NATHANIEL HYMER v. THE MASS TRANSIT RAILWAY CORPORATION AND OTHERS

CACV 304/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 304 OF 1999

(ON APPEAL FROM HCPI 1137/1998)

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J U D G M E N T

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Ribeiro JA:

1. This is an appeal from the judgment of Suffiad J handed down on 1 September 1999 whereby he granted the application of the 4th and 5th defendants to dismiss the plaintiff's claim for want of prosecution. At the same hearing, Suffiad J rejected a like application on behalf of the 1st, 2nd and 3rd defendants.

The events leading to issue of the Writ

2. Between September 1982 and July 1984, the plaintiff was employed by the 1st defendant ("the MTRC") as an inspector of works in relation to the construction of underground tunnels for the Mass Transit Railway. From September 1982 until February 1984, he worked on Contract 405 at a site in Victoria Park, where the 2nd defendant ("Kumagai") was the main contractor. Between February and July 1984, he worked on Contract 402 at a site in Wanchai, the 3rd defendant ("Nishimatsu") being the main contractor. I will refer to the first three defendants together as "the corporate defendants".

3. At both sites, it was necessary for the plaintiff to work in a compressed air environment, as this was part of the engineering technique employed in the tunnelling works. This required special working procedures to be adopted and posed certain health risks including a risk of "the bends" and other conditions or diseases associated with working in compressed air.

4. Accordingly, the Factories and Industrial Undertakings (Work in Compressed Air) Regulations (Cap 59) ("the Regulations") applied to the operations in question. The regulations laid down various duties and restrictions on contractors and others in relation to persons employed to work in compressed air. One requirement was that the employer should appoint medical practitioners "to supervise all medical matters which may arise in connexion with the construction work" [regs 24 and 25]. The 5th defendants were appointed to provide such supervision. The 4th defendant ("Dr Wood") was the physician who, from time to time, examined the plaintiff, gave him treatment and provided medical certificates relating to his fitness for work in compressed air. The regulations also required the various parties involved to keep records in prescribed forms.

5. While the plaintiff was working in Hong Kong, he suffered a number of episodes of the bends. For example, in December 1982, Dr Wood's medical certificates and clinical records indicate that the plaintiff had suffered "his third bend in quite a short period of time after only a few hours in compressed air." Consequently, it was prescribed that he should "stay out of compressed air for at least a month". About a year later, in December 1983, the plaintiff again suffered from the bends and complained of dizzy spells, leading to his being put on a 6 hour maximum exposure to compressed air. Eventually, on 23 March 1984, Dr Wood issued a certificate noting that the plaintiff had required medical decompression for bends twice in the preceding week and concluding that "he should undertake no further high pressure work".

6. Consequently the MTRC terminated the plaintiff's employment on 28 June 1984, paying him 2 months' wages in lieu of notice. The plaintiff then returned to his home in the United Kingdom.

7. Some two years later, on 18 August 1986, he was examined by Dr John D King ("Dr King") in London to assess his fitness to work in compressed air on a project in Cairo. Dr King concluded that there was definite radiological evidence of dysbaric osteonecrosis involving the plaintiff's left shoulder and advised his potential employers that he would not be fit for work in compressed air. The plaintiff was also told of this diagnosis in a letter from Dr King dated 3 September 1986, the last paragraph of which stated: "You asked if you should consult a lawyer about this and although it is strictly not my province to advise you on this matter you will certainly do yourself no harm by taking legal advice".

8. It is therefore clear that at the latest by about 3 September 1986, the plaintiff realised that he might have a legal claim in respect of his condition. On 23 December 1986, he retained Messrs Swinburne Jackson & Partners ("SJP"), an English firm of solicitors, in this connection.

9. It appears that after some preliminary discussions with Dr King and others knowledgeable on the topic of compressed air in February and March 1987, nothing was done about possible legal proceedings until May 1988. This was apparently because the plaintiff did not at this stage experience any significant deterioration in his health.

10. In May 1988, Messrs Sit, Fung, Kwong & Shum ("SFK&S"), Hong Kong solicitors then acting as SJP's agents (and presently the plaintiff's solicitors in the action), were contacted and asked to explore the possibility of the plaintiff obtaining legal aid in Hong Kong. After some delay due to the initial reluctance of the Director of Legal Aid ("DLA") to provide an application form without the applicant's personal attendance, SJP forwarded an application on the plaintiff's behalf on 15 December 1988. The application was refused by the DLA on financial grounds on 9 January 1989.

11. Letters before action were issued by SFK&S to the MTRC and Kumagai in March 1989. On 17 April 1989, SJP wrote to SFK&S indicating that the plaintiff's condition had deteriorated to the extent that he was unable to work, that he had difficulty funding the litigation and that a renewed application for legal aid would be made. However, by early June 1989, the plaintiff's condition had apparently improved and, on 2 June 1989, SJP wrote to SFK&S stating that he had "felt well enough to return to work and therefore our application for legal aid in this matter is premature". They added that "it will no doubt be necessary for our client to apply for legal aid in the near future".

12. In the event, a Writ was issued against the MTRC, Kumagai, Nishimatsu and Dr Wood on 31 August 1989. It is the plaintiff's case that this occurred within the primary 3 year limitation period, calculated from the beginning of September 1986, when he first learned that he was suffering from dysbaric osteonecrosis and so acquired the relevant knowledge for the purposes of section 27 of the Limitation Ordinance (Cap 347). The 1st defendant has joined issue on this question of limitation. However, solely for present purposes, I will assume that the Writ was issued within, but almost at the end of, the applicable three year limitation period.

13. The 5th defendants were subsequently joined as a party on 16 July 1991 after discussion between the parties, Dr Wood's solicitors having suggested that the firm rather than the individual doctor concerned should be a party. In the event, both Dr Wood and the 5th defendants (together referred to here as "the doctors") were made parties.

The pleaded causes of action

14. The plaintiff's case, as presently pleaded in the Re-Amended Statement of Claim (filed on 27 April 1999), has not radically altered from the way it was originally advanced.

15. The plaintiff sues the corporate defendants as his employers and/or occupiers of the sites in question and alleges that they each owed him duties of care variously formulated (including statutory duties under the Regulations, implied contractual duties to provide a safe system and place of work, as well as duties under the Occupier's Liability Ordinance and at common law). These are duties essentially requiring the corporate defendants to take reasonable precautions to ensure his safety when working in the compressed air environment. In particular, the plaintiff alleges that they were under a duty to ensure :-

"....... that the plaintiff would not be exposed to any unreasonable risk of injury or damage of which the 1st, 2nd and/or 3rd defendants whether through the 4th defendant or alternatively the 5th defendant or otherwise knew or ought to have known."

The plaintiff complains that despite several attacks of the bends and symptoms of Type II decompression sickness (which can lead to permanent tissue damage or even fatality) known to and treated by the doctors he:-

" ....... was instructed, caused, permitted and/or allowed by the 1st, 2nd and/or 4th or alternatively 5th defendants to continue working in compressed air at Site No 405 ......."

He further complains that he was thereafter certified by the doctors to be fit for such work and so transferred to a job in compressed air at Site No 402 where he again suffered attacks of the bends but was nevertheless allowed by the doctors to continue in such work until his employment was finally terminated.

16. The corporate defendants are each alleged to have breached their aforesaid duties in various ways, including the following :-

"Causing or permitting or requiring the Plaintiff to work in compressed air when through the 4th defendant or alternatively the 5th defendant or otherwise the said defendants knew or ought to have known that the Plaintiff was not fit to do so and/or despite the plaintiff's repeated attacks of bends of which the said defendants well knew or ought to have known."

"Abolishing the full re-acclimatization programme ....... built up advised and designed by the 4th defendant or alternatively the 5th defendant for workers appearing to require regular bends treatment (such as the Plaintiff) ....... or alternatively failing to classify the Plaintiff as one requiring such regular bends treatment, and instead, causing or permitting or requiring the Plaintiff to resume working after each attack of bends in compressed air at duration and frequencies in excess of that prescribed under the said programme."

"Causing, permitting or requiring the Plaintiff to work in compressed air after his serious bends attack on 14 December 1983 with the said [6 hour] restriction until about 23 January 1983 and/or without the said restriction thereafter."

As appears from the examples of alleged breaches set out above, it is clear that the plaintiff levels charges against the corporate defendants founded on the allegedly faulty medical judgment and conduct of the doctors. This line of attack represents one of the principal elements of the plaintiff's case against the corporate defendants although he also alleges breaches on their part involving poor site conditions and decompression discipline.

17. The plaintiff of course also alleges breaches of duties owed to him by the doctors in their own right. Thus, he pleads that they were subject to and in breach of a statutory duty to provide proper medical supervision under regulations 24 and 25 referred to above, as well as other statutory duties imposed by the Regulations (including a duty to examine him with the prescribed frequency and a duty to supervise the keeping of prescribed records). The doctors are also alleged to be in breach of their duty to exercise reasonable professional skill and care in their examination and treatment of the plaintiff. Again, all of these alleged breaches are founded on the complaint that they should not have allowed the plaintiff to continue working in compressed air given his medical history and symptoms.

18. The plaintiff alleges that the abovementioned breaches are the cause of his dysbaric osteonecrosis and the attendant pain and suffering, physical incapacity and loss of earnings due to his eventual inability to remain at work.

19. In its Defence, apart from limitation, the MTRC pleads that it was in reliance on the doctors' certificates that it allowed the plaintiff to continue working in compressed air and that Kumagai and Nishimatsu were in control of and responsible for the conditions on the site. It otherwise puts the plaintiff to proof as to breaches of duty, causation and loss and damage.

20. The Defence of the 2nd and 3rd defendants consists of bare denials.

21. The doctors, in their Defence, admit having been appointed under the Regulations and that the usual professional duties of care were owed to the plaintiff. They also admit that Dr Wood carried out certain examinations on and administered certain treatments to the plaintiff, but deny breach of any duty.

The progress of the proceedings

22. Although the Writ was issued, as I have stated, at the end of the limitation period, it was decided not to serve it immediately. Instead, on 8 September 1989, letters were written to Nishimatsu and Dr Wood informing them that the Writ had been issued and indicating the nature of the plaintiff's claim.

23. A medical report was apparently awaited and, on 24 April 1990, such a report was provided by Dr J Pooley, a Consultant Orthopaedic Surgeon. Dr Pooley expressed the opinion that the plaintiff's dysbaric osteonecrosis had resulted from his exposure to compressed air and that his condition would deteriorate progressively until he would require a left shoulder joint replacement. It was also thought possible that his right shoulder would follow a similar clinical path.

24. The Writ was then served on 7 August 1990, just under a year after it was issued and almost at the end of its validity for service. This was followed by the filing of the Statement of Claim and the Defences, a process extending to the end of 1990. It may be noted that the defendants all sought extensions of time to file their Defences but that such extensions did not result in detailed or positive defences, but only in what were little more than denials of the plaintiff's case, as noted above.

25. The first half of 1991 was spent by the plaintiff's solicitors considering with counsel whether to add the 5th defendants. It was decided to join them and, after draft amendments were prepared, correspondence ensued between SFK&S and Messrs Deacons for the MTRC, Messrs Wilkinson & Grist ("W&G") for the 2nd and 3rd defendants and Messrs Johnson, Stokes & Master ("JSM"), solicitors for Dr Wood (and also for the 5th defendants) regarding their joinder. The 5th defendants were eventually added as parties on 16 July 1991 and, on 16 September 1991, they served their defence, which was essentially the same as that served by Dr Wood.

26. There followed a period of some 171/2 months when the plaintiff took no further steps in the action, necessitating a Notice of Intention to Proceed on 4 March 1993, after which his list of documents was filed on 6 April 1993.

27. At the start of this period, the plaintiff, who was out of work for much of the time, was trying to obtain legal aid. On 21 January 1992, SJP mailed a fresh application to the DLA. In the DLA's reply of 14 February 1992, the application was refused on the ground that the plaintiff's disposable income and capital exceeded the statutory limits. However, the DLA added that the plaintiff could apply for legal aid under the Supplementary Legal Aid Scheme and an explanatory leaflet and a fresh application form were sent to SJP. On 26 February 1992, SJP sought clarification about the plaintiff's eligibility given that his capital had been assessed at HK$193,275.00. It appears that this letter was not answered. Thereafter, there was minimal progress, although some inquiries as to suitable experts were made. This was one of the periods found by Suffiad J to have involved inordinate and inexcusable delay on the part of the plaintiff or his lawyers.

28. On 15 April 1993, the plaintiff filed his Summons for Directions and at its hearing before Master Jones on 4 May 1993, it appears that the parties all agreed to directions for the disclosure of expert evidence within 3 months after completion of discovery and inspection. Thereafter, on various dates leading up to August 1993, lists of documents were filed by the Defendants.

29. I pause to note that in May or June 1993, in what can at best be described as an act of breathtaking carelessness, one William Murray Duncan, the Assistant Company Secretary and Legal Adviser of the MTRC, authorised the destruction of a library of compressed air related files which had been put together by the MTRC as relevant to a series of pending cases including the present. He had apparently done so without checking the index to the documents or making any inquiries as to whether the documents might be needed.

30. In August and September 1993, summonses for specific discovery were taken out against the plaintiff by the defendants other than the MTRC. These were directed at obtaining documents relating to any employment of the plaintiff in compressed air prior to his engagement by the MTRC. In addition, the doctors sought radiographs and other medical records relating to the plaintiff after he left Hong Kong. Orders for such specific discovery were made by Master Jones on 6 October 1993 and were complied with by the plaintiff filing affidavits on 9 November 1993, indicating, among other things, that certain radiographs were with Dr King and Dr Pooley. Naturally, inspection of those radiographs was sought and this led to a lengthy period when SJP had repeatedly to send letters trying to extract them from Dr King and Dr Pooley. It appears that it was not until 21 May 1994 that the documents in question were delivered to the defendants. On 24 May 1994, the 2nd and 3rd defendants obtained an order for particulars of the plaintiff's claim for special damages. These were eventually provided on 16 August 1994.

31. There then followed the second period found by the Judge to constitute inordinate and inexcusable delay. This was from August 1994 to July 1996. In that time, apart from issuing a notice of application for legal aid on 1 February 1996 followed by a notice dated 11 April 1996 that a legal aid certificate had been granted, no steps were taken in the action. The plaintiff filed his second Notice of Intention to Proceed on 16 July 1996 and thereafter filed his Supplemental List of Documents.

32. Behind the scenes during the abovementioned period, SJP had been monitoring developments in a similar case brought by one Anthony Gallagher against the MTRC, Kumagai and another contractor (in HCA 219/1990, subsequently designated HCPI 986/98, "the Gallagher Action"). This led SJP to explore a fresh application to the DLA under the Supplementary Scheme and eventually to make a third application for legal aid on the plaintiff's behalf on 11 January 1996. As indicated above, this was successful and resulted in the grant of legal aid on 11 April 1996. After initially assigning the case to a different firm of Hong Kong solicitors, the DLA agreed to re-assign it to SFK&S (with SJP now playing the role of UK agents) to save costs.

33. Following the plaintiff's filing of his Supplemental List, somewhat surprisingly, a further year or so passed without any steps being taken in the action, necessitating a third Notice of Intention to Proceed on 28 August 1998. However, the Judge held that this delay and any subsequent delays were not caused by the plaintiff but were mostly attributable to the corporate defendants' failure to make full discovery. Miss Audrey Eu SC, appearing with Mr Anthony Ismail for the doctors, does not seek to contend otherwise. The documents exhibited certainly indicate that despite the lack of progress in the action, there was a high degree of activity out of court involving the plaintiff's efforts to get specific discovery from the corporate defendants and preparation of expert reports on the plaintiff's behalf.

34. After his third Notice of Intention to Proceed, the plaintiff filed a Notice of Check List Review on 28 September 1998 and, on 9 October 1998, applied for the action to be transferred to the Personal Injuries List. The transfer was ordered on 20 October 1998 but the court was only able to fix an appointment for the Check List hearing for 4 May 1999, some seven months after the Notice was filed. However, on 31 March 1999, the plaintiff wrote to Seagroatt J seeking an adjournment of the Check List hearing to enable a pending attempt to strike out the Gallagher Action for want of prosecution first to be determined. The intention was to seek directions for the trial of the plaintiff's action to take place immediately after the trial of the Gallagher Action if the pending attempt to strike out should fail, again with a view to saving costs. Seagroatt J acceded to the application and, on 18 May 1999, the plaintiff filed his check list, having in the meantime re-amended the Statement of Claim. This was met by the defendants' application to dismiss the plaintiff's action for want of prosecution which came to be decided by Suffiad J on 1 September 1999.

The Judge's decision

35. In a careful and thoughtful judgment, Suffiad J made the following findings, namely:-

(1) That there was inordinate delay between September 1991 and April 1993 by SJP as well as two of the experts, Dr King and Dr Pooley, instructed on behalf of the plaintiff.

(2) That there was also inordinate delay from August 1994 to July 1996, and that the fact that much of this period involved efforts to get legal aid did not make the delay less blameworthy since SJP had mishandled the legal aid application in February 1992. If the application had been properly followed through, "there was every indication that the plaintiff could have been granted legal aid under the Supplementary Scheme at the very latest by mid 1992 and much of the delay in instructing experts could then have been avoided." Because of the mishandling, it took a further three years for legal aid to be granted.

I pause to note that Mrs Barbara Kaplan, appearing for the plaintiff, submitted that the Judge had erred by failing to make any finding as to whether the periods of inordinate delay were also inexcusable. In my view, that criticism is unjustified. A fair reading of the judgment clearly shows that the Judge's finding was that the two periods involved both inordinate and inexcusable delay. This is for instance made clear in his discussion of the "blame" for mishandling the legal aid application and the consequent delays to the action.

(3) That there was nothing in the defendants' conduct capable of founding an estoppel against their complaining about the plaintiff's delays.

(4) That the corporate defendants had failed to establish that the plaintiff's delay had caused them prejudice, any prejudice due to destruction of their statutory records having been self-inflicted and indeed, having caused prejudice to the plaintiff.

(5) That, on the other hand, the delay had caused the doctors prejudice in that Dr Wood's recollection of material facts had been dimmed, making it difficult to have a fair trial and also because they had suffered the prejudice of having the case hang over their heads for so many years.

Suffiad J summarised the different conclusions he had reached concerning the corporate defendants and the doctors respectively as follows:-

"Whatever prejudice there may have been to [the corporate defendants] were self-inflicted. In the circumstances, I am of the view that it is still possible to have a fair trial of the action as between the Plaintiff and the 1st, 2nd and 3rd Defendants. .......

In so far as the 4th and 5th Defendants are concerned, ....... I have come to the conclusion that the 4th and 5th Defendants have suffered serious prejudice as a result of the delay such that there is little chance of there being a fair trial where the 4th and 5th Defendants are concerned."

He accordingly dismissed the application of the corporate defendants but granted that of the doctors.

The role of the Court of Appeal

36. Interlocutory appeals in this jurisdiction are brought before the Court of Appeal without having to seek the court's leave. As Godfrey JA recently reminded us in Kerry Foodstuffs Co Ltd v Pulsawat Navy Co Ltd [1999] 3 HKC 523 at 527, this makes it doubly important to bear in mind the limited role that an appellate court plays in such cases.

37. Lord Diplock, in Birkett v James [1978] AC 297 described the restricted approach as follows (at p 317):-

" ....... an appellate court ought not to substitute its own 'discretion' for that of the judge merely because its members would themselves have regarded the balance as tipped against the way in which he had decided the matter. They should regard their function as primarily a reviewing function and should reverse his decision only in cases either (1) where they are satisfied that the judge has erred in principle by giving weight to something which he ought not to have taken into account or by failing to give weight to something which he ought to take into account; or (2) as in Ward v James [1966] 1 QB 273, in order to promote consistency in the exercise of their discretion by the judges as a whole where there appear, in closely comparable circumstances, to be two conflicting schools of judicial opinion as to the relative weight to be given to particular considerations."

The Court of Appeal therefore only adopts a reviewing function and it is only if Suffiad J can be said to have erred in principle or if his decision raises issues in an area where it is desirable to promote consistency in the abovementioned sense, that this court will intervene and exercise the discretion afresh.

The plaintiff's criticisms of the Judgment

38. The plaintiff contends that the Judge has indeed erred in principle and that his decision is susceptible to appellate review. A number of separate criticisms are relied on.

39. The first two (Issues 1 and 2 in Mrs Kaplan's skeleton argument) involve attacks on the manner in which the Judge approached the evidence and the applicable principles when performing the basic Birkett v James exercise of determining whether there were periods of inordinate and inexcusable delay on the part of the plaintiff or his legal advisers and if so, whether such delays caused substantial prejudice to the doctors such as to merit dismissal of the plaintiff's claim for want of prosecution.

40. In my view, these two criticisms have not been made good. I will content myself at present with saying that the Judge did not misdirect himself as to the applicable principles and that, on the evidence, he was entitled to find inordinate and inexcusable delay even if other judges might have reached a different result.

41. Next, is the plaintiff's argument (Issue 5 in Mrs Kaplan's skeleton argument) that the Judge erred in failing to conclude that the doctors' own conduct had been such as to disentitle them from applying for dismissal of the action. In particular, it was submitted that by their conduct, they had "caused the Appellant reasonably to infer that no application to dismiss would be made and to necessarily incur very substantial costs" so that "the Court should not entertain their application to dismiss the action as against them".

42. The view previously taken of such conduct on the part of a defendant was that it raised an estoppel against his application to strike out the action : see County & District Properties Ltd v Lyell (Note) [1991] 1 WLR 683, adopted by Neill LJ in Trill v Sacher [1993] 1 WLR 1379 at 1398 (the summary in the latter case having been adopted in Hongkong & Shanghai Banking Corp Ltd v Kuan Tao Sheng [1998] 1 HKC 438).

43. However, reliance on the principle of estoppel as the basis for depriving the court of its discretion is an approach which has met with much judicial disapproval. As Leggatt LJ commented in Roche v Church (unreported), 4 December 1992; English Court of Appeal (Civil Division) Transcript No. 1165 of 1992: "That a doctrine of equity should be allowed to operate so as to ensure that an unfair trial takes place constitutes, in my judgment, a travesty of justice."

44. Lord Browne-Wilkinson, with the agreement of the other Law Lords in Roebuck v Mungovin [1994] 2 AC 224, shared this disapproval. He pointed out (at p 235) that any estoppel arising in such circumstances could only be an equitable estoppel as it would be founded on a representation by the defendant that he would proceed to trial, being a representation as to future conduct. Accordingly, even if such an estoppel arose (which was doubtful), it did not follow that there had to be an automatic legal bar to obtaining a striking-out order since the effect of such an estoppel is to give the court power to do what is equitable in all the circumstances. He therefore concluded (at p 236) that :-

"Such a discretion is not materially different from that which the court would be exercising if it had an unfettered discretion whether or not to strike out a claim. Therefore the introduction into the law of striking out of concepts of waiver, acquiescence or estoppel is merely confusing."

The House of Lords therefore overruled County & District Properties Ltd v Lyell and Lord Browne-Wilkinson (at p 236-7) formulated the true principle as follows :-

"Where a plaintiff has been guilty of inordinate and inexcusable delay which has prejudiced the defendant, subsequent conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking-out order. Such conduct of the defendant is, of course, a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case. At one extreme, there will be cases like the present where the defendant's actions are minor (as compared with the inordinate delay by the plaintiff) and cannot have lulled the plaintiff into any major additional expenditure: in such a case a judge exercising his discretion will be likely to attach only slight weight to the defendant's actions. At the other extreme one can conceive of a case where, the plaintiff having been guilty of inordinate delay, the defendant has for years thereafter continued with the action thereby leading the plaintiff to incur substantial legal costs: in such a case the judge may attach considerable weight to the defendant's activities. But it is for the judge in each case in exercising his discretion to decide what weight to attach in all the circumstances of the case to the defendant's actions and I trust that in the future there will be few occasions on which the Court of Appeal will be invited to review his decision on the point."

The plaintiff's "disentitlement" argument must accordingly be treated simply as raising one factor to be taken into account in the exercise of discretion and not as a free-standing ground of appeal.

45. No doubt because of the way the matter was presented, the Judge dealt with the question solely as one of estoppel or waiver, focussing on the defendants' repeated threats of a possible striking out application without an actual application being taken out until very late in the day. He found that no estoppel or waiver had arisen on the facts. It follows, that it could be said that the Judge did not consider the conduct complained of on a correct basis and that, in exercising his discretion, he ought to have considered whether, by their conduct, the doctors may have encouraged the plaintiff reasonably to incur expenditure on the footing that they were willing to proceed to trial despite his delays. This is a matter to which I shall return.

46. I turn now to the two remaining criticisms of the Judgment advanced on the Appellant's behalf. They are closely related arguments which turn on the nature of the plaintiff's claims.

47. The first (Issue 3 in the skeleton argument) is that the Judge erred in principle in that he failed to give any consideration to the fact that even if the plaintiff's claim against the doctors was struck out, it was virtually certain that they would have to face exactly the same allegations in proceedings for contribution or indemnity brought against them by one or more of the corporate defendants. I shall call this "the continuing proceedings point".

48. Secondly (Issue 4 in the skeleton argument) is the argument that the Judge erred in principle in that his decision to dismiss the action against the doctors on the ground that the delay had precluded a fair trial against them was inherently inconsistent with his decision that it was still quite possible to have a fair trial against the corporate defendants. I shall call this the "inconsistency point".

The Judge's exercise of discretion vitiated

49. In my judgment, there is much force in both points. It would be convenient to deal first with the inconsistency point.

50. As mentioned in the discussion of the pleaded causes of action above, the plaintiff's primary case against the corporate defendants is that they breached their various duties by allowing him to continue to work in compressed air notwithstanding his medical history and symptoms. Accordingly, for his case against them to succeed, he must show that it was negligent or a breach of duty to adjudge him medically fit to work in compressed air during his employment in Hong Kong and that this caused his dysbaric osteonecrosis.

51. It is therefore clear that inadequate medical supervision, care, treatment and advice are as much a part of the plaintiff's case against the corporate defendants as they are of his case against the doctors. The two cases fundamentally overlap, the claim against the corporate defendants raising all the issues in the claim against the doctors and additional issues relating to site conditions and procedures. Accordingly, with respect, I am unable to see how one can reconcile the Judge's decision that it is still possible to have a fair trial against the corporate defendants with his decision that a fair trial cannot be held in respect of the doctors.

52. The overlap also bears on the continuing proceedings point. Because the negligence (or breach of duty) of the doctors or otherwise is likely to be crucial to determining whether the corporate defendants have any liability, it seems inevitable that even if the plaintiff's claim against the doctors is struck out, the doctors will be brought back into the proceedings as Third Parties by one or more of the corporate defendants. Indeed, the MTRC has issued a contribution notice and appears almost certainly likely to replace it with a Third Party notice if the plaintiff's action remains dismissed.

53. A situation where proceedings against certain defendants are likely to be continued by co-defendants even if the plaintiff's claim against the first set of defendants is struck out, has been recognized to raise a potentially important consideration in the exercise of the court's discretion.

54. Thus, in Hatter v Port of London Authority (1971) 115 SJ 950 (CA), the plaintiff sued four defendants and the judge struck the action out for want of prosecution against all except the 1st defendants, keeping them in the action on the ground that they had acquiesced in the delay. The Court of Appeal reversed the judge and reinstated the action against all four defendants. Davies LJ stated as follows : -

"It would be unjust to allow the action to proceed against the 1st defendants but not against the others. It would be unfair to the 1st defendants because they could not recover against the other defendants, and unfair to the plaintiff because she might fail against the 1st defendants and yet succeed against the other defendants. Therefore the plaintiff's appeal would be allowed, and the action proceed against all the defendants."

However, in Kelley v Marley Tile Co Ltd (1977) 122 SJ 17 (CA) and subsequent cases, the Hatter decision was explained as one involving a particular exercise of discretion and not a case laying down any hard and fast principle. Bridge LJ stated :-

"Though it might be right in some cases to dismiss an action against one defendant and allow it to proceed against another, considerations of broad justice must be relevant in the exercise of the discretion and it would need a strong case to persuade the court."

The Court of Appeal held on the facts that the judge had rightly allowed the case to proceed against both defendants in that case.

55. The possibility, even if exceptional, of striking out an action against some only of the defendants was reiterated in City of Westminster v Clifford Culpin and Partner (1987) Con LR 118 (CA). Kerr LJ (at p 132) stressed that " ....... there is no rule that the fate of one or more defendants necessarily determines that of the remainder" and that " ....... an action may be struck out against one defendant for want of prosecution but allowed to proceed against another", adding :-

"Prima facie each defendant is entitled to have his position considered individually, by the application of the Birkett v James principles to him alone. But there may be cases where the prejudice which would be caused to one or more of the other parties by his dismissal from the action requires modification of what would otherwise be the appropriate order in relation to him."

56. Hollis v London Borough of Islington (unreported, English Court of Appeal transcript) No 67 of 1989, 27 January 1989, was a case where the plaintiffs had sued the owners of an adjoining house as 1st defendants and builders who were working on that house as 2nd defendants, alleging that in the course of such work they had caused damage to the plaintiffs' property. The plaintiffs alleged that the 1st defendants were vicariously liable for the negligent work of the 2nd defendants and the latter in turn laid the blame on the 1st defendants, alleging that the work had been done under the very close supervision and direction of the 1st defendants' architects.

57. Stuart-Smith LJ indicated that if the 1st defendants had been sued on their own they might have had difficulty establishing any prejudice arising from the plaintiffs' delays. However, the 2nd defendants were seriously prejudiced as they had gone into liquidation in the meantime and two of their important witnesses could not be traced. Stuart-Smith LJ's approach was as follows:-

"It is clear that only in exceptional circumstances should an action be struck out against one defendant and continued against another, certainly where, as here, the defendants have rights of contribution or indemnity inter se. In this case, if the 1st defendants remained in the action and it was struck out against the 2nd defendants, they would immediately be joined as third parties, thus reinstating the very injustice that the court seeks to avoid."

The court struck out the action against both defendants.

58. Finally, in Draper v Ferrymasters Ltd [1993] PIQR P356, the judge's approach at first instance had been to keep all the defendants in (at P367). However, Glidewell LJ did not agree on that course, stressing the entitlement of defendants to be considered separately and, if the facts warranted it, for some defendants to be kept in while others were let out of the action. He stated :-

" ....... if the 3rd defendants are entitled to have the action dismissed against them, they are prejudiced by not having it dismissed even if they may be at risk of having a contribution notice served on the." (at P367)

In the event, he took the view that the action should be dismissed against all three defendants.

59. In my view, these authorities plainly indicate that it is necessary, in the exercise of the judicial discretion, to consider, as a possibly important factor, the impact of striking out the action in respect of some, but not all, of the defendants. Having considered the matter, the court retains a discretion to proceed with such a course although a partial striking out would be exceptional, especially if this is likely to result in re-instatement of the proceedings against the relevant defendants by way of Third Party proceedings.

60. We were told that submissions along similar lines were made to the Judge although the abovementioned authorities were not cited. However, the continuing proceedings point is not a factor dealt with in the judgment.

61. In my judgment, such omission and the inconsistent result referred to above constitute errors which require the Judge's decision to be set aside and this court to exercise its own discretion afresh on the evidence.

Whether inordinate delay

62. The progress of the action has been described in detail above. On the basis of the facts there set out, I have no hesitation in holding that there was inordinate delay in the present case. Even assuming that the plaintiff's action were to come on for trial this year, some 14 years would have passed since the accrual of the plaintiff's cause of action (on his own case) in 1986. The trial would be concerned with events which occurred between 16 and 18 years ago. The totality of the delay is therefore most substantial.

63. As pointed out above, the Writ was only issued in 1989, at the very end of the limitation period. This is therefore a "late start" case. Accordingly, as is well established, it was :-

" ....... incumbent upon the plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued." (per Lord Diplock in Birkett v James [1978] AC 297 at 322)

One might add that the late start was of particular significance in the present case since, by the date of the Writ, some 5 to 7 years had already elapsed from the time of the plaintiff's employment in Hong Kong.

64. The plaintiff nevertheless chose not to serve the Writ for almost a whole year. While the Writ remained valid for service for such a period under the Rules of the High Court, the inactivity pending its service can be taken into account when assessing the overall delay in the event that inordinate and inexcusable delay subsequently ensues: Roebuck v Mungovin [1994] 2 AC 224 at 234.

65. I wholly agree with the view taken by the Judge that the two periods identified by him, namely (i) the period of some 18 1/2 months between 16 September 1991 and 6 April 1993; and (ii) the period of some 23 months from August 1994 to July 1996; when no steps were taken in the action, constituted periods of inordinate delay.

66. Miss Eu also contended that the Judge ought in addition to have found that there was inordinate delay in the period between September 1993 and August 1994. She argued that at least the period of some 9 months, from September 1993 to May 1994 spent chasing the plaintiff's doctors for x-rays and records in their possession amounted to inordinate delay because the return of those materials should have been sought much sooner, avoiding delay to the action. In my view, there is merit in that submission and such a finding could well be justified. However, in my view, a further 9 months of delay does not materially alter the position so that the point is largely academic.

Whether inexcusable

67. Mrs Kaplan submitted that the relevant delays in the present case were excusable because they were due to the plaintiff's inability during such periods to fund the proceedings, particularly the obtaining of expert evidence. Once legal aid was obtained in 1996, save for the delays due to the destruction of records by the corporate defendants, he was able to progress the action quite satisfactorily. She argued that the delays in question should therefore be regarded as caused by the difficulties which the plaintiff experienced in getting legal aid and were therefore excusable.

68. As the Judge correctly held, difficulties in obtaining legal aid may, in appropriate circumstances, constitute a valid excuse for delays in progressing an action. Thus in Birkett v James itself, Lord Salmon (at p 327) stated that it was impossible to consider a delay "due to obtaining legal aid" inexcusable.

69. However, in my view this is not the same as saying that delays caused by impecuniosity as such are excusable. The hard fact of the matter is that where a plaintiff does not qualify for legal aid and is unable to advance his litigation because of a lack of funds, there is likely to come a time when his action has to be struck out for want of prosecution. As Findlay J pointed out in Ngan Ching Pai v Doctor Chan Wai Lam William & Others (unreported) HCA No A10002 of 1991, while a court may feel inclined to afford an impecunious plaintiff a certain indulgence while he is trying to raise funds or otherwise to progress the case, this must be balanced against the defendant's legitimate interest in being able to have a fair trial and in his not being prejudiced by having an action hang over his head for an inordinate and inexcusable period of time.

70. I note that in Gilberthorpe v Hawkins (unreported), 15 March 1995; English Court of Appeal (Civil Division) Transcript, McCowan LJ appears to have accepted that lack of finance could be a ground of excuse which it is proper for the court to consider, but advised that such excuses, particularly in libel cases, had to be approached with great caution. In the event, the court refused to interfere with the decision of the judge below rejecting a finding of lack of finance on the facts. With respect, to the extent that the comments in Gilberthorpe suggest that lack of finance itself provides a sufficient ground for excusing delay, I would decline to follow such approach.

71. As I read it, Lord Salmon's dictum contemplated excusable delays incurred in the process of getting legal aid, for instance, where the ultimately successful applicant encounters complications and takes a particularly long time to secure approval. Indeed, a diligent application for legal aid may well be regarded as part of the plaintiff's proper prosecution of the action, preventing the time spent in that process from being regarded as in any way inexcusable.

72. In the present case, the very long delays cannot be excused on the basis that they are attributable to difficulties in getting legal aid. The plaintiff first applied for legal aid on 15 December 1988 but was refused it on financial grounds on 9 January 1989, a mere three weeks later. The second application was made on 21 January 1992 and refused by 14 February 1992, again within about three weeks. Obviously, no inordinate delays are attributable to the making or processing of those applications.

73. When refusing the second application, the DLA, obviously aware of an intended change in the rules, invited the plaintiff to submit an application for legal aid on the Supplementary Scheme, enclosing an application form. There is no doubt that this was not properly followed up by SJP. They wrote to the DLA on 26 February 1992 seeking clarification of the plaintiff's eligibility but, unfortunately, when no reply was received, the matter was not pursued and the invitation to make an application was not taken up. It was only on 11 January 1996, almost 4 years later, that a third application was made. This was an application under the Supplementary Scheme and was granted in April 1996.

74. The Judge found that the relevant delays were due, not to any difficulty getting legal aid, but to the mishandling of the application by SJP and that, properly pursued, legal aid would probably have been secured by mid-1992. I agree with his finding.

75. It is significant that the DLA, knowing the plaintiff's financial resources from his recent unsuccessful application and knowing of the intended changes to the Scheme, thought it worthwhile to invite an application. It is also clear that the financial limits in the Scheme were significantly raised by amendments to the legislation which took effect on 30 June and 1 July 1992 respectively. In particular, the capital limit under the Supplementary Scheme was raised to $280,000, thus exceeding the plaintiff's disposable capital assessed at $193,275 in December 1991, and the value of the family home was excluded from assessment of an applicant's financial resources.

76. In any event, the relevant delays do not fall within the excusable category of delays due to "difficulties in obtaining legal aid". To the extent that such lengthy periods of inactivity are explicable merely by the plaintiff's inability to fund the litigation (possibly in combination with ineptitude in the handling of the legal aid application), such explanation is incapable of providing a valid excuse. I am therefore satisfied that the periods of inordinate delay identified above were inexcusable.

Prejudice to the doctors

77. The doctors pray in aid two types of prejudice. They contend first, that the delay has deprived them of the possibility of a fair trial and secondly, that they have suffered prejudice from having the action hang over their heads for such a lengthy period.

Whether a fair trial has become impossible

78. The evidence relied on by the doctors as to the impossibility of a fair trial is in the affidavit of Dr Wood sworn on 18 June 1999. He exhibits his medical records and deposes to having "no present recollection" of the details of the medical examinations he conducted or of the attacks of the bends suffered by the plaintiff. For instance, the documents show that in January 1984, after the plaintiff suffered from the bends and complained of dizzy spells, he was put on a 6 hour maximum exposure to compressed air. Dr Wood notes that he lifted this restriction but states that he can no longer recall the reasons for doing so. He also deposes to having no recollection of conversations which the plaintiff says took place between them. In short, the doctors rely on the dimming of Dr Wood's memory by the passage of time leaving him to rely almost entirely on his clinical notes and other contemporaneous documents and with no independent recollection of the events in 1982 to 1984. Dr Wood summarises the position as follows:-

"In broad terms, the case against me is that I was negligent from 1982 to 1984 because I passed the plaintiff as fit to work in Compressed Air despite the fact that he had suffered several episodes of the bends ....... This allegation can only be fairly determined if, among other things, full details of the Plaintiff's state of health, his complaints to me, my examinations of him, and my advice and recommendations to him and the treatment he received for these episodes of 'the bends' between this period are known. Owing to the Plaintiff's delay, I have no present recollection of such details."

It is no doubt the case that generally, the passage of time dims memories. However, this does not necessarily mean that a fair trial cannot be conducted.

79. In the present case, shortly after the Writ was issued (but before it was served), the plaintiff's solicitors wrote to the Dr Wood indicating the nature of the claim they were making, as follows :-

"Our client was formerly an Inspector of Works in the employ of [the MTRC] and his present claim is in connection with osteonecrosis contracted by him in the course of his said employment when working under compressed air on site Nos 405 and 402 of ; from 1982 to 1984.

We are given to understand that you have on various occasions during the material period passed our client as fit for working under compressed air despite the fact that our client suffered a large number of bend cases in the period from 1982-1984. We would therefore like to know whether you have any relevant information or comments to make in this matter. ....... "

Mrs Kaplan submitted that on receipt of this letter, Dr Wood was sufficiently informed as to the existence and gravamen of the plaintiff's claim, enabling him to secure any documentary or other evidence relevant to his defence.

80. Miss Eu argued that a defendant should not be regarded as under a duty to take "elaborate proofs from their potential witnesses" upon first being told of an intended or freshly instituted action (per Harman J in Shearing v Cinven Ltd, The Times, November 24 1997). I agree if the stress is on the word "elaborate". As soon as someone, particularly a professional person, is told that he is to be sued for negligence, it seems to me a matter of commonsense that he should use all reasonable diligence to review his position, to secure any evidence that may be relevant (by preserving documents and proofing witnesses) and to seek advice if necessary. Such a defendant can reasonably be regarded as being just as aware as anyone else that time is likely to dim his recollection of the events in question and that witnesses may disperse and documents lost. He can therefore be expected, particularly when considering the claim with his advisers, to record any relevant recollections at that stage and to take at least some basic steps to preserve relevant evidence.

81. This was the view taken by Hirst LJ in Hunter v Skingley [1997] 1 WLR 1466 as follows :-

"I first consider diminution or dimming of memory. That is essentially a function of time. The first period, 1988 to 1990, over two years, is clearly very important in this context, as that would be the time when memories would be freshest and when full statements can and should have been taken from the witnesses by the defendant's solicitors. I would add that, in the case of the three missing witnesses, had that been done there would have been statements which would no doubt have been admissible under the Civil Evidence Act 1968. (at p 1472)

" ....... the prejudice for which the plaintiff was responsible is, to my mind, at most marginal and notably less than the defendant's contribution, especially in relation to the loss of memory during the first two years when recollections must have been freshest and when statements should have been taken from everybody, including the three missing witnesses." (at p 1473)

In the present case, it appears that Dr Wood did review his records and no doubt his recollection of the case back in 1989. Thus, in his reply to the plaintiff's solicitors dated 18 September 1989, he stated:-

"I confirm that we have retained [the plaintiff's] medical records and X-rays. However, details of his episodes of 'bends' treatment will be held by his employers at that time. The Regulation Form 6 indicating this fitness to work in compressed air each month should be in [the plaintiff's] own possession. ....... "

On 21 October 1989, JSM confirmed that Dr Wood was in possession of "the medical records and x-ray material", adding: "It is understood that your client took a complete set of x-rays back with him to the United Kingdom when he left Hong Kong in 1984." Plainly, the whereabouts of relevant materials was discussed with the doctors' solicitors at that stage.

82. In practice, even in the normal course of a doctor's practice, one would not expect him to rely on his unaided recollection of previous examinations and treatments prescribed for any particular patient. A doctor in the position of Dr Wood will regularly have examined and treated many different patients for compressed air related conditions. He would be expected to rely on his clinical notes, medical certificates, x-rays and other such documents in the conduct of his practice. Would such materials be available to the doctors and to the court if the matter were to proceed to trial?

83. First, and of direct relevance, are Dr Wood's clinical records in relation to the plaintiff. These were apparently kept in a large index card format with a date stamp beside each entry, commencing in October 1982 and with the last entry stamped 19 June 1984.

84. Secondly, and also directly relevant, are a series of letters from Dr Wood to the MTRC which served as medical certificates to the plaintiff's employer indicating when attacks of the bends took place and what Dr Wood consequently prescribed in relation to the plaintiff's working in compressed air.

85. Thirdly, there are x-rays of the plaintiff taken in the course of his employment.

86. Fourthly, there is the statutory Compressed Air Register (Form 6) which recorded the occasions when medical examinations of the plaintiff were conducted.

87. In my view, from such records, the court will be able to form at least a basic picture of the occasions when the plaintiff sought help for the bends and what Dr Wood did in response. By way of example, we see the following entries in the clinical records concerning episodes of the bends suffered by the plaintiff in December 1982 :-

"21 Dec 1982: Bend right shoulder last night. Treated. Resume C/A work on 23/12.

29 Dec 1982: Seen in medical lock at Victoria Park. Bend [L] shoulder. Re-check tomorrow.

31 Dec 1982: Had to have a second medical decompression yesterday. X-ray both shoulders. OK. Stay out of C/A one month then review."

These entries can be matched to letters from Dr Wood to the MTRC stating as follows:-

"29 Dec 1982: 'I examined Mr Hymer in the Medical Lock at Victoria Park this afternoon because he was experiencing his third bend in quite a short period of time after only a few hours in compressed air. I shall see him again tomorrow for a further check-up. He will probably need to stay out of compressed air for a few weeks.'

31 Dec 1982: 'In view of his recent "bends" history it is advised that he should stay out of compressed air for at least a month. X-rays of his shoulders done today were normal.'"

We see from the clinical records that on 26 January 1983, Dr Wood concluded: "Shoulder recovered. Fit for C/A."

88. Further attacks of the bends were suffered in December 1993, January 1984 and March 1984, leading to the termination of his employment. Again, these are reflected in the clinical records entered on the medical card and in letters to the MTRC. The medical card entries give some details of the plaintiff's symptoms, the circumstances of the bends attack and the drugs prescribed. For example:-

"13 December 1984: 1 hr after decompression early this morning noticed some visual disturbance. Went back to site. The symptoms have now subsided but feels nauseated. Working pressure was 2.0 bars. EOM (ticked). Pupils normal. ....... Stemetil 10 mg i/v, Stemetil tabs 10 x 5 mg. See again tomorrow.

14 December 1984: Better today. Work again tomorrow; acclimatise.

22 March 1984: Cold. Nasal congestion + ....... No glan. Recently has had two medical decompressions following working at approx. 2.45 bar on first occasion 15/3 and 2.35 bar on second occasion 21/3. On each occasion had been in for only 5 1/2 hours. Ephedrine nasal drops 1%.

26 April 1984: Pain right hip. Has had for some length of time. Mostly feels during the evening. Has now been out of C/A about 6 weeks. (last set of joint x-rays Sep 83). X-ray right hip. OK. Naprosyn (similar to Brufen) See next week."

Again, Dr Wood's letters to the MTRC regarding the plaintiff's condition (and for instance, removing the 6 hour restriction on his working in compressed air) can be read in conjunction with such entries.

89. The court will also have access to the plaintiff's medical records following his return to the United Kingdom. With the help of expert witnesses, these may well throw some light on the plaintiff's position while he was still in Hong Kong.

90. I consider that both the plaintiff and Dr Wood have legitimate grounds for feeling aggrieved that the compressed air work records and other statutory forms have been destroyed or lost by the MTRC, Nishimatsu and Kumagai. Such documents are likely to have helped either or both sides to prepare and conduct their respective cases. However, any prejudice suffered by the doctors due to the unavailability of such documents cannot be blamed on delay by the plaintiff. Indeed, the plaintiff appears likely to be prejudiced to no lesser extent by their absence.

91. In considering whether a fair trial is still possible, it is relevant to note that in his witness statement, the plaintiff makes several allegations about matters which Dr Wood might well not be expected to remember. For instance, the plaintiff refers to a telephone call to Dr Wood on "14 December" advising him of the plaintiff's severe symptoms and states that when he saw Dr Wood on "the following day", the plaintiff "had to insist" that he was "suffering from the air" so that the 6 hour restriction was imposed. However, I have reached the view that such allegations do not impinge upon the fairness of the trial. The crucial questions for the court will involve asking what, as a matter of expert evidence, the medical significance of the plaintiff's symptoms was and how Dr Wood should have reacted. The fact that the plaintiff says that it was only as a result of his insistence that Dr Wood imposed the 6 hour restriction does not materially alter the question whether that was a correct or sufficient response.

92. This is illustrated by considering the nature of the criticisms made of Dr Wood's conduct by Dr King, the plaintiff's expert. Examples of some of the key criticisms in Dr King's preliminary report are as follows :-

"It was on 13 December 1983 he suffered unequivocal symptoms of acute cerebral decompression illness, or Type II. He should have been treated by recompression. However, Dr Wood gave him Stemetil, an anti nausea drug, by injection and by mouth. If ordinary practice had been followed - as it was in at least some other cases in Hong Kong, Hymer's certificate of fitness should have been withdrawn, permanently. In divers Type II may be followed by a return to work but in tunnelling worldwide it almost always means the end of compressions. He was allowed to carry on and had further bad bends in March on a different contract before being stopped by the engineer."

" ....... it is axiomatic that all symptoms after exposure are decompression sickness until proved otherwise, and for all symptoms the treatment is recompression. This was clearly missed by Dr Wood when Hymer had his Type II symptoms and a trial recompression would have resolved any diagnostic difficulties that Dr Wood might have had."

"Hymer had a serious Type I DCI in December 1982 and needed two treatments. This alone should have suggested that he was likely to suffer DCI more than most men. The decision to allow him to continue is not substantiated in the notes and does not accord with what I would have considered good practice at the time."

"He should probably have been stopped from air work in late December 1982 after the second medical recompression."

93. Responses to Dr King's criticisms are not apparently dependent on the sharpness or otherwise of Dr Wood's recollections. Dr King appears to have advanced his views on the basis of available records, concluding for instance, that these show that the plaintiff suffered unequivocal symptoms of acute cerebral decompression illness on 13 December 1983. If this conclusion is to be attacked, it would presumably be on the footing that the available data does not justify that view, which is not, so far as I can see, dependent on recollection.

94. The same applies to Dr King's other views, including his opinion that the plaintiff should have been treated by recompression instead of being given Stemetil and that his certificate of fitness should have been withdrawn permanently. Expert evidence called by the doctors might or might not join issue with these conclusions, again irrespective of the state of Dr Wood's memory.

95. So far as I am aware, Dr Wood has not suggested that he did not write down all the relevant symptoms or record all the measures prescribed. If such testimony were to be given, the court would obviously have to decide whether to accept it in the context of the evidence as a whole, including expert evidence as to the practice and significance of keeping incomplete medical notes. It would not, in my view, necessarily mean that Dr Wood could not have a fair trial.

96. In his affidavit sworn on 18 June 1999, Dr Wood states that his case is that he never failed in his duties of professional care and skill or in his statutory duties in respect of the plaintiff. In the light of the evidence available and the nature of the issues before the court, it is my view that it remains entirely possible for that case to be fairly tried.

Biss type prejudice

97. The Judge also struck out the action on the ground that the doctors had been subjected to serious prejudice in the form of having the action hang over their heads for an extremely long period of time. This is of course a well-recognized head of prejudice, particularly where professional men and organizations are involved and, as Miss Eu pointed out, this kind of prejudice alone may be sufficient to justify a dismissal for want of prosecution: Biss v Lambeth, Southwark Lewisham Health Authority [1978] 1 WLR 382 and Can-Asia Capital Co Ltd v Kwok Yee William [1995] 1 HKC 521 at 525 and 530.

98. I have considerable sympathy for the doctors on this score as Dr Wood and his colleagues will have undoubtedly suffered a degree of anxiety for a very long time as a result of having the case hang over their heads.

99. It is however in this context that the continuing proceedings point becomes important. As discussed above, it is extremely likely that even if the plaintiff's claim is struck out as against the doctors but not against the corporate defendants, application will immediately be made to bring the doctors back into the action as Third Parties and so will face materially the same allegations at the suit of their co-defendants. The Biss type prejudice suffered by the doctors will not cease, but will actually be prolonged by a decision to strike out the plaintiff's claim since time would be needed for the other defendants to institute Third Party proceedings and to catch up with the main action.

100. Accordingly, taking into account the continuing proceedings point, it is my view that in the exercise of the court's discretion, notwithstanding the existence of Biss type prejudice, the plaintiff's action against the doctors should not be struck out.

101. I might add that, while not a decisive factor on its own, the doctors' conduct in standing by and delaying for some 8 months after the plaintiff issued his Notice for a Check List hearing before applying to strike out the action, when it must have been obvious that he was intending to incur substantial expenses in that period, is an added factor inclining me towards allowing the appeal.

102. It is therefore my view that the appeal must be allowed and that the Judge's order dismissing the plaintiff's claim against the doctors must be set aside.

Rogers JA:-

103. I agree and have nothing to add.

Godfrey VP:-

104. I have had the advantage of reading in draft the judgment prepared by Ribeiro JA. I agree with it and for the reasons he gives I too would allow this appeal.

105. The appeal will accordingly be allowed and the judge's order below set aside. Subject to the provisions of Order 42 rule 5B(6) of the Rules of the High Court we will order that the plaintiff's costs, here and below, be taxed (if not agreed) and paid by the 4th and 5th defendants to the plaintiff. There will be a separate taxation of the plaintiff's costs for the purposes of the Legal Aid Regulations.