SILVER JUNE CO. LTD. v. WONG YING LUNG and Another

1992, No.A5467

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

________________

________________

________________

J U D G M E N T

________________

1. The plaintiff in this matter sues the defendants for damages sustained as a result of a traffic accident on 25 December 1990 between the plaintiff's vehicle, being driven at the time by one of its directors, and a vehicle which was being driven by the 2nd defendant. The 1st defendant was alleged to have been the owner of the vehicle at that time and it was alleged that the 2nd defendant was driving the vehicle as the 1st defendant's authorised driver or agent and that the 1st defendant was therefore vicariously liable for the 2nd defendant's negligence.

2. A joint plea was filed on behalf of both defendants denying any negligence on the part of the 2nd defendant and stating clearly that, although the vehicle registration book did reflect the 1st defendant as the owner of the vehicle at the time of the accident, that some six months before the accident in June 1990, the 1st defendant had sold the vehicle to the 2nd defendant.

3. The 2nd defendant also counter-claimed against the plaintiff for damages which he had sustained in the accident which he alleged had been caused by the negligence of the plaintiff's authorised driver.

4. The plaintiff filed a reply and defence to the counter-claim simply joining issue with the defendants and denying all the allegations in the counter-claim. That was on 2 January 1993. So the pleadings were closed as of that date. On 29 January 1997, it was ordered that the action be set down in the running list within 14 days, with the estimated length of trial being two days. In the event, the plaintiff only set the matter down in the running list on 11 August this year.

5. Today all the parties are represented by solicitors and counsel, however the plaintiff is not in a position to prosecute its claim. I am informed by Mr TAM that despite strenuous efforts by his instructing solicitors, they have been unable to contact the plaintiff or the driver of the vehicle, who is also a director of the plaintiff, Mr CHENG. It transpires that the plaintiff's solicitors have in fact been unable to contact the plaintiff for some considerable time and, even when the matter was set down in the running list on 11 August this year, they were not able to make contact with the plaintiff at that time, and therefore, strictly speaking, they did not have instructions to continue representing the plaintiff and to set the matter down for trial at that time. However, I am informed by Mr TAM that his instructions are that his solicitors felt that it was prudent to proceed to set the matter down for trial since otherwise the defendants had indicated they would apply to have the action struck out for want of prosecution.

6. Be that as it may, it appears that the plaintiff's solicitors have at no time informed the solicitors of either the 1st or the 2nd defendant of the fact that they had been unable to contact the plaintiff for all this time, which is a strange omission. They should have informed the solicitors of the other parties, and no doubt the matter could have been dealt with in a more expeditious way and without incurring the costs that have now been incurred of three counsel, duly instructed by solicitors appearing in court.

7. In any event, this situation has been brought about by the plaintiff. There is no fault which attaches to the defendants.

8. Since the plaintiff is unable to prosecute its claim, I order that the plaintiff's claim against both defendants be dismissed.

9. As far as costs are concerned, I was somewhat puzzled and a little unhappy to see the 1st and 2nd defendants separately represented here by separate counsel and solicitors in view of the clear history of the matter, as pleaded, that in fact the 1st defendant had sold the vehicle to the 2nd defendant some six months before the accident. However, it is true that the plaintiff, in its reply, joined issue with the defendants and that included joining issue on that particular allegation. So technically the 1st defendant continued to be at risk and arguably it was justified that he be separately represented here. Again, this is a matter which it lay within the plaintiff's hands to do something about. It seems to me that in the light of the defendants' plea that the vehicle had been sold to the 2nd defendant well before the accident, the plaintiff could have checked the veracity of that information very easily with the Vehicle Registration Office and taken steps to withdraw its claim against the 1st defendant.

10. In sum, as far as costs are concerned, it seems to me that both defendants should be awarded their costs. I therefore order that the plaintiff's claim against both defendants be dismissed with costs to both the 1st and 2nd defendants.

11. As far as the 2nd defendant's counter-claim is concerned, the 2nd defendant, on instructions, has withdrawn that counter-claim and clearly nothing further needs to be said about the matter. There will be no order as to costs in respect of that counter-claim.

I/we certify that to the best of our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings

................................................
B. Pirie Date: 22 September 1997