CHEUNG SUEN HEUNG v. HOSPITAL AUTHORITY

HCA 3023/2017

[2023] HKCFI 80

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3023 OF 2017

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DECISION

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1.  The plaintiff applied ex parte but failed before the master for the renewal of the writ in the present action which has expired. She now appeals against the master’s decision. In view of the nature of the appeal, and with the written submission lodged by her counsel, this court directed, with her consent, that the appeal would be disposed of on paper without oral hearing.

Background

2.  On 15 October 2014, the then 64-year-old plaintiff was admitted to the hospital under the management of the defendant for suspected endometrial cancer.  Since 16 October 2014, she has developed complications, and had to undergo an emergency laparotomy on 24 October 2014.  She had to be put under intensive care.  Subsequently, further procedure was performed to insert an Inferior Vena Cava (IVC) filter in her veins.  On 29 December 2014, the plaintiff underwent the procedure for the removal of the IVC filter, during which she went into shock and suffered internal bleeding.  The procedure was therefore aborted. The plaintiff was eventually discharged on 3 January 2015.

3.  Taking the view that something went wrong in her management and surgical procedures at the hospital, the plaintiff approached the Legal Aid Department (“LAD”) on 23 April 2015 and made an application for legal aid in respect of the intended claim against the defendant for medical negligence.

4.  For her purpose before the master, and thus this court, the plaintiff relies on her affirmation not only for explaining her situation but also for producing evidence of what the LAD did in processing her legal aid application and her case so far.  The evidence mainly comprises the correspondence between the LAD and the hospital and various entities with a view to identifying the relevant medical expert opinion necessary for assessing the merit of the plaintiff’s intended claim.  The correspondence took the time until July 2018.

5.  According to the plaintiff, while the result of her application for legal aid was pending, she was advised of the limitation period of her intended claim, which would expire on 29 December 2017 (ie 3 years from the abortion of the procedure to retrieve the IVC filter mentioned above).  The LAD duly advised her to issue a protective writ for her intended claim.

6.  On 28 December 2017, the plaintiff took out the writ in the present action, instead of a personal injury action.  It was hand-written in the endorsement of the writ the plaintiff’s complaint about (i) her admission for cancer on 15 October 2014; (ii) the surgical procedure; (iii) the abortion of the retrieval of the IVC filter; (iv) the alleged resultant personal injuries; and (v) the alleged loss of job and income.

7.  On 2 September 2019, the LAD assigned those acting for the plaintiff now as solicitors who, according to her deposition, would search for an expert in interventional radiology to provide expert opinion in relation to the insertion and retrieval of the IVC filter.  The solicitors identified Dr John Reidy.  The solicitors then issued letter of instruction to Dr Reidy, who also rendered his expert report dated 16 June 2022.

8.  The plaintiff continued to depose that the solicitors then obtained approval from the LAD for obtaining counsel’s advice. After counsel’s advice has been obtained, the solicitors sought approval of the LAD for extension of her legal aid certificate.  This led to the amendment of her legal aid certificate to include (but not limited to) preparation for the application for the renewal of the writ and the preparation of pleadings.

9.  On 24 June 2022, the plaintiff filed her ex parte summons before the master first for renewing the writ, and then, if the writ was renewed, for transferring the case to the personal injury list.  The master disposed of the application on paper only, and on 12 July 2022 handed down her written ruling refusing the application with short but succinct reasons.

10.  By notice of appeal filed on 26 July 2022, the plaintiff seeks to overturn the master’s ruling.  As a re-hearing of the plaintiff’s application (under O58 of the Rules of the High Court, Cap 4A (“RHC”)), which was disposed of on paper only, this appeal could likewise be disposed of on paper.  Hence this court’s direction mentioned at the outset.

The principles

11.  O6, r8 of the RHC provides that:

“(1) For the purpose of service, a writ … is valid in the first instance for twelve months beginning with the date of its issue…

(2) Where a writ had not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding twelve months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application for extension is made to the Court before that day or such later day (if any) as the Court may allow.”

12.  The law regarding the exercise of the power to extend the validity of a writ has been explained in Kleinwort Benson Ltd v Barbrak Ltd [1987] 1 AC 597, which has been adopted in Hong Kong in various cases including Chow Ching Man & Ors v Sun Wah Ornament Manufactory Ltd & Ors [1996] 2 HKLR 338.  See also in the personal injury context, Ganatra, Annemarie Claire v Freda, Giovanni [2021] HKCFI 3611.

13.  The exercise involves a 2-stage inquiry.  At stage 1, the court must be satisfied that there is a good reason to extend the time, including a satisfactory explanation for the failure to apply before the expiration of the validity of the writ.  After this stage has been passed, then stage 2 requires the court to exercise the discretion by considering all the relevant circumstances including prejudice and hardship.  The two stages of the inquiry have some overlap but that does not undermine the 2-stage approach: see Chow Ching Man (above).

14.  Here the plaintiff did not apply for extension of the validity of the writ during its duration.

15.  O2, r1 of the RHC provides that failure to comply with the requirements of the rules of court shall be treated as an irregularity instead of nullifying the proceedings so that the court has the discretion to make such order dealing with the proceedings as it thinks just.

16.  O3, r5 of the RHC provides that:

“(1) The Court may, on such terms as it thinks just, by order extend … the period within which a person is required or authorized by these rules, or by any judgment, order or direction, to do any act in any proceedings.

(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.”

17.  Where the application for extension is made at a time when the validity of the writ has expired and so has the relevant limitation period, the applying plaintiff must not only show good reason for the renewal of the writ, but must also give a satisfactory explanation for the failure to apply for extension before the expiration of the validity of the writ: see Kleinwort Benson Ltd (above) at p623; Hong Kong Civil Procedure 2022 (Vol 1) at §6/8/3.

18.  Good reason or at least matters capable of amounting to good reason is the pre-requisite for considering if discretion ought to be exercised to extend the validity of the writ.

The plaintiff’s explanation

19.  The plaintiff asserts a claim for personal injury as a result of medical negligence on the part of the defendant.  The assertions and formulation of the claim were now set out in detail in the draft statement of claim.  They were also extensively set out in the written submissions of counsel.

20.  Obviously the commencement of action in the incorrect court list was not taken against the plaintiff when her application was before the master.  Nor should that be, in view of the plaintiff handling the matter at the time in person.  Likewise, not much needs to be said about the fact that the plaintiff did not realise the duration of the validity of the writ.  The master did not take that against her in the consideration.  Nor would this court.

21.  That said, the plaintiff’s personal failure to appreciate the duration of the writ and thus the need to apply for its extension per se is not the complete answer.

22.  There is no issue of the plaintiff having sat on her intended action.  She approached the LAD for assistance after her discharge from the hospital without delay.

23.  The processing of the plaintiff’s application for legal aid then took some 3 years until mid-July 2018, though the first step of collecting the medical records and reports concerning the plaintiff from the defendant was completed in slightly more than 4 months.  Referring to the subsequent correspondence between the LAD and the various medical entities, the plaintiff explained that the LAD has sought to identify the necessary medical expert evidence.

24.  While the result of the plaintiff’s legal aid application was pending, the LAD duly advised the plaintiff of the limitation period for her intended claim and thus the need to issue a writ before the limitation period expired.  The plaintiff did so, but deposed that she had no idea about the duration of the validity of the writ.  That explanation has to be assessed against the prescribed remark printed on the face of the writ which did specify the 12-month validity of the writ for service.

25.  It could perhaps be said that the plaintiff had no idea what to do even assuming that she was or should have been aware of the remark on the writ about its 12-month validity.  This court is prepared to give her that benefit of the doubt.

26.  The plaintiff’s explanation, as deposed to, was that she was only explained about the validity of the writ by her legal advisors when she made the application for renewal of the writ, ie in June 2022.  That was 2.5 years after the assignment of her solicitors to handle her case.

27.  How the writ was left to expire at the end of 2018 and the plaintiff was left with no idea about that until June 2022 is actually not explained.  There was no affirmation evidence from the LAD explaining that.  Nor was there affirmation evidence from the solicitors.

28.  However, that the solicitors have acted on the instruction of the Director of Legal Aid for the plaintiff in preparing the claim against the defendant should be clear.  The solicitors expressly said so in their letter to Dr Reidy dated 23 December 2020.  Through her solicitors, the plaintiff was supposed to know and step was supposed to have been taken to apply for the renewal of the writ in September 2019 at the latest.  There was however no affirmation evidence from the solicitors acknowledging or explaining why that should not be the case.

29.  In her affirmation, the plaintiff deposed that her solicitors were engaged by the LAD on 2 September 2019 “for the purpose of searching for an expert in interventional radiology to provide expert opinion in relation to the insertion and retrieval of the [IVC] filter”.  Counsel also placed emphasis on such deposition in his submission.  Insofar as it was suggested that the plaintiff’s solicitors were then assigned only for a limited purpose so that they were not expected to be concerned about or under a duty to alert the plaintiff as to the validity of the writ or its renewal, such understanding was not verified by the LAD or the solicitors.

30.  The fact was that the certificate of assignment of solicitors somehow was not in the court file.  Nor was the subsequent certificate of amendment of the assignment, which the plaintiff referred to as including the “preparation for the present application and the drafting of pleadings”.  It was only upon enquiry with the LAD that the same were provided for the court’s record.

31.  The certificates make clear two things.

32.  First, legal aid was indeed granted to the plaintiff on 2 September 2019.  It was not merely for the purpose as deposed to by the plaintiff, but for the purpose of taking proceedings to claim for the personal injuries sustained by the plaintiff arising out what she complains about, including obtaining relevant medical records and medical expert opinion if so required, but limited to preparation for the issue of court proceedings in accordance with Practice Direction 18.1, consideration of settlement and the issue of a generally endorsed writ (not including service).

33.  Second, the above legal aid certificate issued on 2 September 2019 was amended on 25 July 2022 by extending the legal aid to the plaintiff to cover the appeal against the master’s decision dated 12 July 2022.

34.  In other words, the plaintiff was granted legal aid on 2 September 2019, which covered, amongst other things, the issuing of court proceedings including a generally endorsed writ. The legal aid was extended, and the certificate issued on 2 September 2019 was amended, on 25 July 2022 not for the purpose of the application for renewal of the writ as the plaintiff deposed, but to cover the appeal from the master’s decision in such application.

35.  In any event, once assigned, the solicitors were in control of the case, and it would be their duty to conduct the matter and to decide on what steps to take in the interests of the aid person within the parameters of their assignment.  It is not for the LAD to supervise or to direct how such duty of the solicitors should be discharged.  As far as the LAD considered it as its duty to alert the plaintiff as to the limitation period and hence the desirability of issuing the writ before the period expired, this court fails to see why the validity of the writ did not remain as a necessary concern on the part of LAD and, since the grant of legal aid, the solicitors.

36.  In the circumstances, what this court observes above remains valid.  The plaintiff was supposed to become aware of the expiration of the validity of the writ and the need for its renewal at the latest after the approval of her legal aid application and assignment of those acting for her in early September 2019.  The plaintiff’s deposition that she was only explained about the same by her solicitors when she made the application before the master in June 2022 calls for explanation.  There was none before the master.  The master in her reasons specifically pointed that out.

37.  As discussed above, the explanation and reference to the ambit of the legal aid assignment for her assistance by the plaintiff at different stages is shown to be inaccurate.  So was counsel in apparently adopting such deposition as accurate. Notwithstanding that, no attempt has been made to better the explanation, such as seeking leave to adduce further evidence (albeit not necessarily allowed), on appeal before this court.

38.  In his written submission, counsel invited this court to view the application through the prism of the circumstances of the present case, namely the personal circumstances of the plaintiff.  As discussed above, she is given the benefit of the doubt those on account of her personal circumstances.

39.  It was argued that it was not unreasonable for the plaintiff to pin her hope on a successful legal aid application.  That, also accepted, provides no answer to the failure to take out application for extension of the validity of the writ since the end of 2018 or after legal aid was granted and solicitors were assigned in early September 2019 at the latest.  It was argued that those acting for the plaintiff have acted promptly in making the application.  Such contention will have to be viewed in the light of the circumstances discussed above.

40.  Substantial coverage of the merits of the plaintiff’s claim and discussion in respect of the relevance of limitation period were advanced in counsel’s submission, which were said to be relevant considerations in the exercise of the discretion whether or not to renew the lapsed writ.  However, in line with the applicable principles, the second stage of considering the exercise of the court’s discretion does not set in unless the plaintiff succeeds in passing the first stage of satisfying the court with good reason for her failure to apply for the extension of the validity of the writ for 3 years in the present action.

41.  This court is just not impressed that the plaintiff could not have been in a position to apply to extend the validity of the writ until after the medical expert report of Dr Reidy was obtained or finalised in June 2022.  If anything, the alleged continuing effort in gathering the relevant medical expert evidence, and thus preparation of a properly pleaded claim before service of the proceedings on the defendant, would have been a ground for seeking to extend the validity of the writ.  It was not a good reason for not doing so.

Conclusion and order

42.  For the above reasons, this court agrees with the master, and the appeal is dismissed.

43.  I make no order as to costs.  The plaintiff’s own costs shall be taxed in accordance with legal aid regulations.