MANDECLY LTD v. HAO WEI AND OTHERS

HCA1216/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1216 OF 2002

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J U D G M E N T

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Hon Ma CJHC :

1. The summons before me today is taken out by the Plaintiffs seeking the following relief : -

“

1.

Such orders and directions as The Honourable Chief Judge may deem fit to be made so that the trial of this action may be resumed to be heard before The Honourable Mr. Justice Yam as soon as possible, and in any event well before 23rd November, 2005.”

2. The trial of this action commenced before Yam J on 6 January 2005.  On 27 January 2005, the 16th day of the trial, it was adjourned part-heard.  The trial had not progressed beyond the Plaintiffs’ opening and the testimony of their first witness.  The Judge ordered, following the parties’ submissions, that another 40 court days would be required.

3. The present case represents what has increasingly become a very unfortunate facet of the administration of justice, namely, the serious overrunning of cases.  I now set out some of the salient facts of the present action not so much to attribute fault on either the Plaintiffs or the Defendants or their legal representatives (since any fault finding is best left ultimately to the trial judge) but to highlight the extent to which the overrunning of some cases has now created what I regard as an almost unacceptable situation, one that both branches of the profession must now take heed to address : -

(1)	Proceedings were instituted on 28 March 2002.
(2)	I heard an application for an interlocutory injunction on various dates between August and September 2002.  This culminated in an order continuing the injunction on 28 September 2002.
(3)	On 26 October 2002, upon the joint application of the Plaintiffs and the Defendants and by consent, I made the following order : -
	“	1.	The Plaintiffs and the Defendants do file and serve a List of Documents on or before 12 November 2002 and that inspection of the documents do take place within 7 days thereafter;
		2.	The parties do file and exchange witness statements within 74 days of the filing and service of the list of documents and the witness statements do stand as evidence in chief unless otherwise directed by the trial judge;
		3.	The parties do file and exchange expert report on the law of the People’s Republic of China (limited to 1 report for the Plaintiffs and the Defendants respectively) within 28 days after the filing and exchange of the witness statements;
		4.	There be certificate for speedy trial of this action;
		5.	Either the Plaintiffs or the Defendants may apply to set down the case for trial in the fixture list before a bilingual judge within 10 days of the filing and exchange of witness statements;
		6.	The parties be at liberty to apply for further directions; and
		7.	Costs of this application for directions be in the cause.”
	A number of points can be made in relation to this consent order.  First, it was to be assumed (and I certainly assumed this to be the case) that both parties had carefully considered the status of the action and all the preparatory steps leading up to trial.  Secondly, the parties had fully understood the need to have a speedy trial and hence the importance of ensuring that the trial would take place efficiently and effectively.  This included the strict adherence to the timetable the parties had themselves set.
(4)	The Defendants filed their list of documents on 12 November 2002.  The Plaintiffs did not do so until 14 November 2002.  Notwithstanding paragraph 2 of the Order regarding witness statements (requiring the parties to file and exchange them in early February 2003), witness statements were only filed in December 2003 (the witness statement of Shao Hua was filed on 5 December 2003).  This was followed by the witness statement of the 1st Defendant on 8 December 2003.  They were late by over 10 months.  Subsequently, in late 2004, further witness statements were filed.
(5)	Under paragraph 5 of the 26 October 2002 Order, it was originally envisaged that the setting down of the action for trial would take place sometime in February 2003.  The application to set the action down for trial was dated 29 December 2003.  In this application, the Plaintiffs estimated the length of trial to be 15 days.  Though not consenting to this estimate, the Defendants did not at any stage object to it, certainly not as far as the Court was concerned.
(6)	On 13 January 2004, trial dates were fixed by the Court.  The trial was to begin on 3 January 2005 before Yam J with 15 days reserved.  There was to be a pre-trial review before the Judge on 3 December 2004.
(7)	Throughout 2004 until the pre-trial review scheduled for 3 December 2004, it would appear that neither party took the view that the duration of the trial (at 15 days) was at risk.  On 3 December 2004, at the pre-trial review, the parties for the first time expressed to the Court their concern over the adequacy of the time estimate of 15 days.  This was only after the Judge had inquired over the sufficiency of this estimate.  Counsel for both parties stated that they thought 20 days would be more realistic.
(8)	On 17 December 2004, another pre-trial review took place during which the Judge expressed his mounting concerns as to the time estimated for trial.  The judge told the parties that another 5 days had been added to the original estimate but warned the parties that if the trial did not conclude by 28 January 2005, the matter might have to be adjourned part-heard.  Counsel did not at this stage indicate that 20 days would be insufficient.  The most that was said was that the evidential part of the trial could take 20 days with final submissions thereafter.  This was notwithstanding the fact that on 17 December 2004, the Defence and Counterclaim was substantially amended, with the consequence that the Reply to Defence and Counterclaim had to be substantially re-amended on 3 January 2005.  However, some of the matters pleaded in the Amended Defence and Counterclaim related to facts that apparently only surfaced in late November 2004.  It is also to be noted that in early December 2004, the Plaintiffs had re-amended the Statement of Claim and served 3 additional witness statements.  The expert reports of the parties were exchanged only on 10 December 2004, well after the time ordered in the 26 October 2002 Order.
(9)	The trial did not begin until 6 January 2005 and not the originally scheduled 3 January 2005.  As stated above, by the 16th day of trial, only one witness’ testimony had been completed.  Another 40 days are to be required converting a 15-day trial to one of 55 days.

4. To put the matter mildly, there has been a very serious underestimation of the length of trial.  I have not been provided with any compelling reason to justify why the original estimate of 15 days has been allowed to balloon to a 55-day estimate nor, more importantly, any justification as to why the Court could not have been informed of this at a much earlier stage than late into the trial.  I am unable on the materials before me to make a firm finding of fault on either the Plaintiffs or the Defendants (as I have said this is in any event an exercise best left to the trial judge) but I can say that I find the conduct of both parties extremely surprising in not informing the Court at a much earlier stage of the completely unrealistic time estimate that had originally been given.

5. The Plaintiffs now apply to this Court effectively for an early date for the resumption of the trial.  The Defendants similarly want this.  It is said that it would be undesirable to have a matter part-heard for a long time.  I agree it is undesirable but at what cost can the parties’ wishes be accommodated?  On the one hand, the quicker the present action is resolved the better.  After all, an order for a speedy trial was made and not without good reason.  On the other hand, one is here dealing with an overrun of 40 days, an increase to the original time estimate of nearly 300%.  The next available date in the Court’s diary is in early 2006.  There is, as to be expected, no slot in the Judge’s diary before then to insert a 40-day hearing unless existing cases are vacated in this or another judge’s diary, a possibility that cannot be countenanced in the present case.  The Plaintiffs suggest a novel approach in that they have, subject to certain conditions, offered to finance the Judiciary in providing a Deputy Judge to take over Yam J’s cases to the extent of 40 days.  This is unacceptable for a number of reasons, not least of all that it would simply be illegal.

6. In my view, the predicament that the parties find themselves in is largely, if not exclusively, of their own making and all this stems from a completely unrealistic time estimate for the trial and the failure to inform the Court as soon as practicable that this estimate could not be adhered to.  I take the view that with more vigilance and proper case organization on the part of both parties and their legal representatives, it would have been obvious for a long time that the original estimate was totally unrealistic.  I cannot say at this stage which party is more to blame.  It suffices to say that the fault lies largely between them.  In these circumstances, I see no reason at all why the Court’s diary should be severely disrupted to accommodate the resumption of the trial in the present action, much less anywhere near a justification to vacate existing cases.  The administration of justice requires fair treatment to all litigants in the Court, not just to those who have cases that have overrun.  With certain practicalities in mind, the earliest available date for the resumption of the trial is 13 March 2006 and I so order.  I had at one stage considered the appointment of a Deputy Judge or Recorder to enable Yam J to be free, but it seems to me wrong as a matter of principle to do so in circumstances where clearly the parties have been at fault in grossly underestimating the original time for trial and failing to inform the Court timeously of this underestimation.  This is not to punish the parties but I can think of far more compelling situations to attract the appointment of an additional judge than the present one.

7. The result is not a happy one but underlines the possible consequences of what may happen when a case overruns.  This is no mere overrun.  As stated above, a 15-day case is now converted to a 55-day one.

8. It is of critical importance that both sides of the legal profession are appraised of their responsibilities regarding that the time estimation of cases.  These are obvious but bear repetition : -

(1)	The fixing of dates requires a proper examination not only of the live issues at trial but also of the time needed to deal with witnesses.  It therefore goes without saying that all parties must be able to identify the relevant witnesses who will give evidence at trial and make an assessment as to how much time will be required to deal with their testimony.
(2)	Before dates for trial are fixed, in most if not all cases, counsel’s advice on evidence should be obtained.  This will enable the solicitor in charge of a case to know whether it is appropriate even to apply for dates for trial to be fixed.  The basic rule must be that before dates are applied for, all parties must be in an advanced state of preparation and readiness for trial.  The scope for amendments to pleadings and substantial interlocutory applications must be extremely narrow at this stage.
(3)	Of course, it has to be accepted that however conscientious the parties may be in estimating the length of cases, they may not be precise and there may be unforeseen factors that elongate the duration of a trial.  However, a failure to appreciate until a late stage the necessity to amend pleadings, to obtain fuller witness statements or to make or request further discovery would not constitute such unforeseen factors in most cases.
(4)	There is also a continuing obligation once dates have been fixed to monitor the status of the action to ensure that the dates fixed for trial remain accurate.  The Court should be informed at the earliest possible opportunity if the original dates need to be revised.  The earlier the notification, the more likely the Court may be able to accommodate the parties’ wishes.
(5)	The above points become even more important to bear in mind when an order for a speedy trial is given.

9. The present case illustrates the very unfortunate consequences of unrealistic estimates of duration of hearings and the failure to monitor the status of an action with an eye to the time estimate originally provided.  From the Court’s point of view, one has to balance the interests of the parties in the case which has overrun against those who have cases already set down for hearing.  The latter cannot conceivably be at fault for the overrunning of cases involving the former.

10. I have delivered this judgment in open court in an attempt to draw the attention of the legal profession to the problems that can occur when a case overruns.  It may, as in the present case, result in a lengthy adjournment of a part-heard case.  The professions have a responsibility to ensure that these instances are kept to a minimum.  Proper estimation of the length of hearing is essential and must be taken seriously.  A failure to do so may at times result in sanctions against the relevant party or his legal representatives, whether by way of costs or otherwise.