LEE PUI KUEN v. ASIA TELEVISION LTD.

CACV 135/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 135 OF 2000

(ON APPEAL FROM HCA 7775/1992)

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J U D G M E N T

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Hon Mayo VP:

1. This is an interlocutory appeal against the decision of Deputy Judge Woolley who dismissed the defendant's application to strike out the action for want of prosecution.

2. The action started its life as a claim in the Labour Tribunal in 1992. Later in the year an order was made for the claim to be transferred to the High Court and proceeded with by way of statement of claim.

3. It is not necessary to consider in any detail the delays which have occurred as the Judge in his judgment accepted that there had been inordinate delay which had not been excused. It is however perhaps pertinent to add that the delay amounted in totality to more than 4 years. It is also apparent from the chronology which has been provided that the action would now be statute barred.

4. The reasons for the lack of success on the application were that the Judge did not consider that the defendant had demonstrated sufficient prejudice and the Judge also was of the view that the defendant was itself to an extent culpable.

5. The plaintiff's action is based upon a contract of employment linked with a consultancy agreement. It is his contention that it was wrongfully terminated. The Judge accepted that the oral testimony of the parties and their witnesses would form a vital part of a trial if the case was permitted to go to trial. In this connection it should perhaps be added that the plaintiff does place reliance upon an initial oral contract for his employment.

6. It is evident from the Judge's reasons that he did accept that oral testimony and witnesses recollection of what transpired approximately 10 years ago would be a vital factor in this litigation. However it would appear that the Judge also attached considerable weight to the fact that in his view the defendant must accept to a large extent some blame for the situation which had arisen. In this connection he referred to a court order made some 7 years ago which ordered an exchange of witness statements. Neither party complied with this order. One of the questions which had to be considered was whether by this default on the part of the defendant it had itself contributed to the prejudice it claimed to be suffering as a consequence of the plaintiff's delay.

7. Mr Sussex SC for the defendant submitted that there was no duty imposed upon a defendant to press forward with litigation. In support of this proposition he cited a passage at p. 258 from the judgment of Lord Diplock LJ in Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229:

"It is thus inherent in an adversary system which relies exclusively upon the parties to an action to take whatever procedural steps appear to them to be expedient to advance their own case, that the defendant, instead of spurring the plaintiff to proceed to trial, can with propriety wait until he can successfully apply to the court to dismiss the plaintiff's action for want of prosecution on the ground that so long a time has elapsed since the events alleged to constitute the cause of action that there is a substantial risk that a fair trial of the issues will not be possible."

8. While this is undoubtedly a correct statement of the law it is necessary to consider it in relation to the facts of this case. It cannot be right that a party can profit from its non-compliance with a court order. In my view when considering the overall situation it is necessary to have regard to the situation as it should have been had the court order been complied with and the witness statements had been obtained.

9. What also needs to be borne in mind is that this court order was made 7 years ago and there have been extensive amendments to the pleadings since then.

10. It is evident from the judgment that the Judge also attached weight to the recent decision of the Court of Appeal in Nathaniel Hymer v The Mass Transit Railway Corporation and others unreported being CACV 304/1999. With respect to the Judge it has to be said that the facts of that case were entirely different to the situation which prevails in the instant case and very little assistance could have been derived from it.

11. As has already been indicated the Judge has stated in his judgment that there has been inordinate delay which has not been excused and that oral testimony will be of vital importance at the trial. Can it justifiably be said in such circumstances that the mere fact that the defendant failed to comply with a court order made 7 years ago to exchange witness statements they should be denied the relief they are seeking?

12. It is appreciated that the Judge was exercising a judicial discretion reposed in him and that we should only interfere with the exercise of this discretion if it can be demonstrated that the Judge was plainly wrong.

13. In the light of the Judge's findings in the earlier part of his judgment and having regard to the amount of time which has now elapsed since this cause of action arose and the fact that a very substantial part of this case will be determined by oral testimony I am satisfied that this is an appeal where we would be justified in interfering with the exercise of the Judge's discretion. In my view the plaintiff's claim should be struck out. There was also a counterclaim. Mr Sussex agreed that if such an order was made the counterclaim should also be struck out. So far as costs are concerned I think that an order nisi should be made that the plaintiff should bear 50% of all of the defendant's costs.

Hon Rogers JA:

14. I agree that this Appeal should be allowed and that there should be an Order as proposed by Mayo VP.

15. I only wish to confirm what has already been said in respect of the prejudice caused by the delay. The Judge found that the delay was inordinate and inexcusable. He went on to hold that this would affect the possibility of there being a fair trial. In that clearly what the Judge had done was to consider the facts of the case and then apply common sense to the question of the difficulty of witnesses' memories and recollections. There are at least 2 aspects to the question of memory. The first is the question of the particular party being able to marshal its own evidence and the second is the ability of witnesses to deal with matters that will arise at trial in dealing with the other side's case and the cross-examination.

16. The argument was put to us by the appellant on the basis that a defendant is entitled to sit back and do nothing. It was said that if as a result there cannot be a fair trial because of the lapse of time then the defendant is entitled to rely on that as prejudice. Whilst the cases do indicate that it is not the defendant's position to push a case to trial, I wish to endorse what Mayo VP has said that it cannot rely as a matter of relevant prejudice on a situation which would not have existed if it had conducted its own case properly and, in the context of this case, that includes complying with the order as to witness statements.

17. The Judge, in my view, rightly took into account the fact that the defendant had not taken natural steps to safeguard its own interests at the commencement and had not complied with the order for witness statements to be prepared. In the context of this case, however, I consider that that contributes to only part of the difficulty. Even if the defendant had prepared its own case I consider that the issues that will arise in the case relating to the detailed running of a television station 10 years ago could not be properly dealt with at such a late stage. It is this aspect which is not dealt with in the judgment below which causes me to consider that this appeal should be allowed.

Hon Mayo VP:

18. The result of this is that the appeal is allowed. The plaintiff's claim and the defendant's counterclaim are struck out and an order nisi is made that the plaintiff should bear 50% of the defendant's costs.