XCHRX LAM KAI v. OFFICIAL RECEIVER AND OTHERS

MP 3905/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3905 OF 1999

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D E C I S I O N

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1. This is an application for leave to appeal out of time by the 3rd Defendant. The 3rd Defendant is an insurance company. The Plaintiff was a trainee jockey of some considerable skill. He was killed in a car accident. The car was being driven by the 1st Defendant. The accident happened in the Aberdeen Tunnel early in the morning. The other driver, the 2nd Defendant was originally sued but it was realised that since he was on the correct side of the road, there was scarcely any chance that he would be found liable. So, he was dropped from the case.

2. The accident happened in 1994. The writ in the case was not issued until 1997, almost at the expiry of the limitation period. It has been explained that that period was taken up not simply because things were left to the last minute but because of representation of the 1st Defendant and having to find a representative who would act on behalf of the 1st Defendant in the absence of the insurance company wishing to do so.

3. About a year later, the 3rd Defendant, the insurance company, applied to be made a party to the action. When they applied to be made a party, they said in their affidavit :-

"There will inevitably be issues of apportionment of liability between the two drivers and possibly even contributory negligence of the deceased."

That was in an affidavit that was made on 20th April of last year.

4. Following that there was correspondence between the parties and the representatives of the deceased, Mr. Lam on whose behalf this action is brought. At first blush, the Plaintiff, being a passenger in a car, it could be supposed that there would be little difficulty in establishing liability against one or other of the drivers.

5. On 6th August 1997, the Plaintiff's solicitors wrote to solicitors who subsequently acted on behalf of the 3rd Defendant saying :-

"In an attempt to save costs for our client as well as yours, we write to explore the possibility of your agreement to enter an interlocutory judgment on liability against your client. ("Your client" being at that stage the 1st Defendant.) Counsel for the Plaintiff takes the view, which we entirely share, that the accident was wholly caused by the negligence of the deceased, Au Chi Fai. Arguing on the question of liability will only result in the waste of substantial costs which at the end of the day will have to be borne by your client."

6. Then, by 3rd October 1997, the solicitors instructed on behalf of the Plaintiff had changed and the new solicitors wrote saying :-

"In our letter the 6th August for the purposes of saving unnecessary costs for all parties concerned, we invited your agreement to enter against your client an interlocutory judgment on liability with damages to be assessed. We have yet to receive your response thereto and shall be much obliged if you could forthwith take your client's instructions on our said proposal and revert to us without further delay."

7. On 16th October, they wrote saying that they had not received any response to these requests and that in the circumstances, they assumed the proposal was not acceptable and that accordingly, they would proceed with the action.

8. The Defence which was filed in July of last year on behalf of the 3rd Defendant made no allegation that the deceased had been guilty of contributory negligence by getting into a car knowing that the driver was drunk. In effect, the only issue as regards liability was whether it was Mr. Au Chi Fai who was driving the car in which both deceased died and whether it was the 2nd Defendant who was responsible.

9. That was the situation last year save for the fact that in December of last year, the 2nd Defendant amended its Defence to plead contributory negligence on behalf of the 2nd Defendant. Early this year, as a result of negotiation between those acting on behalf of the Plaintiff and the 2nd Defendant, the 2nd Defendant dropped out of the case. It had been realised that there was no negligence on his part. The 2nd Defendant, however, filed an affidavit on 26th February disclosing the post-mortem report showing that the deceased, Mr. Au Chi Fai, had some 138 mg/ml of alcohol in the blood. That, of course, is somewhat over the acceptable legal limit for alcohol in a driver's blood.

10. The Plaintiff's list on the Checklist Review disclosed that the Plaintiff was not ready for trial but as has been pointed out by Mr. Tang, S.C., who appeared on behalf of the Plaintiff in this matter, the only issue that the Plaintiff had to contend with was the question of quantum; that was likely to be very large.

11. I then come to the 3rd March when the Checklist Review was heard by Seagroatt J. The 3rd Defendant was represented by counsel. At that stage, the 2nd Defendant had dropped out. On the face of the pleadings, there was no defence against the Plaintiff's claim. The Judge, quite rightly, in my view, said that interlocutory judgment should be entered for the Plaintiff because there was no defence and the only question that still remained to be decided was the question of quantum.

12. This application to appeal that decision was only made some four months later and one of the difficulties in the case is that it is not said that decision was wrong because on the face of the matter, the decision was quite correct. What the 3rd Defendant says is that they should be allowed to amend their pleadings now, and it will be remembered that it is now more than five years after the accident, to plead contributory negligence.

13. When the 3rd Defendant filed its initial application for leave to appeal out of time, there seemed to me to be a grave discrepancy between what was said in paragraph 4 of the affirmation of Arputham Jayakumar and what was said in the letter which was exhibited and said to support what was said in the affirmation. The affirmation gives the impression that the 3rd Defendant had been requesting its solicitors to appeal but they had refused to do so; the letter gives the impression that it was only after a very recent conference on 29 April that the 3rd Defendant appreciated that the damages might be high and wished to consider the question of appealing. Mr Tang has pointed out that the question of contributory negligence by the Plaintiff has only been raised four months after the interlocutory judgment. I would also mention in relation to paragraph 4 that references were there made to legal privilege and it has been pointed out by Mr. Tang, and I agree, that if a Court's discretion is being asked for on a matter such as why a delay has occurred, the party seeking the exercise of the Court's discretion has to stand or fall with their standing on their legal privilege.

14. In my view, it would not be correct for me to extend the period for appealing in this case. I would have to be satisfied that an injustice has been done by reason of the judgment being entered and that the 3rd Defendant has been deprived of the opportunity of relying upon a defence which it could have relied upon. Unfortunately, I look upon this matter differently. I look upon this matter as a case where judgment has been entered and sometime afterwards, the notion has occurred to the party who has lost the proceedings that it may have been able to raise some better or other argument.

15. I am by no means satisfied that the case for contributory negligence could in any event get off the ground. Mr. Chan, S.C. who has appeared on behalf of the Defendant has admitted that there is nothing in any of the statements which had been made which have been exhibited which would indicate, or upon which the 3rd Defendant could rely to show, such contributory negligence. Indeed, to my mind, it points rather the other way. All that the 3rd Defendant has is the post-mortem report and there is no reason why that should not have been in their hands years ago, but they simply relied upon the 2nd Defendant producing it in February this year. But that alone is not sufficient. I do not consider that Seagroatt, J.'s decision would have been any different had this matter been raised in front of him. In those circumstances, I refuse the application to extend time.