XCHRX THE MAGWAY

HCAJ14/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO.14 OF 1999

----------------------

Admiralty action in rem against: the ship or vessel "MAGWAY"

-------------------------

J U D G M E N T

-------------------------

1. This is the resumed hearing of the pre-trial review. The applications are by the plaintiff for further directions in relation to several matters.

2. This is a collision action involving a small fishing vessel of the plaintiff with a larger vessel of the defendants in the harbour of Hong Kong in 1997. In essence, the dispute between the parties now seems to be whether it was a case of a crossing situation where the plaintiff's vessel should be giving way to the defendants, or whether it is a case of the defendants' vessel overtaking the plaintiff's vessel which was on a parallel course.

3. The number of applications come before the court consisted of several categories. The first category is the plaintiff now wishes to have, out of time, several new witnesses to be called by way of serving late witness statements. The second category is that the plaintiff wishes to call some additional expert evidence. The third category, which is a relatively uncontroversial category, is the matter of the late service of the Hearsay notices.

4. The original direction hearing took place last year on 13 October 1999 where directions were given relating to signed witness statements, Hearsay Notices, as well as the giving of expert evidence limited to one expert each on the hydrodynamic interaction. There was a subsequent hearing of directions on 4 November 1999 where I gave leave to set the case down for trial, and for the trial to take place starting from 16 May with two weeks reserved and giving a pre-trial review date of 17 April 2000.

5. We are now 11 days before the trial, and it is clear that if the additional materials that the plaintiff wishes to rely upon are to come in, then the trial cannot proceed and the trial date must be vacated.

6. Are the materials that the plaintiff wishes to rely on relevant? I think it is quite clear that they are relevant. Just take, for example, three new witnesses that the plaintiff wishes to call. They are, firstly, Mr Lam, who would give very valuable and pertinent evidence on the course of the fishing vessel; Mr Chan, who would give slightly more marginal evidence on the sound signal he heard or rather not heard and Mr. Lo, who would give evidence on the speed capability of the fishing vessel.

7. There is, so far as the experts are concerned, the evidence of Dr Giles, who is a forensic expert and who had examined the contemporaneous documentation: the chart, the logs and the Engine books of the defendants and came to the conclusion that there had been a great deal of alterations and that, of course, is extremely material evidence.

8. So far as materiality is concerned, I have no doubt that the materials now the plaintiff wishes to rely on are relevant and will be extremely helpful to the court. In fact, on the matter of, for example, the course of the fishing vessel, this is going to be of crucial importance and would materially affect the percentage of the responsibility of the vessels depending on the view the court takes on the evidence as to the course of the fishing vessel.

9. It is, however, also quite clear that the applications now made have come in extremely late, and if I may say so, with lamentable little excuse for its lateness. So what is the court supposed to do? On the one hand, the plaintiff would be severely handicapped if he is refused leave to adduce such evidence. On the other hand, the defendants say that they would be prejudiced if they have to face all these new materials in the trial that is coming up in 11 days' time.

10. The question is, according to authorities, whether the defendants had suffered any prejudice or would suffer any prejudice as a result of this late application. I have no doubt some form of inconvenience would be suffered, but in terms of serious prejudice that cannot be compensated by costs, there is no material before me to show that that would be the case.

11. Mr Sussex in his able submission pointed out to the court that the modern approach to case management is that the court must be much more strict and the court can also take into account the other court users of the court. It does not just affect the immediate parties involved. I of course accept this. But I also take into consideration the following factors.

12. Firstly, this is a somewhat of a specialist type of case and collision cases do not come often before the Admiralty court in Hong Kong. It is because of the unusual nature of collision actions and the special expertise required and the general unfamiliarity of solicitors with what is essential in a collision action that resulted in some essential steps not haven been taken in this case.

13. Secondly, I have to take into account that this is a case where I will be sitting with nautical assessors at the Trial and these are professional men who have professional commitments and who would have committed themselves to two weeks once the Trial begins. If the Trial does become longer because of the complications in the Trial and there are many complications, it is undesirable in my view that the case which has not been properly prepared, that may go wrong in the course of the Trial due to a number of factors, should start when it is plain that it might be best served by not starting it. It will be better that the case be better prepared so that all issues are properly joined and that necessary works are done before the Trial commences.

14. The third factor I take into account is, I think, in what was said in the judgment of China Everbright-IHD Pacific Ltd. v Ch'ng Poh & Others [1999] 1 HKC 278, where the passage at page 289 said:-

"... from the point of view of a court seeking to further the interest of justice, which is generally best served by a full and proper consideration of all the evidence which is relevant to the issues between the parties, and not by considering only part of the relevant evidence, half-baked as a result of a procedural slip on the part of one party's solicitors."

I think there is much wisdom in that view. In all the circumstances, I think my discretion should be exercised by allowing the applications and by forcing the parties to prepare the case properly and by vacating the trial dates. I therefore order that the trial date, starting on 16 May, be vacated and for a new trial date to be fixed at some future date when the parties are able to come before me to show their full readiness for the trial.

15. So far as costs are concerned, I have no doubt that this is a case where the defendants ought to be paid their costs immediately arising out of the vacating of the trial and arising out of today's application. I therefore order that the plaintiff should pay forthwith the costs of the defendants for the costs of today's hearing and the costs thrown away by the vacating of the trial of 16 May. If the parties wish me to do a gross sum assessment, I will hear the parties subsequently in relation to that application.

16. That deals with the costs of the defendants. So far as the plaintiff's costs is concerned, I am going to do something unusual. I see this as wholly arising out of the omission and fault of the solicitors for the plaintiff, and I direct, as order nisi, that the plaintiff's solicitor should not be entitled to have the costs of today's hearing to be paid by the Director of Legal Aid.