KWAN YUEN MEI v. LAU SUI YUEN

HCPI 569/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 569 OF 2009

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BETWEEN

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J U D G M E N T

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Background

1.  The Plaintiff is the daughter of Madam Shuit Chan Chan, deceased (“the deceased”).  She has issued two separate High Court Actions against different defendants, being HCPI 569/2009 and HCPI 570/2009.  The defendants in these actions are the treating doctor of the deceased just before her death, the nurses and the hospital.  The Plaintiff claims for loss and damages suffered by the deceased as a result of the negligence of, and/or below standard medical treatment provided by the Defendants. 

2.  Mr. Sit of Messrs. P.C. Woo & Co. acts for the Defendant in HCPI 569/2009 and the 2^nd to 5^th Defendants in HCPI 570/2009. (The writ has not been served on the 1^st Defendant of HCPI570/2009 as she cannot be located.)  2 Summonses are issued by Mr. Sit, applying on behalf of the defendants whom he represented, to strike out the Plaintiff’s Amended Statement of Claim filed in the two Actions and to dismiss the Plaintiff’s claim under Order 18 rule 19(a) of the Rules of High Court and/or the inherent jurisdiction of the High Court.  Though the 2 Actions have not been consolidated, they relates to the same issues.  Both applications are heard by me at the same time.

3.  Very briefly, Mr. Sit complains that the Plaintiff’s claim is based on allegation of medical negligence.  The Plaintiff has failed to adduce any medical evidence to substantiate her claim.  Accordingly, her claim has no reasonable chance of chance.  He asks this Court to strike out the Amended Statement of Claim and the Actions.

4.  Initially, it is also the argument of Mr. Sit that the Plaintiff has brought this action in her personal name.  She has no valid capacity to sue. At the hearing, this argument has been abandoned.  Nevertheless, there is procedural problem in the title of the Plaintiff.  I am confirmed by the Plaintiff that she brought this action on behalf of the deceased.  If I allow this action to continue, the matter has to be addressed and I shall come back to the point if necessary. 

The Pleaded case

5.  To consider the argument of Mr. Sit, I have to start with the Amended Statement of Claim filed by the Plaintiff on 3 December 2009.  As the Statement of Claim filed in both actions are similar, I would refer to the Amended Statement of Claim filed in HCPI 569/2010 for the factual background of the claim.

6.  It is not disputed that the deceased suffered from a kidney tumor over 2 years before her death.  And at the late stage, the deceased had been admitted 3 times in the Palliative Care Centre of Our Lady of Maryknoll Hospital (“the Hospital”) for palliative treatment.  According the Amended Statement of Claim, the deceased was first admitted into the Hospital on 7 July 2006 and the attending medical doctor was Dr. Sui Yuen Lau, the defendant in HCPI 569/2009 (hereinafter called “Dr. Lau”).  The deceased was discharged from hospital on 17 July 2006 without medical supply of Isosobride, Dexamethasone and Tramexamic Acid. 

7.  It is the case of the Plaintiff that Isosobride had already been prescribed since the early 90s by a heart specialist for the deceased’s heart disease for more than 15 years.  Dexamethasone has been prescribed for her kidney tumor since 2004 when the deceased was diagnosed with a kidney tumor with minor leaking that caused occasional trace of blood in urine.  It is one of the complaints by the Plaintiff that Dr. Lau should not deprive the deceased of the said 3 medicines.

8.  It is also the case of the Plaintiff that Dr. Lau and/or the Hospital have given overdose of 3 kind of laxative, namely Lactulose, Senna and Famotidine. The change in medicines caused or disturbed, or increased the risk of death or the deceased.  The change of drugs caused the deceased to have symptoms of choking, chest pain, and invasive TCC. 

9.  The deceased was admitted the third time to the hospital on 29 August 2006.  Morphine had been prescribed by Dr. Lau and other doctors for the deceased since 2005 to release her pain.  On 31 August 2006, the prescription of Morphine has been cancelled by Dr. Lau.  The Plaintiff complained that this create additional pain and suffering to the deceased.

10.  It is the case of the Plaintiff that from 31 August 2006 to 9 September 2006 when the deceased passed away, only tramadol and panadol were prescribed to ease the pain of the deceased.  And such medicine/drugs were not prescribed at night from 9 pm to 9 am the following morning.  As a result, the deceased had great pain.  She lost the energy to speak, to open her eyes, or to express her torment.

11.  During this period, the deceased was prescribed puree diet and the defendant nurse fed her.  The Plaintiff complained that the deceased did not have the ability to swallow the food.  The arrangement leads to starving and dehydration.

12.  On 6 September 2006, urine was collected from the deceased for testing. The Plaintiff complained that the test was done without the consent of the deceased and/or her family members.  After the test, the deceased start moaning.  Later, she went into a coma.  The Plaintiff complained that the medical staff of the Palliative Care Centre of the hospital just stood watching without taking any action of rescue.  The Plaintiff is of the view that collecting the sample urine from the deceased is a fatal attack on the deceased.

13.  On 9 September 2006, the deceased passed away.  Before her death, she was forced to sit up in her bed that caused her suffocation.  Dr. Sui Wah Young prescribed anti-biotic injection for the deceased but one of the defendant nurses, Madam See Ching Lee (the 1^st Defendant in HCPI 570/2010) had not carried out the order.  On the other hand, she continued with the IV fluid injection. The Plaintiff claimed that the injection was excessive, causing the deceased to have a big and deadly swelling balloon-like object on her right arm. 

14.  The Plaintiff also complained against the nurse Sui Yee Cheng (the 4^th Defendant in HCPI 570/2010).  She was to bring medicine to the deceased when she was at home.  The Plaintiff complains that she has failed to notify her that Dr. Lau has removed Isosobride, Dexamethasone and Tramexamic Acid from the prescription for the deceased.

15.  It is obvious from the pleaded case of the Plaintiff that she is claiming medical negligence on the part of Dr. Lau, the defendant nurses, and the Hospital by depriving the deceased with the necessary medication, by depriving the deceased of pain release medicine, over-dosage of laxatives, depriving the deceased of food oxygen and drinking water, and claim that when they used catheter to collect urine sample, it destroy/damage the deceased’s kidney.  There is also allegation against the 1^st Defendant for forcing the deceased to sit up causing suffocation and leading to coma condition.

16.  The Defendants represented by Mr. Sit denies the claim. 

The law

17.  For medical negligence case, it is a well established legal principle that a medical practitioner, including a doctor or a nurse are not to be held to be negligent if he acted in accordance with a practice accepted as proper by responsible body or practitioners skilled in the relevant field.  This is the famous Bolam’s case (Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582), and is approved to be the correct principle in many leading authority including the Court of Appeal decision I refer hereinafter.  And in order to substantiate the Plaintiff’s claim, there must be expert medical evidence, and in this case, for the practice of the nurse, expert who are familiar with the training and skill of a nurse.  The expert evidence must comment on whether the practice of the doctor or the nurse is not acceptable by any medical body.

18.  It is also provided by Order 18 rule 12(1A) of the Rules of the High Court that the Plaintiff shall serve with her Statement of Claim a medical report.  And the medical report is further defined under Order 18 rule 12(1C) as “a report substantiating all the personal injuries alleged in the statement of claim which the plaintiff proposes to adduce in evidence as part of his case at the trial”.  Where the claim is for personal injuries as a result of medical negligence, Practice Direction 18.1 also provides that the Plaintiff should serve together with the Writ and the Statement of Claim, if they are available and insofar as this is practicable a copy of any expert medical report relied upon as to liability and causation.

19.  The Practice Direction in respect of medical negligent cases has been considered by the Court of Appeal in Elijah Saatori v. Raffles Medical Group CACV 184 of 2009.  In the judgment given by Madam Justice Yuen JA, Her Ladyship said: -

“In other words, for a personal injuries claim based on medical negligence, the plaintiff must serve with his Statement of Claim

- At least one medical report describing his recent condition, and

- If available and insofar as practicable, an expert medical report (which may be the same report) which relied on as to liability and causation.”

20.  In the Saatori’s case, the plaintiff complained that after treatment by the defendants, he suffered from tinnitus.  In further discussion of the medical report on causation and liability, Madam Justice Yuen said the issue in the case include: -

“- whether the Plaintiff’s tinnitus was caused by the ear washing procedure, [causation] and

- whether the Defendant was liable for negligence i.e. whether it had fallen below the standard of care and skill that should be provided by the ordinarily competent professional (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582). [liability]”

21.  Applying the same consideration, the issue in the present proceeding must include whether the deceased’s death, and/or additional pain suffering as claimed, was caused by the various act complaint against the defendants including Dr. Lau and the nurses and whether the Defendants or any one of them was liable for negligence in accordance with the standard of consideration set out in the Bolam’s case.  There have to be medical expert report or reports covering both the issues of causation and liability.

22.  If a plaintiff failed to produce any medical evidence in a claim for medical negligence, he cannot substantiate the claim and there is no real prospect of success.  And it is unfair to the Defendant as they would not in a position to know the medical evidence they have to meet.  Mr. Sit has referred to a number of authorities and submits that when the Plaintiff’s case is hopeless, this Court may dismiss the action.  I do not repeat his argument in the written submission but I agree I have the jurisdiction.

23.  Accordingly, when the Plaintiff fails to produce any medical evidence in breach of the Rules and the Practice Directions, and when reasonable chance has been given to the Plaintiff to rectify the position, this Court could and should strike out the statement of claim.  In other cases, when medical report or evidence has been adduced, the consideration would be whether they are related to the issue of causation and/or liability.  And at this stage, on an application for striking out, the question before this Court is simply whether there is medical expert report or evidence to supporting the Plaintiff’s case that no reasonably competent medical establishment would have provided the medicines and medical treatment to the deceased as complained.  If there is such evidence, whether the Defendants are negligent would be a matter for determination by the trial judge.

24.  When these summonses are taken out in February 2010, the Plaintiff has not filed any medical evidence in support.  Accordingly, Mr. Sit submitted that there is no reasonable cause of action or in the alternative, the Plaintiff fails to show any evidence to support her case of medical negligence against any of the defendants.  The summonses have been adjourned when the Plaintiff applies for Legal Aid.

25.  By an order of Master K. Lo on 15 February 2011, the summonses are adjourned for the Plaintiff to obtain further medical evidence.  By the affirmation of the Plaintiff dated 29 March 2011, she produces an expert report by Professor Vivian Wing Yan Lee dated 11 March 2011. 

26.  The Plaintiff had also put in an affirmation dated 26 April 2011 giving her written submission in English.  She complained that the doctor of the United Christian Hospital (who is not the defendant in these proceedings) did not present to the Plaintiff other avenue of treatment for the deceased such as minimally invasive surgery.  She repeats the allegation that the cause of the death of the deceased is not cancer of the right kidney but the improper use and/or withholding of medication.  

27.  The Plaintiff exhibits again the said report of Professor Lee and exhibits a table prepared by her.  It is quite obvious that in preparing this table, she attempts to interpret the use of the medicine and set out her own conclusion.  This table would be expert opinion.  As the Plaintiff is not an expert in medicine, Mr. Sit submits that her opinion as set out in the table should not be admitted, which I agree.

28.  Pausing here, Professor Lee is an associate professor of the School of Pharmacy, Faculty of Medicine of the Chinese University of Hong Kong.  I only need to note that Professor Lee only record in her report the purpose and side effect of each medicine.  I shall come back to her report later.

29.  On 5 May 2011, the summonses came before Master A. Chow for hearing, when the Plaintiff applies again for Legal Aid.  The summonses have been adjourned to the hearing before me.  And on 13 June 2011, the Plaintiff filed a further affirmation exhibiting a medical report of Dr. Wan Kai Yiu (溫啟耀), prepared in Chinese.  The Plaintiff also exhibits a further written submission for my consideration.

30.  It is the submission of Mr. Sit that Dr. Wan’s report is also inadmissible. It has not contained the declaration to verify that he has read the code of conduct and agrees be bound by it as required by Order 38 rule 37(c) Rules of High Court.  It has not been verified by a Statement of Truth.  Further, Dr. Wan has not provided his resume setting out his background, practice and experience.  In response, the Plaintiff has provided the qualification of Dr. Wan that she has downloaded the information from the web-site of the Medical Counsel.

31.  I agree that Dr. Wan has failed to comply with, in particular the requirement of Order 38.  For the determination of these summonses, I am prepared to assume that the irregularity could be rectified.  I believe this is not in dispute that Dr. Wan is medically qualified, but there is no suggestion that he is specialized in any area of medicine.  I assume for this application that he is in general practice.  There is no evidence before me to suggest Dr. Wan is expressing his opinion as an expert in any particular area of medicine. With that as background, I would examine the report of Dr. Wan, and the report of Professor Lee to see if they disclose any relevant medical evidence to support the Plaintiff’s claim of medical negligence, on both the issue of causation and liability, and should be placed before the trial judge for his final adjudication.

Discussion and Ruling

32.  With the above analysis, and borrowing the comments by Mr. Sit in his written submission dated 9 February 2011, the Plaintiff complaints against the Defendants could be summarized as follows –

a.  Wrongful deprivation of the 3 medicine used to be prescribed to the deceased;

b.  Over-dosage or wrong dosage of laxatives;

c.  Deprivation of pain relief medication;

d.  Wrong decision to provide food and medicine to the decease by feeding when she could not swallow, resulting in hungry and dehydration;

e.  Carry out urine test without the consent of the deceased and/or her family members.  Further, when using catheter to collect urine from the deceased, the Defendants damaged the kidney of the deceased;

f.  The 1^st Defendant wrongfully forced the deceased to sit up whilst in a coma causing suffocation and failing to follow the doctor’s prescription to provide antibiotic to the deceased.

33.  Except for item e, all the other complaints could be classified as medical negligence claim.  Looking at the Plaintiff’s case at large, 2 sets of medical evidence appears to be of importance.  First, it is the Plaintiff complaint that Dr. Lau should not stop the prescription of certain medicine.  They have to be medical evidence that these medicines are necessary for the deceased.  The fact that they have been prescribed by other doctor (as claimed by the Plaintiff) on itself is not sufficient to show that the medicine is required for the well being of the deceased.  To prove her case, the Plaintiff has to have expert evidence that the medicines are required for the well being of the deceased, and whether the withdrawal is proper in the medical condition of the deceased, and further, whether the withdrawal caused death or injury to the deceased.  All these have to be assessed in line with the principle set out in the Bolam’s case, by medical experts. 

34.  And the Plaintiff has to obtain medical evidence to show that Dr. Lau has prescribed the wrong medicine for the deceased, and/or that the medicine the death and/or injury to the deceased.  Equally, for removing of the pain relief medication, there has to be medical evidence on their need, and the effect on the deceased when withdrawn. 

35.  And secondly, on the conduct of the nurse, again there has to be expert evidence on what is the proper procedure of carrying out the operation such as feeding or carrying out testing.  And the expert should comment on whether the act of the nurses is below the standard of a properly trained nurse and how it has affected or injured the deceased.  These evidence has to be prepared in line with the principle of the Bolam’s case.

36.  There has been complaint that there is falsifying of diagnosis/symptom on the admission record and the medical report of the Hospital.  This is only relevant, if proved, to assess if the treatment provided by the Defendants are appropriate. 

37.  With these analyses, I proceed to consider the reports of Professor Lee and Dr. Wan.  I would first deal with the report by Professor Lee.  According to her report, her responsibility is to provide “an expert opinion regarding the indication and possible side effects of the drugs that [the Plaintiff’s] mother Chan Shuit Chan was taking during her hospital stay.”  She listed out 19 medicine/drugs.  And for each of the medicines, she has stated the indication and possible side effects.  She also suggests precaution.  But she has not related the medicine prescribed for the deceased or withdrawal from her to the condition of the deceased. 

38.  To support the Plaintiff’s case, the medical report must be relevant on the issues of causation and liability as analysis above.  Unfortunately, the report of Professor Lee is nothing more than academic record of various effects and side effect of the medicine. But Professor Lee has not commented on whether the prescription of the medication, or withdrawal of the medication from the deceased is proper or not, and what is the effect on the deceased.  The Plaintiff could not rely on the opinion of Dr. Lee and attempt to relate the effect to the condition of the deceased, which is an expert opinion.  The Plaintiff is not an expert and is not allowed to give opinion.  And the Plaintiff cannot ask this Court to speculate what would be the effect of the medicine on the deceased.  The report itself is not helpful to the Plaintiff’s case.

39.  I believe the Plaintiff relies heavily on the report of Dr. Wan.  On the face of it, Dr. Wan had commented on the prescription of medicine and the removal of certain medicine for the deceased. 

40.  It is trite law that it is for the trial judge to determine if the Defendants has been negligent.  The trial judge is not bound by any conclusion of the expert.  Accordingly, if the expert opinion consists of a conclusion only, it would not be helpful to the trial judge.  The expert must, when he comes to his conclusion, make reference to his experience, academic study and research, and his reasoning for coming to a particular conclusion.  It is only under this process, and with such information provided, the trial judge would be able to decide whether the expert opinion is correct and should be adopted. And for medical expert evidence, the expert must have regard to the Bolam’s case in making his comments.

41.  In Dr. Wan’s report, he has made reference to document that he was provided by the Plaintiff.  He has not set out a list of the document being provided and I could not tell what documents he has read before he reached his conclusion.

42.  If I refer to his first comment: -

“按原告指控的事實及參閱原告提供的文件紀錄，減藥及切斷藥物需不會導致對病人有立即死亡之險，但確實對病人不利。根據血液化驗報告三個月內之顯示比較，血色素下降，乃營養不足；若加上大發冷汗、缺水、缺氧下，會造成抗病能力減低、身體機能衰竭。”

43.  I was puzzled by the comment of Dr. Wan when he said reduction of medicine and withdrawal of medicine is “對病人不利”.  It is uncertain what the effect on the deceased is.  His conclusion is based on the observation by the Plaintiff, and on this occasion, a reference to the result of brine test.  But his conclusion has no reference to the academic basis for his finding, nor set out any analysis. 

44.  And further, Dr. Wan has not opined whether the prescription (or non-prescription of medicine) as alleged by the Plaintiff is an act that would not be approved by any medical profession for the deceased.  This is the core issue. If the Plaintiff could not show that the Defendants or any one of them has been negligent in accordance with standard set down by the Bolam’s case, there is no reasonable chance of success to establish medical negligence.

45.  I have read the whole report and I note that Dr. Wan has not commented if any act or treatment provided by any doctor or nurse is wrong or negligent in that it is not acceptable to any known medical profession body.  The report could not assist the trial judge to determine the issue on medical negligence.

46.  I do not intend to go through all the various comments by Dr. Wan.  I only refer to a few more comments to show Dr. Wan is not aware of his duty as an expert and/or the Bolam’s case.  The second comment is in respect of the new medicine prescribed by the Defendants, in particular laxatives.  Dr. Wan commented that without the normal diet, there is no necessity to provide the laxatives (多項瀉藥).  There is no explanation of the academic basis for coming to his conclusion.  He suggests that it would create weakness and fading (休克) to appear.  And he suddenly commented that “在死亡前，若果進行適當的藥物搶救，可能會避免死亡的情況出現”.  I do not understand how he comes to such an averment.

47.  The third comment made by Dr. Wan is in relation to removing the prescription of Isosobride and Morphine for the deceased.  Dr. Wan repeats the complaint of the Plaintiff and concludes that stopping the Isosobride would result in the complained condition, again without giving the reason and academic basis or research for his conclusion.

48.  Looking at the report as a whole, I conclude that this is not a report prepared in line with the principle set out in the Bolam’s case to comment on whether the Defendants have acted in a way that is below the standard of an ordinary competent medical practitioner or nurse as the case may be.  Dr. Wan has at best expressed his opinion without reference to any specific act of any one of the Defendants that he found would not be approved by any competent medical professional body, and has not given proper reason. There is no analysis that could allow the trial judge to determine if the conclusion he reached is reliable.

49.  I remind myself at this stage I am not considering the weight of the medical evidence.  But if the medical evidence was so unsatisfactory that the expert has failed to take into account the duty of an expert, and particularly if it is not prepared in line with the necessary test as set out in the Bolam’s case, the Plaintiff has virtually present no medical evidence in support. Looking at the two reports now before me, given that I found they are not prepared in line with the principle of the Bolam’s case, they are no helpful to show whether the Defendants have been medically negligent, and the Plaintiff's case on medical negligence has no reasonable prospect of success. 

50.  In some cases, when there is no medical or expert evidence on the medicine issue, the Court may consider allowing the Plaintiff a second chance to obtain the relevant evidence.  In this case, the summonses have been adjourned on more than one occasion for the Plaintiff to have Legal Aid, and to present medical report.  Master K. Lo has specifically offered the Plaintiff to have a last chance to obtain medical evidence.  The Plaintiff has been given full opportunity to present this court with medical evidence which she failed. The claim based on medical negligence should be dismissed.

51.  That deal with the claims on medical negligence.  But there are at least 2 complaints which may not be solely medical negligence claim.  It is a claim or complaint against Cheng Sui Yee (the 3^rd Defendant in HCPI 570/2009) that she has failed to inform the family members that the 3 medicine for heart disease has been removed.  But the Plaintiff has not provided particular in the Amended Statement of Claim on the reason that give rise to this duty. There is no evidence that this is the duty of the nurse and is not commented by any of the experts.  And I do not see the relationship of this complaint to the loss and damage now claimed by the Plaintiff.  This claim has no real prospect of success.

52.  Further, the Plaintiff complains that the Hospital or some of the Defendants had carried out the urine test without the consent of the deceased or her family member.  It might be argued that this head of claim is not a medical negligent claim, but simple tort, such as battery, or trespass to person.  The Plaintiff claims that the deceased is injured by the catheter, the equipment used to collect the urine. 

53.  If the complaint is limited to the carrying out of the test without the consent of the family member, there is room to argue that the Plaintiff is entitled to maintain the claim, subject to proof.  The problem with the Plaintiff’s pleading in this aspect is the lack of particulars and medical evidence.  The Plaintiff claims that the use of catheter or other equipment caused bleeding from the deceased kidney during the procedure, resulting in injury to the deceased.  The Plaintiff would have to adduce medical evidence on the injury and the damage to the deceased.   Further, insufficient particulars as to how the urine test has been carried out had been given by the Plaintiff in the Amended Statement of Claim.  The Amended Statement of Claim has to be amended if the Plaintiff wish to maintain the claim.

54.  On the claim based on carrying out urine test without the consent of the family members or the deceased, I am not prepared to have it strike out at this stage.  I am prepared to allow the Plaintiff the chance to suggest re-amendment to the Statement of Claim, to state with sufficient particulars as to the Defendants that she claims to have carried out the urine test without consent, the negligent act, and the injuries allegedly caused to the deceased.  Further, medical evidence in support of the injuries and damage to the deceased has to be adduced in due course or the damages recoverable would be limited.

55.  In the medical report of Dr. Wan, the Plaintiff has asked Dr. Wan to comment on the failure to offer alternative treatment for the deceased.  But the complaint is against the United Christian Hospital which is not a defendant in these actions. 

56.  In conclusion, I found that the Amended Statement of Claim of the Plaintiff in both Actions should be struck off.  I do strike off the Plaintiff’s claims on medical negligence against all the Defendants. 

57.  I allow a last chance, as set out above for the Plaintiff to clarify and supplement her claim on the urine test being carried out without consent.   The Plaintiff should lodge and serve a draft revised Statement of Claim within 28 days from today, failing which the 2 Actions should be struck off. The draft is limited to the claim for the carry out of the urine test without consent and not on other issues that I have dismissed above.   On being served with the draft, the Defendants should restore the summonses before me for a determination if the revised Statement of Claim should be allowed.   I shall give further direction on amendment to the title of the Plaintiff, formal order for filing of the Re-amended Statement of Claim and for leave to the remaining Defendants to amend their Defence.  I shall also consider consolidation of the 2 Actions. 

58.  As a matter of caution, the 1^st Defendant is not a party to these proceedings as the writ has not been served on her.  This order is not to affect the claim by the Plaintiff against the 1^st Defendant.  But as far as the Hospital may be responsible for the act of the 1^st Defendant, based on medical negligence or sub-standard nursing treatment of the 1^st Defendant, Mr. Sit invited me to make a ruling.  It is sufficient for me to found that for the claims against the 1^st Defendant based on medical negligence, the Plaintiff only relies on the medical reports of Professor Lee and Dr. Wan to prove her case against the 1^st Defendant.  The claim against the Hospital to be responsible for liability of the 1^st Defendant on medical negligence should be struck out.  I do not have to repeat my findings above.  

59.  And finally, on question of costs, I believe the Defendants would be asking for the costs of the summonses.  Since the matter has to come back to myself, I have the costs issue reserved for argument Provided That if the Plaintiff fails to file the draft revised Statement of Claim and the action is struck off as aforesaid, the Defendants in both Actions (other than the 1^st Defendant) should have costs of the Actions to be taxed if not agreed.