LEE YUK YUNG AND OTHERS v. YEUNG KWOK KEUNG AND OTHERS

HEADNOTE

                    An amendment under R.S.C. Order 20 rule 5 is not equivalent to the issue of the writ and time for service runs from the date of the issue of the original writ or its renewal. The position under R.S.C. Order 15 rule 6(2) distinguished.

Action No. 2237/1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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(Circulated with the consent of the parties)

1. In Seabridge v. H. Cox and Sons (Plant Hire) Limited and another ⁽¹⁾ a strong English Court of Appeal decided that where a defendant is substituted or added to an action pursuant to R.S.C. Order 15 Rule 6(2) the stamping of the amendment is equivalent to the issue of a writ. That decision has been followed ever since. The question in this case, which arises on an application to set aside service of a writ on the ground that it was effected more than twelve months after its issue, is whether the same consequence flows from an amendment made under Order 20 Rule 5(3). If it does, service upon the applicant was timely; if not, the writ had expired and service must be set aside.

2. The claim is by personal representatives of the estate of Cheung Yuk Keung under the Fatal Accidents Ordinance and the Law Amendment and Reform (Consolidation) Ordinance. It arises out of an accident said to have occurred on 22nd September 1979 when a motor lorry mounted the pavement and knocked down Mr. Cheung causing him fatal injuries. The intention of those acting for the plaintiffs was to sue the driver and, on the principle of vicarious liability, the owner of the lorry. At the material date the 2nd defendant was registered as owner. On 5th November 1981, the solicitors for the plaintiffs were told that the lorry had been sold to one Tang Chung Wah on a date prior to the accident. Even so they issued their writ against the 1st and 2nd defendants only. That was in March 1982. The defence of the 2nd defendant denied ownership. It was then thought prudent to join Tang Chung Wah as 3rd defendant. The order was made on 17th September 1982. It is conceded that must have been under Order 15 Rule 6. Tang Chung Wah was joined as 3rd defendant and the re-amended writ was directed to him in that name 'of unknown address' as it was to the plaintiffs' solicitors at that time. Neither did the plaintiffs' solicitors know that Mr. Tang's second name was spelt Chun. In due course the plaintiffs' solicitors discovered an address for the 3rd defendant, albeit a previous one, and their mistake as to the spelling of his name. They applied to re-re-amend. The application was made under Order 20 Rule 5. The summons came before Master Betts at an adjourned hearing on 13th December 1983 when leave for the further amendment was given. The re-re-amended writ with the 3rd defendant's name correctly spelt and including his previous address was served on 15th December 1983.

3. No point is taken as to validity of service save as to time. Counsel for the plaintiff, for his part, concedes that in the light of another English Court of Appeal decision, Bernstein & Anor. v. Jackson & another ⁽²⁾ that if service was out of time the irregularity cannot be cured and the application to set aside must succeed. Although, as is obvious, questions of limitation are likely to arise if service of the writ against the 3rd defendant is set aside, they are not for me today.

4. Applying the decision in Seabridge the writ against the 3rd defendant expired at the end of September 1983. Therefore, says Miss Remedios, the service on 15th December 1983 was out of time. Mr. Leung for the plaintiff argues that where an amendment under Order 20 Rule 5 is tantamount to the adding or substituting of a defendant to the action, as on authority it may be, (see Evans Construction Co. Ltd. v. Charrington & Co. Ltd.)⁽³⁾ there is no reason why by analogy the principle in Seabridge's case should not apply. Apart from the obvious objection on the facts to Mr. Leung's argument I think he overlooks the point that whereas the addition of a defendant under Order 15 rule 6 is the start of the proceedings as against that defendant an amendment under Order 20 rule 5 will date back to the original issue of the writ and on that ground alone I would hold that his contention fails, but in any event I would have the greatest difficulty in accepting that the application to re-re-amend in this case was equivalent to an application to add or substitute a defendant.

5. It follows that this application succeeds and service of the writ is set aside.

6. Counsel agree that on handing down of judgment, costs should follow the event and I order accordingly.

7. 3rd defendant's costs and plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

(1)    [1968] 2 QB 46

(2)    [1982] 1 W.L.R. 1082

(3)    [1983] 1 All E.R. 310