LU GUO XIANG v. HONG KONG MING WAH SHIPPING CO LTD

   HCPI 254/2006

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   PERSONAL INJURIES ACTION NO. 254 OF 2006

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BETWEEN

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REASONS FOR DECISION

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1.   I have dismissed the defendant’s application for stay of execution of the judgment on liability pending appeal against the defendant on 9 January 2009 with costs to the plaintiff. The effect is that the plaintiff can proceed with the assessment of damages without waiting for the result of the appeal on liability. The following is my reasons therefor.

2.   The plaintiff’s accident happened many years ago on 6 November 2000. From the chronology events submitted by Mr Anthony Leung of Messrs Siao, Wen and Leung, Solicitors for the plaintiff, that the defendant, to say the least, is not diligent enough in prosecuting its appeal. There was a failure of the defendant to set the appeal down in spite of two reminders from the plaintiff in May this year. Eventually the plaintiff filed his own application to fix a date for hearing of the appeal on 19 May 2009.

3.   However because of the change of solicitors for the defendant on 22 April 2009under CACV14/2009, the new firm of solicitors had successfully applied to adjourn the date to attend before a Listing Officer to fix the date for the appeal three times. Eventually the Deputy Clerk of the Court of Appeal refused to set the case down on 16 June 2009.

4.   Thereafter the plaintiff has also chased after the defendant to file a supporting affirmation for the stay of application three times on 19, 20 and 23 June 2009. In spite of that, the defendant had not filed any affirmation in support.

5.   I accept Mr Leung’s submission that the guiding principle in law in an application for stay of execution is as follows :

“It was necessary for the defendants to show, firstly, that the appeal appear was bona fide; and secondly, that failure to give the stay sought would result in the appeal, if successful, being nugatory … ‘Nugatory’ did not mean that the party seeking the stay should risk the loss of all his property. The failure to grant a stay of execution should be shown to have a seriously deleterious effect on the defendants if they were to succeed in the appeal.”

(See Caine Tai Investment Co. Ltd & Ors v Ayala International Finance Ltd & Republic National Bank of New York [1983] 1 HKC 163, headnote.)

6.   In the last minute skeleton argument of Mr Albert Yau, counsel for the defendant, he has listed out four items of grounds for staying the proceedings of assessment of damages as follows :

(1) the delay occasioned by the stay will be quite minimal;

(2) the plaintiff “cannot complain too strongly about delay because there was delay on his part in bringing the proceedings in this action”;

(3) the plaintiff “cannot complain too strongly either that he will suffer from grave financial hardship because of the stay”;

(4) “The public revenue will incur unnecessary legal costs”.

7.   In respect of the first point, the delay would not be minimal because the accident happened in the year 2000 and if there is a stay of execution there will not be any assessment of damages until after the Court of Appeal has heard the appeal. Directions will possibly have to be given again in the Court of Appeal and the CFI for the assessment of damages which will be heard months later instead of the available date at the end of July 2009. The delay will be quite substantial.

8.   Secondly it cannot be said that the plaintiff is guilty of delay on his part in bringing the proceedings in this action and this point has already been explained in my judgment and I do not want to repeat it here. Put it shortly, the plaintiff had been ensured by the defendant that they would pay him reasonable amount of damages as a result of the accident.

9.   In respect of the third point raised by the defendant, it cannot be said that, simply because the plaintiff was paid $500,000 by way of interim payment, does not mean that he will not suffer grave financial hardship because of the stay. The accident happened in the year 2000 and for the past 9 years, he was not earning his previous substantial earnings as a captain of a ship.

10.   However, all the aforesaid defendant’s submissions (including the fourth point) did not show any seriously deleterious effect on the defendant. The defendant had not filed any affirmation listing out any deleterious effect on the defendant apart from the fact that they would have to pay the costs of the hearing on assessment of damages and the same might not be recoverable from the plaintiff when the defendant’s appeal is successful. But in my view, that by itself is not seriously deleterious effect on the defendant.

11.   In the end I do not find any valid ground put forward by the defendant that the judgment should be stayed pending appeal. In my view the assessment of damages should proceed at full force until final judgment.