BALJIT SINGH v. OSCAR BIOENERGY JOINT VENTURE

DCEC 2047/2020 & DCPI 563/2021

[2022] HKDC 904

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2047 OF 2020

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 563 OF 2021

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DECISION

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A. The Consolidation Summonses

1.  Pursuant to O 4, r 9 of the Rules of the District Court, Messrs Boase Cohen & Collins (“BCC”), solicitors for Oscar Bioenergy Joint Venture (“Oscar”), issued, on 16 June 2022, a summons in each of the parallel proceedings, numbered DCEC 2047/2020 (“EC Action”) and DCPI 563/2021 (“PI Action”) (jointly known as the “Parallel Actions”) for the consolidation of the Parallel Actions (the Summonses are jointly referred to as the “Summonses”).  Oscar sought the consolidation of the Parallel Actions into one single consolidated action; or alternatively, for the Parallel Actions to be tried together.

2.  Messrs Tonys Lawyers (“Tonys”), the Legal-aid assigned solicitors for Mr Baljit-Singh, Oscar’s employee (“Employee”), did not oppose the Summonses.  Before the hearing of the Summonses on 15 August 2022, the parties filed, on 10 August 2022, a joint written application consenting to the consolidation of the Parallel Actions as one single action; or alternatively to the Parallel Actions being tried together.

3.  Despite the consent of the parties, I declined to approve the joint written application for consolidation, and directed the hearing to stand.  After Oscar’s counsel, Mr Francis Chung, lodged his submissions for the consolidation, and the further confirmation from the parties that they had no further submissions to put forward, I directed the disposal of the Summonses on paper in lieu of the hearing.

B. The grounds in support of the consolidation

4.  In the Affidavit of Chan Hon Wing, the partner of BCC, filed in support of the Summonses, Oscar advanced 4 grounds for the consolidation.  I believe they can be conveniently grouped together into 3 as follows.

5.  First, the parties and their legal representatives are identical in the Parallel Actions.

6.  Secondly, there is commonality of factual issues and evidence in the Parallel Actions.  One major dispute in the Parallel Actions is the denial by Oscar that the accident had occurred as alleged by the Employee.  In relation to these issues, the same factual witnesses as well as the same joint orthopaedic medical expert report will be adduced in both the Parallel Actions.

7.  Thirdly, since the Parallel Actions have not yet been set down for trial, no prejudice will be caused.

8.  In his written submissions, Mr Chung elaborated further by advancing 3 reasons in support of the proposed consolidation.

9.  First, there are common factual and expert issues in the Parallel Actions as to whether the alleged accident had happened at all.  It was stated that despite the guiding principle (see Yu Kwok Wa v China Telecom Global Ltd[1]) that the trial of an employees’ compensation claim should proceed first when contributory negligence is raised in a parallel common law personal injuries action, Mr Chung submitted that the relatively simple issues in the Parallel Actions should make it desirable to consolidate.  In support, Mr Chung cited, by way of example, the case of Chu Chung Man v East Asia Moving Limited[2] in which a combined trial was held despite the existence of an issue of contributory negligence as similarly pleaded in this PI Action.

10.  Second, a consolidation will allow the determination in one single trial of all overlapping issues of the Parallel Actions.  It was therefore submitted that a consolidation will have the benefit of avoiding duplicity of proceedings, as well as saving the parties’ time and costs.

11.  Third, unlike Yip Kam Chun v Wellgain International Industrial Ltd[3] in which the trial dates of both the parallel proceedings were already fixed, the trial dates of the present Parallel Actions have not yet been fixed.  It was therefore submitted that there is no issue of a milestone date.  Mr Chung urged this court to exercise its discretion to allow consolidation to facilitate the expeditious resolution of the disputes especially when no prejudice would be caused to the Employee.

C. Discussion and Decision

12.  Order 4, r 9 allows a court an unfettered discretion in deciding whether to order consolidation of actions.  There is no hard and fast rule that just because the parties are identical and some common question of fact or law is involved in both actions, consolidation will be ordered.  Ultimately, the exercise of discretion is a balancing exercise and each case has to be assessed on its own facts: see Hong Kong Civil Procedure 2022, § 4/9/2.

13.  It cannot be disputed that there are common questions of fact and evidence in these Parallel Actions, and that consolidation would on the face of it result in the saving of costs and time.  However, having carefully considered the facts and the submissions by Oscar, I decline to exercise my discretion to accede to the Summonses despite the consent of the parties. 

14.  A number of previous decisions of this court (including in the case of Yip Kam Chun at §18) been given in relation to the statutory objective of proceeding with employees’ compensation claims with reasonable expedition in order to provide quick financial relief to employees.  An unjustified delay caused by a related parallel common law action, in my view, would be an affront to this statutory objective.  The present case is a clear example of such an aberration – by causing a delay in the EC Action.

15.  From the case progress of the Parallel Actions, I believe that the parties, particularly Oscar, seemed to have purposely delayed the EC Action so as to synchronize it with the progress of the PI Action.  Such intentional act appears to have been shown by the fact that the dates of the filing of the parties’ witness statements were the same in the Parallel Actions.  Oscar filed in each of the Parallel Actions the same witness statements on 29 December 2021, and the Employee’s witness statements were then filed on 30 December 2021.

16.  After the Employee’s witness statements were filed in the Parallel Actions, there was no further progress for around 6 months until Oscar filed the Summonses on 16 June 2022.  The parties’ inaction means that they have flouted an order of the EC Action dated 3 November 2021 made by consent (“November Order”), in which the parties agreed to file a joint written application on or before 23 February 2022.  No such joint written application was filed as ordered.

17.  The parties’ non-compliance with the November Order only became known to this court on 8 August 2022 when it was giving directions to the parties for the disposal of the Summonses.  In response to the requisition by this court for the reason for the non-compliance with the November Order, Tonys sent a letter dated 10 August 2022 jointly signed by the parties’ solicitors. In the letter, it was stated that the delay was partly caused by Oscar’s having taken time to take counsel’s advice for consolidation, and partly due to the delay caused by the late availability of the joint orthopaedic medical expert report.  Instead of it being available by 4 February 2022 as stipulated in the November Order, Tonys stated that Oscar only received the joint report on 15 June 2022.

18.  In my view, it was wrong for the parties to sit on their hands when they were fully aware of the deadline date for filing a joint written application.  The joint medical expert report was actually dated 12 May 2022. There is no explanation as to why Oscar allegedly only received the report in June 2022.  I consider that both parties were at fault.  When the parties were aware that the report could not be ready on time, they were under a duty to report to the court, and seek further directions, which they failed to do.

19.  With the EC Action having been delayed, Oscar was then able to capitalize on the delayed progress of the EC Action in advancing arguments by Mr Chung that “the progress of both actions is at an almost identical pace”.  Had there not been a delay, the EC Action could have been set down for trial around May 2022 at the latest when the joint medical expert report was available.  The gravamen of Oscar’s delaying of the EC Action, in my view, lies in its seemingly strategic manipulation of the parallel nature of the proceedings.  I therefore do not accept Mr Chung’s submissions that the reason for the “slight delay” is not the fault of the parties but the “prolonged preparation of the Joint Report”.

20.  Tonys should not have connived with BCC in not reporting to the court the delay that Oscar orchestrated.  The interest of the Employee did not coincide with that of Oscar.  Tonys should have informed the court in a timely fashion of Oscar’s desire to delay the EC Action.

21.  Presently, the EC Action is ready for trial, and for the PI Action, the only outstanding matter is the filing of a Revised Statement of Damages and Answer.  Despite the readiness of the EC Action for trial, I’d be disinclined to order a combined trial in view of the unsatisfactory delay caused by Oscar and the provisions of the proviso to s 26(1)[4] of the Employees’ Compensation Ordinance.  By the said proviso, there shall be a reduction of any award of damages made in this PI Action by any amount of compensation to be awarded in the EC Action.  Once the issues of liability and quantum of the PI Action are determined, all the issues of the EC Action will fall away and could be disposed of without trial.  In the circumstances, I find it most expedient to instead order the early trial of the PI Action, and stay the EC Action until the determination of the former.

22.  In my view, not only there is no extra advantage for ordering a combined trial, it will in fact unnecessarily burden a trial judge in spending extra time to also deal with the issues of the EC Action in a combined trial when the EC Action could in fact be disposed of without trial upon the conclusion of the PI Action.

23.  For these reasons, I am not persuaded that the circumstances of these proceedings warrant this court’s exercise of its discretion to allow consolidation.  The Summonses are therefore dismissed.

D. Order and Directions

24.  It is ordered that:-

(1)  The Summonses be dismissed; and

(2)  There be a costs order nisi that Oscar do pay the Employee’s costs of the Summonses, to be taxed if not agreed.  The Employee’s own costs are to be taxed in accordance with the Legal Aid Regulations.  If no party applies to vary the said nisi order within 14 days of the handing down of this Decision, the nisi order will become absolute.

D.1 PI Action

25.  In order that the PI Action can be tried as soon as possible, I will set the case down for trial before this court in a fixture list.  Having considered the number of witnesses, and the contents of the joint expert medical report, I believe that the length of the trial should be 2 days, and therefore set the case down for trial on 17-18 October 2022 at 10:00 a.m. at Court 26, with 2 days reserved.

26.  Within 14 days of the handing down of this Decision, the parties shall submit to this court agreed directions in relation to all the outstanding matters leading to the trial.

27.  There be liberty to apply.

D.2 EC Action

28.  The EC Action be stayed until the determination of the PI Action or until further order.

29.  Lastly, I wish to thank counsel for his assistance.

30.  Since a lot of employees in employees’ compensation and related personal injuries proceedings are legally-aided, I will therefore ask my clerk to provide a copy of this Decision to the Director of Legal Aid, whose attention should be particularly drawn to §§14, 18, 20-22 above.