NATHANIEL HYMER v. THE MASS TRANSIT RAILWAY CORPORATION AND OTHERS

HCPI1137/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1137 OF 1998

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R U L I N G

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1. The Plaintiff, now aged 50, was a tunnel worker and between September 1982 and June 1984 was employed by the 1st Defendant, the MTRC, to work as an inspector of works in the construction of underground tunnels in connection with the construction of the mass transit railway system in Hong Kong. Between September 1982 and February 1984, the Plaintiff worked on Contract 405 which related to construction of the Victoria Park site of the MTR and for which the main contractor was the 2nd Defendant. From February 1984 to July 1984, the Plaintiff worked on Contract 402 which related to the construction of the Wanchai site of the MTR and for which the 3rd Defendant was the main contractor on that site. The work of the Plaintiff on both these sites involved the Plaintiff having to work in compressed air conditions. Because of this, the 5th Defendant was appointed by the 1st and 2nd Defendants under contract as well as required by law to supervise all medical matters arising in connection with the workers working in compressed air conditions on these sites. The 4th Defendant is a partner of the 5th Defendant and the doctor who actually examined the Plaintiff during the time that he worked on these two sites.

2. Before coming out to Hong Kong to work, the Plaintiff was medically examined and passed fit to work under compressed air by a doctor in the United Kingdom. After leaving Hong Kong on 8th July 1984, the Plaintiff did not return to Hong Kong to work under compressed air conditions.

3. The Plaintiff alleges that he was diagnosed by Dr John King back in the UK in August 1986 and only came to know in September 1986 that he was suffering from osteonecrosis of the left shoulder. As a result of that diagnosis, the Plaintiff ceased to work under compressed air. From 1987 onwards he began to suffer pain in the left shoulder which gradually worsened. In February 1992, the Plaintiff was advised by a consultant orthopaedic surgeon, Dr J. Pooley that he was no longer fit for any manual work involving both hands and would require a left shoulder joint replacement. Despite such advice, the Plaintiff nevertheless did work in 1991, 1993, 1995, 1996 and part of 1997.

The Plaintiff's claim

4. The Plaintiff commenced his action on 31st August 1989. Initially, it was only against the 1st, 2nd, 3rd and 4th Defendants. The 5th Defendant was joined in as a party on 17th July 1991.

5. The basis upon which the Plaintiff brings his claim against these Defendants is that dysbaric osteonecrosis developed from his working in compressed air conditions between September 1982 and June 1984 in Hong Kong. Basically his case against the 1st, 2nd and 3rd Defendants is that they failed to have a safe system of work under compressed air. His case against the 4th and 5th Defendants is that they passed the Plaintiff fit to work under compressed air notwithstanding ten attacks of 'the bends' suffered by him between 21st December 1982 and 7th February 1984.

6. As already stated, the matters giving rise to the injuries complained of by the Plaintiff took place during September 1982 and June 1984 when the Plaintiff was employed by the 1st Defendant in Hong Kong. The Writ was issued by the Plaintiff on 31st August 1989. In his Re-amended Statement of Claim filed on 27th April 1999, it is pleaded by the Plaintiff that it was not until September 1986 that the Plaintiff first had, or might reasonably have been expected to acquire knowledge that he had suffered a significant injury attributable to the fault of the Defendants in connection with his work in Hong Kong. It is further pleaded that the normal three-year limitation period would not begin to run until September 1986 and that the proceedings having commenced in August 1989, the Plaintiff was just within the three-year period. Alternatively, the court should exercise its discretion to extend time under s.30 of Limitation Ordinance. The 1st Defendant has raised the defence of limitation in its defence. This issue undoubtedly will have to be resolved either at the trial or as a preliminary issue. For present purposes, I can only proceed on the basis that time in respect of the limitation period does not begin to run in this case before September 1986 when the Plaintiff became aware of the injuries complained of.

Striking out application

7. On 21st May 1999, the 4th and 5th Defendants took out a summons to strike out the Plaintiff's claim for want of prosecution. Similar summonses were taken out by the 2nd and 3rd Defendants on 26th May 1999 and by the 1st Defendant on 27th May 1999.

Delay

8. Pursuant to such applications to strike out, four periods of delay were complained of by the 1st, 2nd and 3rd Defendants as follows :-

(a) September 1991 to April 1993;

(b) May 1993 to February 1996;

(c) April 1996 to July 1997; and

(d) July 1997 to August 1998.

9. In so far as the 4th and 5th Defendants are concerned, their complaint is that there was total inactivity in 1992 and 1995 on the Plaintiff's part in this matter. In a general way they also complain that by the time this matter can come on for trial, say, at the end of this year, the occurrences, the subject matter of the Plaintiff's cause of action, would have taken place between 15 and 17 years ago.

10. It is common ground that the Writ of Summons, issued on 31st August 1989, was only served on the 1st, 2nd, 3rd and 4th Defendants in August 1990, just before the expiration of the one year period allowed by the rules of practice. It is also common ground that the Statement of Claim was filed on 13th October 1990, after the Plaintiff had obtained an order from the Master to extend time for filing of the same despite the objections raised by the 4th Defendant. The defences were filed by the 1st to the 4th Defendants during November and December 1990. In July 1991, the Plaintiff was granted leave to join in the 5th Defendant to the action and the defence of the 5th Defendant was filed on 6th September 1991.

The period September 1991 to April 1993

11. After the defence of the 5th Defendant was filed on 6th September 1991, no steps were taken by the Plaintiff in the proceedings until 3rd March 1993 when a notice of intention to proceed was filed by the Plaintiff. A List of Document was then filed by the Plaintiff on 6th April 1993. A Summons for Direction was taken out in April 1993 and directions given by the Master in May 1993. Between 18th and 25th May 1993, all the Defendants had filed their Lists of Document pursuant to such directions.

12. The Plaintiff's explanation for the delay during this period is given in the affidavit of Verity Jane Dobbie, a solicitor with the UK firm of Swinburne Jackson & Partners ("SJP"), the solicitors for the Plaintiff at that time. According to her, the Plaintiff had applied for legal aid from the Legal Aid Department in Hong Kong on 21st January 1992 (this being the Plaintiff's second application for legal aid, the first having been refused in December 1988 on financial grounds). This second application for legal aid was refused on 14th February 1992, again on financial grounds. Despite such refusal, the Director of Legal Aid invited the Plaintiff to make an application under the Supplementary Scheme and an application form for such was actually sent to SJP. Ms Dobbie wrote to the Director of Legal Aid on 26th February 1992 raising certain queries. That letter went unanswered by the Director of Legal Aid and the matter of legal aid was not followed up until July 1995.

13. In June 1992, Ms Dobbie contacted her Hong Kong agents, Messrs Sit, Fung, Kwong & Shum for an update. Messrs Sit, Fung, Kwong and Shum replied by letter of 17th July 1992 as to instructing experts. That reply from Sit, Fung, Kwong & Shum was filed away without any action being taken because when it arrived at SJP, Ms Dobbie was on leave. It was not until 11th February 1993 that she answered Sit, Fung, Kwong & Shum's letter of 17th July 1992.

The period from May 1993 to February 1996 and April 1996 to July 1997

14. These two periods can be taken together. After the filing of the Lists of Document by all parties in May 1993, a summons was taken out by the 2nd and 3rd Defendants in August 1993 and another summons by the 4th and 5th Defendants in September 1993, both seeking specific discovery of documents against the Plaintiff. Both applications were opposed by the Plaintiff and heard by a Master on 6th October 1993 who ordered specific discovery by the Plaintiff in both applications. That order was complied with by the Plaintiff by filing an affidavit of the Plaintiff on 29th October 1993.

15. In March 1994, request for Further and Better Particulars of the Amended Statement of Claim was sought from the Plaintiff by the 2nd and 3rd Defendants and a summons for same was taken out in April 1994. Once again an order was made by a Master on 24th May 1994 ordering the Further and Better Particulars sought from the Plaintiff. Time was extended to the Plaintiff to furnish such particulars by a further order dated 26th July 1994. Those particulars were given by the Plaintiff on 16th August 1994.

16. Thereafter, no further steps were taken by the Plaintiff until 16th July 1996 (a period of two years less one month) when a second Notice of Intention to Proceed was taken out by the Plaintiff. Even then, the next step in the proceedings taken by the Plaintiff was almost one year later when a Supplemental List of Document was filed by the Plaintiff on 8th July 1997.

17. The explanation put forward by the Plaintiff to account for these two periods from May 1993 through to July 1997 is that firstly, between August 1993 and May 1994, that time was spent requesting and chasing Dr King and Dr Pooley, two doctors instructed on behalf of the Plaintiff, for the X-rays taken of the Plaintiff which were in their possession. It took Dr King some nine months and Dr Pooley four months to supply to the Plaintiff's solicitors the original of those X-rays.

18. Next, Dr King was instructed to prepare a report on liability in June 1994 and thereafter, on 10th August 1994, special damages calculation were faxed by the UK solicitors to their Hong Kong agents.

19. It was also alleged that there was a "brief hiatus" in the case between January and July 1995 due to the Plaintiff's financial position and the possibility of his obtaining legal aid. An application form was requested from the Legal Aid Department in July 1995. At the same time, Keith Carter & Associates were instructed to prepare a quantification of the Plaintiff's loss but was also requested to withhold doing so until the Plaintiff's legal aid position became known. In October 1995, Sit, Fung, Kwong & Shum were in contact with Messrs Simmons & Simmons, a solicitor firm handling another case on behalf of one Anthony Gallagher which case is not dissimilar to that of the Plaintiff's. It was also intended that when legal aid is granted, Messrs Simmons & Simmons would take over the conduct of the Plaintiff's case on behalf of the Plaintiff. On 11th January 1996, the Plaintiff applied for legal aid and that application was made under the Supplementary Scheme. On 18th March 1996, the Plaintiff accepted the offer of legal aid by the Legal Aid Department under that scheme and legal aid was granted on 11th April 1996. By this time, however, Messrs Simmons & Simmons had stopped taking on new legal aid cases as a matter of internal policy. The case was therefore assigned to Messrs Hoosenally & Neo by the Legal Aid Department initially. At the intervention of SJP, however, the case was reassigned to Messrs Sit, Fung, Kwong & Shum in May 1996.

20. After Legal Aid had stepped into the picture, their authority was required before experts could be instructed in the matter. Before giving such authority, the Director of Legal Aid required the curriculum vitae of experts to be instructed. Curriculum vitae were requested in November 1996 from both Mr Keith Frost of Keith Carter & Associates and also from Dr Pooley, two experts whom the Plaintiff's solicitors intended to instruct. Keith Frost supplied his curriculum vitae in January 1997 and Dr Pooley not until March the same year. Following the authorization from the Legal Aid Department, both experts then prepared their reports in this case.

The period July 1997 to August 1998

21. After the Supplemental List of Document was filed by the Plaintiff on 8th July 1997, again no steps were taken in the proceedings until 28th August 1998 when a Notice of Intention to Proceed was taken out by the Plaintiff, this being the third Notice of Intention to Proceed by the Plaintiff. Thereafter, a Notice of Checklist Review and a Notice for Further Directions were taken out in September and October 1998 respectively. In April 1999, the Plaintiff sought and was granted leave to re-amend his Statement of Claim, and in May, all the parties filed their respective checklist. Thereafter, the present summonses for striking out were issued.

22. A further explanation put forward by the Plaintiff which covers the period from June 1996 right up to the time just before the issuing of these summonses to strike out was the difficulty faced by the Plaintiff in obtaining discovery of relevant documents from the Defendants, in particular the 1st, 2nd and 3rd Defendants. Between June and October 1996, Messrs Sit, Fung, Kwong & Shum had written numerous letters to both Deacons for the 1st Defendant and Wilkinson & Grist for the 2nd and 3rd Defendants requesting from them better discovery due to the fact that the Plaintiff's solicitors had some idea from Anthony Gallagher's action which was going on at the same time that there should be more documents than had been disclosed by the Defendants. Sit, Fung, Kwong & Shum was, however, unable to identify at that time any particular documents for specific discovery other than saying generally "those documents in the Gallagher's case". Up to October 1996, both Deacons and Wilkinson & Grist maintained that there had been full disclosure and refused the request from Sit, Fung, Kwong & Shum for further discovery.

23. In October 1997, Sit, Fung, Kwong & Shum came to learn of the non-disclosure of an internal investigation report prepared by MTRC in June 1986 relating to the use of compressed air during construction of the modified initial system, Tsuen Wan extension and the Island line ("the Lofthouse Report"). Sit, Fung, Kwong & Shum came to learn of this report through their counsel who was also counsel acting for Gallagher. In August 1998, Sit, Fung, Kwong & Shum renewed their request for a Further and Better List of Document from the 1st Defendant. In September 1998, with some assistance from the solicitors acting for Gallagher, Sit, Fung, Kwong & Shum were able to list out some of the items they sought specific discovery on.

24. On 26th November 1998, Deacons replied to Sit, Fung, Kwong & Shum by sending to them the second and third Lists of Document of the MTRC in the Gallagher's case as well as two affidavits of William Duncan, the Assistant Company Secretary and Legal Adviser to the MTRC, verifying those two Lists of Document in that case. The contents of those two affidavits indicated that in 1993, Duncan had authorized the destruction of a "library" of documents which he knew were being kept in connection with a number of claims against the MTRC, including claims relating to work in compressed air. The reason given for such destruction was because the building in which those documents were kept was to be pulled down. Moreover, the destruction of those documents were carried out without any reference to any index of those documents nor even to the solicitors dealing with those claims on behalf of the MTRC.

25. It was not until 26th April 1999 that Deacons, on behalf of the 1st Defendant, the MTRC, supplied copies of some undisclosed documents to Sit, Fung, Kwong & Shum. Included in the documents supplied was the Lofthouse Report which presumably the MTRC has had in its possession since June 1986.

26. I make the following findings on the question of delay in this matter :-

(1) There was inordinate delay between September 1991 and April 1993 by SJP as well as two of the experts, Dr King and Dr Pooley, instructed on behalf of the Plaintiff.

(2) There was no inordinate delay from May 1993 to August 1994 as the Plaintiff was busy opposing interlocutory applications by the various Defendants for Specific Discovery and for Further and Better Particulars of the Amended Statement of Claim - albeit unsuccessfully.

(3) From August 1994 to July 1996, again there was inordinate delay. I appreciate that for most of 1995 and the first half of 1996, the time was used up for the Plaintiff's application for legal aid which was ultimately granted in April 1996. This, however, goes back to the mishandling of the application for legal aid by SJP in February 1992 when they were not only invited by the Director of Legal Aid to apply under the Supplementary Scheme, but also such an application form had been sent to SJP by the Director of Legal Aid. The blame for it not being followed up at that time could only be laid at the door of SJP. Had that application been made in February 1992, there was every indication that the Plaintiff could have been granted legal aid under the Supplementary Scheme at the very latest by mid 1992 and much of the delay in instructing experts could then have been avoided. While there are authorities to suggest that difficulty in obtaining legal aid may be an excuse for delay, here, that difficulty was created by SJP's mishandling of the application for legal aid, when it could and should have been made at a much earlier stage, in February 1992, it was not - resulting in a further three years before it was eventually granted.

(4) For the period after July 1996 until the present summonses for striking out were issued, I find that there was some delay but most of that was attributable to the Defendants' (excepting the 4th and 5th Defendants) failure to make full discovery. As such, whatever delay there was during that period is excusable since this is a case which is largely dependent on documentary evidence. It was not until November 1998 that the Plaintiff's solicitors was put in the picture that the documents kept by the MTRC had been destroyed upon the authorization of Mr Duncan.

Estoppel/Waiver of alleged delays by Defendants' conduct

27. In May 1993, when the order for directions were agreed by the parties, the 2nd and 3rd Defendants had indicated, through their solicitors Wilkinson & Grist, that these directions were agreed without prejudice to their rights to apply for a striking out. Moreover, by its letter of 1st July 1996 to the Plaintiff's solicitors, Wilkinson & Grist had stated :

"We are considering with our clients whether this is an appropriate case to apply to strike out the action for want of prosecution."

28. On 20th October 1998 when this case was transferred to the PI List, the 4th and 5th Defendants had requested the Master to place on record that their non-objection to the transfer was without prejudice to any application to strike out for want of prosecution. On that same occasion, the 1st Defendant had also reserved its rights to strike out the Plaintiff's claim for want of prosecution.

29. On 26th April 1999 when the Plaintiff applied to re-amend his Statement of Claim, the 4th and 5th Defendants had also indicated to the Master that they were contemplating an application to strike out.

30. Counsel for the Plaintiff submitted that because of these threats to strike out made by the Defendants at various stages in the proceedings and because such threats of striking out were not carried out by way of an application within a reasonable time, it was therefore reasonable for the Plaintiff to continue taking steps to proceed in the matter. Since these steps taken by the Plaintiff after the threats to strike out resulted in the Plaintiff expending a large amount of cost on instructing experts and other legal fees, the Defendants are thereby estopped from complaining of or relying upon the alleged delays.

31. In this respect, reliance is sought from the decision of the Court of Appeal in the case of Hongkong Shanghai Banking Corporation v. Kuan Tao Sheng & Others [1998] 1 HKC 438. In that case, the defendants had consented to the plaintiff not setting down the action after a certain date. The defendants had also consented to the Plaintiff's effort in obtaining a contribution from another party and had furthermore consented to such action being pursued by asking whether the Plaintiff would add another party as defendant or leave it to the defendants to commence third party proceedings.

32. Those acts of the defendants in the case cited were acts consenting to the proceedings being delayed and are very different from the acts relied on by the Plaintiff in the present case, namely, the threats of striking out. Threats to strike out are indications by a defendant to a plaintiff to "get on with it" or else suffer the consequences. I do not accept that the Defendants in the present case are estopped from complaining or relying on the delays by the Plaintiff because they have threatened to strike out the Plaintiff's claim, the delays being a continuing feature in this case.

Prejudice

33. In dealing with the question of prejudice, a marked distinction is apparent between the prejudice alleged by the 1st, 2nd and 3rd Defendants on the one hand and those alleged by the 4th and 5th Defendants on the other hand. I shall deal firstly with the prejudice alleged by the 1st, 2nd and 3rd Defendants. Reference have already been made to the destruction of the "library" of documents kept by the 1st Defendant at the orders of William Duncan. In the case of the 2nd Defendant, according to its List of Document filed on 26th May 1993, those documents in Schedule 2, namely, compressed air statutory record forms, geological reports and records and correspondence and drawings relating to MTRC Contract 405, were stored in a cargo container after completion of the MTRC Contract 405 in 1986. In April 1989, the documents were found to be severely damaged by infestation of rats and insects and most of them were destroyed. The remaining few which could be salvaged was placed in temporary storage and later also found to be damaged by insects and therefore destroyed. This occurrence has been confirmed by the affidavit of John Robertson Budge.

34. As for the 3rd Defendant, according to the List of Document filed on 26th May 1993, compressed air statutory records, site reports and records as well as correspondence and drawings relating to MTRC Contract 402 were stored in a cargo container after completion of the MTRC Contract 402. In December 1987, it was found that these documents were severely damaged by water. As they were no longer legible, they were destroyed. Again, this happening has been confirmed by the affidavit of John Robertson Budge.

35. In all three cases of the 1st, 2nd and 3rd Defendants, the documents destroyed included all of the statutory records that they were required to retain for five years by law. The inadequate storage facilities not only made a mockery of their legal obligations but also made apparent the fact that these documents were destroyed, in relation to the 2nd and 3rd Defendants, even before the Writ was issued in this case. In any event, the circumstances of the destruction of these documents in respect of the 1st, 2nd and 3rd Defendants can in no way be attributable to the Plaintiff. It would not have mattered the least whether or not there was any delay on the part of the Plaintiff. As it happened, all these documents would not have existed beyond 1993 in the case of the 1st Defendant and in the case of the 2nd and 3rd Defendants before the Writ was even issued.

36. I have no hesitation in finding that whatever prejudice there may be to the 1st, 2nd and 3rd Defendants from the loss of these documents, the Plaintiff cannot be held in the least responsible. Quite the contrary their loss may well have been such that it accounts for some part of the delay by the Plaintiff in getting his case ready for trial - a matter which I need seriously to consider in coming to a conclusion in these applications to strike out.

37. It is further alleged by the 1st, 2nd and 3rd Defendants that they have been prejudiced by their failure to locate the lock keepers who maintained the locks and carried out proper decompression. In the case of the 3rd Defendant, it is further alleged that it cannot find one Dr Yau who prepared weekly compression air records and also employed medical lock keepers. All that the 3rd Defendant knows of Dr Yau is that after leaving Hong Kong (no date given as to when), Dr Yau had lived in Taiwan for a time and is now thought to be in Canada.

38. The present position with the 1st, 2nd and 3rd Defendants is that they have not taken any proofs of evidence from any witnesses as yet.

39. From the accounts given, it is far from clear what is the cause of these Defendants' inability to locate the lock keepers, Dr Yau or his employed medical lock keepers. For instance, was the reason because after completion of the construction works on the MTR, these people have all gone their own separate ways and therefore cannot be located. If so, it explains why proofs of evidence have not been taken from any of these witnesses.

40. It is well recognized that a causal link must be proved between the delay and the inability to have a fair trial or other prejudices, as the case may be (see Rath v. CS Lawrence & Partners [1991] 1 WLR 399 at 410). There is simply nothing before me to suggest that the inability to locate these witnesses by the 1st, 2nd and 3rd Defendants resulted from the delay complained of.

41. I turn now to consider the prejudice alleged by the 4th and 5th Defendants. Very different considerations apply to the 4th and 5th Defendants as compared to the 1st, 2nd and 3rd Defendants. A full set of the statutory records known as Form 6 was supplied to the Plaintiff before he left Hong Kong in 1986, and so too was a full set of the X-rays taken of the Plaintiff by the 4th Defendant.

42. Fundamental to the Plaintiff's case against the 4th Defendant, which case the 4th Defendant will have to meet, would be what was said by the Plaintiff to the 4th Defendant and the advice, recommendation and/or suggestion given by the 4th Defendant to the Plaintiff during 1982 to 1984, each time the Plaintiff was examined or treated by the 4th Defendant. Whilst there are medical notes and records, not every word said between them would necessarily have been recorded in the doctor's notes. The affidavit of the 4th Defendant states repeatedly that apart from what appears in his notes made on each occasion, he has no independent recollection of any other matters said between the two of them. This is hardly surprising since these matters occurred between 1982 and 1984, some 15 to 17 years ago. Quite apart from the time factor, undoubtedly, during that period of time, the 4th Defendant was also examining and treating other workers apart from the Plaintiff who, like the Plaintiff, was involved with the construction of the MTR and thereby working in compressed air. I can therefore well imagine the difficulty of the 4th Defendant when asked to remember particular words said or even a particular conversation in respect of one patient in these circumstances.

43. A further form of prejudice which I need to take into account in the case of the 4th and 5th Defendants is the fact that this action has been hanging over their heads for all this time. In this respect I make a distinction between the 4th and 5th Defendants on the one hand and the 1st, 2nd and 3rd Defendants on the other hand for these reasons. The 4th and 5th Defendants are medical practitioners and serious allegations of medical negligence against them are bound to cause them anxiety and concern. On the other hand, the 1st, 2nd and 3rd Defendants are corporation. The fact that a pending action has been hanging over a corporation for the same length of time need not necessarily have the same effect. In the words of Woolf LJ in Gascoine v. Haringey Health Authority and Others [1992] PIQR P416 at P420 :-

"...it is beyond dispute that this is a matter which a judge is entitled to have regard, particularly where the allegation is one which would reflect adversely upon the competence of medical men when conducting their practice.".......

"For a medical man to have a finding that, through a lack of the attention which he should have given, instead of achieving what was his or her desire, to benefit a patient, he has actually made the patient worse and caused the patient to suffer, is a matter which any practitioner is going to regard as a serious matter; and a matter which, if he or she is condemned, would cause them the greatest anxiety. Naturally they would like to have the matter resolved as soon as possible. If there is delay in having the matter resolved, which is due to inordinate and inexcusable delay, then that is something in respect of which they are entitled to ask the court for protection."

44. As the claim against the 5th Defendant stands or falls with that of the 4th Defendant, I have little doubt that there has been shown actual prejudice to both the 4th and the 5th Defendants from the Plaintiff's delay in getting this case to trial.

Conclusion

45. For the reasons stated above and taking an overall view of the matter, whilst there was some delay on the part of the matter, much of that delay was caused or contributed to by the 1st, 2nd and 3rd Defendants. Moreover, little or no prejudice was caused to the 1st, 2nd and 3rd Defendants as a result of the Plaintiff's delay. Whatever prejudice there may have been to them were self-inflicted. In the circumstances, I am of the view that it is still possible to have a fair trial of the action as between the Plaintiff and the 1st, 2nd and 3rd Defendants. Accordingly, the applications by the 1st, 2nd and 3rd Defendants to strike out the Plaintiff's claim for want of prosecution are dismissed.

46. In so far as the 4th and 5th Defendants are concerned, again for the reasons stated above, I have come to the conclusion that the 4th and 5th Defendants have suffered serious prejudice as a result of the delay such that there is little chance of there being a fair trial where the 4th and 5th Defendants are concerned. Accordingly, the Plaintiff's claim is dismissed for want of prosecution as against the 4th and 5th Defendants.

Costs

47. There will be a costs order nisi that :-

(a) the costs of the applications by the 1st, 2nd and 3rd Defendants be to the Plaintiff in any event to be borne by the 1st, 2nd and 3rd Defendants;

(b) the Plaintiff do pay to the 4th and 5th Defendants the costs of this action to be taxed if not agreed.