KRISTAN BOWERS PHILLIPS v. INITIAL ENVIRONMENTAL SERVICES LIMITED formerly known as EXCLUSIVE ENVIRONMENTAL SERVICES LIMITED & Others

1990, No. A3978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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The Summonses

1. Order 25, rule 1(4) provides that if the plaintiff does not take out a summons for directions in accordance with the earlier provisions of that rule, the defendant or any defendant may do so or apply for an order to dismiss the action.

2. On 27 September 1993, the first and third defendants issued a summons to dismiss the plaintiff's action, and, on 30 September 1993, the second defendant did the same. All defendants seek dismissal on the basis that there has been inordinate and inexcusable delay in the prosecution of the action by the plaintiff.

3. There was some argument before me as to whether rule 1 of Order 25 applied to this action, or whether it was an action for personal injuries to which rule 8 applied. It does not much matter. The Court has inherent jurisdiction to dismiss for want of prosecution independently of the express provision of rule 1(4).

The Plaintiff's Action

4. In his statement of claim, the plaintiff says that, at about 10.30 am on or about 21 June 1987, in the course of his employment as a musician with the second defendant, he was rehearsing in the recital hall of the Hong Kong Academy of Performing Arts, a building occupied by the third defendant. He was a visitor of the third defendant under the Occupiers' Liability Ordinance, Chapter 314.

5. About ten minutes after the time mentioned, the plaintiff inhaled certain fumes which caused certain unpleasant physical disorders. The fumes were of a pesticide, containing, amongst other things, a chemical called Diazinon, which was being applied in the course of a pest control operation carried out by the first defendant in the building. He was, he says, poisoned by these fumes.

6. The poisoning, it is alleged, was caused by the negligence of the first defendant, its servants or agents, and particulars are given.

7. Further, it was a term of the plaintiff's contract with the second defendant or the second defendant's duty to take all reasonable precautions for the safety of the plaintiff while he was employed not to expose him to risk of damage or injury of which the second defendant knew or ought to have known. The plaintiff says that the poisoning was caused by a breach of the term or duty or negligence, and he gives particulars.

8. The plaintiff also alleges that the poisoning was caused by the negligence or breach of the duty of care under Chapter 314 on the part of the third defendant, its servants or agents, and again particulars are given.

9. Very full particulars of the plaintiff's disorders and medical history are given.

10. The plaintiff also claims against the second defendant a breach of his contract of employment by failing to pay his medical expenses, failing to look after his musical instruments and failing to transport them to his home.

The Defences

11. The first defendant admits that it did, on 21 June 1987, carry out a pest control operation at the Academy, and the operation included the use of Diazinon. It does not admit or denies all other allegations by the plaintiff.

12. The second defendant admits that at about 10.40 am on 21 June 1987 and in the course of a rehearsal at the Academy, the plaintiff inhaled certain fumes which caused him to suffer some injury. It says that the accident was caused or contributed to by the first and second defendants, against which the second defendant has commenced third party proceedings. It alleges that it did not know and had no reason to believe that the plaintiff would be exposed to risk of damage or injury.

13. As to the contractual claim, the second defendant denies that it was in breach. It says that the plaintiff did not give the required notice for insurance purposes or claim for medical expenses or in relation to his musical instruments.

14. The third defendant admits that it is the occupier of the Academy under Chapter 314. It also admits that the first defendant carried out a pest control operation at the Academy on 21 June 1987. It says that the matters complained of were caused by the operations of the first defendant, independent operators engaged by it to carry out pest control operations. The first defendant is a well-known expert in pest control and the third defendant acted reasonably in entrusting to the first defendant the pest control operation. All else is denied or not admitted.

The Other Defendants

15. The plaintiff is also taking action against others in respect of the incident I have described. There is Action A4009 against Ciba-Geigy (Hong Kong) Limited (which I will call the fourth defendant), which is said to be the importer and distributor of the pesticide concerned, and Action A8122 against Wong Ching Ho Company Limited (the fifth defendant ), which is alleged to be the supplier.

The Chronology

16. The chronology of events, so far as they concern the proceedings between the plaintiff and the defendants, including the fourth and fifth defendants, is as follows -

Inordinate Delay

17. There can be no doubt that there has been delay by the plaintiff in the prosecution of his action. But there is delay in the prosecution of just about every action before these courts. The question is: Has there been inordinate delay? In Tabata v. Hetherington, The Times, December 15 1983, Lord Justice Browne-Wilkinson said "'inordinate' meant a period of time which had elapsed which was materially longer than the time which was usually regarded by the courts and the profession as an acceptable period of time."

18. In this case, the period of time concerned is from about the middle of August 1991, when the pleadings were closed, until September 1993, when the summonses to dismiss were issued; something like two years. On the face of it, as far as the court proceedings are concerned, nothing happened in this period. It is the plaintiff's duty to prosecute his action. He did not, apparently, do so. For a period of two years to elapse after the close of pleadings without any kind of action in the proceedings being taken by the plaintiff must, in my view, be an inordinate delay. I take this view, of course, without considering whether there is any excuse for this delay; that is for consideration in the next stage. I also, in this context, do not consider the fact that the plaintiff commenced his proceedings only a few days within the limitation period. That, I believe, is a matter to be taken into account in considering whether or not the delay is inexcusable. In Birkett v. James [1978] A.C. 297, at 322 G, Lord Diplock said. "A late start makes it more incumbent upon the plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued." "A late start" is also relevant when considering whether or not the defendants have suffered prejudice.

Inexcusable Delay

19. Mr Thomas, who appears for the plaintiff, argues that what might seem to have been inordinate delay is not so if one takes into account the special features about the litigation. I think it is more appropriate to consider these features in the context of whether or not the delay is excusable. Mr Thomas brings these features under three broad headings -

Nature of The Case

20. Mr Thomas says that this is the most complicated personal injury case litigated in our courts. I do not know if this is so, but Mr Peter McKnight, the solicitor for the plaintiff says - "The Plaintiff's claim is complicated in that it involves a series of known facts surrounding the accident but also a series of unknown facts that remain hidden to the Plaintiff even to this day. A great deal of time, money and effort has been spent over the last few years attempting to determine exactly what chemical the Plaintiff was sprayed with and to determine the full extent of his reactions. . . The Plaintiff's claim is therefore most unusual and one that has necessitated an enormous amount of research and preparation on the Plaintiff's part in order to successfully bring these proceedings against the various defendant's concerned."

21. It is not seriously challenged that the case is a comparatively unusual one. Mr David Boyle, the solicitor for the first and third defendants, recorded in an attendance note dated 29 May 1991: "I said that this was an unusual case but that it would be useful for our doctor to see the reports on the Plaintiff before making their own examination". In an affidavit, Mr Boyle says - "the case is indeed a relatively complex personal injury action" but goes on to say that the plaintiff's solicitors should not have encountered difficulties in handling it.

22. Mr Thomas argues that I should take into account the other actions I have mentioned against other defendants. These actions, he says, will be consolidated with this one, and this seems to be the right course to take.

23. The plaintiff, Mr Thomas argues, has not only the difficulty of finding out about the chemicals concerned and their effects on the human body, possibly a particularly susceptible human body, but also the problem of bringing into the frame all those who may be responsible so that the right person is fixed with the blame.

24. I accept, of course, that this action is relatively complex and difficult to prosecute.

The Nature of the Plaintiff's Injuries

25. Mr Thomas argues that the nature of the Plaintiff's injuries provides some excuse for the delay. The plaintiff's case here depends on the reports and evidence

of expensive, foreign medical practitioners, the conduct of whom are not within the control of the plaintiff. Eventually, after trying to tackle the difficulties this presented, the plaintiff's solicitors decided to seek discovery before going further in the hope that what they discovered from the defendants would help.

26. I believe there is some force in these points, and I take them into account.

The Plaintiff's Personal Position as a Litigant

27. The plaintiff is a disabled and impoverished litigant, absent from the jurisdiction, Mr Thomas argues, caught in a situation not of his own making; a situation that he cannot help resolve because he does not know the reasons for what has happened to him.

28. The evidence is that the plaintiff must live in the United States of America because that is where the medical expertise he needs is situated. He also has to live in an unpolluted, remote area because he is peculiarly susceptible to pollutants in the atmosphere. This, and the fact that he is unable to afford fax and long-distance telephone communication facilities, make it very difficult to take instructions.

29. These are factors that I have to take into account, but it must be said that it does not appear from the chronology of events that I am about to mention that the delay in this matter was due to any great extent to difficulties in communicating with the plaintiff.

What was Happening behind the Scenes?

30. I have perused the evidence and I have studied a chronology of events put forward by the plaintiff's solicitors to discover what was happening behind the scenes to see if there is excuse for the inordinate delay. This chronology is not challenged as to accuracy by the defendants. Mr Thomas suggested that the facts show that the action was being moved forward, albeit slowly. It is true that this chronology shows that something was happening most of the time, but I doubt that it could be said, with any degree of confidence, that the action was being moved forward. The firm impression I have gained from this chronology, and the other evidence adduced on behalf of the plaintiff, is that the plaintiff's solicitors were trying hard to achieve progress, but that they were perplexed and partially paralysed by the problems besetting them, and were thrashing about without really getting anywhere. It seems to me that the plaintiff's solicitors should, well before September 1993, have collected as many answers as they were going to get. They should have been conscious, a long time before September 1993, that the time had come to get on with the action with as much by way of solutions to their problems as were, in that time frame, available. It is not often that a party is able to present to the court a perfect case; the courts know this and accustomed to doing their best to achieve justice with what is available.

31. The plaintiff's problems in this case were, it seems to me, to get answers to something like the following questions -

1. Given that the spraying of insecticide was performed in the Academy, and some of the members of the orchestra in the Recital Hall, including the plaintiff, suffered some unpleasant effects from this, how did the spray get to the orchestra and what chemicals in the spray could have caused these effects?

2. What are the effects on the ordinary human body, and the especially susceptible human body, of the chemicals used?

3. What were the effects on the plaintiff?

4. What is the prognosis for the plaintiff?

32. If these questions could not be answered to the satisfaction of the plaintiff's advisers after one, two, three, four or five years, I do not think the plaintiff had the option of delaying matters any further. There must come a time when a plaintiff has to accept that his search for the truth can go no further, and he must get on with his action with what he has available. That time was reached, in my view, long before September 1993.

33. Accordingly, I have come to the conclusion that, by September 1993, taking into account the pre-writ delay and the special features mentioned by Mr Thomas, the delay was no longer excusable.

Prejudice

34. It is not enough that the plaintiff should delayed the prosecution of his action inordinately and inexcusably. In order to succeed, the defendants must show that this delay has given rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such that it is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and third parties. (Birkett v. James, supra, per Lord Diplock at 318G.) If it might be thought that Birkett v. James is authority for the proposition that the court should consider prejudice only in relation to the conduct of the litigation, this was clarified in Dept. Of Transport v. Chris Smaller Ltd. [1989] 1 All ER 897 in which Lord Griffiths said, at 904J -

". . . prejudice may be of varying kinds and it is not confined to prejudice affecting the actual conduct of the trial. It would be foolish to attempt to define or categorise the type of prejudice justifying striking out an action, but there can be no doubt that if the defendants had been able to establish significant damage to their business interests, flowing directly from the culpable delay of 13 months after issue of the writ, a judge would have been entitled to regard it as prejudice justifying striking out the action. I would, however, express a note of caution against allowing the mere fact of the anxiety that accompanies any litigation being regarded as of itself sufficient prejudice to justify striking out an action."

35. In respect of this matter of anxiety, Lord Griffiths repeated here what he had said in Eagil Trust Co Ltd v. Pigott-Brown [1985] 3 All ER 119 at 124 -

"Any action is bound to cause anxiety, but it would as a general rule be an exceptional case where that sort of anxiety alone would found a sufficient ground for striking out in the absence of evidence of any particular prejudice. Bliss's case is an example of such an exceptional case, the action handing over for 111/2 years, with professional reputations at stake."

36. It is convenient, I believe, to consider the aspect of prejudice, firstly, in relation to the conduct of the litigation and, secondly, in respect of other prejudice.

Prejudice in the Conduct of the Litigation

37. Mr Chan, who appears for the second defendant, and Mr Franklin, who represents the first and the third defendants, argue that the prejudice that arises under this heading is the difficulty of establishing now, after this long delay, exactly what happened in the Academy on the day concerned, and, in the case of the second defendant, the difficulty of establishing whether or not certain documents were served.

38. One cannot, of course, consider whether or not there is a substantial risk that it is not possible to have a fair trial of the issues in the action or that the delay is such that it is likely to cause or to have caused serious prejudice to the defendants in the conduct of the litigation without first deciding what will be the real issues between the parties at a trial.

The Issues

39. It is quite clear, from reading the pleadings and the contemporaneous reports, that there can be very little dispute about what happened on 21 June 1987. The second defendant was carrying out spraying operations using insecticide containing chemicals, including Diazinon. Some of the fumes from these chemicals somehow leaked into the area where the orchestra was rehearsing. The fumes were inhaled by some members of the orchestra, including the plaintiff, and the plaintiff became ill. This is not surprising; one would expect some kind of unpleasant reaction from inhaling the fumes from chemicals designed to kill living creatures. The second defendant even admits that the fumes caused the plaintiff to suffer some injury.

40. Now, it may well be that not all the people present on that occasion are available to give evidence, and it may also be that the memories of those who are available will not be as fresh as they were shortly afterwards in relation to the details of the incident, but, believing as I do that there cannot be any serious dispute as to these basic facts, there are more than enough witnesses who will be able to relate, if necessary, what happened. The events were fairly dramatic and out of the ordinary, and not likely to fade appreciably from people's memories. There is also the point that this case is not like a traffic accident, where the relevant events occur in a split second, and may be difficult to recall with precision a long time afterwards. The person one would expect to be the principal witness to these events, Mr Russell Kan, the Assistant Orchestra Personnel Manager, is available, and he has contemporaneous documents to which he can refer, if necessary, to refresh his memory. People who were undertaking the spraying operation are also available, and they will be able to tell the trial court how they went about their business.

41. In this regard, I should say that I am not in the least impressed by, and ignore for practical purposes, the "questionnaires" issued to its employees by the second defendant upon which reliance is placed to establish that the employees cannot remember details of the incident. The forms dated 6 January 1994 and given to the employees by the second defendant asked two questions: "You remember the details of the incident? Please give details here or on a separate sheet." and "You cannot remember clearly the details of the incident due to the lapse of time?", and invited a tick in one of two boxes. Not surprisingly, most of the employees ticked the box indicating that they could not remember clearly the details of the incident.

42. As far as the plaintiff's contractual claim against the second defendant is concerned, the only real factual issue here will centre around whether or not the plaintiff had notice of an insurance policy and whether or not the plaintiff delivered certain claims on time. The second defendant says that two witnesses who can speak to this are not in Hong Kong. One left on 24 July 1990 and lives in the United Kingdom. The other emigrated to Canada "after the alleged incident". This contractual claim will be a comparatively minor part of the litigation; in view of the other, much more serious claims, I doubt if it will take up relatively any appreciable time. But if the second defendant wishes to contest seriously the plaintiff's evidence in this respect, I cannot see any reason why it should not trace the witnesses and call them. I think it most unlikely that this claim will depend on the memories or veracity of witnesses. The second defendant presumably keeps records regarding its employees, and I suppose that it is these records that will be important. There is no reason to believe that if the plaintiff has pressed on to trial in, say, 1991, the second defendant would have been in a more advantageous position.

43. The real battle in this litigation will be, given that the plaintiff inhaled fumes from the pest spraying operation, who is to be held responsible for this, and what were the effects of the inhalation of the chemical fumes on the plaintiff's well-being.

That will be decided very largely on the evidence of the experts, and there is no reason why I should think that this evidence is, because of the delay, no longer available, or not as valuable as it might have been earlier. To the extent that evidence may be needed from other witnesses, that evidence is available and has not been seriously weakened by the delay.

Belief that Plaintiff would not Continue the Action

44. The defendants, particularly, the first and third defendants, say that the prejudice arises from the fact that their solicitors did not do certain things, such as taking proofs from witnesses, which might have made it easier to present their defences, because they did not really believe that the plaintiff had any serious intention of prosecuting his action.

45. I have great difficulty in understanding this point. I cannot believe that, on the facts as we know them, the defendants did not think that the plaintiff had a sound claim arising out of the fact that he had inhaled fumes from the pesticide operation. The second defendant admits that the plaintiff inhaled certain fumes which caused him to suffer some injury. The quatum of that claim may have been in doubt - perhaps it may have been believed that the plaintiff was exaggerating his disabilities - but the validity of the claim was certainly strongly arguable. If the defendants decided not to spend money on obtaining proofs from at least some of the primary witnesses, or decided not to take other steps to protect their position, that was their own decision taken at some early stage before there was any delay, and had nothing to do with the plaintiff's conduct.

46. If indeed the defendants suffered serious prejudice of any kind, one would have expected them to say so as time went on, and more than once with increasing emphasis. My attention has not been drawn to any assertion by the defendants to the plaintiff in which they said, in clear terms, something to the effect - "Look, this matter is dragging on for far too long. We are being prejudiced in this way and in that way. For this reason and that reason, it will not be possible to have a fair trial."

47. In the result, I do not accept that there is a substantial risk that it is not possible to have a fair trial of the issues in the action or that otherwise the defendants have suffered serious prejudice in their conduct of the litigation.

Other Serious Prejudice

48. I now consider whether the defendants have suffered serious prejudice other than in respect of the conduct of the litigation.

49. It is said -

1. The defendants have suffered financially as a result of the delay.

2. The defendants have had, and will continue to have, the litigation handing over their heads for a long time.

50. In particular, it is alleged that that the third defendant has been unable to put aside the large sums necessary to fund experts reports for fear the action would not proceed and the money would be wasted. This, again, is a complaint based the defendants' own inaction because of an unreasonable belief that the plaintiff would not proceed.

51. It is also said that the third defendant has had the action hanging over its head since 1987, with the need to make annual provision for it. I am not sure what this means. Presumably, the annual provision does not provide for the damages that the plaintiff might have suffered, other than purely nominally; this cannot be assessed at this stage. If it relates to the costs, this also must be no more than a guess. I do not think this is a matter to be taken too seriously.

52. The defendants speak vaguely in this area of prejudice. There has been no serious attempt to show that the defendants have suffered significant damage to their business interests, flowing directly from the delay. No specific financial prejudice is alleged. It is a case quite unlike Antcliffe v. Gloucester H. A. [1992] 1 W.L.R. 1044, in which the defendant was able to show that the delay meant that it would have to pay from its own pocket money that it would not have had to pay but for the delay.

53. The third defendant's allegation that the matter has been hanging over its head since 1987 implies the factor of anxiety, and it says that it has been prejudiced in its professional reputation.

54. Of course, litigation always produces anxiety, but I dare say the anxiety is much less for a corporate body, particularly a "public" body, than for a human. I attach little importance to this point.

55. As to the third defendant's reputation, what happened undoubtedly happened; the plaintiff was gassed while rehearsing, and if that affects the third defendant's reputation, so be it; there is nothing anyone can do about that. The prejudice is not caused by any delay on the part of the plaintiff. An early trial would not have demonstrated that the plaintiff was not gassed while rehearsing at the Academy.

Conduct of the Defendants

56. In June 1993, the plaintiff decided to proceed with discovery in the hope that this process might reveal information that would help the preparation of the plaintiff's case for trial. Preparation of the plaintiff's list of documents continued throughout June and July 1993, and was completed at the end of August 1993.

57. On 3 September 1993, the plaintiff's solicitors wrote to the defendants' solicitors proposing an exchange of lists of documents. On 7 September 1993, the second defendant's solicitors replied saying they needed more time to complete discovery. On 8 September 1993, the plaintiff's solicitors spoke to the secretary of the solicitor for the first and third defendants. On 10 September 1993, the solicitor for the first and third defendants wrote to the plaintiff's solicitors saying they had referred the letter of 3 September to their clients for instructions. On 14 September 1993, the plaintiff's solicitors wrote again to the defendants' solicitors proposing an exchange of lists. On 21 September 1993, the second defendant's solicitors replied saying they would not be in a position to exchange before 30 September 1993. The plaintiff's solicitors wrote again on 24 September 1993 applying further pressure to exchange. The only response was the summonses to dismiss.

58. The solicitor for the first and second defendants acknowledges he received the letter of 3 September 1993. He says he was instructed "on my return from leave in early September 1993 to prepare a summons to strike out for want of prosecution". Before the preparations were complete, he received the letter of 24 September, but proceeded to issue the application to dismiss because "notwithstanding the request to exchange documents, by past experience I had no confidence that the plaintiff was seriously intent on pursuing these proceedings".

59. I do not believe that, coincidentally with the first sign of activity from the plaintiff for two years or so, the defendants decided, independently of this and the first and third defendants independently of the second defendant, that the time had come to made applications to dismiss. It is probable that all the defendants in this action got together and said, in effect : "It looks as if the plaintiff is getting into gear again and is intent on proceeding. Let's see if we can knock him out before he gets any further."

60. I do not think that this conduct of the defendants constitutes estoppel, waiver, acquiescence or whatever other formal concept it might resemble, but it does demonstrate a measure of lack of sincerity. It inclines me to think that the applications to dismiss were not inspired by a lack of activity on the part of the plaintiff and the desire to get rid of a nuisance action that would not get anywhere, but, on the contrary, were motivated by a fear that the plaintiff was getting his act in order and was now intend on moving his action forward. It is a factor that I believe I am entitled to take into account in exercising my discretion.

Overall

61. I have come to the conclusion that, although the plaintiff has been guilty of inordinate and inexcusable delay, this has not prejudiced the defendants seriously in the conduct of the litigation or otherwise. Even if I am wrong in that conclusion, I would feel that I should decline to exercise my discretion in favour of dismissing the action because of -

a) the unusual features about the litigation;

b) the unusual features about the plaintiff personally

c) my belief that the plaintiff has a sound claim for damages in some amount against somebody, and that to dismiss the action would leave me, at least, with an uneasy feeling that justice has not been done;

d) my unhappiness with the conduct of the defendants in commencing these proceedings without warning when they knew that the plaintiff was moving forward;

e) the failure by the defendants to point out to the plaintiff clearly that they were suffering particular prejudice by the delay; and

f) although the defendants may have suffered some prejudice, this is not sufficiently serious to override these other features.

The Result

62. In the result, the summonses are dismissed.

The Costs

63. On the face of it, I can see no reason why the plaintiff should not have his costs in any event, and I make a order nisi to this effect.