MIRANT ASIA-PACIFIC CONSTRUCTION (HONG KONG) LTD. AND ANOTHER v. OVE ARUP AND PARTNERS INTERNATIONAL LTD. AND ANOTHER

HCA 4190/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4190 OF 2001

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J U D G M E N T

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1. This is an appeal from the decision of Master Levy given on 10 September 2002 refusing the ex-parte application of the 1st and 2nd plaintiffs for leave to issue and serve a concurrent amended writ of summons on the 1st defendant outside the jurisdiction in the United Kingdom.

2. The writ was issued on 20 September 2001. Time for service has now been extended to 31 October 2002. The affidavit of Graham Thomson filed in support of the application explains the plaintiffs' claims in these proceedings. These are summarized at paragraph 7 and include claims for breach of contract and negligence. The claims are for :

（a） breach of contract entered into between the 1st plaintiff and/or the 2nd plaintiff and the 1st defendant and/or the 2nd defendant entered into on or about 29 May 1995 in relation to the provision of design, engineering and supervision services for the Sual Power Station in the Philippines including the design of the foundations for the Unit 1 boiler;

（b） breach of contract between the 1st plaintiff and/or the 2nd plaintiff and the 1st defendant and/or the 2nd defendant entered into on or about 8 March 1996 in relation to the provision of ground investigation and supervision services for the Sual Power Station including technical site supervision and ground investigation work for the foundations;

（c） negligence on the part of the 1st defendant and/or the 2nd defendant in the carrying out of :

(i) the design of the foundations;

(ii) the supervision of ground investigations for the foundations and the interpretation of the data obtained from those investigations;

(iii) the technical site supervision for the foundations;

prior to August 1996; and

（d） negligent misrepresentations made by the 1st defendant and/or the 2nd defendant to the 1st plaintiff and/or the 2nd plaintiff between May 1995 and April 1996 as to :

(i) the services the 1st defendant and/or the 2nd defendant was providing at the Sual Power Station;

(ii) the standard of the excavation works that had been carried out at the Sual Power Station; and

(iii) the level of due care and skill exercised by the 1st defendant and/or the 2nd defendant in the provision of its services at the Sual Power Station.

3. The affidavit goes on to explain the claims in detail and the likely defences.

4. The application for leave is made under the provisions of O.11 r.1(c) and (d) of the R.H.C. As to ground (d), the plaintiffs' principal claim is for breach of contract made in Hong Kong as explained in the supporting affidavit.

5. As to ground (c), there is a dispute as to which of the defendants was a contracting party with the 1st and/or 2nd plaintiff and which of the defendants provided the professional services to the 1st and/or 2nd plaintiff. The plaintiffs submit that the 1st defendant is a proper party to these proceedings, where the 2nd defendant has already been served, as a resolution of the disputes involves an investigation which concerns both defendants.

6. I am satisfied that the plaintiffs have shown a good arguable case that the case falls within the provisions of r.1(c) and (d).

7. The matter is complicated by the fact that the plaintiffs have already commenced proceedings in the United Kingdom against both defendants in respect of the same matters and for the same relief as in these proceedings. Those are proceedings commenced in the Technology and Construction Court in London ("the London proceedings").

8. In the exercise of its discretion the court should first consider whether there is a serious question to be tried. The affidavit in support fully explains in detail the claims and the likely defences of the plaintiffs. I am satisfied that there are serious questions to be tried on both the claims in contract and in tort.

9. The court should also consider the question of forum conveniens and the plaintiff must satisfy the court that leave should be granted.

10. The plaintiffs wish to maintain these proceedings in Hong Kong. The principal reason is that limitation defences have been raised in the London proceedings which were commenced on 1 March 2002 about six months after these proceedings were instituted in Hong Kong on 20 September 2001. There is a risk that, even if the plaintiffs should succeed in establishing the claims, some of the claims might be held to be statute-barred in England whereas they might not be statute-barred in Hong Hong. The plaintiffs therefore have a juridical advantage in these proceedings which they wish to maintain.

11. I accept the submission made by Mr. Harris that a plaintiff may bring proceedings against foreign defendants in Hong Kong even if he has already commenced proceedings in the foreign jurisdiction if he genuinely thinks that it will be to his advantage and is not acting merely vexatiously (Atlantic Star [1974] AC 436 @ 453 C-D).

12. It may well be legitimate to maintain an action in Hong Kong so as to preserve a claim that might be statute-barred in pending foreign proceedings.

13. The further reason advanced for maintaining these proceedings is that the plaintiffs have been advised by United Kingdom senior counsel that one or more of the jurisdictional issues in the London proceedings may make the United Kingdom an inappropriate forum for determination of the matter and there is a risk that the London proceedings may be stayed. Until it is clear that there is no such risk the plaintiffs wish to protect their position by keeping these proceedings on foot.

14. The plaintiffs have through their counsel given an undertaking to the court. That undertaking is that the plaintiffs will not take any steps, other than service of the writ on the 1st defendant, in these proceedings and in High Court action no. 860 of 2002 until the London proceedings have been discontinued or determined or stayed without the prior written agreement of the 1st defendant or an order of the court. It seems to me that with such an undertaking there can be no suggestion that the plaintiffs' application amounts to an abuse of the process of the court.

15. I am satisfied that the discretion ought to be exercised in the plaintiffs' favour. I allow the appeal and grant the plaintiffs' application on the said undertaking given to the court.