XCHRX WONG KIM FUNG AND ANOTHER v. WONG KWING TUNG

HCPI 454/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 454 OF 1997

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. This is, in substance, the plaintiffs' appeal from an order made by a master dismissing their action on the footing that the validity of the writ by which it had been commenced had expired and that the plaintiffs had shown no good reason for extending time for its service.

The facts

2. The plaintiffs' claim was for damages for personal injuries sustained on 12 April 1994. They instituted their proceedings by issuing a writ, generally endorsed, on 9 April 1997. On the same day, they notified the defendant's insurers that they had done so, enclosing with their notice a copy of their writ. On 16 April 1997, a firm of solicitors, using the form of acknowledgement of service which had been attached to the copy writ, purported to acknowledge service of the writ on behalf of the defendant, although the writ had not, in fact, been served on the defendant. On 12 May 1997, the plaintiffs' then solicitors wrote to the defendant's solicitors as follows :-

"We have tried to telephone you but your Mr Raymond Tsui has been unavailable.

Although we are aware you have filed an Acknowledgement of Service, strictly neither your firm nor your insured client has as yet been served with the Writ and accordingly the Statement of Claim does not fall due for service. It may be that you filed the Writ having been passed the Notice of Issue of the Writ that was served upon your insurance clients.

.....

PS Since dictating the above, we have spoken and note your Acknowledgement of Service seemingly originates from the copy Writ enclosed with the Notice of Issue served on your insurance clients."

Over a year later, on 31 July 1998, the same solicitors gave the defendant's solicitors notice of the plaintiffs' intention to proceed with the action. On 14 December 1998, the defendant applied by summons for the action to be dismissed on the ground that the writ had not been served and that time to serve in which to serve it had expired. On 14 October 1998, the defendant's solicitors wrote to the plaintiffs' then solicitors as follows :-

"We note that the Writ of Summons filed on 9 April 1997 has been expired. Pursuant to Order 12 rule 8A of the Rules of High Court, we hereby give you notice requiring the Plaintiffs to serve a valid Writ on the Defendant within the next 14 days or to discontinue the action as against the Defendant failing which we will apply to dismiss the action."

3. The plaintiffs' then solicitors did not serve the writ within the period of 14 days mentioned in the letter of 14 October 1998. Instead, they replied on 24 October 1998 as follows :-

"Your notice under Order 12 rule 8A is inappropriate.

A valid Writ has been served upon you as acknowledged by your Acknowledgement of Service dated 16th April 1997. Alternatively, your acknowledgement, which was not followed by any application under Order 12 Rule 8 R.H.C., had the effect of validating service of the Writ or waiving any irregularity thereof (which is not admitted)."

4. On 22 December 1998, the plaintiffs applied by summons for an order giving them leave to file a statement of claim; alternatively, for an order extending the validity of the writ. On 12 May 1999, the master dismissed the plaintiffs' summons. The plaintiffs' action ground to a halt. The issue now is whether I should breathe new life into it.

The law

5. A writ is valid for 12 months beginning with the date of its issue : see the Rules of the High Court, Order 6 rule 8(1). If it is not served within that time, it will cease to be valid (and so cannot be served at all) unless the court by order extends its validity : Order 6 rule 8(2). The court will not make such an order unless the plaintiff shows good reason why the writ was not served in time : see Kleinwort Benson Ltd v. Barbrak Ltd [1987] AC 597. However, where a writ is not duly served on a defendant but nevertheless he acknowledges service of it, the writ is deemed, unless the contrary is shown, to have been duly served on him, and to have been served on the date on which he acknowledges service : Order 10 rule 1(5). There will of course be no such "deeming" if it is shown that the writ has not been served; and, further, an acknowledgement by a defendant of a writ is not to be treated as a waiver by him of any irregularity in the service of the writ (assuming, of course, that it has been served) : Order 12 rule 7. A defendant who wishes to dispute the jurisdiction of the court on any such ground may apply to the court for an order that the writ has not been duly served on him : Order 12 rule 8. Finally, a defendant to an unserved writ may require the plaintiff either to serve the writ or discontinue the action : Order 12 rule 8A.

Was the master right to dismiss the action?

6. In my judgment, he clearly was. I would reason, quite simply, as follows. First, the writ here was not served on the defendant within the period limited for its validity. The sending of a copy of the writ by the plaintiffs' solicitors to the defendant's insurers cannot possibly be said to amount to service of the writ on the defendant. Secondly, the writ cannot be deemed to have been duly served, since it has been clearly shown that it has never been served at all. Thirdly, the failure of the plaintiffs to serve the writ when called on by the defendant's solicitors to do so (apparently because of misguided advice from their then solicitors that this was unnecessary) makes it impossible for them to contend that they had good reason not to serve the writ. The plaintiffs' then solicitors are the authors of their clients' misfortune, and will no doubt be called on to answer for this elsewhere. The plaintiffs' counsel, instructed by other solicitors, has said all that could possibly be said in support of this appeal. But even Mr. Mohan Bharwaney's excellent advocacy, which compelled me to indicate at the conclusion of the argument that I proposed to take time to consider my judgment, could not disguise the hopelessness of this appeal.

Result

7. I must dismiss the appeal, with costs.