XCHRX ROTORUA DEVELOPMENT CO. LTD. AND ANOTHER v. REESON CRANE & ENGINEERING LTD. AND OTHERS

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE

1997, No. Con. List 124

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J U D G M E N T

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1. The plaintiffs have an interest in two crawler cranes. These cranes were leased to the first defendant for use on a construction site owned by the fifth defendant. In June and July 1996, the cranes suffered "accidents" said to have been caused by "the negligence and/or breach of statutory duties" of the defendants, their servants or agents "and/or by breach of the common duty of care on the part of the second to fourth and/or fifth defendants, their servants or agents". The plaintiffs issued a writ on 28 February 1997.

2. On 9 May 1997, the second third and fourth defendants, which are associated in a joint venture (the firm), requested further particulars of the plaintiffs allegations. The plaintiffs served some particulars on 4 July 1997.

3. On 1 September 1997, by consent, it was ordered that unless the plaintiffs serve replies to a request for further particulars of the statement of claim on or before 29 August 1997 the claim against the firm be struck out. The plaintiffs served some further particulars on 29 August 1997. The defendants were not satisfied with these, and asked that the plaintiffs' claim be struck out. On the same day, the plaintiffs asked for leave to amend their statement of claim.

4. I heard those applications. At that time, I indicated to the parties that I would be reluctant to strike out the claim without giving the plaintiffs one more opportunity to put their house in order. On 26 March 1998, I made an order by consent that, unless the plaintiffs do serve the particulars by 23 April 1998, the plaintiffs' claim against the defendants be struck out. In view of the plaintiffs' dilatory conduct in this matter, the time allowed for compliance was generous. The order I made, and to which the plaintiffs consented, was that the plaintiffs supply the particulars requested, not merely that the plaintiffs reply to the request. It is, therefore, not open to the plaintiffs to dispute the question of whether or not the particulars were properly requested. This was, accordingly, not the kind of case as that concerned in Reiss v Woolf [1952] 1 All ER 3 relied on by Mr Yau. In other words, the order in the case before me is not "dealing with the time of compliance rather than with the mode of compliance". The event that triggers the sanction here is defined with precision. The plaintiffs had already failed several times to supply the particulars requested, and there could have been no doubt in their minds as to the nature of the particulars that the order required them to furnish.

5. In my judgment on those applications, I said -

"The particulars that the plaintiffs have agreed to supply are clearly such that the defendants are entitled to receive them. This should have been obvious to the plaintiffs from the outset, but they have failed to supply them. The order of 1 September 1997 was only to serve replies to the request, but these replies are plainly inadequate, as the plaintiffs now concede. They are fortunate not to have the claim struck out. There is no excuse for failing to supply the particulars requested. The defendants have been put to quite unnecessary expense in pursuing this matter. It would be unjust if the defendants were not fully reimbursed for the costs that they have been obliged to incur."

6. In the face of that, one might have thought that the plaintiffs would be anxious to ensure that they supplied fully the particulars that they agreed, and the court ordered, them to supply. Or, at least, a full explanation would have been advanced as to the reasons why they were unable to supply them.

7. On 22 April 1998, the plaintiffs did serve further particulars, but the firm complains that the plaintiffs have still not obeyed the court order fully. The plaintiffs are also seeking leave to amend the particulars supplied.

8. In relation to an allegation concerning the use of the cranes, the firm legitimately wanted to know the facts relating to any allegation that the firm used them. The request was framed in a way that left it open to the plaintiffs to say that they did not allege that the firm used the cranes.

9. In its reply to this, the plaintiffs cite pieces of legislation and say, essentially, that the firm used the cranes as specified. The proposed amendment to this would allege that the firm used the cranes within the meaning of these statutes. It is not possible to understand these allegations. The use of the cranes by the firm is not "specified", and there are no facts alleged that support the allegation that the firm used the cranes within the meaning of the statutes. So the firm still has not been told the facts relating to its alleged use of the cranes.

10. It seems from what Mr Yau told me under some pressure that the plaintiffs do not mean to allege, as a matter of fact, that the firm used the cranes at all, but are responsible for their use by someone else. That does not emerge from the particulars supplied. And if this is what the plaintiffs mean to allege, they have not alleged the facts that would make the firm responsible for the use of the cranes by someone else, whoever that may be.

11. The indications are that the plaintiffs are seeking to avoid being pinned down on this allegation. They cannot do that. They certainly cannot do that after they have avoided giving any sensible particulars for so long and in the face of orders of this court to say specifically what they mean.

12. Another allegation is that the firm did not take appropriate precautions, and the firm wanted to know more about this allegation; in particular, what precautions should have been taken. The plaintiffs insist upon saying that what the firm should have done "included" or "involved" certain things. This is not acceptable. The firm is entitled to know what it is alleged it should have done altogether, not by an open-ended list.

13. I am now told that, in fact, the list is exhaustive, but I am not told why the plaintiffs did not say this earlier. It is now too late for the plaintiffs to seek to cure their repeated failures in this area.

14. The plaintiffs make allegations that the support for the cranes, including ground support, was not adequate. The firm wants to know what the plaintiffs allege the ground support should have been, and whether it is said that the ground support was below this. The plaintiffs answer, although difficult to understand, seems to be that the ground support should have been sufficient to support the cranes, and the fact that the ground collapsed shows that it was not. I suppose this might be a sufficient allegation to support a case of res ipsa loquitur, although Mr Yau spoke about calling expert evidence, which indicates that the plaintiffs are not relying entirely on this doctrine, but on other facts that would be established by such expert evidence. Those facts are not adequately alleged. I do not think that the plaintiffs have made it clear to the firm what case it is that they have to meet on this aspect of the matter.

15. In relation to this same allegation, the plaintiffs say that no support or anchorages were provided for the cranes. This must be nonsense. Clearly, the cranes were resting on the ground, and this must have provided some support. This is recognised by a letter by the plaintiffs' solicitors, but is not included in the particulars. It is far too late to entertain yet another attempt by the plaintiffs to put their house in order.

16. I should say that the allegations in respect of which the firm seeks particulars are not peripheral; they are, particularly in relation to the alleged use of the cranes by the firm, fundamental to the plaintiffs' cause of action.

17. So, the situation is, the plaintiffs have failed to provide the particulars that they agreed to provide and that they were ordered to provide on 26 March 1998. The plaintiffs have had plenty of opportunity to provide the particulars, and have been warned of the consequences of not doing so. I have been given no explanation for the plaintiffs failure to provide the particulars. And, of course, this is not the first time the plaintiffs have failed to obey the orders of the court; there were two earlier orders, one of them another unless order. On top of this, I told the plaintiffs expressly on 26 March 1998 that this was their last chance. They did not take that last chance, and now want yet another one.

18. The question that arises is: What should be done now?

19. The first possibility is to allow the plaintiffs yet a further opportunity to put its house in order. That is not appropriate. There must come a time when the patience of the court should not exercised any further. That time has come in this matter.

20. The second possibility is that only those allegations in respect of which particulars are sought should be struck out. This, however, is not a sensible course to take. Striking out these fundamental allegations would play havoc with the plaintiffs' statement of claim, and probably encourage further litigation to determine if the plaintiffs have any viable claim left against the firm.

21. In any event, the plaintiffs were clearly warned of what the sanction would be if they failed to take advantage of the last opportunity offered to them, and, indeed, they consented to it. That sanction was that their claim would be struck out. The proper question now is whether or not that sanction should be activated. The answer to that is that the plaintiffs have given me no explanation or basis on which I could exercise my discretion to avoid imposition of that sanction. Indeed, I am left with the impression, at least on the allegation of use of the cranes by the firm, that the plaintiffs are unwilling to commit themselves to a plea that, as a matter of fact, the firm did not use the cranes, but are responsible for the actions of some other unidentified person for what happened to the cranes on some other, not entirely clear, basis. That is not an attitude with which I can have much sympathy.

22. The consequence of my order is something the plaintiffs have brought upon themselves by their own conduct. They cannot complain that this result is unexpected, or that they have not had the opportunity of correcting their mistakes.

23. I should say that the plaintiffs' proposed amendments to the particulars do not cure the fundamental deficiencies in the particulars. Accordingly, there is no point in allowing these amendments, even if it could legitimately be said that the plaintiffs should have one more go at complying with my order.

24. In the result, following the guidelines mentioned in Hytec Information Systems Ltd v Coventry City Council [1997] WLR 1666, and bearing in mind that the plaintiffs have been wasting the time and resources of this court and the firm since May 1997, and prejudicing other litigants in the queue, I find that the overall justice of the case requires that the plaintiffs' claim, as against the second, third and fourth defendants, be struck out. I so order.

25. The matter of costs has not been argued, but it seems to me that the logical order in this respect is that the plaintiffs pay the costs of the firm of this application, the application to amend the particulars and the action. I make an order nisi to this effect.