CHEUNG YIN HEUNG v. HANG LUNG REAL ESTATE AGENCY LTD AND ANOTHER

HCPI 421/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 421 OF 2009

_________________________

_______________

DECISION

_______________

I.  LEGAL PROCEEDINGS

1.  The Plaintiff claims that at about 1:30pm on 2 June 2006 she walked down a staircase to go to a restaurant on the 1^st floor of Amoy Gardens Phase III (“Estate”).  Whilst walking on the staircase from the 2^nd floor to the 1^st floor (“Staircase”), she slipped and fell thereby sustaining personal injuries (“Accident”).  She further claims (a) it was raining at the time, (b) the Staircase was wet and slippery, and (c) the lighting was insufficient.

2.  The Plaintiff claimsthat the Accident was caused by the negligence and/or breach of common duty of care on the part of the Defendant who was the property manager of the shopping mall of the Estate (“Mall”).  On 29 May 2008, she issued the Writ of Summons in the present proceedings against the Defendant.

3.  On 25 September 2009 (ie about 4 months after the issue of the Writ of Summons), the Defendant filed its Defence denying liability and, amongst other contentions, averring that Lo’s Cleaning Services Limited (“Lo’s”) was retained to provide cleaning services at the Mall.  The Defendant pleads inter alia that it has properly and reasonably delegated the cleaning works at the Mall to a competent contractor (ie Lo’s), has properly supervised Lo’s cleaning works at the Mall, and has reasonably relied upon the skills and services of Lo’s and/or Lo’s servants/agents in performing such cleaning works and in keeping the Mall (including the Staircase) reasonably free from dirt, water and greasy materials on the floor surface.  Consequently, the Defendant claims it has maintained a proper and sufficient cleaning system to ensure the safety of every visitor of the Staircase.

4.  The Defendant gives the following particulars in the Defence:

(a) In selecting Lo’s as a cleaning contractor, the Defendant satisfied itself that Lo’s had substantial experience in the field and was one of the leading cleaning companies in Hong Kong.

(b) Lo’s was/is required to provide satisfactory cleaning services and to comply with the requirements of the tender documents, which include manpower deployment schedule, cleaning schedule and method of services etc.

(c) If visitors made any complaint relating to the tidiness/ cleanliness of the Mall and/or the standard of the cleaning services, the Defendant would immediately require Lo’s to take steps for improvement.

(d) 2 cleaners were specifically assigned to mop dry the indoor areas of the Mall/Staircase.

(e) At about 11:34am on the date of the alleged Accident (ie after the red rainstorm warning was hoisted at about 11:10am), the Defendant gave specific oral instructions to Lo’s to mop dry all the passages within the Mall including the Staircase.

(f)  The Defendant oversaw Lo’s cleaning works at the Staircase by its building attendants’ routine patrol 12 times a day and by other management staff who would from time to time keep an eye on inter alia the floor condition of the Estate/Mall.

(g) The Accident might have occurred somewhere on the Staircase with openings at the side-wall (“Openings”) which were part of the design of the Mall that had nothing to do with the Defendant.  It was also impossible to cordon off the Staircase due to safety requirements.

(h) Warning signs of “beware of slippery floor” were placed at the landing of the Staircase on the date of the Accident.

5.  Further or alternatively, the Defendant avers that if the Accident did occur (which is denied), the same was wholly caused or alternatively contributed by the Plaintiff’s own negligence in failing to take reasonable care of her own safety.

II.  APPLICATION

6.  On 30 November 2009, the Plaintiff issued a summons for joining Lo’s as a further defendant in the present proceedings (“Summons”).  Pursuant to amendment of the Summons on 11 December 2009 (“Amended Summons”), the Plaintiff sought leave to add Lo’s as a further defendant “on the basis that the relevant limitation period has not expired, or alternatively, Section 27 of the Limitation Ordinance be disapplied under Section 30 of the Limitation Ordinance” and for other consequential directions.  The Defendant agreed to abide by the final determination of the Amended Summons and their solicitors (“D’s Solicitors”) were excused from attending the adjourned hearing for argument.

7.  On 19 January and 3 March 2010, the Plaintiff filed his 2 affirmations in support of the Amended Summons. On 12 February 2010, Lo’s filed affirmation in opposition of Cheung Shu Ping (“Mr Cheung”), the supervisor in charge of Lo’s team of cleaning workers stationed at the Mall in/about June 2006.  At the hearing for argument, I granted leave for Lo’s to file, serve and rely on the 2^nd affirmation of Mr Cheung dated 5 March 2010.

III.  INJURIES AND TREATMENT

8.  The Plaintiff claims that after the Accident she was taken to United Christian Hospital (“UCH”).  There was localised tenderness over right shoulder, right elbow and lower back, and abrasion at lower back.  The diagnosis was multiple contusion.  The Plaintiff was treated with analgesics and discharged on the same day.

9.  The Plaintiff consulted Dr C T Chan (“Dr Chan”) on the same day because “she felt pain badly”.  She walked with a mild limping gait, and had diffuse pain all over her body especially at the right side of her lumbar spinal muscle.  Neck and lower back spinal movements were restricted at the end range of full flexion/extension because of pain.  Dr Chan’s diagnosis was contusion injury of neck, back, right shoulder and heels.

10.  On the following day, the Plaintiff was admitted to a private hospital and treated with rest, anti-inflammatory drugs and physiotherapy.  She was discharged on 5 June 2006.  She attended follow up consultations at Dr Chan’s clinic in June/July 2006 for persistent pain at the right shoulder, right buttock and right thigh as well as numbness of her right lower limb and persistent insomnia. Dr Chan prescribed medication and physiotherapy.  On 9 August 2006, she was admitted to private hospital for MRI scan of her lumbar spine which showed oedematous signals at the right paravertebral area involving the right erector spinal muscle at L2/L3 level compatible with muscle strain.  She was discharged on the following day.

11.  At her last consultation with Dr Chan on 15 August 2006, the Plaintiff still had persistent pain syndrome and chronic state of sleeplessness. Dr Chan referred her to have a psychological assessment by a psychiatric specialist Dr Chiu Hok Man (“Dr Chiu”).  On 28 October 2006, Dr Chiu reported to Dr Chan that the Plaintiff “had been very reluctant for psychiatric treatment …… and finally brought to my clinic by her [husband] for worsened sleep and mood.  She even harboured suicidal idea.  The diagnosis being Depression – moderate.  Counselling and medication were offered.”

12.  At the request of the Plaintiff’s husband (“Husband”) on 30 January 2008, Dr Chan referred the Plaintiff to UCH’s Yung Fung Shee Psychiatric Centre (“Psy Centre”).  She was seen on 22 February 2008, and the provisional diagnosis was dysthymia.  It was recorded in the medical report that after the Accident the Plaintiff felt persistent pain in her lower back and buttock radiating to the right heel as well as right upper limb pain with associated feeling of numbness.  She also started to experience ongoing depressive symptoms, eg depressive/irritable mood, being preoccupied with worrying thoughts, on-and-off sleeping difficulties, forgetfulness, on-and-off vague suicidal ideas, and feeling of fast heart pounding and breathlessness.  The prevailing clinical picture was compatible with a psychiatric diagnosis of dysthymia that was attributable to the Accident.  But despite prescription of psychiatric drugs and offer of supportive psychotherapy, the Plaintiff’s clinical response was limited, and she continued to have on-and-off low and irritable mood.  The Psy Centre considered that the Plaintiff would likely suffer lasting effects of her psychiatric illness, and that her residual depressive and irritable mood would persist into considerable time in future, and this would probably to some extent impair her power of attention and concentration if she were to be engaged in any sort of open employment.

13.  The Plaintiff was referred to (and on 11 August 2008 first attended) UCH’s Pain Management Centre (“Pain Centre”).  Physical examination showed slightly limping gait, reduced range of back/neck motion, and positive straight leg raising on the right side.  She was prescribed analgesics. At the follow up on 5 November 2008, trigger points were found, and 2 days later she was clinically admitted as a day case patient for trigger point injection, which procedure was uneventful. There was pain relief for a few days and then the pain recurred to the same level as before.

14.  In November 2008, the Plaintiff was referred to the clinical psychologist for relaxation training and cognitive behavioural therapy and to Chinese medical practitioner for acupuncture.  The Plaintiff reported to the clinical psychologist that she only managed to do simple household chores and felt she had become a burden on the family.  She was distressed by chronic pain which hindered her from having sex with her Husband.  She ruminated a lot over possible crisis in her marriage, which worsened her belief about the pain.  Such pain catastrophising reaction elicited a vicious cycle of more pain.

15.  The clinical psychologist observed that the Plaintiff’s clinical mood profile indicated features of depression and anxiety.  She was put on a drug regime whilst consultation with psychiatrist and clinical psychologist continued.  The Plaintiff carried worries and negative intrusive thoughts with fleeting suicidal ideation and self-mutilation behaviour.  She was introduced to pacing techniques (to avoid over-doing and under-doing) and relaxation techniques but reminders were needed.  The clinical psychologist considered that prognosis was within questionable range if her belief and mood remained status quo in future.

IV.  ACCIDENT AND IMMEDIATE AFTERMATH

16.  The Defendant claims that the relevant cleaning contract between the Defendant and Lo’s (“Contract”) requires Lo’s to sweep and mop clean all staircase at the Mall on a daily basis.  In various letters to Lo’s Solicitors in January/February 2010, D’s Solicitors claim that on the basis of internal enquiries with the Defendant’s staff and “[to] the best of the Defendant’s knowledge”, a number of Lo’s cleaning staff were stationed at the Mall and 2 of them were specifically assigned to clean the indoor areas of the Mall/Staircase.  The Defendant further claims that Mr Cheung of Lo’s confirmed that 2 cleaners were assigned to mop dry the indoor areas of the Mall/Staircase on rainy days.

17.  According to various letters from D’s Solicitors to Lo’s Solicitors in January/February 2010, the Defendant kept a logbook or occurrence book (“Book”) at the control room of the Estate that was filled out by staff on duty. The Defendant believes that the following entries for 2 June 2006 in the Book were made by its staff容山柱/張偉君:

(a) Entry 137 (11:10am) – red rainstorm warning raised at 10:55am and the staff at the Mall and carpark were notified;

(b) Entry 139 (11:34am) – the floor was wet and Lo’s was notified to follow up and pay attention;

(c) Entry 148 (1:12 pm) – “途人跌倒  租務處翁小姐通知有女途人在3期1/F昇悅漁港對出貨車立L2下樓梯時跌倒，SBA438、BA318到場協助，該中國籍女仕吳太約40歲，當時清醒，表示腰痛要叫救護車中心，於13:19致電叫救護車，在13:30 BA391報救護車A165，從佐敦谷閘入場，並於13:46離場送傷者前往聯合醫院治理”.

(d) Entry 170 (8:06 pm) – a call was given to the Husband to ask after the Plaintiff and was told that she felt very painful and the doctor advised her to be kept under observation

18.  D’s Solicitors in their letters to Lo’s Solicitors in January/ February 2010 assert that on the basis of internal enquiries with the Defendant’s staff and “[to] the best of the Defendant’s knowledge, [Lo’s] cleaning staff ought to have known of the happening of the [Accident]”.  It is said that Lo’s and the Defendant’s staff communicated closely over cleaning matters on a day-to-day basis and they all used the same walkie-talkie system, so Lo’s cleaning staff at the site should be aware whenever the Defendant received a report.  Further, the Defendant claims that after the Accident Lo’s cleaning staff was asked to follow up on the matter, ie clean up the water stain (if any) at the scene and put up more warning signs, but the Defendant was unable to identify who was informed due to the lapse of time.

19.  Lo’s Solicitors wrote to D’s Solicitors in January/February 2010 claiming that Lo’s fully and faithfully discharged its duties at all times.  Lo’s also denies or does not admit it knew or ought to have known of the Accident before receipt of the pre-action letter of 12 November 2009 (see paragraph 32 below).

V.  CHRONOLOGY OF OTHER EVENTS

20.  The Plaintiff claims that after the Accident she suffered physical injury and mental illness, and relied on her Husband to help her pursue her tortious claim in relation to the Accident.  At the beginning of 2007, the Husband arranged for her to attend the offices of her solicitors (“P’s Solicitors”) to seek legal advice in relation to the Accident.  P’s Solicitors asked her to provide detailed medical reports for their consideration and further handling.

21.  The Plaintiff claims she was so affected by her psychiatric problem that she was unable to give clear instructions for obtaining and she did not obtain the medical reports for P’s Solicitors.  Thereafter, she continued to receive medical treatment for her mental illness, pain symptoms and physical injuries.  At about the end of 2008, P’s Solicitors telephoned the Husband to remind him that the limitation period for the Plaintiff’s claim in relation to the Accident would expire on 2 June 2009.  So the Husband again brought the Plaintiff to the offices of P’s Solicitors to seek legal advice, and on that occasion she gave instructions to P’s Solicitors to obtain all medical reports and relevant materials.

22.  As a result, P’s Solicitors wrote to various clinics/hospitals to obtain relevant medical reports for further action.  They also conducted searches to ascertain who the registered owner and property manager of the Estate were at the material time.  On 5 May 2009, P’s Solicitors issued a pre-action letter to the Defendant as occupier of the Estate/Mall.  The Defendant claims this was the earliest time the Plaintiff made a clear and unequivocal “claim” to ask for compensation/damages arising out of the Accident.

23.  In such pre-action letter, P’s Solicitors briefly described the circumstances of the Accident, the nature of the Defendant’s default, and the injuries the Plaintiff suffered as a result of the Accident.  Such descriptions are in line with the averments in the Statement of Claim and the Statement of Damages.  P’s Solicitors requested the Defendant to pass a copy of such pre-action letter to its insurers, and demanded a constructive reply from the Defendant or its insurers within 21 days.

24.  In the meantime, P’s Solicitors arranged a conference with counsel to seek further advice in respect of the Plaintiff’s claims.  After the conference, counsel was instructed to prepare the pleadings.  On 29 May 2008, the Plaintiff commenced the present proceedings.  The Statement of Claim, the Statement of Damages and the Plaintiff’s medical reports were filed on the same day

25.  On 2 June 2009 (ie within 1 month as prescribed by Practice Direction 18.1 (“PD18.1”) and not within 21 days as requested in the pre-action letter dated 5 May 2009), D’s Solicitors gave an interim reply. D’s Solicitors claims thaton 2 June 2006 a thunderstorm warning and an amber rainstorm warning were issued at 7:15 am and 10:35 am respectively, and such signals were all lowered only by 3:30 pm, so the Plaintiff should be fully aware of the possible wet condition of the floor areas both inside and outside the Mall.  D’s Solicitors further state that pending further clarifications from P’s Solicitors and investigation into the matter, it would be too premature if not inappropriate to admit liability.

26.  The Defendant claims that some partial information relating to the Plaintiff’s case was given on 15 July 2009.

27.  The Plaintiff claims that since the Husband could not pay further legal costs on account, she was advised to and did apply for legal aid.  On 17 August 2009, the Director of Legal Aid (“DLA”) filed the Memorandum of Notification of an Application for Legal Aid in respect of her application for legal aid. 

28.  Due to the summer vacation and the Plaintiff’s application for legal aid, the deadline for filing the Defence was extended to 28 September 2009.  The Plaintiff claims that Lo’s was first mentioned in the Defencefiled on 25 September 2009 (see paragraph 3 above), and that she did not know the identity of Lo’s or the alleged delegation of the cleaning works at the Mall to Lo’s until P’s Solicitors explained the contents of the Defence to her at the end of September 2009.

29.  In the meantime, P’s Solicitors sought counsel’s advice on the Defence and conducted company search on Lo’s. Counsel advised that in light of the averments in the Defence, Lo’s should be added as a further defendant in the present proceedings.

30.  On 12 October 2009, the DLA filed a Memorandum of Notification that a Party has been Refused Legal Aid. But after the Plaintiff filed Notice to Act in Person on 23 October 2009, her application for legal aid was approved.  On 30 October 2009, the DLA filed the Legal Aid Certificate.

31.  At the Checklist Review (“CLR”) on 4 November 2009, P’s Solicitors informed the PI Master of the Plaintiff’s intention to join Lo’s as a further defendant in the present proceedings, so the PI Master adjourned the CLR to 16 November 2009 “for the Plaintiff to better prepare the required direction”.

32.  On 12 November 2009, P’s Solicitors issued a pre-action letter to Lo’s requesting for a constructive reply within 14 days.  In such letter, P’s Solicitors described the circumstances of the Accident, the Plaintiff’s injuries, and the history of the present proceedings, and claimed that the Defendant first mentioned about Lo’s in the Defence. The letter goes on to say that the Plaintiff was entitled to claim against Lo’s for inter alia:

(a) failing to provide/maintain a safe place of activity for the Plaintiff or to take adequate care of her personal safety;

(b) failing to take appropriate steps to reduce risk of personal injury to the Plaintiff and/or to provide information to her about the risk to her personal safety by walking on the wet and slippery Staircase;

(c) causing or permitting the Staircase to be kept wet and slippery and/or the Plaintiff to walk on the wet and slippery Staircase when it was unsafe to do so;

(d) failing to warn the Plaintiff or users of the danger of the wet and slippery surface of the Staircase;

(e) failing to cause the surface of the Staircase to be covered with some suitable absorbent and/or non-slip floor covering;

(f)  failing to cause a floor mat to be placed on the surface of the Staircase and/or further floor mats to be provided for the Plaintiff to effectively dry her feet before stepping on the surface of the Staircase.

33.  There was no response from Lo’s or its insurers. At the CLR on 16 November 2009, the PI Master directed the Plaintiff to take out a summons within 14 days to join Lo’s as a further defendant, and adjourned the CLR to 18 February 2010.

34.  The Plaintiff then applied for extension of the Legal Aid Certificate to cover her intended joinder application.  On 25 November 2009, the DLA filed Notice of Assignment of Counsel.  On 30 November 2009, the Plaintiff issued the Summons and served the same on D’s Solicitors and Lo’s.

35.  On 3 and 4 December 2009, Lo’s Solicitors wrote to P’s Solicitors complaining that the letter of 12 November 2009 (see paragraph 32 above) failed to qualify as a pre-action letter as it did not allow a month or at least 21 days as required under PD18.1 for Lo’s to give a constructive reply, especially “as there was no imminency in the matter and the cause of action on the part of [the Plaintiff], if any, against [Lo’s] has been in any event time-barred”.  In their reply letter of 4 December 2009, P’s Solicitors disagreed and pointed out that the time-bar issue required the Plaintiff to commence her joinder application as soon as possible.

36.  On 17 December 2009, DLA filed Notice of Amendment of Legal Aid Certificate “to cover joinder proceedings”.

VI.  ISSUES

37.  The relevant issues in relation to the Amended Summons are as follows:

(a) whether the Plaintiff’s claim against Lo’s has been time-barred under the primary limitation period in section 27(4)(a) of the Limitation Ordinance Cap.347 (“Ordinance”);

(b) whether such claim has been time-barred under the secondary limitation period in section 27(4)(b);

(c) if the primary or secondary limitation period has not yet expired, whether the Plaintiff should have leave to join Lo’s as a further defendant in the present proceedings under Order 15 rule 4 of the Rules of the High Court;

(d) if the primary and secondary limitation periods have expired, whether the court should disapply section 27 pursuant to section 30.

38.  In respect of (b) in the above paragraph, there are the following sub-issues:

(a) whether the date when the Plaintiff first had actual knowledge of the matters set out in section 27(6) was within or earlier than the 3-year period prior to the issue of the Summons;

(b) whether the Plaintiff might reasonably have been expected to acquire knowledge of the matters set out in section 27(6) from facts observable or ascertainable by her (if necessary with expert help) within or earlier than the 3-year period prior to the issue of the Summons in accordance with section 27(8).

39.  Unless otherwise stated, references to “sections” in this Decision are references to sections in the Ordinance. The Plaintiff and Lo’s vigorously contested the above issues, including the relevant legal principles on the limitation issue. I therefore first discuss the onus and standard for “knowledge” under section 27.

VII.        PRIMARY LIMITATION PERIOD

40.  The primary limitation period under section 27(4)(a) is 3 years from the date on which the cause of action accrued.  There is no dispute that the cause of action in the present proceedings accrued on the date of the Accident, ie on 2 June 2006.  Thus the primary limitation period expired on 1 June 2009.

VIII.  SECONDARY LIMITATION PERIOD

(a)  Actual and constructive knowledge

41.  The secondary limitation period under section 27(4)(b) allows a period of 3 years from the date of the plaintiff’s knowledge (if later than the date of accrual of cause of action).  The relevant provisions are sections 27(6) and (8).

42.  To determine the date of “knowledge” for the secondary limitation period, reference must be made to section 27(6) which provides that the limitation period does not begin to run against a plaintiff until he has knowledge (a) that his injury was significant, (b) that it was attributable to an act or omission alleged to constitute negligence, (c) of the identity of the defendant, and (d) where the act or omission was of someone other than the defendant the identity of that person and the factual basis upon which the defendant is vicariously liable.  When sections 27(4)(b) and 27(6) speak of the plaintiff having “knowledge” of certain matters, they refer to actual knowledge.[1]

43.  But constructive or imputed knowledge is brought into the picture by section 27(8) which provides inter alia that:

“For the purpose of this section …… a person’s knowledge includes knowledge that he might reasonably have been expected to acquire –

(a)           from facts observable or ascertainable by him; or

(b)          from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek,

but a person shall not be fixed with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reason steps to obtain (and, where appropriate, to act on) that advice.”

44.  Thus, “knowledge” that sets the time running for the secondary limitation period under section 27 consists both of actual knowledge as well as imputed or constructive knowledge. If a plaintiff had actual knowledge of the matters set out in section 27(6), there is no need to go further.  But if he lacked actual knowledge but could reasonably have been expected to have acquired the relevant knowledge in accordance with the provisions in section 27(8), then such knowledge is imputed to him.

(b)  Onus of proof for actual knowledge

45.  Where a plaintiff invokes the secondary limitation period in section 27, he bears the burden of proving that he did not acquire the required knowledge until a point in time within the 3-year period immediately preceding the issue of the writ (or the issue of the Summons in the present proceedings).[2]  Purchas LJ in Nash v Eli Lilly & Co [1993] 4 All ER 383, 396 said the onus is on the claimant to plead and prove the date of actual knowledge was within 3 years preceding the date of the issue of the writ, but if the defendant wishes to rely on a date prior to such period the onus is on him to prove that the claimant had or ought to have had knowledge by that date.[3]

(c)  Standard for actual knowledge

46.  The House of Lords in A v Hoare [2008] 1 AC 844, 867 held that the test for actual knowledge is subjective in that the English equivalent of section 27(6) (ie section 14(1) of the Limitation Act 1980 (“LO Act”)) refers to the knowledge actually possessed by the plaintiff.

(d)  Plaintiff’s actual knowledge

47.  In respect of knowledge of “the identity of the defendant” in section 27(6)(c), it is important to bear in mind that the relevant “defendant” or tortfeasor under consideration is Lo’s and not the Defendant.  Here, P’s Solicitors issued a pre-action letter to the Defendant on 5 May 2009 (see paragraphs 22-23 above), but there has been no substantive reply. The interim reply by D’s Solicitors dated 2 June 2009 (see paragraph 25 above) does not mention any cleaning contractor or Lo’s at all.  It was first mentioned by the Defendant in the Defence dated 25 September 2009 (see paragraphs 3-5 and 28 above).

48.  There is nothing in the affirmations before me to contradict the Plaintiff’s claim (which I accept) that she did not have actual knowledge of the Defendant’s delegation of cleaning works at the Mall to a cleaning contractor or of the identity of Lo’s as such cleaning contractor or occupier/tortfeasor vis-à-vis the Accident until P’s Solicitors explained the contents of the Defence to her in late September 2009.  I am therefore satisfied that the Plaintiff lacked actual knowledge of essential matters under section 27(6) until 25 September 2009.

(e)  Onus of proof for constructive knowledge

49.  Section 27(8) deals with constructive knowledge, ie knowledge imputed to the plaintiff by the courts where on the facts he should have been making enquiries and had he done so would have discovered the material facts to satisfy section 27(4)(b) of the Ordinance.[4]

50.  On the usual principle that he who alleges must prove, it has been held that whilst it is for the plaintiff to establish that his actual date of knowledge was within time it is for the defendant to prove any earlier constructive date of knowledge.[5]  Mr Lee, solicitor for Lo’s, does not dispute such principle.  Thus, the evidential burden is on Lo’s to show constructive knowledge on the part of the Plaintiff by a date earlier than 1 December 2006 (ie earlier than the 3-year period prior to the issue of the Summons on 30 November 2009).

(f)  Standard for constructive knowledge

51.  Although each case must turn on its own facts, the statutory wording in section 27(8) relies heavily on assessment of what is reasonable.  The majority in Adams v Bracknell Forest Borough Council [2005] 1 AC 76, a case not cited by either party,favoured the objective approach and rejected the subjective test in Nash.[6]  Lord Hoffman endorsed the objective approachand considered that although the claimant had to be assumed to be a person who suffered injury in question and not some other person, his particular character or intelligence could not be relevant.[7]  Lord Phillipsconcurred but took the view that very few cases would turn on the precise test for constructive knowledge.[8]  Lord Scott agreed with Lord Hoffmann by saying that it was the norms of behaviour of persons in the situation of the claimant that should be the test.[9]  Lord Walker also agreed with Lord Hoffmann that the test was no longer subjective, but said it was not entirely objective either.  He added he would be cautious about “any simple formula put forward to cover every case which might occur”.[10]  Baroness Hale concurred with the decision of the majority,but emphasised she would not want to rule out that a claimant’s personal characteristics might be relevant to what knowledge could be imputed to him.[11]

52.  As evident from the above paragraph[12], it appears there is still room for argument that personal characteristics that can be said to affect the plaintiff’s ability to acquire information are relevant to the issue of knowledge; and there is no definitive list of reliable acid test for which characteristics will come into that category. In A v Hoare, section 14(3) of the LO Act was described as supplementing a claimant’s knowledge with ‘imputed “objective” knowledge’[13] and turning on what the claimant ought reasonably to have done,[14]but Lord Hoffman acknowledged that the plaintiff’s individual characteristics may nevertheless have a bearing on his ability to gain constructive knowledge[15]:

“…… Because section 14(3) [of the LO Act] turns on what the claimant ought reasonably to have done, one must take into account the injury which the claimant has suffered.  You do not assume that a person who has been blinded could reasonably have acquired knowledge by seeing things.”

53.  Lord Hoffmann in Peconic Industrial Development Ltd v Lau Kwok Fai & ors [2009] 2 HKLRD 537, 540-550 (with whom Bokhary, Chan and Ribeiro PJJ and Litton NPJ agreed) also briefly touched on the argument as to the relevancy of personal characteristics that can be said to affect the plaintiff’s ability to acquire information to the issue of knowledge when he dealt with the question of postponement of commencement of the limitation period under section 26:

“30.  What does “the plaintiff ... could with reasonable diligence have discovered [the fraud]” mean?  The word “reasonable” denotes an objective standard.  But that is not the end of the matter.  It is the plaintiff who is supposed to have shown reasonable diligence.  This leaves open to argument the extent to which the personal characteristics of the plaintiff are to be taken into account in deciding what diligence he could reasonably have been expected to have shown.  It does not follow that because an objective standard is applied, he must be assumed to have been someone else.  The extent to which the characteristics of the actual plaintiff are ignored depends upon the reason for invoking an objective standard.  (Some of these questions are discussed in the context of the postponement of the running of the limitation period in personal injury cases in Adams v Bracknell Forest Borough Council [2005] 1 AC 76 and A v Hoare [2008] 1 AC 844).”

54.  In my view, the test for constructive knowledge is objective.[16]  This will require the court to consider the objective situation in which the plaintiff finds himself in, including the effects of the injury itself but excluding the personal characteristics individual to the plaintiff, and then go on to consider when a person in such circumstances with comparable level of injury/disability might reasonably be expected to investigate (if necessary with expert help)and acquire knowledge of the matters set out in section 27(6) including, say, the identity of the defendant/tortfeasor.

(g)  Scope of knowledge

55.  What degree of certainty is required for knowledge to qualify as knowledge within section 27(8) so as to set the time running?  In Halford v Brookes & anor [1991] 1 WLR 429, 433, a case cited by Mr Pun, counsel for the Plaintiff, Lord Donaldson said as follows:

“…… The word has to be construed in the context and purpose of the section, which is to determine a period of time within which a plaintiff can be required to start any proceedings. In this context “knowledge” clearly does not mean “know for certain and beyond possible contradiction.” It does, however, mean “know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence.” Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice. ……”

56.  In Nash at p.392, it was held that the required knowledge is a condition of mind that imports a degree of certainty which may reasonably be regarded as sufficient to justify the claimant embarking upon preliminaries to the making of a claim, such as taking legal or other advice.  Knowledge does not mean knowing for certain, but may mean a reasonably firmly held belief that warrants a claimant taking steps to investigate the claim.  The court must assess the intelligence of the plaintiff in understanding the information obtained and consider as a matter of fact whether he comprehended such information.

57.  Ribiero PJ in Kensland Realty Limited v Tai, Tang & Chong (2008) 11 HKCFAR 237, 274 said of Halford and Nash as follows:

“97.  The answer which their Lordships have in these two cases was therefore a pragmatic one: the plaintiff’s knowledge is to be treated as sufficient for setting time running from the moment when a reasonable person would have regarded it as certain enough “to justify embarking upon the preliminaries to the making of a claim for compensation such as the taking of legal or other advice”.  He would then have three years to bring preparations to a stage when a writ could be issued.  However, a reasonable person could be expected to refrain from taking such steps while the knowledge remained too scanty or too vague or amounted only to speculation or unsubstantiated suspicion. ……”

58.  Two further points need to be noted.

59.  First, although a plaintiff is not required to know all the pleaded details before time starts running, he must know or taken to know all the essential facts necessary to constitute the claim.[17]  This means that if the plaintiff is able to establish he did not have knowledge concerning any 1 of the 4 matters in section 27(6) until a date within 3 years of the issuance of the writ (or the issuance of the Summons in the present proceedings) the Plaintiff is within time.

60.  Secondly, it is not correct to say that under the objective test it is assumed in all cases that a plaintiff will be fixed with knowledge of all facts which he would have learned if he had asked at a point in time when he is required to make enquiries to find out more about bringing an action.  This is what the defendant in Whiston v London Strategic Health Authority [2010] EWCA Civ 195 (5 March 2010) argued on the basis of Lord Hoffman’s judgment in Adams at pp.89-90, para.47. But Dyson LJ (with whom Longmore and Smith LJJ agreed) held that what Lord Hoffman said does not form part of the ratio in Adams and that the test under section 14(3) of the LO Act (ie the English equivalent of section 27(8)) following Adams does not provide that actual or constructive knowledge that would render the claimant sufficiently curious to ask questions is determinative of the constructive knowledge issue.  Instead, the issue should be determined by reference to the knowledge that a person might reasonably be expected to acquire depending on all the circumstances of the case.

61.  This is also echoed in the observations of McHugh NPJ in relation to the parallel provision in section 31(7) in Kensland Realty Limited.[18]  He observed that section 31(7) was directed to:

“the time when the plaintiff “might reasonably have been expected to acquire” (s.31(7)) further information about his or her case.  If their Lordships [in various English decisions] had meant that a plaintiff had “knowledge” for the purpose of s.31(5)(a)–(d) as soon the plaintiff knew “enough for it to be reasonable to begin to investigate further”, the constructive knowledge provisions of s.31(7) would seem superfluous.  It is hardly to be supposed that the plaintiff was to be fixed with knowledge of the facts referred to in s.31(7) before he had sufficient knowledge to require further investigation.  If that is so, the point at which the plaintiff has “knowledge” for the purpose of s.31(5) cannot be the point at which it was reasonable for the plaintiff to investigate further.

187.  Although a literal reading of what was said by Lord Nicholls, Lord Donaldson MR, Purchas LJ and Hoffmann LJ supports a contrary view, I do not think that their statements should be so read.  It would mean that time would run against a plaintiff not from when he or she had knowledge of all the matters specified in s.31(5)(a)–(d) but from the time when the plaintiff should begin to investigate whether those matters were present and whether he or she had a valid or arguable claim.  That seems contrary to what the legislature intended to be the case.”

(h)  Plaintiff’s constructive knowledge

62.  The Plaintiff is required to act reasonably in using information he had and in obtaining information that he could get to establish knowledge of the identity of Lo’s as a further defendant/occupier/tortfeasor.  Since I have held that the Plaintiff lacked actual knowledge, I have to go on to ask what she could reasonably have known if she had applied her mind to the matter and if she had sought assistance.  If her constructive knowledge was within the 3-year period prior to the issue of the Summons, then her action against Lo’s will not be time-barred.

63.  Mr Lee submits that if the Plaintiff and/or P’s Solicitors had been diligent enough in conducting investigation or in making earlier inquirieswith the Defendant the Plaintiff could have ascertained the identity of Lo’s before (a) the issue of the Writ of Summons on 29 May 2009, (b) the expiry of the primary limitation period on 1 June 2009 and/or (c) the issue of the Summons on 30 November 2009.

64.  However, as seen from the analysis in paragraphs 41, 45 and 50 above, the relevant time for considering actual or constructive knowledge is not guided by the events in (a), (b) and/or (c) in the above paragraph, but rather by the 3-year period prior to the issuance of the Summons.  This means that if the Plaintiff can show she only had “knowledge” after 1 December 2006, time will not run against her.

65.  It is Lo’s case that had the Plaintiff conducted investigation properly, promptly and diligently by making simple inquires with the Defendant and allowed sufficient time for the Defendant to respond the Defendant would have revealed the identity of Lo’s.  But since the Plaintiff was unreasonably and excessively late, she should be imputed with knowledge as to the identity of Lo’s as defendant at an earlier time.

66.  In support of such contention, Mr Lee notes that D’s Solicitors advised that on the day of the Accident the Plaintiff informally enquired with the management office of the Estate about the issue of compensation. Mr Lee submits that she was aware of her “right” to compensation, but she did nothing for half a year until she consulted P’s Solicitors at the beginning of 2007 and presumably obtained legal advice.  Again, nothing happened until the end of 2008 when P’s Solicitors reminded her about the expiry of the primary limitation period.  It was not until January 2009 that she instructed P’s Solicitors to obtain medical reports and “relevant materials”.

67.  Mr Lee argues that the Plaintiff’s alleged psychiatric illness did not warrant inaction on her part for over 2 years, especially when she was aware of her “right” to compensation and consulted solicitors for advice.  He claims there is nothing in the medical reports to suggest that the Plaintiff’s ability to give instructions was affected, and the fact that she was able to give instructions after January 2009 to proceed with her claim whilst still suffering from the alleged psychiatric illness means she could have acted quickly at an earlier time.

68.  Mr Lee reminds that P’s Solicitors did not issue any pre-action letter to the Defendant until on 5 May 2009.  He says there is no explanation as to why such pre-action letter was not issued earlier, what steps P’s Solicitors took in the 4 months between January and May 2009 to ascertain the identity of the tortfeasor(s) in respect of the Accident and/or why P’s Solicitors only reminded the Plaintiff of the expiry of the limitation period at the end of 2008.  Mr Lee argues that adverse inference ought to be drawn against the Plaintiff due to her inordinate delay and inaction throughout.

69.  Mr Lee goes on to say that in any event the pre-action letter of 5 May 2009 failed to give the Defendant 1 month for investigation and constructive reply in accordance with PD18.1and failed to ask whether the Defendant had knowledge of any involved third party and identity thereof, hence the identity of Lo’s was only revealed in the Defence.

70.  It appears that the underlying premise of Lo’s contentions above is this: had the Plaintiff asked the Defendant much earlier she would have been told about the essential matter of “the identity of the defendant” in section 27(6), ie the identity of Lo’s.  But in my view it still begs the more primary question as to whether the identity of Lo’s is knowledge that the Plaintiff “might reasonably be expected to acquire” from facts observable or ascertainable by her or with the help of experts “which it is reasonable for [her] to seek”.  The answer to this primary question requires consideration of what the Plaintiff could have done at the relevant material time and not with hindsight of events that had come to pass.

71.  As observed by H H Judge Mimmie Chan in Chan Ngan Fa v Cui You Jun and Yan Zhao Jia, Robert both formerly trading as China Venture International & anor DCPI832/2007 (unreported, 2 March 2009), “…… the court only expects a person to take reasonable action to acquire knowledge from facts reasonably ascertainable by him.  It is reasonable to expect that the action to be taken by a person intending to commence litigation would be proportionate.  As Counsel for the Defendants rightly pointed out, defendants or prospective defendants cannot be expected to readily assist a prospective plaintiff in pursuing his/her claim, and to volunteer information or evidence. ……”

72.  Mr Pun fairly agrees that the Plaintiff had to take reasonable steps to identify the person who caused her to suffer injury.  Where an employee or tenant claimant seeks to identify his employer or landlord for the purpose of recovery of compensation or damages, “[the] identity of the defendant in such examples can more easily and readily be ascertained, from the contract of employment, the tenancy agreement, the wages record or from the rental receipts.”[19]  But turning to the present situation, if in the first place there were no observable or ascertainable facts that would reasonably suggest to the Plaintiff or P’s Solicitors the probable existence of another occupier/tortfeasor apart from the property manager of the Estate/Mall (ie the Defendant) so as to trigger curiosity to make enquiries, the underlying premise of Lo’s contentions becomes unsound.

73.  To overcome this hurdle, Mr Lee in his written submisisons argues that it is “almost commonplace” and “sure common sense” that “in any sizable housing/commercial estate, management companies and cleaning companies would be engaged to carry out management and cleaning duties and no one will expect the owners of any sizeable housing/commercial estate to carry out the cleaning duties themselves”, so the Plaintiff should have requested “the Defendant for any such information concerning the identity of any third party that may be involved and allow them proper and sufficient time to reply and respond”.

74.  At the hearing before me, Mr Lee has gone even further to say that in respect of knowledge which the Plaintiff “might reasonably have been expected to acquire” under section 27(8), she was obliged not only to make inquiries about “the identity of the defendant” (ie any third party tortfeasor) but also consider whether the Defendant had any defence to her claim and if so how to address such potential defence.  Mr Lee is unable to refer me to any legal authority in support of this proposition.

75.  I agree with Mr Pun that other than Mr Lee’s bare submission there is simply no evidence that it was/is “commonplace” for large housing/commercial estates to have cleaning contractors.  Mere suspicion that the Defendant might have delegated a task which it could well have undertaken on its own as property manager through its own staff or employees does not bring about any reasonably firmly held belief that justifies embarking on preliminaries to the making of a claim against or to warrant taking steps to investigate the identity of any third party tortfeasor as per the guidance in Halford and Nash (see paragraphs 55-57 above).  I am firmly of the view that in all the circumstances there is no need for the Plaintiff to make enquiries with the Defendant as to whether any third party was involved in respect of the Accident.  I also cannot see any duty on the part of the Plaintiff to descend into the realm of speculation by guessing what defence the Defendant might put forward and then to preempt such defence by making enquiries targeting the same.

76.  Mr Pun refers to Lau Yan Chor v Hang Lung (Administration) Limited HCPI355/199 (unreported, 19 September 2000) in which Seagroatt J had the following to say in respect of the plaintiff’s claim against the occupier of the premises where the accident occurred whose identity was unknown until service of the Defence:

“It is relevant to recall that this accident happened at about 6:30 am in a flooded basement when [the plaintiff] was acting in the course of his employment.  His automatic, logical and in my view entirely reasonable reaction was to pursue his remedy against his employers, as employers and occupiers of the premises.  It may well be that there are more than two or three occupiers of the premises but he commenced his action against the prime or principal occupiers.  It would not be logical for him to consider that [the third party] (even if he knew its identity) might be responsible for the flooding of the basement or the circumstances in which he sustained this accident whilst trying to carry out his duty. I take this view as the appropriate one, however long he had been employed in that capacity as attendant.  It is also clear to me that until he saw the Third Party Statement of Claim he would be in no position to frame a case against [the third party]. Accordingly, and sensibly, he has adopted the Defendants' allegations against [the third party] in his re-Amended Statement of Claim.” (my emphasis)

77.  These observations are applicable mutatis mutandis to the present situation.  The Plaintiff should not be saddled with knowledge of the identity of Lo’s as occupier/tortfeasor.  At the material time, the Defendant was the property manager of the Estate having responsibility for the management of the Mall (including the Staircase).  There was no basis for the Plaintiff to be put on enquiry to ascertain whether the Defendant carried out cleaning works by their own staff or through a cleaning contractor.

78.  Mr Lee argues that P’s Solicitors came within the ambit of expert help in the present context so that the Plaintiff was fixed with their delay until 5 May 2009 (ie less than a month prior to the expiry of the limitation period) in issuing the pre-action letter to the Defendant.  Mr Lee refers to Hidden J’s observation in Nash v Eli Lilly & Co [1991] 2 Med LR 169, 182 that “knowledge” under section 14 of the LO Act (ie the English equivalent to section 27) included knowledge which the plaintiff might reasonably have been expected to acquire from facts ascertainable by him through the services of a solicitor.  The Court of Appeal in Nash saw no reason to depart from Hidden J’s approach, but it also emphasised as follows at pp.399-400 :

“…… Of course, as advice from a solicitor as to the legal consequences of the act or omission is not relevant, his contribution can only consist of factual information.  Moreover, where constructive knowledge is under consideration through the channel of a solicitor, this can only be relevant where it is established that the plaintiff ought reasonably to have consulted a solicitor at all.  Thus it is for the defendant to establish not only that a solicitor whom the plaintiff might consult would have the necessary knowledge but also that it was reasonable to expect the plaintiff to consult him.”

In light of the above, I am not persuaded that it is reasonable to expect the Plaintiff to consult P’s Solicitors on any potential third party occupier/ tortfeasor apart from the Defendant or to expect P’s Solicitors to apply their mind to raise queries in this regard with the Defendant.

79.  Further, even if the Plaintiff could and should have ascertained the identity of Lo’s (which I disagree), it is but one of the essential facts necessary to constitute a claim. As Seagroatt J pointed out in Lau Yan Chor (see paragraph 76 above), the Plaintiff would be in no position to frame a case against Lo’s by merely becoming aware of Lo’s existence (see also discussion in paragraph 59 above).  The question whether the Accident was attributable to Lo’s act or omission so as to constitute negligence is only answered by information forthcoming from the contents in the Defence.

80.  Still further, even if the Plaintiff knew enough for it to be reasonable to begin investigating further at an earlier time (which I disagree), it does not mean (as is implicit in Mr Lee’s submissions) that she is fixed with knowledge of the identity of Lo’s at such point in time (see paragraphs 60-61 above).  There is also no reasonable probability that the Defendant would have identified Lo’s as a third party tortfeasor in its reply to any pre-action letter within 1 month.  After all, when D’s Solicitors replied to the pre-action letter of 5 May 2009 within 1 month (and not 21 days) on 2 June 2009, they did not mention Lo’s at all (see paragraphs 25 and 28 above).

81.  So on an objective basis, I find that the Plaintiff and P’s Solicitors acted reasonably in ascertaining the identity of the prime or principal tortfeasor in respect of the Accident, and they could not reasonably be expected to acquire knowledge of the identity of Lo’s as further occupier/tortfeasor.  Before the service of the Defence, there was no reasonable indication that another third party or Lo’s was related to the Accident. P’s Solicitors conducted relevant search to obtain information concerning the registered owner and property manager of the Estate, and consequently wrote to the Defendant on 5 May 2009 with no response.  I am satisfied that the Plaintiff and P’s Solicitors reasonably acquired information as to the identity of Lo’s and as to how the Accident was attributable to Lo’s act or omission so as to constitute alleged negligence upon service of the Defence within the 3-year period prior to the issue of the Summons.

82.  Since I have come to such conclusion on a purely objective basis, there is no need for me to further consider the personal characteristics of the Plaintiff that can be said to affect her ability to acquire information (eg the effects of the injury) but excluding those characteristics which are individual to her.  But if there is any need to consider these matters, I find that the Plaintiff’s medical and psychiatric conditions (which on the basis of the available medical reports appear to be attributable to the Accident) would have affected her ability to acquire information or consult solicitors for identifying any third party tortfeasor apart from the Defendant.  For the period prior to 1 December 2006, the Plaintiff suffered from chronic pain and sleeplessness and even harboured suicidal idea, and she was reluctant for psychiatric treatment (see paragraphs 8-11 above).  I am persuaded there is evidence to suggest that her ability to acquire information was impaired.

83.  Taking all of the above matters into consideration, I am of the view that the Plaintiff upon taking reasonable steps to acquire information would only have known of the Defendant as occupier/tortfeasor, and she could not reasonably have been expected to acquire knowlege of the identity of Lo’s as further or alternative occupier/tortfeasor prior to the 1 December 2006 or prior to the expiry of the primary limitation period. The Plaintiff’s claim against Lo’s is within time.

IX.  Discretionary extension

84.  If I am wrong and the Plaintiff’s claim against Lo’s is time-barred, I proceed to consider whether I should exercise discretion to allow such time-barred claim to proceed under section 30 which provides as follows:

“If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which-

(a)          the provisions of section 27 or 28 prejudice the plaintiff or any person whom he represents; and

(b)          any decision of the court under this subsection would prejudice the defendant or any person whom he represents,

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.”

85.  The discretion to disapply the limitation period is entirely unfettered.[20]  The onus is on the plaintiff to show that in the particular circumstances of the case it would be equitable to allow the claim to proceed having regard to the respective prejudice likely to be suffered by each party.[21]  But even though the primary onus rests on the plaintiff, it does not mean that the defendant does not have to prove the prejudice he says he will suffer.  It is not enough to assert particular prejudice without evidence to support it.[22]

86.  The court performs a balancing exercise by looking at (a) the balance of prejudice to each party, (b) the 6 specific but non-exhaustive factors contained in section 30(3), and (c) all the circumstances of the case.  Although each case turns on its own facts, Whistonsuggests that the recent hardening of the court’s attitude towards section 14(2)-(3) of the LO Act (ie the English equivalent of section 27(6)/(8)) should result in a more flexible exercise of discretion under section 33 of the LO Act (ie the English equivalent of section 30).  In A v Hoare, Baroness Halesaid she fully supported a more generous approach to the exercise of discretion,[23] and Lord Carswell said there needed to be a more liberal approach to the exercise of the discretion.[24]

(a)  Balancing prejudice

87.  Mr Lee has referred me to a number of authorities on the court’s approach to balancing the prejudice to each party.  In Hartley v Birmingham City District Council [1992] 2 All ER 212, 224, Parker LJ held that in nearly all cases the prejudice to the plaintiff by the operation of the limitation period and the prejudice to the defendant if the limitation period was disapplied would be equal and opposite, ie the stronger the plaintiff’s case against the defendant the greater the prejudice to the plaintiff from the operation of the limitation period and the prejudice to the defendant if the provision is disapplied; likewise, the weaker the plaintiff’s case the less the plaintiff will be prejudiced by the operation of the limitation period and the defendant prejudiced if the provision is disapplied.  Since prejudice resulting from loss of the limitation defence will almost always be balanced by prejudice to the plaintiff from the operation of the limitation provision, the most important question concerning prejudice is evidential prejudice as specified in section 33(3)(b) of the LO Act (ie the English equivalent of section 30(3)(b)) which deals with the effect of the delay on the defendant’s ability to defend the case on the merits.

88.  In Donovan v Gwentoys Ltd [1990] 1 All ER 1018 it was held that prejudice which occurred before the expiry of the limitation period is a relevant matter for the court to consider in deciding whether to override any limitation period. Lord Oliver said at pp.479-480 as follows:

“…… A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses’ memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost.  The fact that the law permits a plaintiff within the prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced.  It merely means that he is not in a position to complain of whatever prejudice he suffers.  Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff's failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant.  It is clear from the judge’s judgment that, because sub-paragraphs (a) and (b) of section 33(3) of the Act of 1980 focus particular attention on the time elapsing after expiry of the limitation period, he felt constrained to regard the time which had to been allowed to pass prior to that date as something which had to be left wholly out of account.  In my judgment, he was wrong to do so and that necessarily vitiated the exercise of his discretion.”

89.  In Dobbie, the English Court of Appeal refused to disapply the limitation period having regard to the lengthy delay after the date of actual knowledge and to the fact that the plaintiff could have taken advice and issued proceedings years before she did.

90.  In KR & ors v Bryn Alyn Community (Holdings) Ltd (in liquidation) & anor [2003] QB 1441, a case not cited by the parties, the English Court of Appeal held that the matter was not determined by assessing the comparative scales of hardship: rather the overall question was one of equity, namely whether it would be equitable to disapply the limitation period having regard to the balance of prejudice.  A judge should conduct a balancing exercise taking all the relevant circumstances into account, and bear in mind that what is of paramount importance is the effect of delay on the defendant’s ability to defend the case.

(b)  Six specific factors

91.  For the purpose of convenience, I discuss the 6 factors contained in section 30(3) in turn, but I accept they cannot be analysed in isolation from one another.

92.  Length of reasons and delay by the Plaintiff.  I noteat the outset that (a) the test is a subjective one[25] and (b) the delay under section 30(3)(a) refers to delay since expiry of the limitation period.[26]  But pre-expiry delay can also be taken into account as one of the circumstances of the case in balancing the prejudice (see paragraph 88 above and the discussion below).

93.  Here, the post-expiry delay was about 6 months from 2 June to 30 November 2009. It is not a particularly long period of delay, and the Plaintiff has given explanation for the delay which I find acceptable, ie the Defendant’s failure to mention about Lo’s until service of its Defence and the time required for her application for legal aid to be processed (see paragraphs 27, 30, 34 and 36 above).  At the hearing before me, Mr Lee has confirmed there is no complaint of delay for the period after service of the Defence on the Plaintiff in late September 2009.

94.  Effect of any delay on the cogency of the evidence.  This consideration is significant since it concerns the defendant’s ability to defend.  There is an evidential burden is on the defendant to show that the evidence to be adduced by him is likely to be less cogent because of the delay.[27]  But again the delay under section 30(3)(b) is delay since expiry of the primary limitation period.[28]  Nevertheless, the effect of pre-expiry delay on cogency of the evidence can also be taken into account as one of the circumstances of the case in balancing the prejudice (see paragraph 88 above and the discussion below).

95.  Here, the question to ask is whether Lo’s would be in any worse position for dealing with the factual issues than it would have been if the claim were issued within time.  I find it more useful to consider the impact of both pre- and post-expiry delay on cogency of the evidence in the discussion below.  Suffice to say here there is no indication that by reason of the 6 months’ post-expiry delay the evidence to be adduced is likely to be less cogent than if the action against Lo’s had been brought within time.  There is no suggestion that during and because of such 6-month delay (a) witnesses who were present at the material time could not be called to testify for Lo’s, (b) available witnesses would have increased difficulty in remembering the event or the details, or (c) relevant documents would have been lost.  In my view, the effect of the post-expiry delay on cogency of the evidence is insignificant.

96.  Conduct of the defendant after the cause of action arose.  This is irrelevant since the Plaintiff does not allege or complain that Lo’s has provided misinformation or has failed to respond to her request for information.

97.  Duration of any disability of the plaintiff arising after accrual of the cause of action.  Mr Pun accepts that the Plaintiff does not suffer from Order 80 mentally incapacity such that it would preclude her from bringing the action within time. Instead, he relies on the Plaintiff’s psychiatric disabilities as giving an insight into her state of mind during the limitation period, and as such it is one of the circumstances of the case to be taken into account in the overall balancing exercise considered in the discussion below.

98.  Conduct of the plaintiff.  This refers to whether the Plaintiff acted promptly and reasonably once she knew the identity of Lo’s and further knew whether or not Lo’s act or omission was attributable to the injury.  It is irrelevant in the present situation as Lo’s does not complain of delay for the period after service of the Defence in late September 2009.

99.  Diligence of the plaintiff in obtaining medical, legal or other expert advice.  This factor looks at whether the Plaintiff took reasonable steps to bring a claim or make a complaint even if things subsequently went awry.  Since this factor is intertwined with the discussions concerning pre- and post-expiry delay, I deal with this in the discussion below.

(c)  Equity, prejudice and all the circumstances of the case

100.  As indicated in Donovan, although section 30(3)(a)-(b) requires the court to look at post-expiry delay the need to look at all the circumstances of the case allows the court to consider what prejudice has occurred within the limitation period.  In A v Hoare, Lord Hoffmann, Baroness Hale and Lord Brown all referred to the need for the judge to look at the matter broadly in considering whether or not it will be possible for the defendant to investigate allegations and to ask whether there is a reasonable prospect of a fair trial.[29]

101.  In Cain v Francis [2009] 2 All ER 579, 599 Smith LJ advocated a consistent and disciplined approach which she summarised as follows:

“[73] It seems to me that, in the exercise of discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in itself as to the effect it has had.  To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum?  But it will also be important to consider the reasons for the delay.  Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed.  On the other hand, the balance may go the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons or the delay (or its length) are not good ones.

[74] Although the delay referred to in s 33(3) is the delay after the expiry of the primary limitation period, it will always be relevant to consider when the defendant knew that a claim was to be made against him and also the opportunities he has had to investigate the claim and collect evidence: see the Gwentoys case. ……”

102.  Mr Pun submits that the Plaintiff will suffer prejudice if her claim against the Defendant fails and her claim against Lo’s is time-barred, ie she will unable to pursue her claim for damages in excess of HK$2 million against Lo’s as sole tortfeasor.  He argues that Lo’s will not sustain any prejudice if the limitation period is disapplied because if it turns out at trial that the claim against Lo’s is not valid, such claim will be dismissed and Lo’s will have its remedy in costs.[30]

103.  However, Mr Lee submits that costs relief is not an adequate remedy because Lo’s reputation and business as a cleaning contractor will be tarnished and affected during the wait for trial.

104.  In Dobbie (at p.462), Beldam J held it was not appropriate to take into account the factor of prejudice due to the action hanging over the head of the defendant for so many years because the defendant had no knowledge that any action was contemplated against him.  This is echoed in Butterworths Personal Injury Litigation Service Vol.1, para.[788] at pp.VI/111-112 which says as follows:

“(c)  The fact that the claim is hanging over the defendant.  In Daniel v George Hammond Ward LJ said the following:

‘Finally it was submitted to the judge that account should be taken of the prejudice to the professional men involved in having the claim hanging over their heads.  He discounted this aspect.  He was right to do so. The sword of Damocles did not begin to hang over their heads until the action commenced, and for my part, I do not regard that significant at all. ……’”

105.  In the present proceedings, since Lo’s claims it had no knowledge of the Accident until it received the pre-action letter, it is difficult to take into account any prejudice arising from having the sword of Damocles hanging over its head for the period up to 12 November 2009.  For the period after that date, it turns largely on the question of whether the Plaintiff’s claim against Lo’s is a bona fide one that deserves to be investigated by the court at trial. If it is, the sword of Damocles hanging over Lo’s will hardly be able to sufficiently weigh the scales to tip in favour of Lo’s.

106.  This brings me to Mr Lee’s arguments on the strength of the Plaintiff’s claim against Lo’s. His essential contention is that on the evidence the Plaintiff’s claim against Lo is weak, unmeritorious and not reasonably arguable.  He submits that the Plaintiff has not set out in her affirmations “why and how the alleged accident happened to her and how it was caused by [Lo’s] negligence” beyond what has been briefly pleaded in the draft Amended Statement of Claim.  For example, there is no evidence as to how wet the Staircase was at the material time.  Mr Lee further complains that the Plaintiff purports to rely on the same particulars of negligence against both the Defendant and Lo’s without taking into account the specific case against Lo’s. It is argued that at the time of the Accident (a) the red rainstorm warning was hoisted, (b) it was raining heavily and (c) the Staircase was open to the elements through the Openings, so Lo’s cannot be blamed for the wetness of the Staircase.  In any event, Lo’s as cleaning contractor could not have cordoned off the Staircase or be responsible for any inadequate lighting. Mr Lee therefore submits that the Plaintiff has failed to establish any viable case on liability against Lo’s even if the Staircase were wet and slippery at the material time.

107.  Before considering Mr Lee’s arguments above, I start with the court’s approach on this issue. In Dale v British Coal Corp [1992] PIQR 373, 380, Stuart-Smith LJ said as follows:

“Plainly, it is more prejudicial to a plaintiff to be deprived of a cause of action when it is almost bound to succeed …… than one that looks highly speculative.  Equally, although it is always prejudicial to a defendant to be deprived of a defence under the Limitation Act, it may be less inequitable or unfair where the plaintiff has a strong case and more unfair where he has a weak one.  But where the limitation issue is tried and determined before the merits of the claim, the court cannot and should not attempt to determine the merits on affidavit evidence. All that can be done and should be done is for the judge to take an overall view of the prospects of success; a judge who is experienced in this type of litigation should have no difficulty in doing so.” (my emphasis)[31]

108.  Mr Pun refers to Yip Wing Hong v Maeda Corporation HCPI518/2000 (unreported, 11 May 2001) where Master Ho observed as follows:

“…… Whether the plaintiff could prove his claim would depend on the evidence adduced at trial and not just on the pleadings.  Indeed, the pleadings could be amended by appropriate application if necessary.  Further it is not appropriate for the Court to go into the details of the evidence at this stage and inquire into what the plaintiff had said or had not said to his doctors when he consulted them.  All these would be a matter of evidence to be examined and resolved at the trial ……”

109.  In Yeung Mo Shing v Chung Fai Engineering Company Limited & anor HCPI301/2002 (unreported, 26 February 2003), Recorder E Chan, SC referred to what Parker LJ said in Hartley (see paragraph 87 above) and said that “[thus] it is usually not necessary to consider the relative strength of the plaintiff’s and the defendant’s case” (at para.14).

110.  This is echoed in Li Chi Hung, Lawrence v Secretary for Justice & anor [2006] 1 HKLRD60, 73 in which Deputy High Court Judge Carlson said as follows:

“Another factor that Mr Sakhrani has drawn attention to is what he says is the plaintiff’s weak case against the HA.  He has referred to decided cases which he says bears this out.  It is impossible for the Court at this very preliminary stage to form anything beyond a highly provisional view of the merits.  In my judgment, the plaintiff must on these facts have at least a reasonably arguable case that the HA has been negligent.  Had Mr Sakhrani been able to point to a fairly obvious “loser” then I might have been able to give this significant weight.  Where I am unable to accept this part of his submission I am not prepared to put this part of his argument into the scales in the HA’s favour.  This is an authentic claim which, other things being equal, ought to be allowed to be investigated by the Court.”

111.  In McGhie v British Telecommunications plc [2005] EWCA Civ 48, May LJ at para.35 emphasised that the court must consider whether it would be proportionate to allow the claim to proceed:

“…… The question of proportionality is, in my judgment, in the first place, a proportionality between the size of the claim and the legal and other costs of running it.  The question of proportionality also has an eye, in my judgment, to the strength of the claimant's claim.  In my judgment, taking the matters in the round, it would be a great prejudice to a claimant who was very badly injured and likely to suffer the consequences of that injury for many years to come if, what would otherwise be a very large claim, based upon very strong evidence, were to be lost through a refusal to exercise the discretion under section 33.”[32]

112.  On the basis of the above principles, I am not persuaded by Mr Lee’s arguments in paragraph 106 above.  The Plaintiff’s case is that the Staircase was wet and slippery, and she slipped and fell whilst descending the same.  She is only required to plead the material facts that constitute her cause of action against Lo’s, and it would have been inappropriate for her to plead evidence, eg the extent and size of the wetness or water stains and their precise locations on the Staircase, or a blow-by-blow account of how she slipped and fell.  Although the Defendant and Lo’s do not admit the Accident, the contemporaneous entries in the Book lend support to the Plaintiff’s case that the Accident did occur.

113.  As for the Plaintiff’s assertions as to Lo’s blameworthiness, the Contract between the Defendant and Lo’s suggests that Lo’s was contractually required to clean the Mall/Staircase.  The Book also contains an entry at 11:34 am (ie shortly before the Accident and after the red rainstorm warning was hoisted) to the effect that the Defendant gave instructions to Lo’s to follow up and pay attention to the wet floor.  Against such background, whether the Plaintiff suffered injury that was attributable to negligence or breach of duty on the part of Lo’s is a question of mixed fact and law that turns on the evidence to be examined and resolved at trial, and it is not appropriate for the court at this stage to go into the details of and/or assess the evidence to determine how wet the Staircase was at the material time, whether such wetness was non-preventable due to the heavy rains and the layout of the Staircase and/or whether Lo’s should have reasonably taken steps to mop dry the Staircase at the time of or before the Accident.  In my view, whilst the Plaintiff does not have an overwhelming or cast-iron case against Lo’s, it also does not have a weak case.  The Plaintiff’s claim against Lo’s is genuine and the particulars pleaded in the Amended Statement of Claim and the Defendant’s pleaded averments in the Defence deserve investigation at trial.  I am not persuaded that the strength of the Plaintiff’s case is a factor that will weigh heavily in the scales in Lo’s favour.

114.  Mr Lee next submits that the Plaintiff has failed to act promptly and reasonably in all the circumstances, especially when she was aware of her “right” to compensation even on the date of the alleged Accident.  He claims that the Plaintiff has failed to take any step or to give proper notice of the Accident until the pre-action letter to the Defendant on 5 May 2009, ie less than a month before expiry of the limitation period, and the pre-action letter to Lo’s on 12 November 2009, ie more than 3 years after the Accident.  Mr Lee argues that Lo’s was innocent of any delay, but now faces difficulty in evaluating and assessing what actually happened on the date of the alleged Accident, in investigating the Plaintiff’s claim, and in collecting evidence to meet the Plaintiff’s allegations.  He says it is especially prejudicial given the Plaintiff’s reliance of the doctrine of res ipsa loquitur.  Mr Lee claims that without a real and fair opportunity for Lo’s to collect evidence a fair trial is not possible.

115.  Mr Cheung’s 1^st affirmation disclosed a list of 34 day shift and 25 night shift employees and cleaning workers engaged by Lo’s in/about June 2006, but 17 day shift and 17 night shift workers (a) had left Lo’s employ, (b) could not be contacted or (c) unwilling to cooperate or assist.  However, there is no evidence before me as to when these workers had left Lo’s employ (ie whether shortly or substantially after the Accident) and/or which of them were unhelpful. Lo’s evidence is unlikely to be less cogent because of pre-expiry delay if potential witnesses were “lost” at an early stage after the Accident or unwilling to cooperate in any event.

116.  Mr Lee’s arguments in paragraph 114 above on the alleged prejudice suffered by Lo’s are premised on Lo’s assertion that it had no notice of the Plaintiff’s claim until 12 November 2009.  This underlying premise bears further consideration.

117.  It is recorded in the Book that Lo’s was notified to follow up on the wet floor at 11:34am on the date of the Accident (see paragraph 17 above).  D’s Solicitors in their correspondence with Lo’s Solicitors in January/February 2010 claim that Lo’s was notified or ought to have known of the Accident as a result of (a) Lo’s cleaning staff stationed at the Mall (2 of whom were specifically assigned to clean the indoor areas of the Mall/Staircase and 2 of whom were assigned to mop dry the indoor areas of the Mall/Staircase on rainy days – see paragraph 16 above) being able to overhear reports received by the Defendant on the common walkie-talkie system, and (b) the Defendant’s notification to Lo’s after the Accident to clean up the water stain (if any) at the Accident scene and put up more warning signs (see paragraph 16 above).  Mr Pun submits there is a reasonably arguable case that Lo’s was aware of the Accident since 2006.

118.  Mr Lee submits that the Plaintiff is not entitled to rely on the correspondence that passed between D’s Solicitors and Lo’s Solicitors in January to March 2010 because D’s Solicitors never intended such correspondence to be used by the Plaintiff in support of the Amended Summons. In fact, what D’s Solicitors stated in their letter of 3 March 2010 to P’s Solicitors and in their earlier correspondence with Lo’s Solicitors is that “we do not intend the same to be used in support of [the Plaintiff’s] application or in support of the defence position of [Lo’s]” and that the information/documents were provided on the basis of internal enquiries made with the Defendant’s staff and given to the best of the Defendant’s knowledge and information.  On plain reading, I cannot ascribe to Mr Lee’s interpretation.  In my view, what the Defendant was saying is that it maintains a neutral stance over the joinder application and only provides information to the best of its knowledge without favour to either the Plaintiff or Lo’s.  I see nothing sinister or untoward in the Defendant’s stance and am unable to find sufficient basis for Mr Lee’s suggestion that the Defendant’s claim that Lo’s cleaning staff were notified or ought to have known of the Accident was motivated by self-interest to “drag [Lo’s] to the present proceedings and to try to hold [Lo’s] to be liable, if necessary, so that if any liability is being attached to the Defendant, the Defendant will and can look to [Lo’s] being available to undertake and share part of their liability”.  After all, this is the Plaintiff’s and not the Defendant’s joinder application, and there is as yet no third party claim by the Defendant against Lo’s.

119.  Mr Lee next criticises the Defendant for the evolution of its assertions from saying that Lo’s might or ought to have known of the Accident to asserting that Lo’s was notified of the Accident after it happened.  Mr Lee argues the fact that Lo’s cleaning staff was in the vicinity and that there was a common walkie-talkie system only suggest a possibility and not a certainty that Lo’s staff overheard report about the alleged Accident.  But the Defendant has failed to identify what was reported over the walkie-talkie system or identify the particular staff or person who was notified.  Mr Lee claims that it is easy for the Defendant to make bare assertions with no particulars and names, but the veracity of such assertions is questionable.  Even if Lo’s cleaning staff did overhear report of the Accident, mere notification to Lo’s cleaning staff who had no duty to investigate any accident or to ascertain facts is insufficient to impute knowledge to the corporate mind of Lo’s.  Further, the Book does not record notification of the Accident to Lo’s. Mr Lee therefore questions the value of the Defendant’s assertions.

120.  In my view, it is not possible to come to any conclusive finding of fact on affidavit as to whether Lo’s was actually notified of the Accident after it happened and/or whether Lo’s cleaning staff overheard report of the Accident via the walkie-talkie system. D’s Solicitors recognised as much in their letters to Lo’s Solicitors in February 2010.  Although the Defendant is unable to identify the person notified, it does not necessarily follow that its assertion that Lo’s had been notified of the Accident must be unreliable.  The existence of the common walkie-talkie system (which Lo’s has not denied) and the fact that the Accident was reported (see entry for 1:12pm on 2 June 2006 in the Book) arguably lend support to the Defendant’s case that Lo’s cleaning staff ought to have overheard such report.  But ultimately this is a matter of factual evidence and legal arguments within the factual matrix as to the sufficiency of the notification (if any) that should be investigated and addressed in the course of the litigation.  I am not persuaded it is so plain and obvious that Lo’s has not been notified of the Accident that the scales are tipped steeply in favour of Lo’s. On the state of the affidavit evidence before me, I find the contentions for either party evenly balanced, and I approach the issue of delay and evidential prejudice on such basis.

121.  Mr Lee submits that there is evidential prejudice because the remaining staff and employees were unaware of the Accident and there is difficulty for witnesses to recall the relevant circumstances on the date of the Accident (eg the state and condition of the Mall/Staircase, the precise times of cleaning on the date of the Accident, any special event or incident that occurred on such date, any act or omission alleged against Lo’s, etc).

122.  However, Lo’s is not entirely bereft of witness evidence. Lo’s was able to locate Chan Ailan who was a cleaning worker at the material time whose duties were to clean inter alia the Staircase.  From her memory she was able to say that she was unaware of the Accident and that she had diligently and faithfully carried out her cleaning duties in relation to the Staircase.  She was able to describe her duties of sweeping the Staircase twice a day and using water to clean and then mop dry the Staircase every morning.  She also recalled that she would be summoned to clean the Staircase or any other area if the circumstances warranted or if so required, and she would also mop dry and clean the Staircase on her own initiative if it appeared to her that cleaning was required, eg after raining or any reported incident of ad hoc spillage, dirt etc.

123.  Mr Cheung confirms that at the material time there was never any staff stationed continuously at any staircase at the Mall (including the Staircase with Openings) throughout the day on any given day (including the date of the Accident).  He explains that to have staff stationed continuously at the Staircase during heavy rains was impractical and useless as rainwater would pour through the Openings, so Lo’s would send staff to clean up and mop dry the Staircase when the rains stopped, which arrangement was sufficient discharge of Lo’s duties under the Contract.

124.  Although Lo’s claims that there is no direct evidence of what was actually done by which particular staff or employee at the time of the Accident on 2 June 2006 (and I have averted to Lo’s lack of clarity as to when certain staff/employees were “lost” and which of such “lost” witnesses were simply unwilling to help – see paragraph 115 above), it is obvious that the Defendant has both cleaning worker and supervisor witnesses who are able to speak to the system of work at the material time.  If, as suggested by Mr Cheung, it is Lo’s case that it is practical and sufficient discharge of its cleaning duties not to have cleaning staff stationed at the site to mop dry the Staircase during heavy rains and/or red rainstorm warning with rainwater pouring onto the Staircase through the Openings, and that the Staircase would only be cleaned and mopped dry after the rains stopped (see also Chan Ailan’s similar recollection set out in paragraph 122 above), I cannot appreciate how the absence of eyewitness(es) or witness(es) who could recall what happened will render this defence contention less cogent.  After all, the underlying premise to such contention is that there was no cleaning staff who would clean and mop dry the Staircase during the rains at the time of the Accident.

125.  As regards documents, Lo’s confirms that it does not keep any document or logbook recording details of the daily cleaning services provided at the Mall/Staircase, and relies on the Book (which is available) kept by the Defendant. Lo’s says that at the material time Lo’s would give the management office of the Defendant every evening a work schedule for the following day with names of the cleaning workers and their duties. Lo’s says that such daily work schedules were lost or discarded, and D’s Solicitors have failed to respond to requests by Lo’s Solicitors for records of Lo’s performance of cleaning duties at the Mall.  Lo’s believes that these documents are likely to be no longer in the Defendant’s possession or alternatively there is nothing in such records that is adverse to Lo’s interest.

126.  On the evidence before me, there is nothing to show how long these daily work schedules would be retained if at all, and how their “loss” was caused by the Plaintiff’s delay.  Further, in light of Lo’s defence argument outlined in paragraphs 122-123 above, I am unable to see how the “loss” of daily work schedules will render the argument therein less cogent.

127.  Mr Lee next submits that the pre-expiry delay was due to the Plaintiff’s inexcusable default since she should or might reasonably have been expected to acquire knowledge as to the identity of Lo’s had she been diligent enough in conducting investigation much earlier.  Mr Lee adopts the same arguments as set out in paragraphs 66-68 above. In all, he takes the view that the Plaintiff has not acted promptly and/or reasonably by any standard either by herself or P’s Solicitors, and the delay was self-induced and inexcusable.

128.  The Plaintiff’s affirmations set out in detail the events and steps she took prior to the issue of the Summons (see paragraphs 20-36 above).  Mr Pun submits that the delay was understandable. I accept there are sufficiently good reasons for the delay which is supported by affirmation evidence and medical reports, and this is not a case where there was mere inactivity on the part of the Plaintiff.  Although the Plaintiff did not take proactive steps between 2007 and 2008 to progress her claim, such failure can be explained by the fact that she was suffering from persistent pain syndrome, depression, dysthymia and/or psychiatric disabilities during this period (see paragraphs 8-15 above). It appears from the medial reports that the Plaintiff’s initial injury triggered exacerbation. She was reluctant to receive psychiatric treatment and suffered from a vicious cycle of pain catastrophising reaction.  She even had fleeting suicidal ideation and self-mutilation behaviour.

129.  In my view, the Plaintiff’s illness gives insight as to her state of mind during the limitation period.  In A v Hoare, Lord Hoffmann said that “[the] judge is expressly enjoined by subsection (3)(a) to have regard to the reasons for delay and in my opinion this required him to give due weight to the evidence, such as there was in this case, that the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered”.[33]  I accept that given the Plaintiff’s condition and predicament at the time, she would not have the mental strength to pursue her claims.

130.  As to the delay after the end of 2008, the Plaintiff had by that time received some psychiatric treatment at UCH, and she gave instructions to P’s Solicitors to obtain medical reports and relevant materials to proceed with the claim.  She also took reasonable steps to apply for legal aid, and there were no long delays on her part in applying for legal aid.  In my view, the overall delay is explicable and understandable, and should not weigh heavily against the Plaintiff in the balancing exercise.

131.  Mr Lee again adopts the arguments set out in paragraph 69 above that the Plaintiff has breached PD18.1 in failing to give both the Defendant and Lo’s sufficient time to investigate and to give constructive reply before commencement of any proceedings.  I am not with Mr Lee on this point. I find it eminently sensible that P’s Solicitors should expedite the issuance of the Writ of Summons and the Summons respectively given the imminent and actual expiry of the primary limitation period in respect of the Defendant and Lo’s respectively.  Had the Plaintiff taken a leisurely approach, she would have been legitimately criticised for post-expiry delay. In any event, PD18.1 does not specify that a plaintiff must give the intended defendant not less than 1 month after the pre-action letter for constructive reply under all circumstances.  Paragraph 21 of PD18.1 specifically provides that in the case of a claimant first instructing a solicitor towards the end of the relevant limitation period, so that the end thereof falls within the timescale set out in the pre-action protocol, such timescale will not apply and proceedings should be commenced, but the claimant will nonetheless be expected to comply with the spirit of such timescale after the commencement of proceedings and further progress in the action should be delayed whilst the timescale is followed.  This is plainly applicable to the situation of the Defendant, and there is all the more reason to adopt such approach or spirit vis-à-vis Lo’s since the primary limitation period has expired when the pre-action letter was issued.

132.  It therefore seems to me that in the exercise of discretion to do equity it is fair and just in all the circumstances for Lo’s to meet the Plaintiff’s claim on the merits notwithstanding any delay.  I am not persuaded that Lo’s is so prejudiced by any pre- and/or post-expiry delay that its right to a fair opportunity to defend itself has been compromised.  The delay has arisen for an excusable reason and I am persuaded that in all the circumstances and balancing the prejudice to either party I should disapply section 27.

X.  Conclusion

133.  I therefore grant an order that Lo’s be added as the 2^nd Defendant in the present proceedings.  I also grant an order in terms in respect of paragraphs 2-6 of the reliefs sought in the Amended Summons save that in paragraph 5 thereof the phrase “within 14 days from the date of the Order to be made herein” be replaced by “within 14 days from the date of service of sealed copy of the Order to be made herein”.  I also direct that the adjourned CLR be fixed to be heard before the PI Master at 11:30am on 19 July 2010.

134.  I note that in paragraph 7 of the Amended Summons, the Plaintiff prayed for costs of the application and costs of and occasioned by the amendments be costs in the cause.  The proposed costs relief might have been suitable if the application was not contested.  But Lo’s has chosen to resist the application and has failed in doing so.  The matter of costs is within the unfettered discretion of the court.

135.  I see no reason why costs should not follow event.  I have been ably assisted by Mr Pun and certificate for counsel is appropriate.  I therefore grant a costs order nisi that (a) the Plaintiff do pay the Defendant’s costs of the hearing of the Summons on 8 December 2009 in any event to be taxed if not agreed, (b) Lo’s do pay the Plaintiff costs of the joinder application (including costs of the hearing on 8 December 2009 and 9 March 2010) to be summarily assessed with certificate for counsel, and (c) the Plaintiff do pay the Defendant’s costs of and occasioned by the amendments to the Writ of Summons and the Statement of Claim and the consequential amendments to the Defendant’s pleadings in any event to be taxed if not agreed.  The Plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.

136.  P’s Solicitors are directed to forthwith notify D’s Solicitors in writing of the terms of my order herein, including the costs order nisi.

137.  As regards summary assessment of the costs in (b) of paragraph 135 above, I hereby grant the following directions:

(a) If no application is made to vary the costs order nisi in the above paragraph within 14 days from the date hereof or if application is made to vary such costs order nisi within 14 days from the date hereof but Lo’s does not challenge liability for costs, the Plaintiff do within 21 days from the date hereof lodge and serve statement of costs pursuant to Practice Direction 14.3, and Lo’s do within 7 days thereafter lodge and serve succinct summary of objections in bullet-point form of not more than half page in respect of the Plaintiff’s statement of costs (“Objection Summary”);

(b) if application is made to vary the costs order nisi in the above paragraph within 14 days from the date hereof and Lo’s challenges liability for costs, the Plaintiff and Lo’s do within 21 days from the date hereof respectively lodge and serve her/its statement of costs pursuant to Practice Direction 14.3, and within 7 days thereafter respectively lodge and serve her/its respective Objection Summary to the other party’s statement of costs;

(c) the Plaintiff do within 14 days from the date hereof fix a date with the Listing Clerk for the hearing of the summary assessment of costs to be heard before me in chambers (open to the public) on a date not before 35 days from the date hereof with half hour reserved;

(d) any application for variation of the costs order nisi shall be heard at the same time as the hearing for summary assessment of costs.

Representation:

[1]   see Kensland Realty Limited v Tai, Tang & Chong (2008) 11 HKCFAR 237, 265 in relation to the parallel provision in section 31(5)

[2]   see Kensland Realty Limited at p.265 in dealing with the parallel provision in section 31(5) and citing Nash v Eli Lilly & Co [1993] 4 All ER 383

[3]   see also Kensland Realty Limited at p.298

[4]   see Butterworths Personal Injury Litigation Service Vol.1, para.[551] at p.VI/64

[5]   see Nash at p.396

[6]   at pp.396 and 399 and also see Kensland Realty Limited at p.271 where it was held that the objective standard was applicable for the parallel provision in section 31(7)

[7]   at pp.86-90, paras.33-47

[8]   at p.92, paras.57-58

[9]   at p.94, para.71

[10]  at p.95, para.76

[11]  at p.100, para.91

[12]  see also Butterworths Personal Injury Litigation Service Vol.1, paras.[574]-[580] at pp.VI/70-71

[13] at pp.859-860, para.34

[14] see also Kensland Realty Limited at pp.269-270

[15] at p.861, para.39

[16] see also the recent case of Whiston v London Strategic Health Authority [2010] EWCA Civ 195 (5 March 2010) at para.54 which followed Adams

[17] see Dobbie v Medway Health Authority [1994] 4 All ER 450 and Kensland Realty Limited at pp.277-280 on the parallel provision in section 31

[18] at pp.301-302, paras.186-187

[19] see Chan Ngan Fa at para.16

[20] see A v Hoare at pp.863 and 871, paras.49 and 84, per Lord Hoffmann and Lord Brown

[21] see Thompson v Brown Construction (Ebbs Vale) Ltd [1981] 1 WLR 744, 750 and 752 and Ng Ngan Chiu v Paramount Printing Co Ltd and Shell HK Ltd (third party) [1998] 2 HKLRD 557, 561

[22] see Butterworths Personal Injury Litigation Service Vol.1, para.[743.1] at pp.VI/94-95

[23] at pp.865-866, para.60

[24] at pp.868-869, paras.84-90

[25] see McGee, Limitation Periods, 5^th ed, para.8.040 at p.176

[26] see Donovan at p.478 and paragraph 88 of this Decision

[27] see Butterworths Personal Injury Litigation Service Vol.1, para.[764] at p.VI/100

[28]see Ng Keung Leung v The Personal Representative and/or the Executor and/or the Administrator of the Estate of Lam Chik Suen (deceased) HCPI512/2004, Deputy High Court Judge To (unreported, 25 November 2005) paras.24 and 30

[29] at pp.871-872

[30]see Chan Ngan Fa at para.22

[31] see Butterworths Personal Injury Litigation Service Vol.1, para.[787] at pp.VI/108-109

[32]see also Lu Guo Xiang v Hong Kong Ming Wah Shipping Company Limited CACV308/2008 (unreported, 20 November 2008)

[33] at p.863, para.49