PANG TONY, BY HIS NEXT FRIEND PANG YIU FAI v. MA WAI MING AND OTHERS

HCPI 193/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 193 OF 2009

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D E C I S I O N

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Application

1.  This is an application for striking out of the proceedings by the 3^rd and 4^th Defendants for the Plaintiff’s failure to comply with an unless order.

Background

2.  The Plaintiff was a hawker and, the 3^rd Defendant, a hawker control officer.  On 29 March 2006, while evading the arrest of the 3^rd Defendant, the Plaintiff ran into the road and was knocked down by a lorry, driven and owned by the 1^st and 2^nd Defendants respectively.

3.  The Plaintiff sustained head injury.  On 17 March 2009, by his brother as the next friend, and with the assistance of legal aid, the present proceedings were commenced against all 4 Defendants.

4.  At the 1^st Check List Review hearing (“CLR”) on 29 July 2009, this Court was told that the Writ had not been served and legal aid would be discharged soon.  This Court adjourned the matter for about 2 months to allow the Plaintiff to have some time to work out the matter.  On 11 September 2009, usual order of ceasing to act was obtained by the Plaintiff’s then solicitors.

5.  At the 2^nd CLR on 18 September 2009, the next friend appeared in person.  The Writ had still not been served and the Court allowed the matter to be further adjourned, to allow more time for the Plaintiff to take appropriate action.

6.  The 3^rd CLR came on 2 November 2009.  The Plaintiff had his new solicitors, Messrs. Finley & Co.  Upon discussion, Master Ng ordered, inter alia, that:

“ 1. The Plaintiff do serve the Writ of Summons on the 1^st to 4^th Defendants on or before 30^th November 2009. Failure to do so may result in an ‘unless order’ or refusal for further extension of time;

   2.       ……”

7.  Then, on 18 February 2010, at the 4^th CLR, the Plaintiff’s new solicitors, the 3^rd Defendant acting in person and the Department of Justice (“DOJ”) acting for the 4^th Defendant were present.  After exchange of views, Master Yu ordered an unless order.

“ 1. Unless the Plaintiff do serve the Writ together with a Statement of Claim and Statement of Damages on the Defendants within 28 days, the Writ be struck out and this action dismissed;

   2.       ……”

8.  On the deadline of 18 March 2010, the Plaintiff filed and served the Statement of Claim, the Medical Report and the Certificate. 

9.  On 22 March 2010, DOJ made out her complaint.

“……

However, no Statement of Damages has been served upon us to date.

Further, we note the following defaults from the aforesaid documents that were served upon us:-

a) the Statement of Claim has not been verified by a Statement of Truth; and

b) the Appendix D Certificate is not signed by the Next Friend of the Plaintiff.

Under Order 41A, r.6, the Court may by order strike out a pleading that is not verified by a Statement of Truth.

On the basis of the above, we submit that the above-mentioned Order by Master Yu has not been complied with a result of which the Plaintiff’s action herein is dismissed.

……”

The Plaintiff’s solicitors did not make any response.

10.  About 1 week later, on 31 March 2010, DOJ wrote further:

“……

We now write to report further that the Statement of Damages still has not been served upon us to date. Besides, the aforesaid faults in respect of the Statement of Claim and the Appendix D Certificate have not been rectified to date. On the basis of the above, we humbly submit that the aforesaid Unless Order has not been complied with a result of which the Plaintiff’s action herein is dismissed.

……”

The Plaintiff’s solicitors continued to remain silent.

11.  Almost 4 weeks passed, on 28 April 2010, DOJ wrote to warn the Plaintiff’s solicitors.

“……

Your attention is drawn to Order 2 Rule 4 which states that:

‘Where a party has failed to comply with a rule or court order, any sanction for failure to comply imposed by the rule or court order has effect unless the party in default applies to the Court for and obtains relief from the sanction within 14 days of the failure.’

Despite your client’s aforesaid failure to comply with the Unless Order, it appears that your client has not taken any step to obtain relief from the sanction within the specified time.

By virtue of your client’s non-compliance with the Unless Order, the Writ is struck out and your client’s action herein is dismissed. Our clients therefore will not take any further steps to file and serve their Defence in this action. Further, our clients will proceed to have the judgment drawn up and approved by the Court without any further notice.

……”

Nothing was heard from the Plaintiff’s solicitors.

12.  Finally, the 5^th CLR took place on 18 June 2010.

(a)       As fore-warned in previous occasions and in the Questionnaire, DOJ asked for

“ 1. The Writ of Summons be struck out and the Plaintiff’s action be dismissed; and

  2.       the costs of this action be paid by the Plaintiff to the 3^rd and 4^th Defendants, to be taxed if not agreed.”

(b)       The Plaintiff’s solicitors did not file or serve any Questionnaire. I did not know what he intended to do.

13.  At the hearing, both 1^st and 2^nd Defendants were absent.  Apparently, they were not served with the Writ.  Mr. R. Chan from DOJ acted for both the 3^rd and 4^th Defendants.  Mr. Finley represented the Plaintiff and he handed up to me a copy letter dated 17 June 2010 which he just sent to DOJ the evening before.

“In reply to your letter dated 28 April 2010, we record that there is some misapprehension on your part as to our compliance with the unless order issued by Master R. Yu. We did perform the tasks required by the unless order with real effort and good faith.

Firstly the Statement of Claim has been verified by a Statement of Truth (copy enclosed). Secondly, the Appendix D certificate was signed by Mr Pang Yiu Fai (a copy enclosed). As to the Statement of Damages, quite frankly, for all intents and purpose the Plaintiff, previously an illegal hawker is, in a vegetative state in the care of public hospitals. Accordingly, in the particular circumstances of this case, we consider there may be little or no purpose in serving a Statement of Damages and in the spirit of post Civil Justice Reform we have sought to save costs in this regard.

If the Court consider otherwise, we will be seeking the Court’s indulgence, since our default is neither intentional nor contumelious.

Should it be necessary subject to what we said above, please kindly note that we are preparing to ask for the court’s exercise of discretion under Order 2 rule 1(2) in order to do justice. Your attention is drawn to Order 2 Rule 1(2) which empowers the court to extend the time limit, even after the lapse of the time specified in the order.

We believe Mr Tony Pang who is in persistent vegetative state should be given some mercy notwithstanding the alleged procedural inefficiencies.”

14.  Mr. Finley further informed me that the Plaintiff intended to discontinue the proceedings as against the 1^st and 2^nd Defendants.  He submitted a draft Amended Writ and 2 Notices of Discontinuance.

15.  Mr. Chan insisted on the striking out.  Mr. Finley opposed and orally added, inter alia, the followings.

(a)       He did the job on pro bono basis for the Plaintiff.

(b)       He had much difficulty in taking instructions.

(c)       He did not take out any application because there was a pending CLR to be heard. 

Decision

16.  Upon careful consideration of the matter, I have decided to not to make any order in the circumstances, as it is indeed not necessary to do so.

17.  I purport to set out the legal position regarding “unless order” after CJR in the followings.

(a)       When this Court imposes an unless order, he takes a serious attitude towards it.

(b)       If he further minds to impose a “self-executing” order, like the present one, sanction will automatically take effect.

(c)       Instead of requiring the innocent party to enforce compliance, under CJR, the burden lies on the defaulting party to seek relief.

(d)        Our new Order 2 rule 4 RHC regulates how the application for relief is to be made. To start with, it shall be done timely.

“Sanctions have effect unless defaulting party obtains relief (O.2, r.4)

4.  Where a party has failed to comply with a rule or court order, any sanction for failure to comply imposed by the rule or court order has effect unless the party in default applies to the Court for and obtains relief from the sanction within 14 days (emphasis added) of the failure.”

(e)       Further, the application for relief must (emphasis added) be supported by evidence (Order 2 rule 5(2) RHC)).

(f)       Upon such application, the Court’s jurisdiction and discretion will then be triggered to consider if relief should or should not be granted.

(g)       In so doing, all circumstances are to be considered, including:

“ (a) the interests of the administration of justice;

(b) whether the application for relief has been made promptly;

(c) whether the failure to comply was intentional;

(d) whether there is a good explanation for the failure to comply;

(e) the extent to which the party in default has complied with other rules and court orders;

(f) whether the failure to comply was caused by the party in default or his legal representative;

(g) in the case where the party in default is not legally represented, whether he was unaware of the rule or court order, or if he was aware of it, whether he was able to comply with it without legal assistance;

(h) whether the trial date or the likely trial date can still be met if relief is granted;

(i) the effect which the failure to comply had on each party; and

  (j)      the effect which the granting of relief would have on each party.”

(Order 2 rule 5(1) RHC))

18.  Applying the above into the present case, I cannot accept the submissions of  Mr. Finley.

(a)       Master Yu’s order stands good.  There has been no appeal or variation of terms therein.  Leaving aside those minor errors on other documents, there was simply no Statement of Damages having been filed by the deadline.  The unless order has not fully complied with, and is therefore breached.

(b)       I cannot accept the proposition that a PI case can be processed without a Statement of Damages. Such document forms part of the pleadings of the Plaintiff’s case. Further, without the document, how can we decide the proper forum and/or sums to be awarded to the Plaintiff?

(c)       There has been no summons taken out by the Plaintiff for time and/or relief. Even if I will take a very liberal view of treating Mr. Finley having made the application orally before me at the hearing, it is 3 months after the deadline. I see no or insufficient reason for me to exercise my discretion to extend the time under O.3 r.5 RCH, other provisions thereof or the inherent jurisdiction of this Court.

(d)       There has also been no supporting evidence before me.  Such requirement is mandatory under O.2 r.5(2) RCH.  It is particularly important because, without sufficient explanation by the defaulting party, this Court will not exercise his discretion to grant relief for sanction.  (Chan Hon Choi & others v Cheng So Mei & Others, HCMP 1443/2009, Deputy High Court Judge Burrell in Chambers, 23 February 2010)

(e)       Last but not least, even if I would forget about (c) and (d) above, and putting Mr. Finley’s case to its highest by considering the circumstances of the case as per O.2 r.5(1) RCH, I do not agree that discretion is to be exercised in favour of the Plaintiff.

(a)     Merits of the Plaintiff’s case have not been addressed.

(b)     There is undue delay in making application for relief.

(c)     It appears that the failure to file and serve the Statement of  Damages was a conscious decision.

(d)     The explanation given for the failure is far from satisfactory.

(e)     Part of Master Yu’s order was neglected and I heard nothing from the Plaintiff to try to remedy the same.

(f)      It is not entirely clear and known to me as to who caused the failure.

(g)     The Plaintiff was legally represented when the unless order was made. It has been so up till the date hereof.

(h)     No trial date has been fixed.

(i)      The case shall not be proceeded with in the absence of the Statement of Damages. Without the document, it is not certain which court is the proper form and it also makes the Defendants unable to know the case they have to meet.

(j)      Once the striking out is upheld, the Plaintiff will be time-barred to commence new proceedings.

(k)     The supplemental oral reasons given by Mr. Findlay at the hearing are neither relevant nor convincing at all.

Conclusion

19.  In conclusion, as the Plaintiff failed to comply with the unless order made on 18 February 2010, the Writ was struck and the action was dismissed automatically on 28 March 2010. There has been no or no proper application for relief taken out under O.2 r.4 of the Rules of the High Court. In any event, I fail to see that relief for sanction should be granted in the circumstances.

20.  I will further make an order nisi that there is no order as to costs for the hearing before me.

21.  Finally, as the proceedings have come to an end, there is no need for the parties to resume further CLR before this Court.