MACPI GROUP (HK) LTD v. YAP BEE HONG CHRISAND

DCCJ5593/2007 & DCCJ605/2008 (Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5593 OF 2007

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BETWEEN

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D E C I S I O N

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1.  The plaintiff applied to adjourn the trial dates of 14 February 2011 to 18 February 2011, which were set down in April 2010. The application is opposed by the defendant.

2.  The reason given by the plaintiff’s counsel, Mr Lee, for the adjournment is that the witness in the case for the plaintiff has to attend an exhibition of the company’s products in Moscow at an exhibition held very close to the trial dates.

3.  The plaintiff’s potential witness, Mr Mosso, frankly admitted he was aware of the Moscow exhibition at the time when these trial dates were set down.

4.  The plaintiff only decided to send a representative at the Moscow exhibition because the company had recently sold a bonding machine for making medical garments in Russia.  Therefore, according to Mr Mosso, he intends to make a presentation and demonstration at the Moscow exhibition.

5.  This change of mind came in November 2010 because of the sale of the first machine to Russia recently.  He claimed there is a potential second customer in Moscow, which the company hoped to sell to at the Moscow exhibition.

6.  Order 35 provides that the court has the discretion to adjourn a trial in the interest of justice, if it thinks fit.  However, the note at 35/3/1 reminds parties that Order 25 rule 1B provides that the trial date is a milestone date for the purpose of case management and may only be varied where there are exceptional circumstances to justify the variation.  Late instructions from clients, changes in the team of lawyers, the absence of prejudice to the other party which cannot be compensated for by costs will not be treated as exceptional circumstances.

7.  Practice Direction 5.2/10 at page 1644 to 1645 of the White Book further provided in paragraph 42 that milestone dates will be immovable save in the most exceptional circumstances.  Examples given are that late instructions from clients, changes in the team of lawyers, absence of prejudice which cannot be compensated for by costs will not be treated as exceptional circumstances.

8.  This case was originally set down for trial on 1 March 2010. 

9.  It was adjourned at the plaintiff’s request due to the defendant’s application to insert further documents in the trial bundle on the day of trial.  The plaintiff requested for time to consider those documents and to answer those documents.

10.  If the plaintiff’s application today should succeed, the court will be adjourning the trial a second time.  After considering the reasons given by the plaintiff for the adjournment of the trial date in February 2011 set down in April 2010, I am not convinced the reasons given constituted exceptional circumstances.

11.  In short, Mr Mosso, the plaintiff’s witness, is concerned with the business opportunities at an exhibition in Moscow in February 2011.  It is an exhibition that Mr Mossel was aware of and had previously not planned to attend until December 2010.

12.  Although the prosperity of a commercial concern is of great importance to its shareholders and staff, and that all opportunities to do business should be pursued vigorously, it remains a concern of the company which staff should be put in charge of such pursuits, which can take place at the same time at different corners of the earth.  The court cannot accommodate each and every whim of a company in its deployment of human resources.

13.  The trial date is a milestone date.  In this case, it was set down in consultation with the diaries of the plaintiff and the defendant’s witnesses.  As both the plaintiff and the defendant’s witnesses are overseas, that was why the trial dates of 14 to 18 February 2011 were set down nine months ago.

14.  These dates should not be changed after nine months, when one party claimed it does not suit the newly changed work schedule of one of its staff.  The reasons given by the plaintiff are insufficient to satisfy the exceptional circumstances criteria set down in Order 35, PD5.2/10.  For this reason, the application is dismissed, with costs to the defendant, to be taxed if not agreed, with certificate for counsel.

15.  As to the plaintiff’s second summons on the discovery of a recent issue of the JSN magazine with a correction notice of the name of the MD of the plaintiff company, and the e-mail acknowledging the plaintiff’s request to publish the correction notice subsequent to the defendant’s discovery of an earlier issue of the same magazine, I will allow the late discovery.

16.  The correction was made after the defendant’s discovery at the last hearing on 1 March 2010.  Therefore, the defendant’s position is not, strictly speaking, prejudiced.

17.  Although it is of little probative value, this discovery serves the plaintiff’s purpose of replying to the defendant’s discovery on 1 March 2010.

18.  For what it is worth, I will allow the application, with costs to the defendant be paid by the plaintiff, to be taxed if not agreed.

(Discussion re adduction of documents and costs order)

19.  I allow $15,000 of the defendant’s fee.