LEE HUNG CHIU PHILIP v. BECTON DICKINSON ASIA LTD

HCA2830/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2830 OF 2000

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J U D G M E N T

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1. I have before me a substituted summons accepted today without objection by the plaintiff.  The summons on behalf of the defendant is seeking the dismissal of the proceedings under the inherent jurisdiction of the court for want of prosecution, on the ground that the plaintiff has been guilty of inordinate and inexcusable delay in proceeding with the action to the prejudice or likely prejudice of the defendant.

2. There is no claim that there has been an abuse of process.  The claim is confined to one of want of prosecution.

3. Mr Carolan has robustly argued this case on behalf of the defendant and helpfully provided the court with a schematic timeline which identifies with clarity (and some artistic skill) the desultory progress made by the plaintiff in this action.

4. The action commenced in the year 2000 and excellent forensic progress had been obtained by the end of that very year because the pleadings were closed, and witness statements had been exchanged.  

5. Thereafter, however, the action got slower and slower and as was acknowledged by the solicitor for the plaintiff in an affirmation filed for today’s summons “it is true that these proceedings had not advanced in an expeditious manner”.  That statement is somewhat of a major understatement.  For about the next four years very little happened indeed, apart from the solicitors for the plaintiff periodically sending to the solicitors for the defendant a notice of intention to proceed.  This occurred on: 8 December 2001, another followed on 10 June 2003 and a third on 24 April 2006.

6. Mr Carolan has astutely observed that a notice of intention to proceed is not itself a step in the proceeding: O3 r6 RHC; Hong Kong and Shanghai Banking Corporation Ltd v. Kwan Tao Sheng [1998] 2 HKLRD 585, 595G (CA) per Mortimer VP.

7. However, interspersed between these 3 non-steps was some correspondence emanating erratically and spasmodically from the solicitors for the plaintiff, seeking principally copies of various documents said to be germane to the claim.  The defendant’s solicitors would reply in a timely fashion and then the proceedings would be marked by long gaps before the plaintiff’s solicitors would essentially re-make the same request or a variation of the earlier one.

8. Nothing or any real substance happened in this action until there was an increase in the momentum of the correspondence in about 2006/2007, after the defendant’s solicitors expressly referred to reserving their client’s rights to apply to dismiss the action.  This must have triggered alarm bells on the plaintiff’s side.  It must have come as a shock to the defendant’s solicitors when, without real warning, the plaintiff’s solicitor sent a letter giving notice of the intention to apply to have a summons dated 2000, seeking directions in this matter, to be re-listed for hearing – 7 years later.

9. The background to this matter is important in understanding whether, what amounts to being very significant periods of inexcusable delay by the plaintiff, is shown to be likely to cause such prejudice as which will interfere with the fairness of any trial.

10. “In law context is everything” as Lord Steyn once said.  In this claim, the plaintiff’s case is that he was unlawfully dismissed by the defendant.  The defendant’s case, in short, is that it was a justifiable dismissal for cause.

11. The plaintiff, as I see it, started this litigation at a sprightly pace only a few months after the cause of action had arisen; but thereafter has proceeded as though both legs were tied together. 

12. The defendant’s skeleton argument identifies a number of asserted aspects of prejudice.  In particular, the defendant placed weight on the fact that four persons who had provided witness statements for the defendant which had been initially exchanged with those of the plaintiff (he being the only witness for himself) were no longer available: being now either uncontactable, out of the jurisdiction or no longer within the employ of the defendant.  This was in my judgment easily the most substantial point in the defendant’s application. 

13. At the commencement of what proved to be in due course a balanced and measured address, Mr Cheng for the plaintiff, applied to have the matter stood down, so as to obtain instructions from the lay client as to the response to be made in relation to the submission based on the witnesses’ unavailability.  After the adjournment, Mr Cheng formally stated that now the plaintiff would accept the admissibility of the contents of the disputed four witness statements at trial, so the defendant no longer carried the potential risk of being unable to call them, a point significantly and understandably relied upon by Mr Carolan in the preparation and presentation of this application.  That concession together with another concession made by Mr Cheng occurred at the commencement of the plaintiff’s reply to the submissions in this case.  

14. I was not surprised that the plaintiff calculated the need to give this concession.  Upon reading this file, my first impression was that some of the correspondence between solicitors contained typographical errors as it appeared that letters from the defendant’s solicitors were being answered two years later.  But in fact these letters did accurately show the very pedestrian pace of the claim advanced by the plaintiff.

15. The plaintiff of course must prosecute the case and I do accept Mr Carolan’s submission that it is well within the rights and opportunity of a defendant to sit and wait.  The defendant cannot be blamed or criticized in any way for seeing how or whether the plaintiff’s case is brought to maturation in the course of litigation. 

16. I am satisfied that there has been substantial inexcusable delay.  Under a modern system of civil jurisprudence, long delays are inimical to the interest of justice.  The evidence is that the plaintiff waited for over four years to secure the service of a particular senior barrister apparently beset with long-term health problems.  It was asserted that this course was justifiable; a position which must be completely rejected.  There is no excusability for the delay.  The proferred excuse is as unmeritorious as can be.  No proper system of law can operate like that.  But the question that is decisive in any of these cases is whether there is causative prejudice.  I have been helpfully given submissions by both counsel as to the proper test in a case like this. 

17. The classic statement of Birkett v. James [1978] AC 297 (HL) is too well known for repetition.  Mr Carolan brought to my attention a judgment of the English Court of Appeal in Shtun v. Zalejska [1996] 1 WLR 1270 which in his submission indicated a more robust approach to dismissals of actions for want of prosecution after the locus classicus established by Birkett v. James in 1978.  Both counsel have taken me to passages in the three judgments in Shtun v. Zalejska.  I note that the judgments were delivered the day after the appeal was argued, and it is not unusual to find (particularly as in a case like that where there are three separate judgments of a substantive nature delivered), that each of the judges embraces slightly different language.  I see this case as authority for the proposition that it is possible in an appropriate case for the court to infer prejudice from overall delay, so that the impairment of witnesses’ recollections is a valid conclusion that may be reached, even where not affirmatively stated by anyone to plainly exist.  Hobhouse LJ at 1288F aptly spoke of the “unreality of a defendant being required to put in evidence an affidavit which explains specifically how an individual witness’s recollections may have been affected”.  Peter Gibson LJ at 1285C stated that a requirement to do so “would be to approve of the classically inept question in cross-examination “When did you first forget?””  A finding that prejudice may be properly inferred, in terms of the impairment of witnesses’ recollection, is well within the ordinary fact-finding function of a court in a case, such as the present.  To that extent, the judgments reflect common sense and no doubt the usual practices of the courts here and elsewhere. 

18. To the extent that Mr Carolan has argued that this case may introduce a subtlety and a possible modification of the test in Birkett v. James, I am not so sure.  It is though a valuable cross-check as to the proper approach to the incidence of prejudice once inexcusable delay has been established.  I note, albeit this can never be a cogent approach, that the editors of the White Book 2007 relegate reference to this judgment to a rather lonely single line at para. 25/L/7, and that may be where it is appropriately placed.  I take the view that the proper approach is as set out in Birkett v. James.  I also accept that the approach adopted by Deputy Judge Fung (now Fung J), in Chevalier (E&M Contracting) Ltd v. Rotegear Development Ltd [2005] 4 HKLRD 30 at 37 – 38 is fully compatible with the leading judgment in Birkett.  In particular, Deputy Judge Fung identified that :

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… The mere identification of the witnesses and of the importance of the evidence that they were to give did not satisfy the test.  Something more was required, some evidence or circumstances from which it could be inferred that the delay had caused some specific problem for one or both of the witnesses, as distinct from a general impairment of the memory from the passage of time and that it was likely to seriously prejudice the defendant.”

That seems to me to comport with Birkett v. James and not be dissonant from the judgments in Shtun v. Zalejska and I propose to apply that orthodox test.  I accept though, that on a fact-sensitive analysis, overall delay without more, may lead to an irresistible inference of the fact of prejudice by the general impairment of witness memory.

19. I turn now to the issue of prejudice which lies at the heart of this matter.  Mr Cheng pointed and counter-pointed the pleadings to identify what separated the parties.  He submitted that much of the case was documentary-dependant: see Neill LJ in Shtun v. Zalejska at 1289G-H.   He observed, I believe correctly, that based on the current witness statements, there was little contemporary evidence as to what had taken place in the material period when it was alleged that the plaintiff had acted culpably in terms of his rights, duties and obligations he owed to the company.  That period was between 1997 really up until early 1999.  I note that the plaintiff was dismissed in June 1999.  

20. Mr Carolan, forcefully as always, has argued that notwithstanding that a significant part of his case had been displaced by the late concessions driven out of the plaintiff, that there still was in the residuum of the evidentiary material, matters which ought to lead the court to the conclusion that his client was at the risk of serious prejudice. 

21. Throughout his reply, I have given that matter careful consideration.  However, I am unable to reach that conclusion.  Taken now with the concessions made by the plaintiff, the remainder of the points that he so skillfully advances to articulate the prejudice which he asserts would exist, was not of such a degree or nature that I can, as a decision maker in the exercise of my discretion, conclude that it amounts to serious prejudice, in the context of a case there was no pre-writ delay. 

22. The case which exists now may undergo various choreographies before it finally get to trial, if that is ever its final destination.  There may have to be much other evidence called by both parties to address the issues. 

23. I will say out of respect to the carefully sketched argument advanced by Mr Carolan, that prior to the concessions forced from the plaintiff, that his case was looking a promising candidate for possible success in this summons.  I say that only as a reflection of the state of play before I had heard anything from Mr Cheng, of course.  This application was properly brought in my view and the plaintiff has salvaged himself by a photo-finish provision of concessions which had denied the otherwise apparently valid submissions which Mr Carolan had urged upon me.  So in the exercise of my discretion I do not accede to the summons to strike out the case for want of prosecution.

24. This case needs to be gripped by the neck and brought to a conclusion one way or another.  I observed in the course of counsels’ helpful submissions that far, far more progress had been made in two hours in this case than had occurred in the prior seven years and it is not a reflection that puts the profession into a good light.  A litigant who brings a case and then sits on his hands will be at a self-inflicted risk of having his case struck out if prejudice can be demonstrated.  Prejudice looked as though it might well be demonstrated to exist here, until a number of considerable concessions were given which deflated what otherwise was looking at being a good point. 

25. I did not reserve my judgment in this matter as I normally might have, seeing it to be only an unfortunate irony to hold up further a case where there has been desultory performance because of inexcusable delay. 

26. So I dismiss the summons.  However, I do wish to hear about the order for costs.  My prima facie view is that the plaintiff will not be entitled to costs because of the concessions and because of the views I have expressed, but I remain open to persuasion that some other order would meet the justice of this case.  I say that only as an observation nisi without hearing counsel. 

27. [After hearing counsel as to costs.]  I am going to award the costs of the summons to the defendant in any event, the costs to be taxed if not agreed and payable forthwith.  There will be no costs otherwise, each party to bear their own costs in relation to the hearing of the summons.