CHOY PUI LAM v. CHAN WAI MAN

HCMP 313/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 313 OF 2015

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D E C I S I O N

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1.  The proceedings are not a nullity under O 15 r 6(1). I order under O 15 r 6(2)(a) that Chan Wai Man do cease to be the defendant in these proceedings.

2.  I further order under O 15 r 6A(1) that the personal representative of Chan Yim Mei, deceased, be the defendant in these proceedings.

3.  The plaintiff’s summons filed on 19 May 2015 under O 15 rs 6, 6A and 15, and O 20 r 5 be adjourned sine die with liberty to restore.

4.  Madam Chan Wai Man should have informed the plaintiff at the latest by 28 April 2015 that the plaintiff had sued the wrong party and should have sued the estate of the deceased.  She did not do that. She only made her point three days ago in counsel’s written opening.  She thus laid an ambush for the plaintiff. 

5.  If the ambush should have benefited herself, then her conduct might not deserve any criticism.  But her conduct did not. Her conduct was not conducive to the resolution of the dispute, which will have to be resolved on another occasion. 

6.  Her conduct has also resulted in waste of judicial resources and delayed the resolution of the dispute. 

7.  Such conduct is contrary to the spirit of the CJR and not to be encouraged. 

8.  If she should have informed the plaintiff of his error, she would have been dropped as the defendant and be given all costs of the proceedings, whether by consent or by order of court.  She did not do so. 

9.  As I have said, such conduct is not to be encouraged. 

10.  I therefore make no order as to costs as between the plaintiff and her.  I know that it is a harsh order, but I think a clear message must be sent.