LAU MING FAI v. JONES LANG LASALLE MANAGEMENT SERVICES LTD

DCPI 518/2022

[2023] HKDC 675

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 518 OF 2022

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REASONS FOR DECISION

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1.  This is an application by the plaintiff by summons filed on 20 April 2023 under Order 80, rule 3(5) of the Rules of the District Court (Cap 336H) (“RDC”) for the appointment of a next friend on the ground that the plaintiff becomes a mentally incapacitated person after the commencement of these proceedings. At the end of the hearing, I dismissed the summons. These are my reasons for doing so.

Background

2.  According to the indorsement of claim dated 16 February 2022, the plaintiff allegedly met an accident during work on 26 February 2019.

3.  The plaintiff has produced a joint neurological expert report prepared by Dr Kan Yiu Ting (instructed by the plaintiff) and Dr Edmund Woo (instructed by the defendant) dated 22 March 2022, in which both Dr Kan and Dr Woo agreed, among other things, that:-

(1)  the plaintiff had a severe traumatic brain injury after the alleged accident;

(2)  the plaintiff was diagnosed to be suffering from an organic brain syndrome with cognitive impairment in language, memory and executive function, and moderate to severe aphasia, a disorder of speech and language which correlates with damage at the left temporal lobe, resulting in speech which is devoid of meaning and inability to understand what is said by others;

(3)  based on Dr Kan and Dr Woo’s findings at the joint neurological assessment of the plaintiff conducted on 14 September 2021, the plaintiff is a mentally incapacitated person within the meaning of the Mental Health Ordinance (Cap 136) (“MHO”) and is incapable of managing or administering his own properties and affairs.

The plaintiff’s application for appointment of next friend

4.  RDC Order 80, rule 3(2) provides:-

“Except as provided by paragraph (4) or (5) or by rule 6, an order appointing a person next friend or guardian ad litem of a person under disability is not necessary.”

5.  The plaintiff’s summons was issued under RDC Order 80, rule 3(5), which reads:-

“Where, after any proceedings have been begun, a party to the proceedings becomes a mentally incapacitated person, an application must be made to the Court for the appointment of a person to be next friend or guardian ad litem, as the case may be, of that party.”

6.  In the light of the medical evidence produced by the plaintiff, it is evident that the plaintiff had become a mentally incapacitated person well before the writ was issued on 16 February 2022, and his case therefore does not fall under RDC Order 80, rule 3(5). Indeed, none of the exceptions to Order 80, rule 3(2) are presently relevant. It follows that an order appointing a next friend for the plaintiff is not required. Such appointment can be done by the plaintiff’s solicitors filing the documents prescribed in Order 80, rule 3(8) in the Registry, upon which the proposed next friend would, in accordance with Order 80, rule 3(6)(c), have been entitled to appear as the plaintiff’s next friend: see Hong Kong Civil Procedure 2023, vol 1, §80/3/1.

7.  As the Court of Final Appeal explained in Moral Luck Finance Ltd v Law Kin Leung (2015) 18 HKCFAR 343, §20, per Ribeiro PJ, the statutory procedure under RDC Order 80, rule 3 is obviously designed to avoid unnecessary satellite litigation over mental capacity in ordinary cases involving persons under disability. Regrettably, the plaintiff’s solicitors have chosen to issue the present summons and thus create a satellite litigation over the mental capacity of the plaintiff which is neither necessary nor warranted.

8.  Worse still, the certificate made by the plaintiff’s solicitor (who is not Mr Tam who appears for the plaintiff at this hearing) in support of the application is defective in that it does not comply with the requirements set out in RDC Order 80, rule 3(8)(c):-

(1)  First, the plaintiff’s solicitor only states that he knows that the plaintiff is a mentally incapacitated person without stating the grounds of his knowledge: cf. Order 80, rule 3(8)(c)(i). Even though the plaintiff’s wife has made an affirmation exhibiting the joint neurological expert report in support of the summons, it is nonetheless incumbent upon the plaintiff’s solicitor to comply with Order 80, rule 3(8)(c)(i) by stating in his certificate the grounds of his own knowledge as to the plaintiff’s mental capacity. If any medical opinion is relied upon, it should be annexed to the certificate: see Hong Kong Civil Procedure 2023, vol 1, §80/3/7.

(2)  Secondly, the plaintiff’s solicitor fails to state in his certificate whether there is any person authorised under Part II of the MHO to conduct these proceedings in the name of the plaintiff or on his behalf: cf. Order 80, rule 3(8)(c)(ii). Clearly, if any such person exists, he or she shall be entitled to be next friend under Order 80, rule 3(3). It is therefore pertinent for the plaintiff’s solicitor to include such relevant information in his certificate.

9.  In view of the unsatisfactory state of the plaintiff’s application, on 11 May 2023, I directed the plaintiff’s solicitors to clarify, on or before 15 May 2023, the grounds on which the plaintiff claims that his case falls under RDC Order 80, rule 3(5), and whether the solicitor’s certificate has complied with the requirements stipulated in Order 80, rule 3(8)(c), and if not, whether any application will be made to amend the solicitor’s certificate.

10.  The court’s requisitions were not answered by the plaintiff’s solicitors within the stipulated time limit. Instead, by a letter dated 16 May 2023, the plaintiff’s solicitors requested for this hearing to be adjourned on the ground that they had not yet served the summons on the defendant. As the defendant’s attendance is not required for the present purposes, I ordered that this hearing shall proceed as scheduled.

11.  At the hearing, Mr Tam for the plaintiff informed the court that, for reasons best known to the plaintiff’s solicitors, they had not received the court’s requisitions. It has also transpired that the information contained in their letter to the court dated 16 May 2023 is incorrect in that the summons had already been served on the defendant on 25 April 2023. Hence, there is no good reason for this hearing to be adjourned even on the plaintiff’s own case.

12.  Upon the court’s inquiry, Mr Tam confirmed with the court that the plaintiff was, when the writ herein was issued, and still is, a mentally incapacitated person, and no person has been authorised under Part II of the MHO to conduct these proceedings in his name or on his behalf. On such basis, Mr Tam fairly accepted that it was not necessary for the summons to have been issued since the plaintiff could have prayed in aid RDC Order 80, rule 3(2) to appoint a next friend without any court order. He also accepted that the solicitor’s certificate is defective and requires amendment for the reasons stated at §8 above.

13.  In the premises, I dismissed the plaintiff’s summons and directed that the plaintiff’s solicitors do file an amended certificate in compliance with RDC Order 80, rule 3(8)(c) on or before 31 May 2023.

14.  After hearing Mr Tam on costs, I made no order as to costs of the summons upon the plaintiff’s solicitors’ undertaking that they shall not recover the costs of the summons, including the costs of this hearing, from the plaintiff personally.

15.  Last but not least, it is right to point out that solicitors are officers of the court and they owe duties to the court in the conduct of proceedings: Ma So So v Chin Yuk Lun & Anor (2004) 7 HKCFAR 300, §1, per Li CJ. The way the plaintiff’s solicitors conducted the present application is not conducive to the safeguarding of the interests of a person under disability and the underlying objectives of the RDC. Practitioners are reminded that they should assist the court to further the underlying objectives of the RDC, including to promote procedural economy in the conduct of proceedings and to ensure that the resources of the court are distributed fairly: see RDC Order 1A, rule 1(c) and (f).