CROWN PACIFIC LTD. v. ABC NEWS HK also known as ABC NEWS INTERCONTINENTAL INC.

Head Note

Criteria for allowing amendments to defence and counterclaim at the trial raising new matters not already pleaded, fraudulent misrepresentation disallowed.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 5700 OF 1984

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Between

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EX TEMPORE RULING

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1. This is an application by the defendant for rather extensive amendments to its Defence and Counterclaim to which application Mr. Yu strenuously and ably objected on the ground that the amendment would bring in at this rather late stage two fresh matters and these are fraudulent misrepresentation and the suggestion for the first time that offer was made to pack the goods in Beijing.

2. Factually, I am satisfied from Mr. Yu's submission that the two matters do constitute new matters not being merely elaboration of what has been already pleaded. Apart from them, it is not disputed that the rest of the amendments would not introduce any novel matters or defence or counterclaim.

3. I have refreshed myself on the law and procedure applicable to a situation like this. "It is a guiding principle of cardinal importance on the question of amendment that, all such amendments ought to be made "for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings" (See per Jenkins L.J. in G.L. Baker Ltd. v. Medway Building & Supplies Ltd. [1958] 1 W.L.R. 1216 at 1231.)

4. In Cropper v. Smith [1883] 26 Ch. 700 at 710-711 Bowen, L.J. observed:

"It is a well established principle that the objects of the court is to decide on the rights of the parties, and not to punish them for mistakes they made in the conduct of the case by deciding otherwise than in accordance with their rights... Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as matter of favour or grace ... It seems to me that as soon as it appears that the way in which a party has screamed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case as a matter of right. "

5. Appropriately and usefully, Mr. Yu has drawn my attention to the distinction between amendments before as distinguished from after the commencement of a trial. It is only natural as in the interest of justice that a court will be by far more stringent with an application for amendments at the trial as in contra-distinction to before the trial. Be that as it may, the general underlying principle must remain the same. "As a general rule, however late the amendment is sought to be made, it should be allowed if it will not do the opponent party some injury or prejudice him in some way that cannot be compensated for by costs or otherwise. " (See, E.G. Clarapede v. Commercial Union Association [1883] 32 W.R. 262, where an amendment of unseaworthinoss was allowed 8 months after the original defence was delivered and after the return of a commission to take evidence abroad). But different consideration apply to different stages (The Duke of Buccleuch [1892] p.201; Ecklin v. Little [1896] T.L.R. 366; The Albert [1895] 72 L.T. 124)" (See Order 20/5-8/9 at p.342 of Volume 1 of the 1985 White Book and the cases cited therein).

6. It is well established practice and law that a court does have jurisdiction to amend at any stage during the stage of trial if it is in the interest of justice to do so and if the amendments would not do irreparable damage to the other party. It is of course a matter of discretion for me to exercise judicially with the interest of justice as the decisive guideline for such discretion. In the circumstances I do not consider it is fair and just to allow an amendment in for a specific plea of fraudulent misrepresentation. This apart, all the amendments sought including those raising fresh matters are, in my opinion, necessary for determining the real question in controversy i.e. judicial solution of matters in issue. I do not see any irreparable damage will be done to the plaintiff if the amendments sought are allowed save and except fraud. Subject to argument to the contrary, my intention is to award all the costsincidental to these amendments to the plaintiff including, if need be, the cost of this morning's hearing in the event of the granting of an application for adjournment as a result of these amendments at the instance of the plaintiff. Whatever inconvenience and financial loss caused by the amendments will thus be sufficiently compensated by way of costs.

7. In the event, the application for the amendments is allowed save and except that the word "fraudulent" under the new paragraph 7 shall be deleted with the net result that fraud is not allowed to be pleaded albeit misrepresentation in the common law sense and in the sense of the Misrepresentation Ordinance are. Miss Livasiri has most properly taken the stance not to argue on costs. As said, costs will be to the plaintiff for and incidental to these amendments in any event.