JOHN HO AND ANOTHER v. DESMOND BLOOM

HCA 1369/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1369 OF 2005

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J U D G M E N T

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1.  On 12 May 2006 the parties came before me and the Plaintiffs applied for an unless order on the ground that the Defendant has failed to file and exchange the witness statements with the Plaintiffs.

2.  Mr. Firmin for the Defendant raised the issue whether the Court had jurisdiction to make such an order.  It is trite to say that the Court has power to grant an unless order if the failure to comply with a court order is intentional andcontumelious.

3.  It is for the applicant, in this case the Plaintiffs, to show that the delay or failure by the Defendant is deliberate.  I accept that the Defendant is in breach of the term of the order made by consent before me on 16 February 2006.  The time to file and exchange witness statements expired on 6 April 2006.  At the time of hearing a month has passed.  The long delay is a factor for me to consider but not the crucial one.  Mr. Firmin told me that his client may need another 42 days.  As I understand, he has not taken instruction thereon; the 42 days’ period is his own estimation.

4.  Having heard the submission, I consider that an unless order to strike out the defence and to enter judgment for the Plaintiffs is too draconian a measure at this stage.  However, I have to warn the Defendant that it appears to me that the Defendant does not take the proceeding seriously.  After this warning, if the Defendant still fails to file and exchange the witness statement with the Plaintiffs, the Court will construe that the failure is contumelious and intentional.

5.  I make an order that the Defendant has 28 days from 12 May 2006 to file and exchange witness statements with the Plaintiffs with costs to Plaintiffs assessed in the sum of $1,200.00.