NG HIN CHUNG AND ANOTHER v. MOK POON KWONG AND ANOTHER

HCA 60/2018

[2021] HKCFI 1470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 60 OF 2018

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D E C I S I O N

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1.  This is a case in defamation arising out of building management matters. The plaintiffs have, by summons, sought leave to amend the Statement of Claim and to file and serve the second supplemental witness statement of the 1^st plaintiff. This summons was taken out after leave was granted to set down by the master and just before the appointment to fix date for trial.

2.  In brief, the summons seeks to (1) remove the 2^nd plaintiff as plaintiff and remove the 2^nd defendant as defendant.  This would leave the action between a personal plaintiff and a personal defendant. There is no objection from the defendants and the defendants should get costs on this matter.

3.  The second part of the application is to amend the Statement of Claim and the second supplemental witness statement goes hand in hand with that.  The plaintiffs frankly admit that these two parts of the application arose due to change of counsel.  The supplemental witness statement needs to deal with matters arising out of the amendments and to answer some of the matters raised in the witness statements of the defendants. 

4.  I have considered the procedural history of this case.  To allow the amendments really puts the timetabling questionnaire and listing questionnaire procedure into ridicule.  This is because the plaintiffs’ solicitors have signed on the listing questionnaire, stating that their case was ready for setting down.  There was no interlocutory application indicated by the parties at that time although the master did not specify a time by which parties must take out interlocutory matters.  Accordingly, the master went forth to give directions for setting down.  The summons of the plaintiffs put the fixing of trial dates on hold.  This causes not only prejudice to the plaintiffs but also the defendants who have a counterclaim in defamation as well. 

5.  On the other hand, I have also taken into account the change in the parties.  By that, I mean the corporate plaintiffs and defendants will drop out.  As rightly pointed out by Mr Ng, counsel for the plaintiffs, the court’s main focus is the just resolution of dispute in accordance with the substantive rights of the parties.  The court, in exercise of its case management powers, balances the interests of both sides.  There will be no justice in retaining an unwilling plaintiff and waste everybody’s time over an outgoing defendant. 

6.  Arising out of the amendments would, of necessity, be a need to make adjustments to the witness statements already filed.  It is better assistance to the trial judge to do the adjustments now than closer to the PTR.  Counsel on both sides would need to properly chart their course ahead. 

7.  I have also taken into account the fact that trial dates are unlikely to be available within the next 12 months.  P1 has readily accepted that his amendments would give rise to the change in pleadings and witness statements and has offered to pay costs.  It is better, in my view, to clear up the position now. 

8.  I therefore exercise my discretion to allow the amendments and give the following directions:

(1)  There be leave to the 2^nd plaintiff to withdraw as plaintiff.

(2)  There be leave to the plaintiffs to withdraw their claim against D2.

(3)  There be leave to P1 to file and serve his Re-amended Statement of Claim within 7 days provided that the abbreviations in the past pleadings shall be retained.

(4)  There be leave to D1 to file and serve a fresh amended defence and counterclaim with the new parts marked up in yellow within 21 days thereafter.

(5)  There be leave to P1 to amend his reply within 21 days thereafter. 

(6)  There shall be inspection and service of supplemental list of documents within 21 days thereafter.

(7)  Consolidated witness statements of P1 and D1 shall be filed and served within 28 days thereafter.  Those parts that originated from the existing witness statements of P1 and D1 (and in the case of P1 from the draft supplemental witness statements as well) shall be in black ink.  Those parts that are arising from the amendments to the pleadings shall be in blue ink. 

(8)  There be leave to the parties to file and serve supplemental witness statements of other witnesses arising out of the amendments. 

(9)  All interlocutory applications shall be taken out within 28 days of the expiry of time for filing consolidated witness statements, failing which the parties shall be barred from taking out interlocutory applications. 

(10)  Leave to set down within 42 days for a trial before a judge without a jury.  The estimated trial days are 9.  The first 8 days shall be consecutive.  The last day shall be at least two weekends from the 8^th day. 

(11)  Costs of D2 shall be borne by the plaintiffs, to be taxed if not agreed, forthwith. 

(Discussion re costs of amendments and supplemental witness statements)

9.  On costs arising out of the amendments and the witness statements, I believe the court should send a very clear message to litigants that they should treat timetabling questionnaires and listing questionnaires with the greatest caution.  The court acts on those questionnaires.  The other party also is entitled to rely on those questionnaires to chart his course.  Where a party signs on a listing questionnaire to state that the case is ready for set down but subsequently changes its mind, it is only fair to the other party and in the light of the court’s indulgence to withhold the fixing of trials that costs should be borne by that party regardless of outcome of the trial. 

10.  I therefore direct that the costs of and occasioned by the 1^st plaintiff’s amendments to the Statement of Claim and the application to the filing of supplemental witness statement be to the 1^st defendant.  For the avoidance of doubt, such costs shall include but is not limited to the filing of amendments to the defence and counterclaim, filing of consolidated witness statements and further witness statements in answer to the amendments regardless of the outcome of the trial.

11.  There will be a certificate for counsel for today’s hearing.

 

 

(Queeny Au-Yeung) Judge of the Court of First Instance High Court