XCHRX LEE SHUET MAY v. YU CHAU LEUNG

HCA 10914/1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10914 OF 1995

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REASONS FOR DECISION

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1. There are two applications before this Court: one taken out by the Defendant to dismiss the Plaintiff's claim for want of prosecution, and the other taken out by the Plaintiff to consolidate the present action with the HCA 6517/1995.

2. The Plaintiff's claim against the Defendant is for the recovery of about $316,000.00 being amount said to have been paid by the Plaintiff on behalf of the Defendant from 1990 to 1992. The present action was commenced by the Plaintiff in October 1995 and the pleadings were closed in December of the same year when the Plaintiff served her further and better particulars of the Statement of Claim.

3. From December 1995 to September 1999, when the Defendant took out an application to strike out the Plaintiff's claim for want of prosecution, the only steps taken by the parties were the Notice to act in person filed by the Plaintiff in July 1996 and the Notice of Change of Solicitors filed by the Defendant in May 1997. Prima facie, there had indeed been inordinate delay.

4. The Plaintiff tried to justify or explain the delay by referring to the following matters:

(1) There are two related actions namely HCA 9280 of 1994 and HCA 6517 of 1995, the earlier action commenced in 1994 and the second action commenced in 1995 and that the present action was in fact brought originally as a counterclaim to HCA 6517 of 1995. The Plaintiff suggests that the Defendant has unreasonable delayed the proceedings in the other two actions which had led the Plaintiff to adopt a "wait and see" position.

(2) The Defendant has never raised any complaint about the inaction or delay on the part of the Plaintiff. Indeed, the suggestion is that the parties have been negotiating for a settlement in respect of all 3 actions. The suggestion is that the Defendant has in fact encouraged the delay.

(3) Purely relating to her personnel difficulty, the Plaintiff suggests that she was quite sake and had been acting in person after the close of pleadings and she was unaware of the effect of the delay. She asks the Court to treat her conduct sympathetically.

(4) The Plaintiff further suggests that the move by the Defendant is a tactical move, with the view to shut out the Plaintiff's claim while continuing to pursuit the other two actions against the Plaintiff.

5. Negotiation or settlement is normally not an excuse for allowing the case to be idle for long term. The fact that a party is acting in person is not too significant a factor in deciding if there has been inordinate or inexcusable delay.

6. I also agree that the Defendant has no duty to guide or push the Plaintiff to proceed with the case with diligence as long as he does nothing to encourage the Plaintiff to delay the proceedings. The Defendant's move may well be a tactical one but a party in any proceedings is entitled to take any tactical move as long as it is lawful and within the ambit of the relevant rules.

7. But in deciding whether the delay is inexcusable, the Court must look at all the circumstances of the case and to balance the interest of the parties. It also involves, as Mr Ng suggests, an element of discretion although the discretion, like any judicial discretion, must be exercised judicially.

8. The issues involved in the present action clearly are not identical with those with HCA 6517/1995, but there can be no doubt that there are common backgrounds in the light of the alleged relationship between the Plaintiff and the Defendant which relationship the Defendant denies. I think he does admit that the Plaintiff was known to him and there had been some amicable relationship to use the description adopted by counsel for the Defendant.

9. HCA 6517/1995 may not have been completely dormant, but even on the Defendant's own evidence, there was a period of two years from the end of 1996 to the end of 1998 when little if any action was done.

10. On the background of the case, the inaction of the Defendant is clearly a factor affecting the way in which the Plaintiff chose to proceed with the present action. Clearly, the Court cannot and will not wish to encourage an unrepresented party to drag on with a case but the lack of legal representation is a factor that the Court is entitle to take into consideration. As I have observed in the course of counsel argument, perhaps, the Court should be more lenient to a party in person than a party represented by lawyers.

11. I have considered carefully the alleged relationship of the parties and the nature of the claim. I have also borne in mind the interest of both parties. I have also carefully considered the helpful and succinct argument from both counsel. I am not persuaded that the delay in question is so inexcusable as to justify the drastic step of striking out the Plaintiff's claim.

12. In any event, I am not persuaded that the delay would give rise to a substantial risk that it is not possible to have a fair trial or that it is likely to cause serious prejudice to the Defendant.

13. The Defendant suggests that the case depends heavily on the oral evidence and the lapse of time would cause natural failure of memory. It is suggested that the Defendant would have greater difficulty in verifying payments allegedly made by the Defendant for him with the corresponding banks because it is now even more likely that these banks would have destroyed the relevant documents because of the delay.

14. The Defendant further suggests that it would be more unlikely, as the result of the delay that the Defendant would be able to locate or call any witnesses to support his case.

15. Whether the bank documents will be destroyed or whether they will be microfilmed and then kept for a long time is not something I wish to speculate. But it is for the Defendant to establish prejudice or a substantial risk to a fair trial.

16. In the present case, I am not persuaded that it is open to the Defendant to simply say that it is even more likely that the bank would have destroyed the relevant documents. The Defendant should demonstrate what are the relevant documents and which documents had been destroyed and how such destroyed documents would cause prejudice to the Defendant or a substantial risk to a fair trial.

17. Depending on the individual, may be long delay will lead to dim or distorted memories of witnesses. I do not wish to argue against it but again in the light of the background of this case, it is in my view incumbent upon the Defendant to be more specific. It is not enough for him to make a bare assertion that it will be more unlikely to locate or recall any witnesses without specifying who those witnesses are and the nature of their evidence.

18. I must not ignore the fact that at all material time, the Defendant was involved in two other proceedings in which he and the others are suing the Plaintiff. Those actions are still pending. In my view, it is inconceivable that he will allow his fading memory to jeopardise his case in the two other actions. It is even more inconceivable that he will allow any relevant documents to disappear. He must, in my view, be alive all these years to all the disputes that he had with the Plaintiff.

19. Despite the observation in the case of Shtun v. Zalejska [1996] 1 WLR 1270, a case heavily relied on by Mr Jat on behalf of the Defendant, in the present case, in the light of the background and the matters that I have earlier referred to, I am not persuaded that the delay per se will give rise to the inference that jeopardies are bound to occur to the Defendant and that there would be a substantial risk to a fair trial should the matter be allowed to proceed.

20. Having considered anxiously what had been said by counsel and all the relevant factors, I am not persuaded that the Defendant had demonstrated that the delay on the part of the Plaintiff to prosecute the case had caused him any substantial prejudice or any substantial risk to a fair trial. The Defendant has not successfully made out a case for striking out the Plaintiff's claim for want of prosecution.

21. In the circumstances, the application taken out by the Defendant has to be dismissed.

22. On the application by the Plaintiff for a consolidation order with HCA 6517/1995. Quite apart from the procedural defect when no corresponding application was made in HCA 6517/1995 and the file of that action is not before this Court, Mr Ng on behalf of the Plaintiff in fact concedes that that is no common issue between the present case and HCA 6517/1995.

23. The only link between the actions on the Plaintiff's assertion is the alleged intimate relationship between the Plaintiff and the Defendant. It is the Plaintiff's contention that it was due to such intimate relationship that she did what she did in relation to the subject matters in both actions. That matter alone is not a valid reason for a consolidating order. In both actions, the pleadings had been closed and there has been a lapse of almost 5 years since the commencement of both actions. No benefit at all would be gained by a consolidation order. Indeed, if the Court were to make a consolation order, in line with the suggestion of the Plaintiff it would lead to further time and effort and further delay.

24. On the other hand, I have anxiously considered the allegations by the Plaintiff in her affirmation. I accept that in the light of those allegations which the Plaintiff is bound to make in both actions in order to pursue her case, it is properly more convenient for the two actions to be tried by the same judge in order to save time and effort.

25. That being the case, I think for the purpose of saving costs and effort and perhaps for the sake of the case management, it would be a suitable case for the two actions to be tried by the same judge. I do not wish to usurp the function of the trial judge and it is not necessary to make any further order other than the one that I have already indicated. It is for the trial judge to decide the manner in which he chooses to dispose the cases. No doubt he will have in mind the consideration of convenience and expediency.

26. The order I make, therefore, is that the application by the Defendant to strike out the Plaintiff's claim is dismissed. On the application by the Plaintiff for consolidation, I order that the case is to be heard by the same judge as HCA 6517/1995.