YANG FOO-OI by LEUNG PING CHIU, ROY her next friend v. WAI WAI CHEN AND ANOTHER

HCA 1739/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1739 OF 2010

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D E C I S I O N

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1. In respect of the 3 controversial issues dealt with this morning, my brief reasons are as follows.

Wasted costs

2. On the issue of wasted costs arising from the failure to comply with the court’s directions on the preparation and filing of Statement of Agreed Facts and Agreed List of Issues, which resulted in the abortion of the PTR on 14 July 2016, I have decided to make no such order.

3. The evidence before the court suggests that the legal teams, in particular counsel responsible for the tasks in question, had failed to act with sufficient urgency despite the expiration of the extended deadline for the filing of the documents.  I should say that whilst the plaintiff’s team of counsel might have acted with greater diligence, they waited until the last minute to serve the draft documents on the other side and thereby leaving little margin for delay. 

4. However, it is true that there were important recent developments in this case, which might have distracted counsel from the tasks.  Also, given the fact that the hearing of the aborted PTR was utilised in dealing with an interlocutory dispute, it may be said that there was no significant wastage of costs.

Re-amendment of the Statement of Claim

5. Despite the lateness of the amendment application and the valiant resistance of the defendants’ counsel, I believe that the application should be granted to allow this action to be fully and properly ventilated at the trial.  There is nothing new in the proposed amendment, save for the point of law that there was an obligation to make full disclosure in family arrangement.  I agree with the plaintiff that there is no prejudice in allowing the application. 

6. As regards the criticism that the amendments, in particular para 37 of the proposed Re-Amended Statement of Claim, are made at a time when the plaintiff is incapacitated and thus unable to verify their truthfulness, it appears to me that, certainly on one view, it is a matter of common sense and/or natural inference that the “Cash Distribution Agreement” and the “Plaintiff’s Distribution Agreement” were made as part of the family arrangement which has been pleaded in para 35 from day 1.  In any case, the defendants will be entitled to make submissions on, eg, the lack of evidence to support the plea if they so wish. 

Additional expert evidence

7. Both sides are accusing the other of foul play.  I have little doubt that this litigation has not been conducted by either side with the cards facing up.  It is a case of the kettle calling the pot black.  It appears from the medical evidence marshalled by the plaintiff, and disclosed recently, that she has been preparing for some time to meet a challenge on her mental capacity.  Further, the defendants were kept in the dark concerning the worsening of the plantiff’s medical condition.  On the other hand, it may be said with some justification that the defendants should have made the challenge well before the appointment of the plaintiff’s next friend. 

8. I have given this matter careful consideration in light of the potential impact on the forthcoming trial.  It is likely that the court will receive the evidence of the plaintiff’s medical experts on the issue of her mental capacity at the material times. Notwithstanding the limitation of the defendants’ proposed medical evidence in that Dr Chan has not, for obvious reason, examined the plaintiff, it is only fair to allow the defendants an opportunity to contest the plaintiff’s medical evidence with their own.  The proposed evidence is limited in scope, as I have been assured by Mr Ho SC.  I allow the application.