XCHRX HONG KONG CHILDREN ASSOCIATION v. CHAN MEI KEE AND ANOTHER

HCA 9588/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 9588 OF 2000

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J U D G M E N T

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1. This is the hearing for arguments on the costs of the Plaintiff's summons dated 21 November 2000 asking for interlocutory judgment in default of defence. The history of the proceedings are as follows.

2. On 21 October 2000 the writ herein was issued. The Plaintiff alleges that the Defendants defamed it. There was also an application for interlocutory injunction but this is irrelevant to the present dispute save as set out below.

3. A Notice to Act was filed by the Defendants' solicitors on 31 October 2000. According to the affidavit of Fung Shu Wah dated 1 November 2000, the writ herein was served on the Defendants on 21 October 2000. In any event, there was a hearing on 3 November 2000 before the Judge in chambers regarding the continuation of the ex parte injunction order where the Defendants were represented by counsel. There was no complaint at that hearing that the writ was not served. In fact, it is clear from the 2 affirmations of the Defendants both dated 1 November 2000 (see para.3 thereof) that they were aware of the Statement of Claim. Complaint about non-service was not made by the Defendants at today's hearing either.

4. In these circumstances, the time for giving an acknowledgement of service expired on 4 November 2000. The Plaintiff considered that this action falls within O.13 r 6 (see para.5 of the affidavit of Fung Shu Wah dated 25 November 2000). Despite the Defendants' letter dated 16 November 2000 indicating that they would take out an application for striking out the Statement of Claim within 3 days, such application was not served on the Plaintiff until 12:12 p.m. on 21 November 2000. By this time, the Plaintiff has already taken out the present application for default judgment (under the aforesaid rule) and this was served at 12:28 p.m. on 21 November 2000.

5. In these circumstances, there is apparently no reason why the Defendants should not pay the costs of the application for default judgment up to 12:28 p.m. on 21 November 2000. I was informed today that the costs of preparing the Plaintiff's summons and serving it amounted to HK$1,000.00. The Defendants do not dispute the quantum of costs.

6. The Defendants' argument as to why the Plaintiff should not be entitled to this sum is in essence this - the Plaintiff knew from the letter of 16 November 2000 of the Defendants' intention to take out their application to strike out and it was premature for the Plaintiff to take out the present application without searching the court file. Had this been done, the Plaintiff would have found out that the Defendants have in fact taken out their application on 20 November 2000.

7. I do not accept this argument. Once a litigant fails to act in accordance with the timetable laid down by the rules or prescribed by a court order, there is generally no duty on the part of the other side to give indulgence to the litigant in default. The "innocent" party is generally entitled to act in a manner permitted by law. This case is no exception. The Plaintiff was on 21 November 2000 entitled to take out the present application. I therefore order that the Defendants are to pay to the Plaintiff HK$1,000.00 being the costs for preparing and serving the Plaintiff's summons.

[Submissions are made on the costs of the hearing.]