MOK LAI FONG v. 吳寶穗 AND OTHERS

HCPI 549/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 549 OF 2010

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DECISION

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I.  BACKGROUND

1.  The 1^st Defendant was/is a Chinese medicine practitioner pursuant to section 90 of the Chinese Medicine Ordinance Cap. 549.  According to the Plaintiff, the 1^st Defendant was/is a bonesetter trading as 吳寶穗跌打醫館 (ie the 3^rd Defendant but erroneously named as “吳寶穗醫館 (a firm)” in the Writ of Summons, “Clinic”).  There is no dispute that the 2^nd Defendant was/is a registered Chinese medicine practitioner.

2.  The Plaintiff claims to have suffered personal injuries as a patient under the care of and as a result of medical mismanagement by the 1^st, 2^nd and/or 3^rd Defendants and/or their servants, agents and/or employees during the period from 31 March to 12 April 2007 (“Incident”).

3.  On 20 October 2010, the Plaintiff commenced the present proceedings against the Defendants for damages for personal injuries and for other loss and damages.  On 10 November 2010, the Plaintiff filed her Statement of Claim, Statement of Damages and her medical reports pursuant to Order 18 rule 12(1A)(a) of the Rules of the High Court (“Medical Reports”).  On 13 December 2010, the Plaintiff filed Notice of Discontinuance against the 3^rd Defendant.

4.  But on 6 December 2010, the Defendants issued a summons seeking inter alia the following reliefs (“Summons”):

(a) the Writ of Summons and the Statement of Claim be struck out as being frivolous or vexatious or an abuse of process of the court and the action be dismissed with costs on the ground that they set up a cause of action that has been time-barred under section 27 of the Limitation Ordinance (“Ordinance”) at the time of the issuance of the Writ of Summons;

(b) the time for filing/serving the Defence be “abridged” (which I believe should be “extended” but no issue arises from such error).

5.  In support of the Summons, the Defendants filed the affirmation of their solicitor Lee Ka Kui on 6 December 2010 and the affirmation of the 2^nd Defendant on 1 February 2011.  The Plaintiff filed her own affirmation in opposition on 10 January 2011.

6.  Mr Cheng, counsel for the Plaintiff, frankly accepts that the Plaintiff’s cause of action against the Defendants has started to accrue on/about 12 April 2007 when she became aware of her right shoulder dislocation which she claims was caused by treatment given by the Defendants, and that the three-year limitation period has expired by 11 April 2009 and the present proceedings are therefore about 6 months out of time.  Mr Cheng further accepts that unless the Plaintiff has leave to proceed under section 30 of the Ordinance, her claim against the 1^st and 2^nd Defendants in the present proceedings is liable to be struck out.

II.  PLAINTIFF’S CHRONOLOGY OF EVENTS

7.  The following chronology of events is extracted from the Plaintiff’s affirmation, the undisputed inter partes correspondence, the Medical Reports, and the expert report of the Plaintiff’s orthopaedic expert Dr Wong See Hoi (“Dr Wong”) dated 24 July 2009 (“Ortho Report”).

8.  According to the medical report of Dr Wun Yiu-chung of the department of orthopaedics and traumatology (“DOT”) of Tuen Mun Hospital (“TMH”) dated 23 January 2008 (“DOT Report”), which the Plaintiff has disclosed as one of the Medical Reports, she had carcinoma of the right breast with surgical excision and axillary lymph node dissection done in May 2006.  She also received post-operative radiotherapy and hormonal treatment.  According to the Ortho Report, she still had follow-up at TMH at quarterly intervals, but had returned to work one month after the surgery.

9.  The Ortho Report further notes that the Plaintiff had no history of right shoulder problem, but after radiotherapy treatment she noticed there was loss of about 50-60% range of movement of the right shoulder.  There was progressive painful stiffness of her right shoulder, and she was advised by her oncologist to perform self-mobolisation exercise.  TMH’s department of clinical oncology referred her to the physiotherapy department (“PD”) for physiotherapy for right frozen shoulder.

10.  Dr Wong opines that the Plaintiff suffered from adhesive capsulitis (frozen shoulder) that not uncommonly develops after axillary lymph node radiotherapy or surgery, but most of such cases are self-limiting and respond well to conservative treatment.

11.  The Plaintiff claims that on 31 March 2007 she attended the Clinic for bonesetter treatment because of right shoulder stiffness.  She was examined by the 1^st Defendant and was diagnosed to be suffering from severe shoulder impingement syndrome (嚴重肩周炎). Initially, the Plaintiff was treated with herbal medication application, but the 1^st Defendant suggested to her to have stretching treatment (垃筋治療) and told her that without such treatment she would have frozen shoulder and severe restriction of her right shoulder mobility.

12.  On 1 April 2007, the Plaintiff attended the Clinic for follow-up treatment.  The 2^nd Defendant advised she had severe shoulder impingement syndrome and it was necessary for her to have stretching treatment, but it would be very painful after the stretching treatment, so she should bring along a relative when she attended the Clinic for such treatment.

13.  On 2 April 2007, the Plaintiff’s eldest son accompanied her to the Clinic.  The 2^nd Defendant administered stretching treatment, ie aggressive manipulation of her right shoulder, which caused severe pain. The Plaintiff felt the muscles around her right shoulder were torn, and she heard a “pop” sound.  She was unable to move and felt severe pain and numbness in her right shoulder/arm after such manipulation, but the 2^nd Defendant assured her the symptoms were normal and told her to attend further follow-up treatment.

14.  During the period from 3 to 11 April 2007, the Plaintiff attended the Clinic for follow-up treatment of her right shoulder.  She was treated with herbal medication application and manipulation as before, but her condition did not improve.  On 11 April 2007, in view of her continuous pain and discomfort, the 2^nd Defendant told her to have further stretching treatment for her right shoulder.  The Plaintiff was reluctant and unwilling, and asked the 2^nd Defendant to arrange x-ray of her right shoulder to ascertain her actual condition.

15.  On 12 April 2007, the 2^nd Defendant arranged to have x-ray taken of the Plaintiff’s right shoulder.  The radiographer/radiologist informed the Plaintiff that dislocation of her right shoulder was detected.  This was the first time she was aware of such fact.  She believed it was caused by the treatment given by the 2^nd Defendant on various dates between 2 and 11 April 2011.

16.  Dr Wong opines it is likely that the Plaintiff’s shoulder dislocation was caused by forceful manipulation by the bonesetter.  Although radiotherapy can cause stiffness to the areas being treated, he is of the view that it is highly unlikely that radiation therapy to the shoulder will result in shoulder dislocation.

17.  On 13 April 2007, the Plaintiff attended TMH’s accident and emergency department for exacerbation of right shoulder pain for more than a week after receiving bonesetter treatment.  Medical examination revealed tenderness over right shoulder region, dislocation of the right humeral head, impairment of right shoulder active range of movement in all directions, and restriction of passive movement as a result of pain.  X-ray of the right shoulder confirmed locked anterior dislocation of the right shoulder joint.  Closed reduction under sedation failed, and the Plaintiff was admitted to TMH’s orthopaedic ward on the same day.

18.  CT scan of the right shoulder confirmed locked anterior dislocation of the right shoulder joint.  Nerve conduction study of the right upper limb on 23 April 2007 demonstrated no evidence of right axillary nerve or suprascapular nerve palsy.  On 30 April 2007, surgical open reduction with Bankart repair and inferior capsular shift was performed under general anaesthesia.  Post-operative progress was uneventful, and the Plaintiff’s right upper limb was protected by shoulder immoboliser for 4 weeks post-operatively.

19.  The Plaintiff was discharged on 4 May 2007 with referral for regular physiotherapy 2-3 times a week for several months.  Gentle mobolisation exercise of the right upper limb was started at the outpatient clinic after 4 weeks of immobolisation.  The shoulder joint was well reduced and normally located, but progress for restoration of active motion of the right shoulder was slow.  According to the physiotherapy report of Mr Chung King Man of TMH’s PD dated 21 November 2008 (“PD Report”), the Plaintiff received 25 sessions of physiotherapy treatment between 29 May and 28 August 2007.

20.  On 5 September 2007, the Plaintiff was admitted to TMH’s DOT.  Surgery for arthroscopic release of right shoulder joint stiffness was performed on 6 September 2007.

21.  Post-operatively, the Plaintiff stayed in hospital for aggressive right shoulder physiotherapy by manual exercise and continuous passive motion machine exercise.  She was discharged home on 25 September 2007. Continuous physiotherapy on outpatient basis was provided.  According to the PD Report, the Plaintiff received 31 sessions of physiotherapy treatment between 2 October 2007 and 19 February 2008.  Gradual improvement of right shoulder active motion was noted when the Plaintiff was seen at the orthopaedic specialist clinic on 2 October 2007.  Continuous physiotherapy for mobolisation as well as strengthening exercise was indicated.  According to the PD Report, she was referred for physiotherapy for right shoulder stiffness and received 45 sessions of physiotherapy treatment between 26 February and 18 November 2008.  The Plaintiff had follow-up at TMH’s DOT, and also consulted general practitioners for attacks of right shoulder pain and stiffness about 1-2 times a month.

22.  Dr Wong opines that if immediate reduction and appropriate follow-up treatment is given, acute shoulder dislocation can usually recover satisfactorily with no permanent effect.  However, delayed reduction for over a week even with subsequent successful reduction may lead to permanent structural damage to the shoulder joint.  The Plaintiff had missed the golden opportunity of treatment so that even with successful reduction she would still suffer from permanent pain, stiffness and weakness of the right shoulder.  Because of delayed diagnosis, she had to undergo surgical reduction and suffer further damage to the soft tissues of the right shoulder.  The Plaintiff claims the above is the result of the Defendants’ medical mismanagement.

23.  After the Incident, the Plaintiff wanted to claim against the Defendants for their medical mismanagement, but she had no knowledge about solicitors’ firms or the procedure for making a legal claim.  She then came to know the firm of solicitors retained to represent and defend her children in criminal cases in/about 2007 (“Former Solicitors”), which cases were handled by the Former Solicitors’ litigation clerk (“1^st Clerk”) and a female counsel (“Counsel”).

24.  In/about late 2007 or early 2008, when the Plaintiff brought up the Incident after the hearing of her daughter’s criminal case, the 1^st Clerk and Counsel were willing to arrange a free consultation meeting for her.  The 1^st Clerk arranged for her to attend Counsel’s chambers one afternoon in January 2008 (“Conference”), and further asked her to bring a sum of HK$8,000.00 to him for legal costs on account.  At the Conference, the Plaintiff explained the background and details of the Incident to the 1^st Clerk and Counsel, and Counsel advised she had a good case against the Defendants for damages for personal injuries.  The Plaintiff recalled that when she told the 1^st Clerk and Counsel she would not be able to afford huge legal costs, Counsel asked the 1^st Clerk whether the Former Solicitors had any solicitor on the legal aid panel, and the 1^st Clerk replied that it was not necessary for the Plaintiff to apply for legal aid because the Former Solicitors would act for her and that she would only need to apply for legal aid if the Defendants defended her legal claim.  The Plaintiff further claims that neither Counsel nor the 1^st Clerk advised her about her eligibility and/or the relevant procedure for applying for legal aid (even though legal aid was mentioned at the Conference) or about the time limit for commencing legal proceedings against the Defendants in relation to the Incident.  Relying on the assurance given by the 1^st Clerk during the Conference, the Plaintiff entrusted the matter to the Former Solicitors and gave HK$8,000.00 to the 1^st Clerk as costs on account, which payment is evidenced by a receipt dated 19 January 2008 issued by the Former Solicitors.

25.  On/about 21 February 2008, the Plaintiff had right shoulder manipulation for joint adhesions under anaesthesia at TMH.  Thereafter until late 2008, she attended regular physiotherapy sessions at TMH.

26.  Since the Plaintiff entrusted the Former Solicitors to handle her claim against the Defendants, she did not pay special attention to the matter.  She recalled that she had a MRI scan done at St Teresa’s Hospital on 8 August 2008, and thereafter in/about August 2008 attended the offices of the Former Solicitors to give a copy of the MRI report to the 1^st Clerk.

27.  On 8 September 2008, the Former Solicitors issued a pre-action letter to the Defendants (“Pre-action Letter”) enclosing a copy of the DOT Report and stating that the Plaintiff intended to claim against them for damages “in connection with a medical negligence which happened on or about the end of March to early April 2007 …… when she attended [the Clinic] ……”.  The Former Solicitors also set out a summary of the background discussed in paragraphs 12-15, 18-19 and 21 above, and claimed that the Defendants:

“had failed to impose a proper diagnosis and/or treatment on the [Plaintiff]; failed to provide any or any adequate treatment after the [Plaintiff] had indicated to [the Defendants and the Clinic] that she was suffering from excessive pain after the treatment given by [the Defendants and the Clinic]; failed to exercise due diligence and care in treating the [Plaintiff]; failed to give any or any proper advice to the [Plaintiff] at the material time so as to avoid or prolong the unnecessary and unreasonable pain and suffering; failed to provide proper and professional treatment to the [Plaintiff] at a standard required by [the Defendants’] profession; failed to give any or any proper advice to the [Plaintiff] at the material time so as to avoid the delay the [Plaintiff] from receiving the proper treatment she needed. As a result, the [Plaintiff’s] condition worsened and is still suffering until today.”

The Former Solicitors also warned that unless a constructive reply was received within 21 days they would forthwith commence legal proceedings.

28.  On 18 September 2008, the solicitors for the Defendants (“Ds’ Solicitors”) replied stating that they had “instructions to deny all [the Plaintiff’s] allegations contained in [the Pre-action Letter] save and except that she did attended with [the Clinic] for treatment between the period of 31^st March 2007 to 12^th April 2007”, and  that any legal proceedings issued by the Plaintiff would be strenuously defended.

29.  In/about October 2008, the Plaintiff was asked to attend the offices of the Former Solicitors, and the 1^st Clerk introduced her to another staff member of the Former Solicitors (“2^nd Staff”).  During the meeting, the need to obtain medical reports concerning her injuries was explained to the Plaintiff, and she was arranged to sign a number of consent forms to enable the Former Solicitors to obtain medical reports from her treatment hospitals.

30.  During another meeting with the 2^nd Staff in November 2008, the Plaintiff was told that after obtaining the medical reports from her treatment hospitals, the Former Solicitors would instruct a medical expert to examine her and to prepare a report for her claim against the Defendants.

31.  In/about February 2009, the Plaintiff received a call from the 2^nd Staff and was informed that a medical examination by Dr Wong had been arranged for 29 May 2009.  The Plaintiff attended such medical examination, and was told by the 2^nd Staff that the Former Solicitors would contact her upon receipt of the report by Dr Wong.

32.  By about November 2009, the Plaintiff still had not heard from the Former Solicitors, so she telephoned the 2^nd Staff and asked about the progress of the case.  She was told that formal legal proceedings would be commenced shortly.

33.  The Plaintiff claims that ever since she entrusted her claim against the Defendants to the Former Solicitors she was always under the impression they were actively preparing the relevant materials to institute legal proceedings against them.  During such period, the Former Solicitors never told her they would be unable to do so.

34.  On 28 January 2010, the Former Solicitors wrote to Ds’ Solicitors referring to the Pre-action Letter and enclosing the Ortho Report, and intimated that the Plaintiff was prepared to commence legal proceedings against the Defendants.  They asked for a reply within three days on the identity of the relevant insurer and as to whether Ds’ Solicitors had instructions to accept service.

35.  On 1 February 2010, Ds’ Solicitors confirmed there was no insurer during the material period and they had instructions to accept service.  They complained that the Plaintiff had failed to invite for joint examination before the medical examination by Dr Wong, and gave their opinion that the Plaintiff would be “unable to put her case against [the Defendants]”.

36.  The Plaintiff claims she did not have any knowledge of the correspondence between the Former Solicitors and Ds’ Solicitors referred to in paragraphs 27-28 and 34-35 above before having sight of the affirmation of Lee Ka Kui.  She further claims that during her retainer with them the Former Solicitors never reported to her there were replies from Ds’ Solicitors on behalf of the Defendants, and they did not provide any such correspondence to her when they ceased to act for her.

37.  By about early July 2010, the Plaintiff still had not heard from the Former Solicitors, so she telephoned the 2^nd Staff to enquire about the progress of her case.  The 2^nd Staff asked whether the 1^st Clerk had contacted her, and she told him she had not been contacted by either of them in the past few months.  The 2^nd Staff then suggested having a meeting with her in early July 2010.

38.  In early July 2010, the Plaintiff and her daughter attended a meeting with the 2^nd Staff at the offices of the Former Solicitors.  At first, the 2^nd Staff tried to convince her to drop her claim against the Defendants by saying that they found out the Defendants were unlikely to have the financial means to pay any damages.  But the Plaintiff insisted on pursuing her claim, so the 2^nd Staff asked her to sign some Chinese documents and told her they were for commencing legal proceedings against the Defendants. The Plaintiff could not recall what those documents were, but she signed on them as advised by the 2^nd Staff.  The 2^nd Staff guaranteed to her that the Former Solicitors would file the Writ of Summons in court and send a copy thereof to her for her record within a week.

39.  However, on 9 July 2010, the 2^nd Staff suddenly telephoned to inform the Plaintiff that the Former Solicitors decided to cease acting for her and to terminate her retainer.  The Plaintiff told the 2^nd Staff she would call the following day because she was not able to discuss the matter with him at the time.  On/about 10 July 2010, the Plaintiff telephoned the 2^nd Staff and asked why the Former Solicitors ceased to act for her in this matter.  The 2^nd Staff was unable to give any satisfactory explanation, but insisted they would cease to act for her and would return to her the documents she had previously passed to them.  The 2^nd Staff also said the Former Solicitors would later refund to her the remaining balance of the costs on account.

40.  On 15 July 2010, the Former Solicitors wrote to the Plaintiff stating they could no longer act for her in respect of her medical negligence claim over the treatment she received at the Clinic because they were unable to further agree on and confirm instructions.  The Former Solicitors sent her a fee note for the Ortho Report, a cheque in the sum of HK$6,334.00 being refund of the remaining costs on account, and some original documents.

41.  The Plaintiff did not know what to do. She recalled that legal aid was raised during the Conference, so in/about early August 2010 she approached the Legal Aid Department for assistance.  She was informed by the legal aid counsel that there was a time limit of three years for instituting legal proceedings against the Defendants in relation to the Incident, and that her claim was already time-barred.  It was the first time she heard about such time limit.

42.  In late September 2010, the Plaintiff was granted legal aid, and thereafter the matter was handled by the Plaintiff’s solicitors (“P’s Solicitors”) on assignment by the Director of Legal Aid.  The Writ of Summons was issued and served on 20 October 2010.

43.  On 28 October 2010, Ds’ Solicitors wrote to P’s Solicitors to clarify the grounds for issuing the Writ of Summons after the expiry of the three-year limitation period in respect of the Incident.  Ds’ Solicitors warned that if there were no reply within three working days, they would apply to strike out the Plaintiff’s claim without further notice.

44.  On 30 October 2010, P’s Solicitors replied stating they were assigned by the Director of Legal Aid but the legal aid certificate was only issued on 28 September 2010.  They further explained that the Plaintiff was unaware of any time limitation for instituting legal proceedings against the Defendants, and was only informed of the same by the handling officer when she applied for legal aid. Investigation by P’s Solicitors revealed that the Plaintiff had previously retained solicitors to act for her in this matter in 2008 and the Pre-action Letter was issued in/about September 2008, but she did not receive any information as to whether there was any constructive reply from the Defendants.  Despite repeated requests for information about progress of the matter, the Plaintiff did not receive any constructive reply from her former solicitors or any advice about the time limit for issuing legal proceedings.  In/about mid-July 2010, the Plaintiff received a letter from her former solicitors unilaterally terminating her retainer without any explanation, and was informed upon enquiry that they did not want to act for her any further in this matter.  Subsequently, the Plaintiff applied for legal aid and thereafter commenced the present proceedings in October 2010.  P’s Solicitors claimed that the Plaintiff had acted reasonably and promptly once she realised there was a cause of action against the Defendants, and the Defendants should have been well aware of her claim since they had received the Pre-action Letter in September 2008, so the late issuance of the Writ of Summons would not cause them any prejudice. P’s Solicitors invited the Defendants not to take issue on the time limitation in order to save time and costs.

III.  LEGAL PRINCIPLES

45.  There is much consensus between Mr Cheng and Mr Lau, counsel for the 1^st and 2^nd Defendants, as to the general principles on discretionary extension of the time limit under section 30 of the Ordinance.  I adopt my discussions on the applicable legal principles in my decisions in Cheung Yin Heung v Hang Lung Real Estate Agency Ltd [2010] 3 HKLRD 67 and Pang Kwok Lam v Schneider Electric Asia Pacific Limited HCPI 90/2010 (unreported, 5 January 2011).

46.  Mr Cheng and Mr Lau both agree that the exercise of the discretion to disapply the limitation period is unfettered.  The court performs a balancing exercise by looking at (a) the balance of prejudice to each party, (b) the six specific but non-exhaustive factors contained in section 30(3) of the Ordinance, and (c) all the circumstances of the case to see whether it would be “equitable” to disapply the limitation period.  The onus is on the Plaintiff to show that in the particular circumstances of the case it is equitable to allow her claim to proceed having regard to the respective prejudice likely to be suffered by each party, but the 1^st and 2^nd Defendants have to prove the prejudice they say they will suffer.

47.  Essentially, the question is whether, given the delays, the judge can fairly try the claim, and all depends on the particular circumstances of each case.

48.  But notwithstanding the above common understanding, I will deal with several preliminary points.

(a)  Burden of proof

49.  First, Mr Lau places emphasis on the following observations by Auld LJ in KR & ors v Bryn Alyn Company (Holdings) Ltd (in liquidation) & anor [2004] 2 All ER 716, 741-742:

“…… (ii) The burden of showing that it would be equitable to disapply the limitation period lies on the claimant and it is a heavy burden. Another way of putting it is that it is an exceptional indulgence to a claimant, to be granted only where equity between the parties demands it ……”,

and suggests there is a heavy burden on the Plaintiff in seeking discretionary extension of the time limit under section 30 of the Ordinance.

50.  However, after A v Hoare [2008] 2 All ER 1, the above observations by Auld LJ have been reinterpreted by the English Court of Appeal in B v Nugent Care Society; GR v Wirral MBC [2010] PIQR P3 at para. 20 on p. P55 as follows:

“In the light of the considerations in A v Hoare to which we have referred we conclude that the “starting points” taken from [74] of Bryn Alyn and quoted above remain valid subject to these considerations. As to ii), it is correct to describe the exercise of the discretion as an exceptional indulgence to the claimant because, but for the exercise of the discretion, his claim will be time-barred. But it is only exceptional for that reason. The cases stress that the discretion is wide and unfettered.” (my emphasis)

In light of the above, “[it] therefore seems that the burden is no more heavy than any other evidential or legal burden, and the question is therefore simply ….. whether the claimant can prove that, in the particular circumstances of the case, it would be equitable to make an exception” (see Butterworths Personal Injury Litigation Service Vol.1 para.748).

51.  Further, recent English authorities suggest there should be a more flexible, generous or liberal approach to the exercise of the discretion (see cases discussed in Cheung Yin Heung at para.86 at pp.94-95 and Pang Kwok Lam at para.108).

(b)  Forensic prejudice and loss of limitation defence

52.  In Horton v Sadler [2006] PIQR P30 at p.P514, Lord Hoffmann said that since Thompson v Brown [1981] 1 WLR 744, the practice of the courts had been regularly to exercise the discretion in favour of the plaintiff in all cases in which the defendant could not show that he had been prejudiced by the delay, and in the absence of forensic prejudice, the statutory limitation defence was a “windfall of which he can properly be deprived” (see also Chuck Wai Man v Asia Television Ltd CACV 29/2008 (unreported, 9 September 2008) per Tang VP).

53.  It has also been said that the prejudice resulting from the loss of the limitation defence will almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision, so the loss of the limitation defence as such will be of little importance, and the true matter of importance is the effect of the delay on the defendant’s ability to defend (see Cain v Francis; Mckay v Hamlani & anor [2009] 2 All ER 579, 600-601, Hartley v Birmingham City District Council [1992] 2 All ER 212, 224, and Ng Ngan Chiu v Paramount Printing Co Ltd [1998] 2 HKLRD 557, 563).

54.  The matter is put succinctly in Butterworths Personal Injury Litigation Service Vol.1 para.748 as follows:

“Therefore the effect of the removal of the limitation defence if the application is granted is to be disregarded in considering the prejudice to the defendant, including its possible financial effect on the defendant. It is the effect of the delay on the defendant’s ability to fairly meet the claim that is relevant to prejudice. The mere fact that he will have to defend the claim is the effect of the operation of the section, not a form of prejudice. On the claimant’s side, however, the prejudice caused by the operation of s 11 [the English equivalent of section 27 of the Ordinance] can be taken into account – as it logically must be or there would be no prejudice to the claimant to weigh in the balance.” (my emphasis)

(c)  Financial prejudice

55.  The above extract from Butterworths Personal Injury Litigation Service Vol.1 para.748 suggests that possible financial prejudice to the defendant as a result of loss of the limitation defence is not a relevant consideration.

56.  Here, the 2^nd Defendant in his affirmation claims that because professional indemnity insurance is not required under law for Chinese medicine practitioners, neither the 1^st nor the 2^nd Defendant has any insurance coverage for their medical practice.  He adds that there have been no complaints and/or claims for medical negligence over 30 years of practice by the 1^st Defendant and over 13 years of practice by the 2^nd Defendant.

57.  Mr Lau submits that it is a relevant factor that the 1^st and 2^nd Defendants are uninsured.  He draws support from Parker LJ’s observations in Hartley at p.224 as follows:

“Next, it appears to me that if it is, as it is, legitimate to take into account, when considering the prejudice to the plaintiff, that [the plaintiff] will have a claim against his solicitors, it must in my judgment follow that it is legitimate to take into account that the defendant is insured. If he is deprived of his fortuitous defence he will have a claim on his insurer.”

However, I am unable to conclude from the above passage that any uninsured (as opposed to insured) status of the defendant is a relevant consideration.  In my view, the above passage merely suggests that if it is relevant to consider whether any prejudice to the plaintiff from a refusal to extend the time limit can be ameliorated by a claim by such plaintiff against his solicitors, it is also relevant to consider whether any prejudice to the defendant from any discretionary extension of the time limit can be ameliorated by a claim by such defendant on his insurer.  This is borne out by Parker LJ’s further observation at p.224 that “if the only benefit of a decision against the plaintiff is to benefit the defendant’s insurer, this can in my view be no ground for saying that it is not ‘fair and just’ or ‘equitable’ that the action should proceed ……”

58.  Mr Cheng relies on Russell LJ’s observations in Halford v Brooks & anor [1991] 3 All ER 559, 567-568 to suggest that a defendant’s impecuniosity is irrelevant. However, in that case, the court was concerned with a tort of intent, and the learned judge drew a distinction between such tort and a negligent act or contractual breach of duty, and went on to say that the defendant’s financial inability to meet any judgment against him was not a legitimate reason for preventing a blameless plaintiff from pursuing a civil claim for damages for such intentional tort.

59.  A more definitive clarification in relation to personal injury claims based on negligence acts came in the judgment of Smith LJ in Cain at p.598 as follows:

“[70] Thus, although on a literal construction of s 33(1) [the English equivalent of section 30(1) of the Ordinance], it appears to be relevant to the exercise of the discretion that the defendant would suffer the financial prejudice of having to pay damages if the arbitrary time limit were to be disapplied, Parliament cannot have intended that that financial prejudice, as such, should be taken into account. This is because, in fairness and justice, the defendant ought to pay damages if, having had a fair opportunity to defend himself, he is found liable. If having to pay damages is not a relevant prejudice under s 33(1), it cannot be relevant either as one of the circumstances of the case.

[71] I accept that some judges appear to have thought that this financial prejudice, as such, was relevant to the exercise of the discretion.  In particular, Lord Diplock [in Thompson] appears to have thought so and the rest of the House agreed with him. I must say, with hesitation and great respect, that I think he was wrong.  I comfort myself with the knowledge that his remarks were not essential to the ratio of the decision in Thompson’s case.  Apart from Lord Diplock’s, all the other judicial utterances are broadly consistent with the reasoning I have advanced.”

60.  Also, it has been held that changes in insurance funding arrangements so that a defendant will have to bear more excess payments than he would have to if the claim were brought within the time limit are irrelevant (see Smith v Leicester Health Authority [1998] Lloyd’s Rep Med 77).  Butterworths Personal Injury Litigation Service Vol.1 para.788(b) refers to Harding v Richard Costain Limited [2009] EWHC 1348 (QB) in which the judge “saw logic in the argument that the fact that the delay in bringing the claim had the effect that there was no longer an insurance policy in place as it would have been if the claim was brought in time was irrelevant to prejudice following Cain”. If a financially adverse change to insurance funding arrangements after the time limit is irrelevant, I am unable to appreciate how a defendant’s uninsured status that has remained unchanged both before and after the expiry of the limitation period can be regarded as a relevant prejudice.

61.  Ultimately, the question is whether, upon review of the facts and circumstances of each case, it is fair and just in all the circumstances to expect the defendant to meet the plaintiff’s claim on the merits notwithstanding the delay, and in answering this question crucial considerations include (a) whether the defendant has suffered any forensic disadvantage in his investigation of the claim and/or the assembly of evidence such that it outweighs the prejudice to the plaintiff of being denied a trial at all, and (b) whether the delay is for so excusable a reason that looking at the matter in the round fairness and justice require the action to proceed or there is no good reason for the delay or for its length that has caused procedural disadvantage and unfairness to the defendant (see also McDonnell v Walker [2010] PIQR P5 at pp.P118-119 per Waller LJ).

IV.  SIX SPECIFIC FACTORS

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

(a)  Length of delay and reasons by the plaintiff

63.  Under section 30(3)(a) of the Ordinance, the test is a subjective one, and the delay refers to delay since the expiry of the limitation period. But pre-expiry delay can be taken into account as one of the circumstances of the case in balancing the prejudice to the parties.

64.  Here, the post-expiry delay is about 6 months from 12 April to 20 October 2010, which is not a particularly long period of delay.  Mr Lau does not complain about the period after 15 July 2010 when the Former Solicitors declined to further act for the Plaintiff.  In fact, the Plaintiff has immediately applied for legal aid, and on granting of legal aid P’s Solicitors issued the Writ of Summons with reasonable promptness. Mr Lau’s criticism is reserved for the following two periods of delay even on the Plaintiff’s own case:

(a)  a period of about 6 months from 29 May 2009 (ie the date of Dr Wong’s medical examination of the Plaintiff) until about November 2009 (ie when the Plaintiff contacted the 2^nd Staff to check on the progress of her claim against the Defendants);

(b)  a period of about 8 months from about November 2009 (ie when the 2^nd Staff assured the Plaintiff that formal legal proceedings against the Defendants would be issued shortly) and early July 2010 (ie when the Plaintiff telephoned the 2^nd Staff to enquire about the progress of her claim).

Mr Lau argues that even though the Plaintiff has instructed the Former Solicitors to act for her, she has not offered any justifiable reason for her failure to follow up with the Former Solicitors during these two periods of delay which he says cannot be regarded as insignificant.  I will deal with these two periods in greater detail below, but suffice to state here that I find the Plaintiff has given an explanation for the delay which I find to be largely acceptable.

(b)  Effect of any delay on the cogency of the evidence

65.  This concerns the issue of forensic prejudice.  The evidential burden is on the 1^st and 2^nd Defendants to show that the evidence to be adduced by them is likely to be less cogent because of the delay.  The delay under section 30(3)(b) of the Ordinance is delay since the expiry of the limitation period.  Nevertheless, the effect of pre-expiry delay on the cogency of the evidence can also be taken into account as one of the circumstances of the case in balancing prejudice.  For convenience, I shall deal with the impact of pre- and post-expiry delay on the cogency of the evidence together.

66.  Mr Lau accepts that the only forensic prejudice is the “prejudice to the Defendants’ case as the Defendants’ memories, in particularly the 1^st Defendant is a 66 years old man to whom an operation with full anaesthesia had been done a few years ago, of the matter shall fade away” (see the 2^nd Defendant’s affirmation).  Mr Lau submits that the Plaintiff’s delay has led to deterioration of the 1^st Defendant’s memory, and with no prospect of a trial in the near future his memory may deteriorate even further, which will be detrimental to the defence against the Plaintiff’s claim.

67.  However, it is clear that a general allegation of impairment of memory is normally insufficient. I have referred counsel to Leeson v Marsden & anor [2008] EWHC 1011 (QB) paras. 159-163 where it was argued that following the expiry of the limitation period without a legal claim being served, the defendant had hoped the case was over and was disappointed by legal proceedings issued against her outside the time limit.  The defendant relied on dimming recollection and inability to give cogent evidence about the relevant events above and beyond that which would have applied in any event if the action had been brought within time in order to resist the application to extend the time limit.  But “[there] is no witness statement from her setting out particular difficulties in this respect or the extent to which she considers she is now prejudiced; nor is there any statement responding to the Claimant’s factual allegations, which might be expected to reveal any areas of factual dispute which could not now be fairly resolved on the evidence”.  Further, the defendant in that case had in fact pleaded a detailed defence giving a detailed response to each allegation.  In the absence of evidence of particular prejudice, the judge found that the cogency of her evidence was unlikely to be affected.

68.  Here, no Defence has been filed to date by the 1^st and 2^nd Defendants.  The 2^nd Defendant in his affirmation merely says that they deny all allegations that the Plaintiff’s injuries were caused by their mismanagement, and they further aver that the Ortho Report was solo opinion without input by any expert engaged by them.  The 2^nd Defendant further claims that they cannot explain the Plaintiff’s alleged injuries except that they may be related to her history of carcinoma of the right breast with surgical excision and axillary lymph node dissection done in August 2006.

69.  To take the last point first, there is simply no medical evidence before me that supports the supposition that the dislocation of the Plaintiff’s right shoulder was in any way related to her previous carcinoma disease. Indeed, such allegation is contradicted by the opinion of Dr Wong (see paragraph 16 above).  In my view, since there is no serious attempt by the 1^st and 2^nd Defendants to outline their substantive defence to the Plaintiff’s claim whether in the 2^nd Defendant’s affirmation or in the inter partes correspondence, there is paucity of material to support any suggestion of evidential difficulty over any particular aspect that arises from dimmed recollection due to the delay.  Indeed, apart from the 1^st and 2^nd Defendants’ admission that the Plaintiff attended the Clinic for treatment between 31 March and 12 April 2007 and their general denial of the Plaintiff’s claim (see paragraph 28 above), it is unclear whether there is any specific factual dispute between the parties.

70.  There is also no information forthcoming from the 1^st and/or 2^nd Defendants as to whether they have kept any contemporaneous written records of the treatment received by the Plaintiff at the Clinic, but there is no suggestion that such notes/records (if any) have been lost due to the delay.  Indeed, they have not even clarified that whether their recollection of the Plaintiff’s consultations at the Clinic or whether their medical notes/records (if any) and their usual practice in such circumstances will be determinative for the purpose of defending the Plaintiff’s claim. In my view, there is insufficient evidence to support the assertion of evidential difficulty.

71.  I bear in mind that as early as in September 2008 the Plaintiff by the Pre-action Letter has set out the gist of her factual allegations as to the Incident as well as the essential allegations of negligence against the 1^st and 2^nd Defendants.  The Plaintiff’s case in the Amended Statement of Claim is not so different from what has been alleged in the Pre-action Letter, and Mr Lau has not suggested that the essential details of the Plaintiff’s claim were not before the 1^st and 2^nd Defendants when they received the Pre-action Letter and gave instructions to Ds’ Solicitors to deny the claim.

72.  In Cain, Smith LJ said at p.599 as follows:

“Although the delay referred to in s 33(3) [the English equivalent of section 30(3) of the Ordinance] 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. If, as here, a defendant has had early notification of a claim and every possible opportunity to investigate and to collect evidence, some delay after the expiry of three years will have had no prejudicial effect.” (see also Pang Kwok Lam at para.109)

73.  This leaves the issue of whether there is forensic prejudice arising from the 2^nd Defendant’s allegation of impaired memory of the 1^st Defendant as a result of his operation under general anaesthesia “done a few years ago”.

74.  First, it is unclear whether the 1^st Defendant had the operation before or after the Incident in March/April 2007, hence there is no cogent evidence that any impaired recollection as a result of the operation is necessarily due to the Plaintiff’s delay.

75.  Secondly, it is also unclear whether the 1^st Defendant had the operation before or after the Pre-action Letter in September 2008.  The 1^st and 2^nd Defendants have not disabused the possibility that the operation took place after they were alerted of the Plaintiff’s claim and had the opportunity to preserve evidence and/or record their recollections following such notification of claim.

76.  Thirdly, even if the operation under full anaesthesia has dimmed the 1^st Defendant’s general memory, a general allegation of impairment in memory is insufficient (see paragraphs 67-70 above).

77.  Fourthly, the operation on the 1^st Defendant plainly cannot have any effect on the memory and recollection of the 2^nd Defendant.  But all of the manipulations (or stretching treatment) of the Plaintiff’s right shoulder were performed by the 2^nd Defendant.  According to the Amended Statement of Claim, “the Plaintiff claims in respect of the medical mis-management by the 1^st Defendant and/or the 2^nd Defendant and/or the servant and/or agents and/or employees of the 1^st Defendant in the course of their employment ……”, and it is further averred that the Plaintiff’s prolonged pain and suffering, permanent disability, difficulties and impairment “were solely caused and/or contributed to by the negligence and/or breach of duty on the part of the 1^st Defendant, either in his own right and capacity and/or as vicariously liable for the 2^nd Defendant’s negligence and/or breach of duty, and/or the 2^nd Defendant and/or their servants and/or agents and/or employees”.  It is plain from such pleading that the Plaintiff contends that the alleged liability of the 1^st and 2^nd Defendants is both joint and several.  I am therefore of the view that the 2^nd Defendant has not sufficiently shown that he suffers forensic prejudice in respect of the Plaintiff’s claim premised on averments as to the 2^nd Defendant’s own tortious conduct.

78.  In light of the above, I am not persuaded that the effect of any pre- and post-expiry delay on the cogency of the evidence is so significant that it is unjust for the 1^st and 2^nd Defendants to meet the Plaintiff’s claim.

(c)  Conduct of the defendant after the cause of action arose

(d)  Duration of any disability of the plaintiff arising after accrual of the cause of action

79.  These factors are irrelevant.  It is accepted that the 1^st and 2^nd Defendants have not done anything to contribute to the delay.

(e)  Conduct of the plaintiff

80.  This factor looks at whether the Plaintiff has taken steps to bring a claim or make a complaint even if things have subsequently gone awry.  The test is an objective one where the reasonableness of the claimant’s actions is considered.

81.  The 2^nd Defendant in his affirmation claims there is no sufficient or reasonable ground for issuing the Writ of Summons outside the three-year limitation period. He says that the Plaintiff has retained the Former Solicitors since 2007, so proper legal advice should have been available to her.  He was not in a position to verify the truth of the Plaintiff’s allegations as to her communications with the Former Solicitors, but even if they were true there is still delay on her part and she would have an alternative remedy against the Former Solicitors.  Mr Lau refers to Ng Keung Lung v The Personal Representative and/or the Executor and/or the Administrator of the Estate of Lam Chik Suen (deceased) HCPI 512/2004, DHCJ To (unreported, 25 November 2005). In that case, the court declined to extend the time limit where the plaintiff was unable to offer any good reason for the delay and had an alternative remedy against his solicitors.

82.  On the other hand, Mr Cheng argues that the Plaintiff has taken all reasonable and prompt steps, and that she cannot be faulted for things having subsequently gone awry.  The Plaintiff promptly approached the Former Solicitors for legal advice and for pursuing her claim against the Defendants within the first year of the Incident.  Mr Cheng further submits that the two alleged periods of delay should be considered in the relevant context.  The Plaintiff has stated in her affirmation that she has never been advised by the Former Solicitors about any time limit for commencing legal proceedings against the Defendants, and she was unaware of any such time limit until she attended the Legal Aid Department in August 2010.  She has entrusted her claim against the Defendants to the Former Solicitors, and there is nothing to suggest to her that the matter was not being handled properly and diligently. Once the Former Solicitors terminated her retainer in July 2010, she took active steps to pursue her legal rights.  Mr Cheng argues that the delay was caused by the Former Solicitors and not by the Plaintiff, so the balancing exercise should not be tilted against her.  Mr Cheng submits that the effect of the 1^st and 2^nd Defendants’ arguments is to visit the faults of the Former Solicitors on the Plaintiff, which is impermissible.

83.  I shall return to the topic of incompetence and/or dilatoriness of legal advisers in greater detail below.  But it is important not to confuse the two separate considerations evident from Lord Diplock’s observations in Thompson (see paragraph 93 below), ie whether the plaintiff himself has acted promptly and reasonably and whether his lawyers have been dilatory.  Although Lord Diplock did say in Thompson that the accrual of the limitation defence might be regarded as a windfall only where the delay in issuing proceedings was short, Smith LJ in Cain at pp.595-596 said it did not seem to her that the length of the delay could be, of itself, a deciding factor.  Ultimately, it was whether the defendant had suffered any evidential or other forensic prejudice which should make the difference.  Suffice to state here that having considered the length and reasons for the delay, the conduct of the Plaintiff as well as her alternative remedy against the Former Solicitors against all the circumstances, I am of the view that the balance of prejudice tilts in favour of the Plaintiff.

(f)  Diligence of the plaintiff in obtaining medical, legal or other expert advice

84.  Mr Cheng submits that this factor is irrelevant to the present case. Mr Lau argues that the Plaintiff has been dilatory, but premises such argument on the Plaintiff’s pre- and post-expiry delay as discussed in paragraphs 64 and 81 above.  In the circumstances, I rely on but will not repeat here my analysis in paragraphs 64 and 83 above.

V.  EQUITY, PREJUDICE AND ALL THE CIRCUMSTANCES OF THE CASE

85.  As explained above, the court has to look at the matter broadly in determining whether or not the defendant has been disadvantaged by pre- and post-expiry delay and 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.

86.  The Plaintiff’s prospects of success in the present proceedings and the evidence necessary to be adduced to establish those prospects are part of the circumstances which the court should take into account in considering the balance of hardship (see Forbes v Wandsworth Health Authority [1996] 4 All ER 881, 894-895).  Although I should not attempt to determine the merits on affidavit evidence, I bear in mind that the Plaintiff in her affirmation has deposed to the treatment given by the 1^st and 2^nd Defendants and that there are treatment medical reports from public hospitals concerning her right shoulder dislocation and the Ortho Report giving expert medical opinion on liability, causation and quantum issues.  Further, the 1^st and 2^nd Defendants have not adduced evidence to suggest (and Mr Lau has not suggested) that the Plaintiff’s claim is unarguable or wholly unmeritorious.  In my view, whilst I am unable to say the Plaintiff has an overwhelming or cast-iron case, it cannot be said to be a weak case that does not even deserve investigation in the course of litigation.

87.  Rather, Mr Lau submits that given the seriousness of the Plaintiff’s allegations against the Former Solicitors, she has a cast-iron case against them for professional negligence such that she suffers no prejudice from the effect of section 27 of the Ordinance and the court should not disapply the time limit.  On the other hand, Mr Cheng argues that whilst the Plaintiff’s potential cause of action against the Former Solicitors is a relevant factor, it is not determinative and it remains within the court’s discretion to extend the limitation period, especially when the 1^st and 2^nd Defendants suffer no forensic prejudice.  Given counsel’s differing submissions, it is necessary to review the authorities on the subject.

88.  There is no dispute that when considering whether to exercise its discretionary power under section 30 of the Ordinance to allow an action to proceed after the limitation period has expired, the court is entitled to take into the account the plaintiff’s ignorance of his legal rights when considering the reasons for the delay in bringing the action, especially when he has acted promptly once he knew of the existence of the legal remedy and has done all that can reasonably be expected of him.  Both counsel have cited Halford in support of this proposition.

89.  But what if the plaintiff has sought legal advice and/or has entrusted his legal representatives to pursue his claim?

90.  Firman v Ellis [1978] 1 QB 886 was decided when the English statutory discretion to disapply the time limit was newly introduced.  It was held that the court in exercising such discretion should have regard to all the circumstances of the case, and the existence or non-existence of a remedy against the plaintiff’s solicitors was an admissible consideration.  “It is one of “the circumstances of the case” and one of “the reasons for the delay”. It may tip the scale where the defendant has been substantially prejudiced by the delay” (per Lord Denning MR at p.909).

91.  In three of the cases considered in Firman, the writs had been issued before the expiry of the primary limitation period.  The insurers did not dispute liability and there were negotiations for settlement. But due to oversight of the solicitors the writs had been neither served nor renewed within a year.  Applications to renew them out of time were refused although the defendants suffered no forensic prejudice. As a result of the new Limitation Act 1975 which gave a statutory discretion to disapply the limitation period, the solicitors issued new writs and sought to override the time limits.  The English Court of Appeal allowed the new writs to proceed.

92.  Subsequently the House of Lords in Walkley v Precision Forgings Ltd [1979] 2 All ER 548 held that if the writ was issued and not served or the claim was discontinued or struck out and the limitation period had expired, an application could not be made to disapply the limitation period in respect of a second writ issued outside the limitation period.

93.  So the House of Lords in Thompson accepted that the actual decision in Firman must be regarded as having been overruled by Walkley, but they still agreed with what was said in Firman about the unfettered nature of the discretion. Lord Diplock said at p.752 (concurred in by the other Law Lords) as follows:

“…… I think it is apparent that paragraphs (e) and (f) [the English equivalent to section 30(3)(e)-(f) of the Ordinance] are referring to the conduct of the plaintiff himself, as well as that of his lawyers after he has consulted them for the first time. If he has acted promptly and reasonably it is not to be counted against him, when it comes to weighing conduct, that his lawyers have been dilatory and allowed the primary limitation period to expire without issuing a writ. Nevertheless, when weighing what prejudice the plaintiff has suffered, the fact that if no direction is made under section 2D [the English equivalent of section 30 of the Ordinance] he will have a claim over against his solicitor for the full damages that he could have recovered against the defendant if the action had proceeded must be a highly relevant consideration.” (my emphasis)

94.  I have referred counsel to Conry v Simpson & ors [1983] 3 All ER 368. In that case, Stephenson LJ endorsed Lord Diplock’s observations above that the existence of a good claim in negligence against a solicitor was a highly relevant consideration when the judge had regard to all the circumstances of the case, but he recognised that “it is very seldom that a remedy against a solicitor can be as satisfactory as a remedy against the original tortfeasor” (see p.374).  In that case, the first instance judge came to the view that no one could be sure whether the solicitors would be able to meet the liability and decided that that circumstance, in conjunction with all the other circumstances, would not make it inequitable for him to disapply the limitation period.  The English Court of Appeal held there was no ground to say the first instance judge had fallen into error in so exercising his discretion.

95.  I have also drawn counsel’s attention to Ramsden v Lee [1992] 2 All ER 204. In that case, the discretion to disapply the limitation period was exercised despite a strong claim against the plaintiff’s solicitors.  The English Court of Appeal refused to lay down a guideline that in the absence of fault on the part of the defendant the limitation period ought to be enforced against the plaintiff unless the delay has been minimal especially if the plaintiff had a good claim against his solicitors for failure to issue the writ in time.  Furthermore, it was held that although the fact that the plaintiff had a claim against his solicitors was highly relevant, to discount entirely the fact that the plaintiff would suffer some prejudice in pursuing that claim would be contrary to the requirement that the court should have regard to all the circumstances in exercising its discretion whether to disapply the limitation period.

96.  In Hartley, Parker in applying Ellis, Thompson and Donovan v Gwentoys Ltd [1990] 1 All ER 1018 said as follows:

“…… if there was a short delay, which was in no way due to the plaintiff, but to a slip on the part of her solicitors which did not effect in the smallest degree the ability of the defendant to defend the case because there had been early notification of the claim, the exercise of the discretion in favour of the plaintiff would be justified even if the plaintiff, if not allowed to proceed, would have a cast-iron action against her solicitors” (p.223)

“Finally, I would add to the items of prejudice which a plaintiff will suffer even if he has a cast-iron claim against his solicitors and which were indicated by both Lord Diplock and Ormrod LJ, the fact that, if the plaintiff has to change from an action against a tortfeasor, who may know little or nothing of the weak points of his case, to an action against his solicitor, who will know a great deal about them, the prejudice may well be major rather than minor.” (p.224)

Again, Parker LJ did not consider it useful or desirable to lay down guidelines on the basis that the circumstances would be infinitely variable.

97.  Next, I have referred the parties to Das v Ganju [1999] PIQR P260.  In that case Sir Christopher Staughton held that the plaintiff was blameless and the main reason for the delay was the misleading advice given by counsel and solicitors.  Whether negligent or not, the advice was unnecessarily discouraging in one respect, while encouraging another course which was the wrong one to pursue.  On the issue of whether the plaintiff was to be criticised for the fault of their lawyers, after citing Whitfield v North Durham Health Authority [1995] 6 Med LR 32, the learned judge at p.P268 said as follows:

“ if that passage means that as a matter of law anything done by the lawyers must be visited on the client, it cannot in my view be reconciled with other authority. It appears to have been a concession which the court accepted. The other authority is Thompson v. Brown [1981] 1 W.L.R. 744 and the speech of Lord Diplock at 750 and 752 …… I would also return to Halford v. Brooks, where again it is said that it is no reproach to the plaintiff that he has received the wrong legal advice.

In this case I have no doubt that there will be prejudice to [the plaintiff] if her present action is struck out and she is left with a claim that must be somewhat speculative against solicitors and counsel. She will then have two hurdles to overcome – proof of the merits of her action against [the defendant], and proof that her counsel and solicitors were negligent.

She will also, as the judge said, have to start again.  He added that she will have to demonstrate that this action would have succeeded.  That is not an absolute requirement.  But it is a necessity if she is to recover the full amount of any damages that she would have been entitled to in this action.”

98.  In Corbin v Penfold Metallising Company Ltd [2000] Lloyd’s Med LR 247, 250-251, Buxton LJ agreed with the view expressed in Das, which was justified by what Lord Diplock had said in Thompson, that there was certainly no rule of law to visit the faults of the lawyers upon the claimant, when one was looking at the particular area of limitation jurisdiction.

99.  In Steeds v Peverel Management Services Ltd [2001] EWCA Civ 419, Sir Christopher Slade after considering Das and Corbin confirmed that if a claimant acted reasonably and with sufficient promptness, he could not be fairly subjected to personal criticism and his solicitors’ faults were not to be attributed to him personally for the purpose of the exercise of the court’s discretion to disapply the limitation period.

100.  The next important case is Horton. In that case, the House of Lords overruled Walkley and completely rehabilitated Firman. Lord Bingham at p.P511 referred to Hartley with approval and said that “…… even if the plaintiff had a cast-iron claim against her solicitors the limitation defence could fairly be regarded as a windfall or gratuitous bonus ……”

101.  Lord Hoffmann at p.P514 cited Thompson and added that “[no] matter how negligent the claimant’s solicitors may have been in the simple skills of keeping a diary, the plea of limitation which the statute confers upon the defendant is, in the absence of forensic prejudice, described as a windfall of which he can properly be deprived”.

102.  Lord Carswell at p.P517 said of the cases of Das and Corbin as follows:

“In Das v Ganju [1999] Lloyd’s Rep. Med. 198 at 204 and Corbin v Penfold Metallising Co. Ltd [2000] Lloyd’s Rep. Med. 247 at 251 the Court of Appeal expressed the view that there was no rule that the claimant must suffer for his solicitor’s fault. If this is interpreted, as it was in Corbin, as meaning that court is not entitled to take into account against the party the failings of his solicitors who let the action go out of time, that could not in my view be sustained and the criticism voiced in the notes to the reports of Das and Corbin would be justified. The claimant must bear responsibility, as against the defendant, for delays which have occurred, whether caused by his own default or that of his solicitors, and in numerous cases that has been accepted: see, eg, Firman v Ellis [1978] Q.B. 886; Thompson v Brown [1981] 1 W.L.R. 744 and Donovan v Gwentoys Ltd [1990] 1 W.L.R. 472. The reason was articulated by Ward LJ in Hytec Information Systems Ltd v Coventry City Council [1997] 1 W.L.R. 1666, a case of striking out, when he said, at 1675:

“Ordinarily this court should not distinguish between the litigant himself and his advisers. There are good reasons why the court should not: first, if anyone is to suffer for the failure of the solicitor it is better be the client than another party to the litigation; secondly, the disgruntled client may in appropriate cases have his remedies in damages or in respect of the wasted costs; thirdly, it seems to me that it would become a charter for the incompetent (as Mr McGregor eloquently put it) were this court to allow almost impossible investigations in apportioning blame between solicitor and counsel on the one hand, or between themselves and their client on the other.””

103.  At first blush, Lord Carswell’s view appears to be apparently inconsistent with the long line of authorities discussed above, but he went on to clarify at p.P517 as follows:

“That said, whereas the claimant will suffer obvious prejudice if the limitation period is not disapplied, this may be reduced by his having a cause of action in negligence against his solicitors. The extent of that reduction will vary according to the circumstances, but even if he has an apparently cast-iron case against the solicitors the factors referred to by Lord Diplock in Thompson v Brown at 750 require to be borne in mind.”

104.  In Leeson, Cox J rejected the bold submission that Das, Corbin and Steeds were decided per incuriam.  The learned judge noted that the origin of these three cases was Lord Diplock’s observations in Thompson, which were not dissented from in Horton.  Further, the House of Lords did not disapprove those three cases all of which were referred to in argument before them.  It was held that as the authorities then stood, Das, Corbin and Steeds were binding, so in Leeson the default of the solicitors was not to be attributed to the claimant when considering the weight to be attached to the reasons for the delay and its duration, and when weighing the conduct of the parties.

105.  In Cain, Smith LJ said at pp.598-599 as follows:

“[72] A claimant’s position is different. He has a substantive right, his cause of action, but he cannot proceed with it because of the operation of s 11 [the English equivalent of section 27 of the Ordinance]. He has therefore been prejudiced by the loss of the right to enforce his cause of action. That prejudice is greatly reduced if he has a good claim over against his solicitor. In a case where the defendant has suffered some forensic or procedural prejudice, which will diminish his ability to defend himself, it will be relevant to consider that the claimant has another remedy. But the fact that the claimant has a claim over will not necessarily mean that the discretion should be refused. It might still be fair and just that the defendant remains in the frame. It is the defendant who has, ex hypothesi, committed the tort and, as Lord Denning MR pointed out, it is his insurer who has received the premiums in respect of the relevant risk. So the fact that the claimant will not suffer financially in the end is relevant but not determinative.”

106.  Mr Lau submits (and I agree) that each case turns on its own facts, but it does not mean that the above principles on the approach to the exercise of discretion under section 30 of the Ordinance should be ignored.

107.  There is no question that upon advice by the Former Solicitors and Counsel the Plaintiff was early aware of her right, and she has formed the intention to sue the Defendants and has instructed the Former Solicitors to that end well within the limitation period.  However, owing to various circumstances arguably of incompetence or dilatoriness on the part of the Former Solicitors, the present proceedings were issued about half a year out of time.  The length of such delay is comparatively modest.  But I accept that each pre- and post-expiry period of delay needs separate consideration as to whether it is excusable.

108.  Mr Lau directs his complaint to two periods of delay between 29 May 2009 and about November 2009 (about 6 months) and between about November 2009 and early July 2010 (about 8 months) in which, he submits, the Plaintiff has not taken any steps to follow up with the Former Solicitors on the progress of her claim against the Defendants.  But such periods of delay must be considered in the context of the Plaintiff being unaware of any limitation period for issuing her claim against the Defendants, and that she had entrusted the Former Solicitors to prepare her claim.  Although the Plaintiff has been let down by the Former Solicitors, she was not alerted to any need for urgency to follow up with the Former Solicitors, and to adopt the words of His Honour Judge Charles Harris QC who was the first instance judge in Burke v Ashe Construction Ltd [2003] EWCA Civ 717, she is “not the sort of [person] who can be expected to chivvy or invigilate [her] own lawyers”.  Further, the Ortho Report was only compiled on 24 July 2009, so prior to that date the Plaintiff did not as yet have any expert medical basis to confirm her suspicion that the dislocation of her right shoulder was caused by the 1^st and/or 2^nd Defendants’ medical mismanagement. So in any event, there can be no legitimate complaint of inexcusable delay prior to 24 July 2009. In my view, the delay over the two periods identified by Mr Lau is not so inexcusable to result in a refusal to extend the limitation period.

109.  Mr Lau next argues that the existence of the Plaintiff’s cast-iron claim against the Former Solicitors must ameliorate any prejudice as flows from the impact of the limitation period, and the balance of prejudice should therefore tilt against any discretionary extension of the limitation period.

110.  In my view, the extent that the obvious prejudice to the Plaintiff if the limitation period is not disapplied may be reduced by her having a cause of action against the Former Solicitors again must be considered in context. Even if she has a strong cause of action against the Former Solicitors, it is a loss of a chance claim.  As explained in Conry and Hartley, such claim is seldom as satisfactory a remedy as a claim against the original tortfeasor who may know little or nothing about the weak points of the Plaintiff’s case as compared with the Former Solicitors who may know a great deal about them.  Further, as explained in Das, to establish her claim against the Former Solicitors and to recover full damages so that any prejudice will be ameliorated, the Plaintiff will have to prove the merits of her action against the 1^st and 2^nd Defendants (and in this respect I note they have indicated they will vigorously defend the Plaintiff’s claim) and to prove that the Former Solicitors have been negligent and/or in breach of express or implied terms of the retainer.  It cannot be said the Plaintiff will suffer no prejudice at all if the time limit is not extended.

111.  In the circumstances, whilst I accept that the Plaintiff’s potential claim against the Former Solicitors is a highly relevant consideration, it should not be ignored that she has acted with reasonable and sufficient promptness in complying with the Former Solicitors’ advice to attend the Conference with Counsel, in paying costs on account, in signing documents for obtaining medical reports from the treatment hospitals, in attending the medical examination by Dr Wong and in attending meetings with the Former Solicitors.  In all the circumstances, I am not persuaded that the Former Solicitors’ default in failing to issue the claim against the Defendants within time should be visited on the Plaintiff.

112.  More importantly, there has been early notification of the Plaintiff’s claim to the 1^st and 2^nd Defendants, who are unable to identify a real risk of forensic prejudice to either or both of them in answering the Plaintiff’s claim.  Given that actual forensic prejudice is slight and it is still possible for a respectably fair trial to take place, I am persuaded that the limitation defence can fairly be regarded as a windfall of which the 1^st and 2^nd Defendants can properly be deprived.

113.  In all the circumstances, I am of the view that I should disapply section 27 of the Limitation Ordinance.

VI.  CONCLUSION

114.  I therefore order that:

(a) paragraph 1 of the Summons be dismissed;

(b) the time limit for the Plaintiff to commence the present proceedings against the 1^st and 2^nd Defendants under section 27 of the Ordinance be disapplied;

(c)  paragraph 4 of the order of Master A Chow dated 15 December 2010 do stand;

(d) within 21 days of the 1^st and 2^nd Defendants filing and serving their Defence, the parties do respectively serve List of Documents and there be inspection of documents within 7 days thereafter;

(e)  the Checklist Review hearing shall adjourned to 4 July 2011 at 2:30pm before PI Master for further case management;

(f)   PI Master shall be notified at once and in any event within 3 days if any of the above dates or directions are not met with detailed reasons;

(g) solicitors for the Plaintiff shall serve a copy of this order to the legal aid counsel in charge of this case to ensure there is no delay in compliance with these directions due to late assignment of counsel or due to late issuance of an appropriate certificate;

(h) liberty to apply.

115.  Given the Plaintiff’s concession that the three-year limitation period had expired when the Writ of Summons was issued, it is legitimate for the 1^st and 2^nd Defendants to raise the limitation issue, and the burden rests on the Plaintiff to persuade the court to disapply the time limit under section 30 of the Ordinance.  Mr Cheng points out that P’s solicitors have set out the gist of the Plaintiff’s explanation for the delay in their letter dated 30 October 2010 (see paragraph 44 above).  But given the admitted delay, I do not find it unreasonable for the 1^st and 2^nd Defendants to test the Plaintiff’s assertions which were not made on affirmation at that time.  However, it is unreasonable for the 1^st and 2^nd Defendants to continue to resist the application after the Plaintiff filed and served her affirmation and the fullness of her grounds for resisting the Summons is evident.

116.  So even though the Plaintiff has eventually succeeded in extending the time limit, she should pay to the 1^st and 2^nd Defendants costs of the Summons up to the filing and service of her affirmation (including all costs reserved if any), and the 1^st and 2^nd Defendants shall pay to the Plaintiff the costs of the Summons thereafter (including the costs of the hearing before me).  There will be certificate for counsel and legal aid taxation for the Plaintiff’s own costs. The above order for costs will be an order nisi.

117.  Since the Plaintiff is legally aided, summary assessment of costs is inappropriate in light of Order 62 rule 9C(1)(b) of the Rules of the High Court unless P’s Solicitors waives the right to any further sum of money in respect of the costs of the application.  P’s Solicitors are directed to write to my clerk with copy to Ds’ Solicitors within 14 days from today to confirm whether they are willing to waive the right to any further sum of money in respect of the above costs order nisi in favour of the Plaintiff.

118.  If P’s Solicitors are unwilling to waive such right, the above costs whether in favour of the Plaintiff and/or the 1^st and 2^nd Defendants shall be taxed (in any event) if not agreed.  If P’s Solicitors are willing to waive such right, there be summary assessment of the above costs in favour of the Plaintiff and/or the 1^st and 2^nd Defendants, and I hereby grant the following directions:

(a) if no application is made to vary the above costs order nisi within 14 days from today, the parties do within 21 days from today lodge and serve their respective statement of costs pursuant to Practice Direction 14.3 and within 7 days thereafter lodge and serve their respective summary of objections to the other party’s statement of costs for not more half page in bullet point format;

(b) if application is made to vary the above costs order nisi, such application shall be heard at the same time as the hearing for the summary assessment of costs;

(c)  the Plaintiff do within 21 days from today 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 42 days from today with half hour reserved.

119.  Last but not least, I thank counsel for their able assistance.

Representation: