LEE YUET LING ADN ANOTHER v. KWAN KWING KAI AND ANOTHER

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JUDGMENT

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Cons, J.A.

1. On the 21st June 1978 a gentleman by the name of Yuen Kin Fai was killed in a traffic accident. He had been employed by a firm of construction engineers and was driving at the time a landrover belonging to the company. He left a widow and two very young children. The company duly paid the appropriate compensation under what was then the Workmen's Compensation Ordinance.

2. Not quite three years later the Director of Legal Aid issued a writ on the widow's behalf under the Fatal Accidents Ordinance. In addition to the two children there were added as dependants the widow's parents and her late husband's parents. The company joined in as Plaintiff to recover the compensation which it had paid to the widow and for the value of the landrover which had been written off following the accident. On the 8th October, still in 1981, the widow's present solicitors took over the conduct of the action from the Director. By that time a Defence and Counterclaim had already been served.

3. Nothing further happened for about one year. Then in October 1982 the solicitors issued a Notice of Intention to Proceed.

4. In January the following year the Defendants' solicitors obtained leave to cease acting and new solicitors were assigned by the Director of Legal Aid in June. By September the Plaintiffs found themselves forced to apply for an extension of time to file a Reply and Defence to Counterclaim, this being served in October, and followed in January 1984 by the Plaintiffs' first list of documents. Again nothing happened, until in the autumn of the same year the Plaintiffs, with the consent of the Defendants, filed a supplemental list of documents. There was then a flurry of interlocutory proceedings which culminated, on the 28th September, in an order for trial on liability alone. At the same time the company's claim was adjourned sine die and remains so.

5. On the 26th October the case came on to the Warned List. Three days later the Defendants applied to have it removed from that list, and it was so ordered by consent, with a further order for reinstatement five weeks later.

6. On the 10th December the case came on for hearing, but was adjourned again, at the request of Counsel for the Defendants. Possible conflict between the two Defendants was suggested. Both sides offered to go on so far as initial liability was concerned, leaving the question of vicarious liability until later, but the Judge was unwilling. He ordered the case to be replaced on the Warned List in the week commencing the 31st January.

7. In the meantime, on the 26th September 1983 the widow had commenced other proceedings relying on the Law Reform Ordinance. Service was acknowledged by the Defendants' solicitors in January 1984. A Defence and Counterclaim came two days later, with a Reply and Defence to Counterclaim in March.

8. In January this year, presumably as a result of the suggestion made by Counsel at the abortive hearing of the first action in December, the 2nd Defendant became and has remained separately represented.

9. The particular proceeding which has led to this appeal was initiated by 1st Defendant, on the 28th January, that is, just before the action was due to reappear in the Warned List. It was a threefold application. Firstly he asked for the two actions to be consolidated; secondly that the LARCO action be struck out as statute barred; and thirdly that the Fatal Accidents Ordinance action be struck out as tending to prejudice or embarrass the fair trial of the action or, in other words, for want to prosecution.

10. The application came before Deputy Judge Caird on the 4th February. He first made the order for consolidation and the arguments on the other two questions were then heard together. There were before him an affirmation by the solicitor who had actual charge of the action for the widow and an affidavit by the principal of the firm by whom he was employed. They were in answer to an affirmation by the 1st Defendant, but neither was directed to any explanation of the delay in the proceedings. The Judge concluded on that evidence, and after hearing Counsel for all three parties, that there had been inordinate and inexcusable delay and, although he did not expressly say so, I think it fair to assume from the earlier passages of his judgment, that he found the delay gave rise to a substantial risk that there could not be a fair trial.

11. In coming to his conclusion the Judge took into account three matters. Firstly that the police papers relating to the prosecution - and acquittal-of the 1st Defendant for careless driving had been destroyed. These contained statements made by him close to the time of the incident and in his affirmation he alleged that without them he would have no recollection of what had happened; secondly that the Plaintiff intended to rely upon two expert witnesses whose evidence would be based on a reconstruction of the accident many years after the accident itself; and thirdly the prejudice to the Defendants of having the action hanging over their heads for a considerable period of time, particularly when the insurance company, to whom they could earlier have expected to look for indemnity, was wound up in January 1983.

12. The Judge also refused to exercise his discretion under Section 30 of the Limitation Ordinance.

13. In the bundle of Appeal Papers there was included an application to adduce fresh evidence. Counsel, quite correctly if I may say so, did not pursue that application or the particular ground of appeal that was associated with it.

14. The Judge adopted the same criteria with regard to the exercise of his discretion under Section 30 of the Limitation Ordinance as he did for the striking out for want of prosecution. In my view that is not a correct approach. The considerations for striking out an action begun in time but not pursued with sufficient vigor are not necessarily the same as those for giving leave to continue an action which has only been begun after the statutory limitation of time has expired.

15. I deal first with the appeal in the Fatal Accident action. Mr. Pritchard, who appears for the Plaintiffs, put his arguments under three heads: those relating to the infant defendants; those relating to what he suggested was the defendants' waiver and acquiescence in the delays; and thirdly those relating to the fact or otherwise of actual prejudice.

16. The arguments on waiver derive from the case of Allen v. Sir Alfred McAlpine & Sons Ltd.⁽¹⁾, and in particular from the comments of Lord Justice Diplock, as he then was, at page 260:

Lord Justice Salmon speaks to a similar effect later on (at 272F). As examples of such conduct Mr. Pritchard refers to the Defendants' consent to the filing of the Supplemental List of Documents, their consent to the trial on liability alone and their application to remove the action from the Warned List. And, most important of all, their application to adjourn on the 10th December last year. It is clear that at that stage the Plaintiff was ready and willing to proceed.

17. Miss Plumptre, for the 1st Defendant, attempts to meet that submission with the suggestion that what happened subsequently was de minimis, all the costs of the expert evidence having already been incurred. Faced with a direct question whether the application to adjourn the trial was not conduct which clearly indicated that the Defendant "intended to exercise his right to proceed to trial notwithstanding the Plaintiffs delay", she very honestly admitted that she would have to skirt round the question and hope to answer it with another: "Is the Defendant to be prejudiced (in his present application) because his earlier solicitors took a different view of the proceedings?" The short answer to that question is 'Yes', because the Defendant must be bound by those who with his authority represent him, and in fact further costs were incurred.

18. Unfortunately it does not seem that the Judge below was reminded of the comments of their Lordships to which I have just referred. Had they be drawn to his attention I have no doubt he would have dismissed the application. No Judge in the circumstances could have done otherwise.

19. That conclusion is alone sufficient to decide the appeal as far as this aspect is concerned and I make no comment on the other heads of argument put forward by Mr. Pritchard, except to say that I feel the Judge below failed to appreciate the true effect of Craggs case ⁽²⁾. Counsel for both Defendants concede that the Limitation Act preserves the infants' rights of action until three years after their majority.

20. I turn then to the LARCO appeal. Mr. Pritchard suggests that the Judge misread the evidence and further, by his erroneous decision as to the children's rights, had effectively precluded himself from considering their possible effect upon the situation. At one stage I had thought that his submission in this respect was that as no additional prejudice, over and above that which the Defendants would suffer by reason of the children's action, would be caused by the continuance of the widow's action relying on precisely the same evidence and witnesses, the widow was virtually entitled to an exercise of discretion in her favour. But later I understood him to put his case not that high, only to suggest that the continued existence of the children's action is one of the factors to be considered, being part of "all the circumstances of the case".

21. As to the evidence itself the Judge failed to appreciate that although the original police documents had been destroyed the evidence in fact disclosed that copies of the 1st Defendant's statements to the police and of the police motor vehicle inspection reports were still available.

22. These two factors are in my view sufficient to sustain Mr. Pritchard's submission that in effect the Judge erred in principle and that we must come to our sum conclusion.

23. Although the copies of the documents to which I have just referred would go some way in favour of the Plaintiff it cannot be overlooked that the Plaintiff chose quite deliberately not to put before the Court these very matters to which the Court is enjoined by the section to have regard. I appreciate that it was not so much the Plaintiff's. fault as of those advising her, but the consequences must remain the same. The possibility that she may be able to obtain redress in that quarter must also not be ignored. In my view, taking matters as a whole, it would not be right to allow the LARCO action to proceed.

24. For these reasons I would dismiss the appeal as far as that action is concerned, but would allow the appeal to the extent of reinstating the claim under the Fatal Accidents Ordinance.

Fuad, J.A.:

25. I agree with all that has been said by my Lord Cons, J.A., and with the orders he proposes. I have just a few comments to make of my own.

26. I think experience shows that it is desirable that a plaintiff facing a striking out application should ensure that affidavit evidence is filed explaining all the facts and circumstances which he says excuses the delay; it would be a rare case in which the answer can be found merely in a chronology. Again, when an intending plaintiff is asking the court to exercise its statutory discretion under s.30 of the Limitation Ordinance he must surely put all the facts before the judge by affidavit evidence so that the court is able to have regard to all the circumstances including those matters specifically set out in subsection (3) of s.30.

27. On the fatal accident claim, after what occurred on the 10th December 1984, I cannot conceive that it would have been right to apply to the court to strike out the action, just over a month after the abortive hearing. I think that by their conduct on that day, the Defendants, in effect, condoned what had gone before and there were no delays by the Plaintiffs subsequent to that date that could have been the subject of legitimate complaint. In my judgment the judge should clearly have refused the application on this ground alone.

28. There is one further matter to which I feel I must refer, and that is the decision cited to us of Hunter, J., in Lam Fong and Ho Kuk Keong v. Kiu May Construction Co. Ltd. and Chan Chun⁽³⁾. In that case, on page 3 of the typewritten Reasons for Judgment, the learned judge first of all expressed the view that the timetable he had earlier set out was "conspicuous for its ordinariness" and said "one is not instantly struck by delay." He then went on to refer to the position where there were infant dependants and pointed out that the principles established and re-stated by Birkett v. James ⁽⁴⁾, Tolley v. Morris⁽⁵⁾ and Crags v. Attorney General ^(2a) made it impossible to strike out the claim of the infants involved. He then added:

29. Of course, Hunter, J.'s remarks must be read in the light of the facts of the case before him, but if he is to be understood to have held that once infants are involved, so that an action cannot be struck out as against them, it necessarily follows that other defendants cannot succeed in having the action struck out as against them on the ground of prejudice, with respect, I must disagree. In circumstances where there would be prejudice to an adult by reason of such delays of the kind the court would regard as warranting an order to strike out the action, the fact that the same order could not be made in respect of an infant dependant's claim does not seem to me to be conclusive of the matter - although, no doubt, it is a factor to be taken into account.

(1) [1968] 2 Q.B. 229

(2) The Official Administrator serving as the Administrator of the estate of Charles Henry Craggs, deceased [1981] H.K.L.R. 429

(2a) [1981] H.K.L.R. 429

(3) H.C.A. 139 of 1982, unreported - 4th April 1985

(4) [1978] A.C. 297

(5) [1979] 1 W.L.R. 592

(6) [1979] 1 W.L.R. 592 at p.613

Kempster, J.A.:

30. I too agree with the analysis of the matters canvassed before us made by my Lord Mr. Justice Cons and with the orders he proposes. I venture only to refer to the approach which should have been adopted in applying the provisions of Section 30 of the Limitation Ordinance Cap 347 to the second and statute barred action commenced by the plaintiff during 1933 in her representative capacity as an administratrix of the estate of the deceased. Subsection 1 of that Section poses a balance for the Court which is empowered to direct that the provisions limiting the time within which an action claiming damages in respect of personal injuries can be brought under Sections 27 and 23 maybe overlooked and waived. On one side of the balance is the prejudice to the plaintiff or to any person whom he or she represents occasioned by the enforcement of the terms of Sections 27 and 23 and on the other the prejudice to the defendant by any relaxation of such rules. It is clear that the plaintiff is in virtually every instance prejudiced by not being able to bring a common law action. After all the Limitation Acts are statutory bars on rights which would otherwise exist at common law. On the other side, in every instance one would think, the words used by Lord Diplock in Walkley v. Precision Forgings⁽⁶⁾ may be apposite:

31. In order to assist the Court in the discharge of this balancing exercise Subsection 3 sets out a number of factors which have to be taken into account. One of them under (a) is the length of and the reasons for the delay on the part of the plaintiff. As has already been observed, the plaintiff did not condescend to give any such reasons. Under (e) is the provision that the Court shall take into account the extent to which the plaintiff acted promptly and reasonably once he, or here she, knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages. In the instant case it was apparent within the period of limitation provided by Section 27 that a cause of action lay and a writ was duly issued. In those circumstances the Court will look very jealously at a second action also based on the negligence of the defendant. And here, looking at (f), one has to consider the steps, if any, which have been taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he, or in this case she, may have received. Again the plaintiff has not condescended to give any explanation as to why only one statute was pleaded in 1981, rather than two, and the court below was and this Court is, therefore, left to speculate as to whether or not solicitors then acting were aware of the value of the claim for "the lost years" and, consequentially, if they were or should have been, whether or not she has a right over against them for faulty or inadequate advice.

32. In all the circumstances I am quite satisfied that the plaintiff, on whom the burden must rest to satisfy the Court that it would be equitable to allow the action to proceed, has failed to discharge that burden.