LUCY MICHAELS v. CITYBASE PROPERTY MANAGEMENT LTD AND ANOTHER

HCPI 899/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 899 OF 2016

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DECISION

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1. I refer to my reason for decision given on 27 January 2017 (“my first decision”).  I then dealt with two applications before me.  One of the applications was taken out by the plaintiff for summary judgment against the defendants which I had dismissed in my first decision.

2. There was another application taken out by the defendants to strike out the statement of claim of the plaintiff and to dismiss the action against them.  Having analysed the arguments before me, I concluded in my first decision that the statement of claim and the action against the 2^nd defendant be struck out for the reason therein mentioned.

3. As for the claim against the 1^st defendant, I had analysed in my first decision each head of claim by the plaintiff, which I do not repeat.  I concluded in my first decision that the cause of action had not been properly and sufficiently set out with particulars.  The cause of action had therefore not been set out and the statement of claim should be struck out.  But I considered it an appropriate case to allow the plaintiff to rectify the defect in pleading by suggesting amendment.  If the amendment was not satisfactory, the statement of claim would then be struck out and the action be dismissed.

4. I also directed the plaintiff to lodge with me and serve the proposed amendment on the 1^st defendant within 28 days. If the 1^st defendant disagreed with the amendment, the matter shall come back to me for a ruling.  Consequential direction had been given.  Accordingly, the striking out summons had not been completely disposed of.

5. Unfortunately, the plaintiff did not submit any draft amendment within the time limit or at all.

6. By letter dated 1 March 2017, the 1^st defendant applied for judgement against the plaintiff on the ground that the plaintiff had failed to file any draft amendment.  On the existing statement of claim, the action should be dismissed.

7. The plaintiff had also sent a letter dated 18 March 2017 to this Court, which mentioned about draft amendment and sought direction. The time for submission of draft amendment had expired and the document attached to the letter did not appear to be a draft amendment.  To clarify the position, I directed both parties to attend a direction hearing on 18 April 2017. 

8. At the hearing on 18 April 2017, I was given to understand that the 1^st defendant applied for judgement and invited me to restore the striking out summons.  I was given to understand by the plaintiff that her letter was in answer to my first decision.  I informed her that I could not re-visit my decision.  I also explained the application of the 1^st defendant to the plaintiff.  The plaintiff had no new application, including any application for extension of time or any other directions.  Accordingly, I set a further hearing on 11 May 2017 for parties to address me on the striking out application, which was the reserved portion of the defendants’ summons.  

9. At the hearing of 11 May 2017, the plaintiff complained that she could not understand the position.  I had to repeat the application by the 1^st defendant.  It was only at this junction when the plaintiff orally applied for extension of time to lodge a draft amended statement of claim.  There was no draft adduced and the 1^st defendant objected.  The 1^st defendant objected to the extension of time and submitted that there had been a long delay.  Having heard the argument, I reserved my decision and this is my ruling. 

10. There were two applications before me, the plaintiff’s oral application for time, and the 1^st defendant’s application to restore the striking out summons and for judgment against the plaintiff.  I would first deal with the plaintiff’s application.

11. I had made it very clear in my first decision, which I do not repeat, that the statement of claim should be struck out.  I only offered the plaintiff a chance to rectify the defects by suggesting amendments.  No draft had been submitted.

12. Two explanations for the delay had been put forward. They were related.  Firstly, the plaintiff said she was not legally trained and could not understand all the procedure.  And further, there was appeal against my decision and she was concentrating with preparation of the appeal.

13. In all cases, litigant in person would not be receiving any special treatment.  In the written submission prepared by the plaintiff for the hearing on 11 May 2017, she agreed that even litigant in person must conform to the Court’s rules.  The fact that she was a litigant in person would not carry any weight in considering whether to exercise my discretion to extend the time.

14. While there is an appeal against my first decision, my direction would not be stayed unless a party has applied for an order to stay the direction.  (See Order 58 rule 1(4)).  The plaintiff had not taken out any application for stay and she was still obliged to lodge the draft amendment for consideration of this Court to finalise the application by the 1^st defendant for striking out of the statement of claim.

15. Further, I note that the plaintiff had done her research on the law.  Her skeleton submission had made reference to various judgments, and Rules of the High Court.  I do not accept her explanation for ignorance of the procedure and law.

16. I also note that her letter dated 18 March 2017 mentioned about draft amendment.  There is no doubt that she understood my direction.  The explanation of the plaintiff could not be a good or sufficient excuse for the delay.

17. And in considering the application, I could also take into account the document attached to the plaintiff’s letter lodged in March, and the skeleton submission to see if they improve the statement of claim to assess whether I should exercise my discretion to extend time. 

18. The document submitted with the letter dated 18 March 2017 started by saying that “the plaintiff hereby filing her draft amended statement of claim…”.  But it moved on to disagree with my decisions.  She was repeating, and adding on to her argument before me in last November hearing. There were points to discuss, and exhibits attached.  It was not a proper pleading and would create more difficulty for the 1^st defendant to understand the case of the plaintiff.

19. The skeleton of the plaintiff was a re-run of her objection to the striking out application.  There had been repetition of parts of the statement of claim.  There were comments on the submission of counsel given at the hearing in November 2016.  Yet there was no amendment to improve the statement of claim by setting out properly the case of the Plaintiff with details and particulars.  And if the skeleton submission was meant to be her draft amendment, it was equally difficult to understand and lacking in particulars.  The inclusion of various judgments and ordinance make the document, if it was the amended statement of claim, more difficult to understand. 

20. Further, this is not a usual application for extension of time because the opportunity offered to the plaintiff was the last opportunity for the plaintiff to rectify the pleadings.  She was to lodge the draft on or before 24 February 2017.  By the hearing on 11 May 2017, there was a delay of about 3 months.  In all fairness to the 1^st defendant, further delay would create pressure and injustice to the defendant when they could not fully understand how to defend the case.  Unless special reason could be shown, there should be no reason to allow the application for an extension of time.  I am not satisfied that there was any special reason.

21. In conclusion, I refuse to extend the time for the plaintiff to lodge her draft amended statement of claim.  Since I refuse the application, there could be only one conclusion, namely that the statement of claim against the 1^st defendant should be struck off.  The action against the 1^st Defendant should also be dismissed with costs of the action, including the costs of the striking out summons and the hearing on 23 November 2016, 18 April 2017 and 11 May 2017 be to the 1^st defendant. Counsel certificate is granted to the 1^st and 2^nd defendants for the hearing on 23 November 2016.

22. As indicated in my first decision, I am minded to summarily assess the costs and I order all costs order granted be summarily assessed.  As there are pending appeals, I would direct the defendants to inform me the result within 14 days when the appeals have been determined and seek appropriate directions.