CHAN PO KUEN AND ANOTHER v. CHINA LIGHT AND POWER CO LTD

IN THE COURT OF APPEAL

No. 98 of 1987
(Civil)

EETWEEN

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JUDGMENT

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Hunter J.A.:

1. On 9th October of last year Master Jones made an order dismissing "this action for want of prosecution."

2. It is an action brought by administrators of the estate of the deceased raising two claims arising out of the deceased's death, by reason of the alleged negligence of the defendant. The two claims are a Law Amendment and Reform (Consolidation) Ordinance claim and a Fatal Accidents Act claim. The first is advanced on the behalf of the estate; and the second was originally put forward for a named lady as widow and her son.

3. In the course of the investigation of the claim it was discovered that this lady was not the deceased's widow at all. She had been induced by him to enter into a bigamous marriage. His real widow was still resident in mainland China, and had borne him two legitimate sons.

4. That was the state of play when the matter came before the Master on 9th October. I pass over various other procedural steps, some sensible some mistaken, that had also been taken. After a very short hearing the Master dismissed the action for want of prosecution. He does not seem to have realised that on the face of the pleadings before him there was a claim being made by an infant child which, on authority, could not be dismissed in this way because the limitation period had not been expired.

5. After that order attempts were made particularly by the Director of Legal Aid, to sort out the procedural tangle. Well out of time the matter came before Mayo J. on 8th July. It was then appreciated that the action, insofar as it related to the infant, could not he struck out. The defendant conceded that before the Judge, and the issue was then put on one side. I think that the concession was right, but it was very unfortunate that the full consequences of the concession were not appreciated.

6. There was only one action here; or one action by the estate which contained claims under the two separate ordinances. Different considerations could apply on a strike out application to those various claims. It might have been possible for the court considering a strike out application to say that certain claims must to go on and certain must stay. But the action cannot be divided in that way. There was simply one action: one order for striking out of the action: and one appeal. If the trial judge was minded to say that the order was wrong in respect of the infant, as he plainly was, then he had to extend the time for appealing from the Master's order to bring that about.

7. Unfortunately what seems to have happened, (because the children's claim was put on one side) is that the argument then went on the merits or otherwise of the then named plaintiffs' claim, especially that of the widow who was not the widow. The Judge came to the conclusion that there was no good reason shown for extending their time for appealing so that the plaintiffs, really in their personal capacity, were told that the time for appealing was not to be extended; whereas as far as the infant was concerned it was.

8. Mr. Bleach seeks to support that for the plaintiffs. He submits that it was open to the judge to say that the time for the plaintiffs. insofar as they were acting for the infant could be extended, and that the time for the plaintiffs acting in any other capacity could not. This involves the hypothesis that the action can be divided by reason of the claims. We do not agree. This was one single action. If the judge wanted to consider the claims individually he had to extend the time for the whole appeal, and then proceed to consider the merits of the claims. This in fact he never did. The justification of the strike out action vis-a-vis the adult plaintiffs was never considered at all. What was sought to be brought about on the appeal was a partial strike out: the strike out, as we understand it, of the LARGO claim as far as the plaintiffs were concerned leaving intact the infant's claim. This was simply never considered by the trial judge at all.

9. Having concluded that the approach adopted by the trial judge was insupportable, we invited counsel to address us on the merits of the strike out application itself. That invitation we now accept was over generous. The application before Master Jones was to strike out the action. It was not an application to strike out any particular claim in the action. Therefore the whole thing stands or falls together for the reasons that we have already given. The fact that the appeal was allowed in respect of the infant, meant that the action had to go on as an action. There is no room now for this court to start trying to substitute some other lesser strike out on the material before it. It therefore follows that the appeal must he allowed and the order of the Master Jones set aside in its entirety.

Neville Sarony (DLA) for the Appellants

John Bleach (m/s Deacons) for the Respondent