DAVID ANTHONY HENSHAW v. GOOD EARTH MACHINERY LTD. AND ANOTHER

1984 No. 1683

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

___________

__________

JUDGMENT

___________

1. This is an application for the adjournment of the hearing of evidence on Commission in London. The Third Party is seeking to obtain an order for the trial of a preliminary issue. They are insurers of the Defendants who are being sued by the Plaintiff in respect of personal injuries he sustained whilst in their employment.

2. They claim that the Defendants have been in breach of the terms of the insurance policy which was extant at the time when the accident occurred in 1981.

3. The litigation has had a somewhat chequered progress. One of the main outstanding problems is that the Defendants who are a Limited Liability Company have withdrawn the instructions they have given to their solicitors.

4. A similar application was made to Mr. Justice Macdougall in December 1987. He granted the application. The Plaintiff appealed against the decision. During the course of the hearing of the appeal it was ascertained that no notice of the summons had been served on the Defendants. As a result of this, Mr. Justice Macdougall's order was set aside.

5. Mr. Robert Tang for the Third Party argued that in the normal course of events if there had been no significant subsequent developments I should make a similar order to the one made by Mr. Justice Macdougall. His authority for this proposition was Huddersfield Police Authority v. Watson.⁽¹⁾

6. I can see some merit in this submission. As it happens, I have read and considered Mr. Justice Macdougall's judgment and with the greatest respect I find myself almost entirely in agreement with its contents.

7. Mr. Graham for the Plaintiff argues that one of the main criticisms which can be made of Mr. Justice Macdougall's judgment is that he has failed to undertake what he described as being a necessary balancing exercise in which the advantages and disadvantages of making the order would be weighed and considered.

8. I think that although it is not explicit in the judgment that Mr. Justice Macuougall did undertake such an exercise I am fairly sure that he must have done so. However, I have myself attempted to undertake such an exercise.

9. What are the main factors which have to be weighed? On behalf of the Plaintiff it can be said that approximately 8 years have elapsed since the accident. There is the further problem that at least 2 of the witnesses to the accident may not be available to give evidence if the hearing on commission does not take place as arranged in March.

10. Mr. Graham argued that the Court should scrutinise very carefully any application for an adjournment if this would inevitably lead to the consequence of a delay of about 1 year more.

11. In addition to this the Third Party had largely brought this situation upon themselves. They had been served with the Third Party Notice in 1985. It would have been a simple matter for them to take out an originating summons seeking a Declaration that they were entitled to repudiate the policy.

12. At first sight this would seem to be an attractive argument. I do not though think that it can withstand serious scrutiny.

13. When the Third Party Notice was served on the Third Party, the case had already been set down in the Fixture List for a 4 day hearing. It is quite possible that there would have been insufficient time for the determination of the issue prior to the hearing.

14. Over and above this, an amended Statement of Claim was served on them some months later.   It was only at this time that it seemed likely that the litigation would be more protracted and the amount being claimed would be much larger.

15. I do not think that it can fairly be said that the Third Party has been in any way to blame. They were served with the Third Party Notice and it was necessary for them to deal with the issues as framed.

16. The next matter I must consider is the other side of the balance of convenience. That is what would the consequences be if I refuse to grant the adjournment being sought.

17. Mr. Robert Tang advises me that his clients have had no real opportunity of obtaining instructions to enable them to meaningfully meet the issues which are being raised by the Plaintiff and the Plaintiff's witnesses. There is also the undoubted fact that if it is necessary for them to become participants in the exercise of obtaining evidence on Commission in London very substantial legal expenses will arise.

18. I think that if the balancing exercise is undertaken I am only able to come to one conclusion. That is that the application should succeed.

19. I am also satisfied that Mr. Tang is correct in his submission that unless there are good grounds I should - all other things being equal - come to a similar decision to Mr. Justice Macdougall. Although he did not spell out the fact that he had undertaken a balancing exercise, I think that he must have done so in renching the result that he did.

20. For the reasons I have given I would allow this application. Costs to the Third Party with certificate for 2 counsel. Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.