LIN, HSIU YI THE INTENDED ADMINISTRATRIX OF THE ESTATE OF HO, RA DAH, DECEASED v. SO YUET SEUNG LILLIAN

HCPI 1286/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1286 OF 2014

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DECISION
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1.  This is an application by the plaintiff to seek leave to amend the Writ of Summons.

Background

2.  This is a fatal accident claim.  The plaintiff, Ms Lin, is the wife of the deceased who died on 11 January 2012 in an accident as a passenger in a taxi driven by the defendant.

3.  Ms Lin initiated the current action on 5 December 2014 naming her as “LIN, HSIU-YI (林秀憶), the Intended Administratrix of the estate of HO, RA-DAH (何瑞達), the Deceased. At the time and up to now, she has not obtained the letters of administration.

4.  As such, this action has been improperly commenced, given the decisions in Chung Yi Yuen (the intended administrator of the estate of the deceased) v Lau Kook Shing & Anor [Civil Appeal No 46 of 1999] and, more recently, Bushra Bibi v Method Building & Engineering Works Ltd [2014] 3 HKLRD 21.  This is not in dispute.

Issues in dispute

5.  In the judgment of Bibi, Mr Justice Bharwaney has stated why claims in such circumstances should not be commenced having the plaintiff named as “intended administratrix” and provided a guideline for the proper procedure (involving a five-stage process).  I need not repeat this here.

6.  Ms Lin is now seeking to amend the Writ following this process.  The current application is the “first stage” as stated in paragraph 11 of Bibi:-

“The procedure for commencing a fatal accident claim (before the grant of letters of administration or probate) is guided by s.5(2) of the FAO (for the claims under such ordinance) and O.15 r.6A(3) of the RHC (for the claims under the LARCO)… Pending the appointment of a person to represent the deceased’s estate, the plaintiffs should be described in the title of the action as follows:

Between
ABC, deceased	1st plaintiff
XYZ, on behalf of herself and the other dependants of ABC, deceased	2nd plaintiff
and
DEF	Defendant”

7.  Ms Lin is applying, under O15 r6, to add the deceased as 1^st plaintiff and, under O20 r5, to amend the Writ to, amongst others, naming herself as the 2^nd plaintiff “LIN, HSIU-YI (林秀憶), on behalf of herself and the other dependents of HO, RA-DAH (何瑞達), deceased”.

Order 20 Rule 5

8.  The defendant opposed this.  Mr Alex Lai, Counsel for the defendant, argued that under O20 r5(2) and (3), the court is limited in the scope of mistake allowed to be amended.

9.  Quoting Refco Inc. v Troika Bullion Ltd & Ors [1990] 1 HKLR 46 and Evans Constructions Co. Ltd v Charrington & Co. Ltd. and Anor, Mr Lai argued that if the mistake was as to the parties’ identity (as oppose to a mere mistake as to the correct name or description of the party), then this amendment should not be allowed.

10.  Mr Lai suggested that the “identity” of the plaintiff was “incorrect”.  But when he explained what he meant by “identity being incorrect”, he meant that Ms Lin has no right to sue as the “Intended Administrator”.

11.  This, as stated above, was a matter not in dispute and the whole point of the current exercise is to perfect the procedure in commencing a claim under such circumstances.  Thus, I failed to see Mr Lai’s logic at all.

12.  Mr Norman Hui, counsel for the plaintiff, argued that the identity of Ms Lin was not in dispute.  She is the wife of the deceased, the sole passenger who died after the road traffic accident.  At the end of the “five stage process”, the plaintiff will again be Ms Lin.

13.  I agree: the plaintiff has always been the same person: the only “mistake” here is that she has no standing to sue as an “intended administrator”, but she certainly can sue as a dependent and on behalf of other dependents of the deceased under FAO.

14.  When I pointed this out to Mr Lai, he conceded that he saw no legal basis to oppose Ms Lin suing as a dependent.

15.  As such, Mr Lai cannot rely on IBSSL v Minerals Trading Corp [1996] 1 All ER 1017.  In that case, the plaintiff was a bankrupt company which clearly has no right to sue in its own name.  Here, Ms Lin has the right to sue, only not as an “intended administrator” but as a dependent.

16.  With regard to any argument concerning time limitation, O20, r5(2) states that: -

“Where an application to the Court for leave to make the amendment...is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave…if it thinks it just to do so.”

17.  Further, O20 r5(4) states that: -

“An amendment to alter the capacity in which a party sues may be allowed under paragraph (2) if the new capacity is one which that party had at the date of commencement of the proceedings…”

18.  Ms Lin clearly has the capacity to sue as a dependent at the commencement of the proceedings.  The amendment to name her as the 2^nd plaintiff with the correct capacity must be allowed and it is just to do so.

Order 15 Rule 6

19.  Mr Lai suggested that the court has no jurisdiction to disapply the time limitation if an order was sought under O15 r6 to add a party (in this case, adding the deceased as the 1^st plaintiff).

20.  Mr Lai said that the proper procedure was for an application to be made first under Section 30 of the Limitation Ordinance before making the application under O.15 r.6(5)(b), quoting Howe v David Brown Tractors (Retail) Limited [1991] 4 All ER 30.  He claimed that it was “Unfair” to the defendant to deal with Section 30 now as the defendant did not have proper opportunity to file evidence to deal with the issue of time limitation.

21.  My view is that this is a claim where the (proposed) 1^st plaintiff has died at the time the writ was issued.  For all the arguments Mr Lai raised under O15 r6, I think that the appropriate application should actually be under O15 r6A.

22.  I also note that the plaintiff did not quote this order in the summons.  Nevertheless, O15 r6A(4)(b) empowers the Court to “at any stage of the proceedings and on such terms as it thinks just and either of its own motion…make any such order as is mentioned in sub-paragraph (a) and allow such amendments (if any) to be made….as the Court thinks necessary in order to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon.”

23.  It is clearly just and necessary for the court to allow such amendments so as not to deprive Ms Lin a proper legal procedure to commence the additional claim under LARCO as the first stage of Mr Justice Bharwaney’s five-stage process as stated in Bibi.

24.  The court will therefore exercise the power under its own motion under O15 r6A(4)(b) to allow the addition of the deceased as the 1^st plaintiff and the necessary amendments to the “Endorsement of Claim”.

Order

25.  I would therefore grant leave for the plaintiff to amend the Writ of Summons in the manner shown underlined in red in the copy annexed to the Summons and that the service of the Amended Writ of Summons be dispensed with.

26.  As for costs, although the plaintiff can be blamed for commencing the action improperly, I considered it unjust and unnecessary for the defendant to obstruct what was clearly a procedure under Mr. Justice Bharwaney’s guidance.  Much time and costs has been spent on disputing what should now be a routine process to perfect any improperly commenced claim under such circumstances.  This is against the spirit of the CJR.

27.  As such, I would give an order nisi to award: -

(a) the costs of the Summons dated 1 April 2015 up to and including the 3 minutes hearing on 15 April 2015 (with costs of the hearing assessed at HK$800) to the defendant,

(b) the remaining costs occasioned by the Summons (including the costs of and occasioned by the substantive hearing on 9 September 2015) to the plaintiff to be taxed if not agreed, with certificate to Counsel.