LLAM FONG AND ANOTHER v. KIU MAY CONSTRUCTION CO. LTD. AND ANOTHER

Action No. 139 of 1982

                On dismissal of defendants' application to strike out fatal accidents and law reform claims for want of prosecution, held:-

Action No. 139 of 1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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REASONS

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1. This was an application by both defendants to dismiss the plaintiff's claim for want of prosecution. I dismissed the application at the conclusion of the hearing, but out of deference to the most careful and detailed argument put before me by counsel for both defendants I said I would put my reasons in writing. I also reserved my ruling upon a question of costs. I now hand down these reasons and this ruling, and at the request of both parties do so in open court.

2. The claim is brought by administrators of a deceased man for damages arising out of his death, on behalf of his estate, and on behalf of his widow and four children now aged 20 years or less under the Fatal Accidents Ordinance. The time table is unremarkable and in barest outline can be summarised as follows.

3. This time table seems to me conspicuous for its ordinariness. One is not instantly struck by delay. Save for early 1984 there was continuous activity throughout, and but for this application the trial would already have taken place.

4. The defendants' first problem arose from the position of the four dependent children. The limitation period has not expired against them. A direct application of the principles of Birkett v. James (1978) A.C. 297; Tolley v. Morris (1979) 1 W.L.R. 592 and Craggs v. Attorney General (1981) H.K.L.R. 429, makes it impossible to strike their claim. The defendants sought to meet this problem by inviting me to apportion the workmen's compensation claim exclusively to them and rule that that was sufficient to satisfy any claim they might have. That is impossible. No apportionment was sought or made at the proper time. The total award was simply remitted to the widow in China.

5. It follows that the children's claim must proceed in any event. A trial of their claim would be identical to a trial of the claims as at present constituted. It presents the same problems of fact and law. The prejudice (if any) alleged by the defendants to have arisen, applies equally and identically to both claims. There is no way in which the estate or the widow's claims can be asserted to give rise to some special or different problem. In these circumstances I can see no way in which, upon a proper exercise of discretion, I can conclude that the children's trial, would substantive law permits, is fair; but that an identicla trial of the widow's claim is by our procedural rules rendered so unfair that it cannot be allowed to take place. This consideration is fatal to the defendants' application.

6. On the well known Allen v. McAlpine (1968) 2 Q.B. 229 principles, the defendants had first to point to "inordinate and inexcusable" delay. The time table was not obviously favourable to this contention, but Mr. Ma and Mr. Wei ought to establish this by a carefully reasoned and ingenious argument which went like this:-

7. I acknowledge that literal support for some of the stages in this argument can be obtained from dicta in the English authorities to which I was referred. But at the same time I am sure that those judges would have been surprised at the use presently sought to be made of their words. It is, I think, important that these dicta should be read in their context, by which I mean not only the context of the facts of the particular cases but of the English practice at the time. There are two particular features of this.

8. First, as the facts of the cases collected under appellation Allen v. McAlpine show, the delays in the conduct of some of the cases before the English courts had become a public scandal. These delays were not measured in months or days but in years. When giving his "definition" of the word "inordinate" in that case Salmon L.J. said at p.268F:

"..... Inordinate delay. It would be highly undesirable and indeed impossible to lay down a tariff - so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend upon the facts of each particular case. These vary infinitely from case to case, but inordinate delay should not be too difficult to recognise when it occurs."

His use of the word "years" was not I think accidental, and illustrates the context. The learned Lord justice was using this epithet to describe delay which was obvious: which jumps at you from the page.

9. Secondly, repeated reference is to be found in the English cases to the parlous position of defendant facing a legally aided plaintiff, see for example per Lord Diplock in Birkett v. James at p.317H. His chances of recovering any costs at all if he wins are remote. This has, I think, been an influencing factor behind the English decision. In Hong Kong the same defendant's position is of course totally different.

10. All these cases are laying down principles or perhaps guide-lines to the judicial exercise of a particular discretion. Both these considerations must, I think, be borne in mind when they are transplanted into a Hong Kong context.

11. In laying down the "inordinate delay" test, the English court was setting a much more elastic and flexible standard than the time table in the Rules. Salmon L.J. makes this clear. The matter was also most felicitously put by Cumming-Bruce L.J. in Tabata v. Hetherington Times Newspaper 15th December 1983 when he said: "Inordinate means a period of time which has elapsed, which was materially longer than the time which was usually regarded by the courts and the profession as an acceptable period of time". This approach also shows that when one is considering whether a period of delay has been inordinate the defendant's conduct is not irrelevant. I think Diplock L.J. also makes this clear in Allen v. McAlpine if one reads the whole of the passage in his judgment starting on page 260E.

12. The events of 1982 seems to me to illustrate this. There are two "acceptable" schools of thought abut the issue of a summons for direction. One school says follow the rules: issue at once: and if necessary have several adjournments thereafter. The other says, try first to deal with uncontested matters e.g. perhaps particulars and discovery, and leave the contested and the balance to be picked up and dealt with on the summons. The plaintiff took the latter view, with which by their conduct the defendants apparently concurred. I do not think it is right for the Court in such circumstances to re-write the time table ex post facto at the plaintiff's expense.

13. Nor can I accept the defendant's submissions about the time wasted on the re-amendment of the Statement of Claim. If it was to be said that the application came much too late, or that the delay inevitably caused by this step was prejudicial, then the amendment should have been opposed. It was not. The emergence of apparent fresh facts which give rise to a need to amend pleadings is a common risk in litigation. This is recognised by the court's practice on such application. In some such cases the applicant may be at "fault" in that the step should have been taken much earlier. The court does not and cannot investigate this. The defendants' suggestion that any delay so caused is intolerable unless positively shown to be "excusable" by the plaintiff, if correct, would put both the plaintiff and the court in an impossible position, pending suit. In order to give his explanation the plaintiff's solicitor would have to reveal the whole course of his inquiry and all the evidence in his possession. The defendants in short were seeking to impose artificial and unreasonable standards which could not be adjudicated upon.

14. I therefore rejected the defendants' basic submissions on delay. The only period of delay which might have started to rank as inordinate and inexcusable was that between January and June 1984. This was caused:-

15. For these reasons I dismissed the defendants' application with costs and granted a certificate for two counsel. I was further invited to direct that the plaintiff's costs should be taxed upon a common fund and not upon a party and party basis. Counsel was able to demonstrate by reference to the Legal Aid Ordinance how a party and party taxation could in certain circumstances cut into the fruits of any judgment the plaintiff may hereafter obtain. Why, counsel asked rhetorically, should these children suffer because these defendants chose to gamble for high stakes in making this application. I regret that I am unable to give any very satisfactory answer to that question or to accept this attractive submission. The only difference between this plaintiff, and a non-legally aided plaintiff, is that the Ordinance enables one to see more starkly the consequences of the court's almost invariable practice of ordering a party and party taxation of the successful party costs, save in very exceptional circumstances. I regret that I cannot here see good reason for departing from that practice.