HO WAI TUNG v. HO FUNG

HCPI 1334/2016

[2022] HKCFI 3800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1334 OF 2016

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REASONS FOR DECISION

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1.  The assessment of damages in the present action was scheduled to commence on 12 December 2022. That did not happen. On 15 December 2022, which was the 4^th day allocated, the trial had to be adjourned all together. On that day, this court made the order in terms as set out at the end of these reasons explaining such order.

Background

2.  Represented by leading (and subsequently also junior counsel), the plaintiff commenced the present action in 2016 for damages for personal injuries sustained as a result of the negligence and breach of contractual duty on the part of the defendant in providing medical advice and surgical treatment to the plaintiff prior to, during and/or after an operation performed by the defendant on him on 5 December 2013.

3.  After changes of solicitors, the current solicitors for the plaintiff came on record on 22 February 2022.

4.  On 23 February 2022, the defendant consented to interlocutory judgment on liability for damages to be assessed.

5.  For lack of compliance with the order of the court (by consent) in February 2022 for specific discovery by late April 2022 of the plaintiff’s medical expenses since mid-March 2019, the defendant took out his summons for an unless order against the plaintiff in May 2022.

6.  At the hearing of the defendant’s summons for the unless order on 31 May 2022, solicitors for the plaintiff conceded to the defendant’s application in terms as sought. The plaintiff defaulted in complying with the unless order by mid-June 2022.

7.  Nothing has since happened on the plaintiff’s side until the pre-trial review on 17 October 2022. The plaintiff was represented by counsel, who was said to have been briefed only shortly before the hearing. Amongst other things, counsel indicated his instruction to revise the statement of damages. Neither draft nor detail was proposed. All this court could do, and indeed did, then was to remind him that depending on the exact revision, the closer to the trial date that was done, the less favourably this court would view such attempt on the plaintiff’s part. This court also gave other usual directions in respect of the lodging of trial bundle and opening submissions. Apart from witnesses as to fact, the parties had leave to call their respective medical experts to testify at the trial.

8.  Contrary to the order made at the pre-trial review, nothing whatsoever has since been done on the part of the plaintiff regarding the trial which was due to commence on 12 December 2022. There was no application regarding the revision of the plaintiff’s pleaded case once suggested. Nor was there even opening submission for the plaintiff. For lack of constructive, if any, response to the approach of the defendant’s solicitors, it was actually the defendant’s solicitors which had to compile and lodge the trial bundle pursuant to this court’s direction.

9.  On 8 December 2022, which was 2 working days before the trial, this court received the letter from the plaintiff’s solicitors dated 7 December 2022 conveying their instruction to “take out a summons to (i) seek leave to take out an application to vacate the trial dates, and for (ii) the application itself”. It also explained that the plaintiff seeks to take out the summons “in order for amending the Statement of Claim and filing of Revised Statement of Damages”. It was proposed that the leave application and the summons itself would be listed for hearing on the first day of the trial.

10.  The indication of intention to take out a summons for “leave to take out an application” to vacate the trial dates per se defies understanding. In any event, no application whatsoever has been filed by the plaintiff since 8 December 2022.

11.  Besides obvious non-compliance with the order of this court made at the pre-trial review and the lack of action on the part of the plaintiff as proposed by his legal representatives at different points of time prior to the commencement of the trial, this court was effectively left with no clue as to how the plaintiff intended to proceed when the trial commenced.

12.  While one would have expected to uncover the above mystery when the trial commenced on 12 December 2022, the mishap to the defendant’s counsel intervened. By letter dated 9 December 2022 subsequently reaching this court, the defendant’s solicitors informed this court that counsel for the defendant was tested COVID positive. The relevant protocol would mean that counsel would be unable to attend court on the first day of the trial. This court therefore adjourned the commencement of the trial to the second day. The continuation of counsel’s COVID test status caused this court to have to further adjourn the commencement of the trial. Counsel was eventually confirmed fit to attend court on 14 December 2022.

13.  By then, 2 days originally allocated for this trial have been wasted. Notwithstanding that, the plaintiff has still not done anything or informed this court of what was to be expected from him when the trial commenced on 14 December 2022.

14 December 2022

14.  The plaintiff appeared by counsel on 14 December 2022, but only to inform this court that his instruction was limited to seeking adjournment of the trial. He ventured to explain by reference to his client’s intention, amongst other things, to amend his claim. He acknowledged that such move was most undesirable, and made clear that the plaintiff has been duly advised of its merit.

15.  To describe such move as undesirable would be understatement. It is an abuse of court process. In the absence of a formal application supported by affidavit, the court cannot be expected to even entertain such oral request for adjournment of the trial. This was particularly true as the background set out above did, and in fact still does, cry out for adequate explanation on the part of the plaintiff. Further, where it is the duty of the court and the parties to guard the trial as a milestone date, such an oral request, even if entertained, must be rejected on the merit in view of the above background.

16.  Upon dismissal of the oral application for an adjournment, counsel for the plaintiff represented that those instructing him would cease to act for the plaintiff, and the plaintiff would personally attend the court on the following day. In the circumstances, this court adjourned the commencement of the trial to the following day, 15 December 2022. Naturally, it was expected that a notice to act in person would have been filed by then to enable the plaintiff to appear then.

17.  This court made an order that the defendant shall have his costs of the hearing on 14 December 2022 to be paid by the plaintiff on an indemnity basis. This court also explained to counsel on both sides that what happened on that day would have happened on either of the previous two days but for the inability of counsel for the defendant to attend. The neutralized effect of that should be reflected by an order that there would be no order as to costs of the hearing on 12 and 13 December 2022. Counsel for the defendant did not oppose. Oddly counsel for the plaintiff expressed no instruction to make submission on that.

15 December 2022

18.  Contrary to the indication of the plaintiff’s counsel on 14 December 2022, no notice to act in person has been filed by the plaintiff since the adjournment in that morning. On 15 December 2022, the solicitor for the plaintiff appeared (as allowed by this court in the circumstances) to report that they would have to formally apply to cease to act for the plaintiff. However, when this court informed the parties that the clerk of this court reported that a telephone call was received from a person representing to be the plaintiff and alleging that he would not attend court because he was tested COVID positive, the solicitor for the plaintiff apparently had no knowledge or instruction to that effect.

19.  As the plaintiff was still represented by his solicitor in court, and there was simply no way to verify the identity of the caller and the information about the plaintiff as alleged on the telephone, this court had to proceed on the basis of what the plaintiff’s solicitor submitted in court. The circumstances were such that the trial could not commence without the legal representation status of the plaintiff being sorted out first. That could not be done without appropriate application properly served on the plaintiff. The remaining days allocated to this trial would not suffice for any meaningful proceedings. The trial had to be adjourned and re-fixed.

20.  In view of the background and what happened in these two days, there could only be one conclusion. The adjournment and costs thrown away were caused by the plaintiff. This court also saw the need for compensation to the defendant at the receiving end of such abuse as well as that for ensuring that the plaintiff would responsibly proceed with the assessment of damages.

Order on 15 December 2022

21.  Hence the following order of this court:

(1)  Subject to the following directions, commencement of the trial (assessment of damages) in the present action is adjourned to a date to be fixed in consultation with counsel’s diary. Reserved dates for the present trial are vacated.

(2)  Application by the solicitors for the plaintiff for leave to cease to act, if any, shall be taken out forthwith (not before this court).

(3)  Save that there be no order as to costs of the hearing on 12 and 13 December 2022, costs of and occasioned by the adjournment, including the costs of today’s hearing, be paid by the plaintiff to the defendant on an indemnity basis with certificate for counsel.

(4)  Costs pursuant to (3) above (together with the costs of the hearing on 14 December 2022 pursuant to the order of this court made on that date) shall be taxed forthwith, and paid within 14 days upon the result of such taxation.

(5)  Unless and until the taxed costs has been paid by the plaintiff to the defendant in compliance with the above direction, no step may be taken by the plaintiff in the proceedings in the present action without leave of this court, including the fixing of the resumed trial pursuant to (1) above.

(6)  Upon compliance with the above costs order by the plaintiff, the defendant shall forthwith confirm the same in writing to this court, upon which this court will give written directions in respect of fixing the date of the resumed commencement of the trial and further pre-trial review as well as other incidental directions.

(7)  In the event of default of compliance with the above costs order by the plaintiff, the defendant has liberty to apply to this court for stay of proceedings in the present action (conditionally or otherwise).

(8)  In any event, the plaintiff shall be barred from claiming any interest on quantum for the period between today (15 December 2022) and the date immediately before the commencement of the resumed trial of the present action as may be fixed.