KEEN LLOYD LTD AND OTHERS v. SAM LEE LIGHTING AND TRANSPORT CO LTD AND OTHERS

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JUDGMENT

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1. I have two applications returnable before me today. The first is by summons dated 16 October which asks for leave to make various re-re-amendments to the Writ and Points of Claim; and the second is by summons dated 17 October which asks for an order that the time for the service of Notice of Intention to proceed, served on 17 October, be abridged.

2. Normally, under the rules, in cases of lapses of time of this magnitude, the Plaintiff must give a Notice of Intention to Proceed and the other parties must have, I understand, one month. There appears to be good reason for this, as is set out in the notes in the White Book, in particular to allow the defendants to re-assess the case, indeed to remind themselves of it and to decide if anything needs to be done by way of pro-active procedural defence.

3. Strangely, in this case, the summons to amend antedates the summons to abridge the time for the Notice of Intention to Proceed. Indeed, had matters run their normal course, the period for the Notice of Intention to Proceed would have elapsed, I think, on 16 November. What I think must be asked for by Mr Wyatt today is that the period of the notice required be truncated so that the abridgement takes effect as at today's date, namely the 27th, because it is only if I abridge the time there that he can proceed with his application to amend. So, put in a nutshell, Mr Wyatt wants the court to bless a period of ten days rather than a period of one month for the Defendants to assess the situation and to get their tackle in order.

4. I am also told, to my astonishment - and it is a word I use advisedly - that the plaintiffs in this case were given leave to set down this case for trial by WAUNG J on 15 November 1996 - that is all but two and a half weeks shy of a full two years ago, and that, in the interim, nothing has happened. I am also told that a Notice of Assignment has been served on the Defendants on 15 October, which point impacts directly upon the question of title to sue, but that the Defendants have not had any chance to fully investigate this; and, indeed, they want time to make proper submissions on the proposed amendments and to consider any cross-application, perhaps unsurprisingly, in the circumstances, to strike out for want of prosecution.

5. The whole thing is a frightful muddle. And, again most surprisingly, an application of this nature is brought before the court, and the court is asked to exercise a discretion, without any evidence in support whatsoever. And this against the foregoing factual background.

6. I have to say that I wonder how much thought has been given to this application, and whether it is thought that the court, which is interested at all times in fair play towards all parties in litigation, should simply wave its arms and say, "No matter, I'll give you what you want" in the absence of any information or evidence which would tend to explain the rather strange course this case has taken.

7. The six defendants in this case, represented respectively by Mr WONG, Mr YAP and Mr YIP, all strenuously oppose these applications, and they have all in their way assisted the court, which hitherto knew nothing about this case, to understand some of the complex background which has taken place in a case which last saw any action, in terms of progress in this litigation, in November 1996.

8. I decline to grant the relief sought in the summons dated 17 October 1998, and I dismiss that summons with costs to the defendants. I am unsure what to do with the summons to amend which, as Mr WONG for the 3rd defendants points out, actually antedates the summons for abridgement of time for the Notice of Intention to Proceed. One thing is certain: I am not going to deal with it today, and I am going to leave it to lie on the file, and to adjourn it with costs reserved.

9. If Mr Wyatt hears the observations of his colleagues and decides to re-issue a duplicate summons upon the expiry of the one month period, that might be thought to be the safer course, because the last thing I would have thought that the Plaintiff wants to confront, in addition to its other problems, is to have a technical point taken that the summons to amend is void and of no effect because it was issued during the period in which there was no leave to proceed by reason of its antedating the summons requesting abridgement of time for the Notice of Intention to Proceed - which is all rather a mouthful, but reference Halsbury's Laws of Hong Kong, volume 5, paragraph 90.0045 and, in particular, footnote 2 assists, wherein I note that the learned editors record that,

"The purpose of the month's notice is to allow the party on whom it is served [that is the notice] time to apply to have the action dismissed for want of prosecution: Austin Securities Ltd v Northgate and English Stores Ltd ..."

and that,

"Such a notice cannot be validly given until a year or more has elapsed since the last proceeding, and ..."

and here is the point in this context,

"... if it is served prematurely it is invalid and any proceeding taken on the basis of the notice will be set aside."

So I think that that summons to amend, whilst it may be good in itself, when viewed in isolation is at risk of being criticised at the expiry of a month, and a month it will be when this matter comes back before me.

10. So my order on the summons to amend of 16 October is simply that the matter is adjourned sine die, liberty to restore, costs reserved. If Mr Wyatt chooses to issue another summons, then I will make the appropriate costs order at some future time.

11. It seems to me that this case is boiling up for an application by, on the one part, the Plaintiff, for leave to amend outside the limitation period according to the usual principles, and, on the other hand, for possible cross-applications by the Defendants either to strike out or, more particularly, to disallow the amendments in the light of the history of this case. But I will not get ahead of myself. The parties all have excellent representation and I will wait with interest to see what develops.

12. However, the fair and just order today is to dismiss the summons of the 17th with costs, and to adjourn the summons of the 16th with costs reserved. And those are the orders that I make.

13. I thank the parties for their assistance.