the following events in the Joint Chronology in his submissions:

(a)  the validity of the generally indorsed writ had since 9 July 2012 been extended 3 times: for 12 months on the first 2 occasions and for 6 months on the last occasion;

(b)  shortly before the end of the last extension, the generally indorsed writ was served on the DoJ on 28 December 2015, which was already over 9 years since the disputed detention at CIC and over 3 years since the issuance of the writ.  Although the delay up to this point (“the Pre-service Delay”) was permitted by the Limitation Ordinance and the RDC, the defendant submits that it is a factor relevant to the consideration of whether the subsequent delay after service of the writ (“the Post-service Delay”) was inordinate and inexcusable;

(c)  the defendant filed an acknowledgement of service within time.  Sanctioned offers were made by the plaintiff, whereas the defendant also made one (and only one) sanctioned payment on 25 January 2016.  That payment was promptly rejected by the plaintiff on 29 February 2016;

(d)  the plaintiff carried on making multiple sanctioned offers thereafter, and kept saying that he had given his solicitors standing instructions to proceed with the action.  In actual fact, he had not served the SoC and there was no request for extension of time until recently; and

(e)  On 31 January 2018, the plaintiff attempted to file and serve a SoC over 2 years and 1 month after the service of the writ on 28 December 2015 (during the Post-service Delay), without seeking the court’s leave under O18 r1 of the RDC or obtaining the defendant’s consent first. DoJ, acting for the defendant, immediately protested against the plaintiff’s contravention of the procedural rules, leading to the issuance of P’s Summons and D’s Summons.    

The plaintiff’s case

13.  Ms Cecilia Wong, solicitor who appears on behalf of the plaintiff, highlighted the following events from the Joint Chronology in support of the plaintiff’s case:

(a)  For the Pre-service Delay, the plaintiff’s legal aid certificate was issued on 8 July 2011 and the writ of summons was issued almost exactly one year later on 9 July 2012.  The writ was withheld and renewed several times (with the approval of the court) until 28 December 2015 when the writ of summons was served;

(b)  the reason why the writ of summons was put on hold was explained in Ms Wong’s 1^st affirmation, namely, the plaintiff was waiting for the final decision in Ghulam Rbani (2014) 17 HKCFAR 138and also the decision on the assessment in Abid Saeed v Secretary for Justice [2015] 1 HKLRD 1030;

(c)  the plaintiff says that those cases which led to the significant change of law is important as there was a substantial number of cases waiting to be resolved in the District Court at that time; and

(d)  the plaintiff further submits that the only relevant period for consideration is the Post-service Delay; for that period the plaintiff says that the defendant has not been able to show any inordinate and inexcusable delay and in any event there was no prejudice caused to the defendant.

DISCUSSION

(A) Relevant Legal Principles

14.  The following legal principles, which have been ably summed up by Mr Law, are not disputed by the plaintiff.  I would respectfully adopt them here with appropriate modifications.

15.  Pursuant to O18 r1 of the RDC, a plaintiff must serve a SoC on a defendant either when the writ is served on the latter or at any time after service of the writ but before the expiration of 14 days after the defendant gives notice of intention to defend. In case of default, the consequence is provided for in O19 r1, namely,the defendant may, after the expiration of the period fixed by or under the RDC for service of SoC, apply to the court for an order to dismiss the action.  

16.  The two provisions, as well as the discretion under O3 r5, should be applied together (see for example: Yeung On Nan t/a Hing Ho International Group v Weizen Industry Co Ltd [1988] HKC 305).  A refusal to extend time to serve a SoC under O18 r1 is effectively the end of the proceedings. Once refused, the action should naturally be dismissed under O19 r1.  This is because the filing and service of a SoC is a fundamental step after commencement by writ: where a defendant has filed an acknowledgement of service, there is no way for a plaintiff to further the proceedings and obtain any judgment without setting out his cause of action and the facts he relies on by pleadings. 

17.  Accordingly, in Yeung On Nan and the earlier authority of Greek City Co. Ltd v. Demetriou [1983] 2 All ER 921, the court essentially applied the test of Birkett v James [1978] AC 297in relation to striking out for want of prosecution to an application under O18 r1 and O19 r1.

18.  The leading authority in Hong Kong on striking out for want of prosecution is the Court of Final Appeal’s judgment in Wing Fai Construction Co Ltd v Yip Kwong Robert & Ors (2011) 14 HKCFAR 935.  In that case, the Chief Justice summarized the applicable principles and highlighted the following (see in particular §75 of the judgment):

(a)  Abuse of the process of the court was the foundation for the exercise of the jurisdiction to strike out for delay;

(b)  Abuse could take many forms, including contumelious conduct, “warehousing” of claims and wholesale disregard of the rules of court (i.e. the first limb under Birkett v James and the rule under Grovit v Doctor [1997] 1 WLR 640), as well as inordinate and inexcusable delay causing prejudice to a defendant (i.e. the second limb under Birkett v James);

(c)  In particular, “warehousing” of claims occurs where a plaintiff has initiated a number of actions against various people and, for tactical reasons or otherwise, selected which action to proceed with or not.  For “warehousing” to justify striking out, it must be clear that there was simply no intention to bringproceedings to a conclusion or there was a “wholesale disregard” of the rules or court orders;

(d)  The courts existed to assist parties to resolve disputes and they should not be used by litigants for other purposes;

(e)  Where abuse was clearly demonstrated by, e.g. contumelious conduct on the part of the plaintiff, proceedings could be struck out even where prejudice to the defendant could not be shown; and

(f)  The fact that the delay was caused by the plaintiff’s legal advisers (as opposed to the plaintiff himself) would not be considered favourably to the plaintiff when the discretion to strike out is exercised.  For better or worse, the acts done or omitted to be done by the plaintiff’s legal representatives will be attributable to the plaintiff.

19.  In the past, the fact that the limitation period had not yet expired at the time of the striking-out application is a matter of “great weight”.  However, since Wing Fai Construction (see in particular §75(10)), such fact should no longer mitigate against a striking-out application.  Conversely, if at the time of the default or the striking-out application, the limitation period has long lapsed, this obviously would reinforce the finding of abuse or inexcusable/inordinate delay.   In Chow Lai Ming v Ip Chak Sum & Anor, unrep, HCA 2225/2005 (23 November 2012, DHCJ Lok), the court had regard to the delay from when the cause of action first arose to the service of writ in considering whether an action should be dismissed pursuant to O18 r1 and O19 r1 (see §§22 & 24).  In this connection, the “actionable delay” must still be the delay since service of writ, but the overall picture is relevant to an assessment of the seriousness of the “actionable delay”.

20.  Pursuant to O3 r5, (1) of the RDC, “The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these Rules, or by any judgment, order or direction, to do any act in any proceedings.  (2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.”

21.  Pursuant to O18 r1 of the RDC, “Unless the Court gives leave to the contrary or a statement of claim is indorsed on the writ, the plaintiff must serve a statement of claim on the defendant or, …………….at any time after service of the writ but before the expiration of 14 days after that defendant gives notice of intention to defend.”

22.  For the defendant’s application to strike out the claim for want of prosecution to succeed, it is not disputed that there cannot be any argument on the applicable principles after the Court of Final Appeal’s decision in Wing Fai Construction Co. Ltd., supra. The principles were applied in the subsequent case of China Nonferrous Metals (Hong Kong) Finance Co. Ltd. (in liq) vs South-East Asia Investment Holding Co. Ltd.,CACV 253/2012, unreported (16 May 2013).   It is only how they are to be applied to the particular circumstances of each case.

23.  The above principles can be summarized from the decision of Hong Kong Broadband Network Limited vs Hong Kong Cable Television Limited, HCA 9172/2000, unreported (12 May 2015):

“The principles include:

(1) It remains that striking out is a remedy granted only in plain and obvious case.

(2) Abuse of the process of the court is the foundation for the exercise of the jurisdiction to strike out for delay. Mere delay would not suffice, and abuse must be shown.

(3) Abuse could take many forms. Inordinate and inexcusable delay causing real prejudice to a defendant would be an abuse.

(4) For contumelious conduct of the plaintiff which is shown to have amounted to clear abuse, proceedings could be struck out even where prejudice could not be shown.

(5) In the majority of the cases, however, prejudice would often be an extremely relevant factor.  The most compelling form of prejudice as a result of inordinate and inexcusable delay would be the substantial risk that a fair trial becomes impossible (Birkett v James).  Delay might also aggravate the prejudice caused by the existence of an interim injunction pending trial.

(6) Warehousing of claims with no intention of bringing the proceedings to a conclusion or wholesome disregard of the rules or court orders also amounts to abuse, which justifies the striking out (Grovit v Doctor).

(7) The conduct of the parties remains relevant to the question of abuse and the overall justice of the case. Post-CJR rules on case management and their underlying objectives apply to existing proceedings. All parties to the proceedings had the obligation to prosecute the proceedings and assist the court in furthering the underlying objectives, and therefore it would be highly relevant to consider any failure on the part of the parties.  There is no place anymore for the defendant to adopt the attitude of “letting the sleeping dogs lie”.  If it is sought to be argued that time has dimmed the memories of witnesses, the court will usually expect to know what steps the defendant has taken to take instructions or proof or to locate the witnesses.  The court would assess the extent of the prejudice with reference to the nature of the defence.

(8) Besides looking at the matter from the parties’ perspectives, the court would also take a proper regard to the administration of justice after the implementation of the CJR in furtherance of the underlying objectives of ensuring fair distribution of court resources.  Along the same line, the non-expiry of the limitation period should no longer militate against an order for striking out, abuse is clearly demonstrated.” 

(B) The Pre-service Delay

24.  In my judgment, the “Pre-service Delay”, namely, from 16 July 2006 (when the plaintiff was first detained at CIC) up to 28 December 2015 (when the writ of summons was served on the defendant), should not be counted against the plaintiff in this case due to the following reasons. 

25.  First, the plaintiff was well within his right to issue the proceedings within the limitation period and had in fact served the writ of summons within the time applied for and extended by the court.  I find there was no inexcusable and inordinate delay during this period as all the damages claims were put on hold by the court pending the results in Ghulam Rbani and Abid Saeed.  Extensions were routinely granted by the court in these cases during this period as part of the court’s case management exercise. There was nothing exceptional about this case.

26.  Further, I accept Ms Wong’s submission that it has never been the law that mere delay would be sufficient to justify an order to strike out.  Abuse of the process of the court is the foundation for the exercise of the jurisdiction to strike out for delay.  In this case, at the time when the writ of summons was served on the defendant 28 December 2015, the plaintiff had filed the plaintiff’s notice of sanctioned offer at the same time in the hope that the case could be settled amicably and brought the action to an end.  The defendant had also immediately filed the acknowledgement of service on the next day and filed the notice of sanctioned payment on 25 January 2016. Thus, it appears that both parties wished to bring the action to a conclusion at that time.There was no abuse of process on the part of the plaintiff.

27.  For the above reasons, I do not find there was anything untoward which I ought to hold against the plaintiff during the Pre-Service Delay.  In my view, the real crux of this case lies in the question of whether there was any inordinate and inexcusable delay which justify a striking out of the plaintiff’s SoC during the Post-service Delay.  If so, whether the defendant has suffered from any real prejudice.  

(C) The Post-service Delay

(i) The plaintiff’s explanations

28.  In the affirmations filed by the plaintiff’s solicitors in support of P’s Summons, the plaintiff has put forward the following explanations for the Post-Service Delay and reasons why time should be extended:-

(a)  Soon after the plaintiff had served the writ on 28 December 2015 and his notice of sanctioned offer (which was filed on the same day), the defendant filed the notice of sanctioned payment on 25 January 2016.  By doing so, it gave the plaintiff the impression that the defendant was willing to settle the case without the SoC being served;

(b)  Given the fact that other cases had been settled in similar ways, see for example Mohammad Iftikhar v Secretary for Justice for and on behalf of the (1) Secretary for Security (2) Director of Immigration, DCCJ 2188/2013, unreported (5 September 2016), the plaintiff’s solicitors had reasons to believe that the defendant would do the same in this case;

(c)  Without accepting the defendant’s sanctioned payment, the plaintiff had filed his mediation certificate on 5 February 2016 and made a counter offer on 29 February 2016.  It was obvious to the plaintiff and his solicitors that the first sanctioned offer/payment would not be accepted and there would be likely to be several more rounds of negotiations.

(d)  There was not even a single response from the defendant since then, despite the fact that the plaintiff had sent 3 further without prejudice letters on 29 February 2016, 18 and 28 November 2016 respectively and filed 6 further notice of sanctioned offers between 1 March 2016 and 26 September 2017. 

(ii) The defendant’s submissions 

29.  Mr Law for the defendant on the other hand submits that none of the above explanations/reasons is good or reasonable enough to account for the Post-service Delay.  To the contrary, he submits that those explanations assist the defendant to establish that the plaintiff has been intentional and contumelious in flouting O18 r1 of the RDC. The defendant says that it is an abuse of process on the plaintiff’s part to abandon the action for such a long period of time and attempt to reactivate it.  Further, the defendant says that the Post-service Delay, under such circumstances, has also been inordinate and inexcusable and would give rise to a substantial risk that the trial of this action could not be fairly conducted.  

30.  In particular, Mr Law emphasizes the fact that it was due to the plaintiff’s assigned solicitor and her firm’s workload and/or pressure that might have caused the delay.  If so, that could not be an acceptable explanation as a solicitor is under a professional duty not to act or continue to act for his or her client if he or she is no longer able to do so with competence and diligence. 

31.  Further, Mr Law submits that there was no real ongoing negotiations between the parties and it was just the wishing thinking on the part of the plaintiff’s solicitors to settle the action out of court without filing of a SoC.  

32.  The defendant also accused the plaintiff of harbouring an ulterior purpose by stalling the proceedings as he wants to withdraw his claim in exchange of being given permanent resident status in future.  Hence, Mr Law submits that the action is not genuinely prosecuted for the remedies and compensation pursued in the SoC.  He says that the plaintiff’s handling of the case is “analogous to the “warehousing of claims” described in Wing Fai, supra and should be strongly disapproved.

33.  Lastly, the defendant claims they would suffer from prejudice and a substantial risk of not able to have a fair trial due to the long lapse of time between the relevant detention and the possible trial date of this action.  The prejudice, according to the defendant, takes the form of memory loss of live witness who could have been able to give direct evidence of the situation of CIC at the time of the plaintiff’s detention.   

(iii) Findings of the Court

(a) Was there any inordinate and inexcusable delay?

34.  Given the unique circumstances of this case during the Post-service Delay, I find there was no inordinate and inexcusable and delay on the part of the plaintiff in this case.

35.  First and foremost, in my view, it lies ill in the mouth of the defendant to say that there was inordinate and inexcusable delay during the Post-service Delay when it was the defendant who had failed to respond to any of the without prejudice letters and sanctioned offers made to him during that period.  In other words, the defendant was happy to keep quiet and to let the case go to sleep, but once the plaintiff revived it, they would then immediately call “foul”.   While they are perfectly entitled to reject or not to respond to those offers, it is in my view not fair for them to use that as a reason to say that there was inordinate and inexcusable delay on the plaintiff’s part.   It would be a different story had they engaged the plaintiff in dialogue or to write to inform them that they would not be interested in any further negotiations and the sanctioned payment they had made would be the one and only.  

36.  Second, in or about August 2016, there were over 750 outstanding cases from asylum seekers like the plaintiff who were claiming damages for unlawful detention against the defendant, following the CFA’s decision in Ghulam Rbani handed down in March 2014.  So far almost all of those cases, with the exception of a handful of claimants who had decided to get rid of their lawyers and represented themselves, have been settled by way of sanctioned offers/payments and/or without prejudice negotiations without the parties going to trial.  This was well known to the DoJ as they represent the defendant in all of those cases.  Thus, it was not unreasonable for the plaintiff and his assigned solicitor to believe that his case would be settled by out of court negotiations also, just like the rest of the other cases. I agree with Ms Wong that the court should look at the background, history and development of those similar cases as a whole instead of considering this case in isolation.

37.  Third, I also agree with Ms Wong that the steps taken during the Post-Service Delay cannot be looked at in isolation in deciding whether there was an intention in February 2016 to December 2017 not to bring the present action to a close.  Proper regard must also be given to the further steps taken by the plaintiff to issue the SoC in January 2018. 

38.  Last but not the least, if the court finds that the plaintiff had delayed inordinately and inexcusably, there remains the question of prejudice to the defendant that a fair trial is no longer possible.  Under the CJR regime,peremptory order can be made. The defendant is entitled to take out a case management summons at any time after the defendant has given notice of intention to defend under O25 r(8) RDC, but striking out must be a remedy of last resort.

(b) Was there any intention to bring the proceedings to conclusion?

39.  Looking at the matter in the wider perspective and with the bigger picture in mind, I do not consider that there was any intention on the part of the plaintiff, in particular, his assigned solicitor, of not bringing the proceedings to a conclusion. In particular, I do not find there is any evidence of “warehousing” on the part of the plaintiff’s solicitors in dealing with the cases assigned to her or her firm.

40.  In the rather unusual circumstances the plaintiff and his fellow torture claim claimants had found themselves in during those few years when the law was still in a rather uncertain state, I can understand why the plaintiff’s solicitor, who was pursuing the plaintiff’s claim by relying on legal aid fund, was reluctant to issue any SoC prematurely.  However, that does not mean she had no intention to bring the proceedings to conclusion on the plaintiff’s behalf.  

41.  In this regard, I do not accept the defendant’s submission that it was due to the “work pressure” which had caused the plaintiff’s delay in issuing the writ or the SoC.  With respect to Mr Law, this was not what Ms Wong said in her affirmations.  As explained by Ms Wong in her 1^st affirmation, this case was the last one of the unlawful detention damages claims handled by her as most of them previously assigned by the DLA from 2011 to 2014 had been settled by this time already.  What she said was “(N)o doubt that was pressure of work that all the outstanding cases had to be started afresh after Ghulan Rbani and Abid Saeed”, but it was always her practice that “cases should be settled without further court action instead of issuing a standard statement of claim for every claimant’s case at the beginning”.  Ms Wong said this case was the last holding case “due to the plaintiff’s strong instructions to settle the case out of court”.  There was nothing to suggest that it was due to her “work load” which had caused the delay in issuing the SoC as suggested by the defendant.      

42.  In fact, Ms Wong in her 2^nd affirmation has clarified that the number of cases which was assigned to her by the DLA in fact was not that many and was well within her or her firm’s capacity to handle.  I accept her explanation.  I also accept her explanation that she withheld issuing the SoC after writ was issued to try to save the costs of the public funds in order to avoid substantial amendments to a “holding” SoC after the change of the laws.  I further accept it is her practice of not to charge the aided persons any common fund costs in such damages claim cases (which is understandable as a large chuck of the damages would have been “eaten away” by the costs of the amendments) and such costs were normally absorbed by her frim. 

43.  Given the above, I do not see how the defendant could say that it was due to Ms Wong’s workload which had caused the delay.

44.  The plaintiff had filed the notice of sanctioned offer at the same time when the writ of summons was served which indicated that he had the real intention to settle the case at the same time. The filing of the defendant’s notice of sanctioned payment on 25 January 2016 further indicated that the defendant was willing to offer to settle the case without the SoC issued.  In civil litigation, it is not unusual for the parties to engage in several rounds of sanctioned offers and/or payments negotiations before the parties are able to reach a final settlement. This happen in most of the unlawful detention damages claims.  In the present case, the plaintiff further filed his mediation certificate on 5 February 2016.  In fact, as Ms Wong has pointed out, mediation, sanctioned offers, and without prejudice negotiations are all proper “tools” employed by the plaintiff to bring the proceedings to a final conclusion.  These are all the means employed by the plaintiff which was met with a “stone wall” on the part of the defendant. Since “facilitating settlement” is one of the underlying objectives of the CJR, I cannot see why by continuing to pursue those steps, the plaintiff can be accused of having demonstrated no intention to bring the matter to a final conclusion.

45.  I also accept the following explanations as stated in Ms Wong’s affirmations.  The plaintiff is a layman with low education.  He cannot quite understand the court procedures. The repeated instructions from the plaintiff to settle the case quickly demonstrates that it was the plaintiff’s wishes to bring the proceedings to an early rather than late conclusion. In my view, it was proper for the plaintiff’s assigned solicitor to advise him that most of these cases could be settled by way of without prejudice negotiations and/or mediation.  This in fact happened in most if not all of such claims.  At one time, the plaintiff also worried about the progress of his dependent visa and urged his solicitors to settle the case as he thought that this might affect his chance of obtaining a dependent visa.  To me, this is perfectly understandable from an asylum seeker’s point of view.  However, it does not, in my opinion, demonstrate that he had no intention to bring the case to an early end.  I note that, after the plaintiff was married on 30 June 2017, 6 further notice of sanctioned offers were issued.

46.  To the contrary, it seems to me that it was the defendant who did not want the proceedings to come to an end by taking a “letting sleeping dogs lie” attitude.  As we all know, such practice is no longer acceptable in the post-CJR regime. In this case, the defendant had literally done nothing after they filed the notice of sanctioned payment in the hope that the plaintiff would accept it.  They had not even bothered to reply to any of the plaintiff’s without prejudice letters. Under the CJR, the defendant could have taken out a case management summons at any time after the defendant has given notice of intention to defend in accordance with O25 r1(8) of the RDC. The defendant has failed to do so. The defendant could also have made an application under O19 r1 of the SoC to dismiss the action 14 days after the writ was served on them. Again, he has failed to do that.

47.  I agree with the plaintiff that the defendant, who has been represented by the DoJ in all the other cases, should be expected to understand the expectations of the court in the post-CJR era and not to take the “let sleeping dogs lie” approach.  In striking out cases, conduct of both parties needed to be taken into account.  In my view, the evidence in this case does not show that the plaintiff has abandoned the claim at all. Instead, I find it was the defendant who had let the case to go to sleep.   

(c) Did the defendant suffer any prejudice?

48.  The issue of “prejudice” was also discussed in the Court of Appeal case of China Nonferrous Metals and Hong Kong Broadband Network supra, CA adopted the approach in Wing Fai that, in order to invoke the striking out jurisdiction based on abuse of process, the defendants are required to establish not merely inordinate or inexcusable delay but also a substantial risk that a trial would not be possible or there would be prejudice to the defendants. 

49.  The defendant complained that the delay in serving the SoC would cause prejudice in the sense that the defendant’s witness memories would be affected due to the long lapse of time. The defendant alleges that the memory of one of this principal witnesses, namely, Mr Wong Yiu-fai Alex (“Wong”), the Principal Officer of CSD, who was posted at the CIC as a Divisional Officer at the material time in 2006, might be affected.  The defendant indicated that Wong is a suitable witness. However, it did not say Wong is the only witness available who could testify on the matter.  Clearly, Wong would have no independent recollection of this case and thus not able to rely on his memory but would have to base his evidence on the records kept by the CSD and ID instead.  The list of documents filed by the plaintiff on 1 February 2018 reveals that all the documents and records are in the hands of the defendant. Further, in my judgment, there is no good reason why the defendant should refrain from taking statements from his witnesses after the action started, especially when they were informed that the writ of summons was issued on 9 July 2012 or at least on 29 December 2015when the acknowledgment of service was filed.

50.  In Ghulam Rbani in DCCJ 531/2010, an officer Mr Ng from CSD gave a witness statement and testified for the detention conditions and treatments of detainees at the CIC.  There was another CSD officer Mr Chan who gave a witness statement and testified in Abid Saeed.  Further, there are many outstanding damages claims being dealt with by the defendant where officers would likely be giving evidence based on the records kept by ID or CSD instead of relying on their memories.  There is nothing to suggest why the defendant could not use the same witnesses and/or similar witness statements as they had done in Ghulam Rbani and Abid Saeed and/or other outstanding cases.

51.  Based on the above, in my judgment, there is no substantial risk to the defendant that, due to the plaintiff’s delay, will not be able to have a fair trial of the issues in the action. Thus, I find no real prejudice will be caused to the defendant due to the delay of the plaintiff in serving the SoC.

(d) Contumelious/Intentional Default and Ulterior Purpose

52.  Contumelious conduct and intentional default are serious allegations and should not be made lightly.  In this case, there was no breach or disobedience of any court order by the plaintiff. 

53.  “Abuse of the process of the court is the foundation for the exercise of the jurisdiction to strike out for delay”. In DSG International Sourcing Limited v Waon Development Limited, HCMP 8/2012, unreported (27 March 2012), the international and contumelious conduct limb was discussed but the court found that the plaintiff’s failure to comply with the order of the registrar to exchange witness statements and to set down for trial was not intentional and contumelious. 

54.  The conduct of the defendant is relevant when the Court considering the issue of “prejudice”. As can be seen from the history of the proceedings, the defendant has not themselves shown much enthusiasm in revealing the true nature of their defence nor to progress the proceedings to an effective resolution of the dispute with the plaintiff.

55.  In the circumstances, I do not find any intentional and contumelious conduct on the part of the plaintiff or his solicitor in this case.  On the contrary, I find the “let sleeping dogs lie” attitude of the defendant in this case leave a lot of room to be desired for.  In my view, the defendant could certainly have done more than just waiting for the plaintiff to fall into the “trap” of serving the SoC out of time.    

CONCLUSION

56.  In conclusion, I find that there were good and plausible reasons to explain the delay in serving the SoC in this case.  Further, the defendant will suffer no real prejudice if the court grant an extension of time to the plaintiff to serve the SoC.  On the contrary, it would cause grave injustice and to deny the plaintiff’s right to claim damages against the defendant for good if his action is to be struck out. I do not consider that will be a fair or just thing to do.

57.  In the circumstances, I would allow the plaintiff an extension to file and serve the SoC out of time in the terms of §1 of P’s Summons, with costs in the cause of the action, such costs to be taxed if not agreed.  I would dismiss D’s Summons for striking out the plaintiff’s action, with costs of that summons to the plaintiff, such costs to be taxed if not agreed. The plaintiff’s own costs in both summonses to be taxed in accordance with the legal aid regulations.