LI OI HUNG v. FAMOSO COMPANY LTD AND OTHERS

HCPI 117/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 117 OF 2012

________________________

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I. BACKGROUND

1.  On 21 July 2009 (ie long before the commencement of the present proceedings), the Director of Legal Aid (“DLA”) assigned a solicitor to act for the plaintiff for her intended common law claim for damages for personal injuries in connection with a work-related assault incident and false imprisonment on 16 February 2009 at Tsuen Wan Plaza, Tsuen Wan, New Territories (“Accident”).  On 14 January and 23 August 2011 respectively, new solicitors were re-assigned to act for the plaintiff.

2.  On 13 February 2012, the plaintiff by her then assigned solicitors  (“Plf’s Former Solicitors”) commenced the present proceedings by issuing a protective Writ of Summons to claim for damages for personal injuries in relation to the Accident.  According to the Notice of Check List Review (“CLR”) filed on the same date, the first CLR was scheduled to be heard on 2 August 2012.

3.  On 15 February 2012, Plf’s Former Solicitors wrote to the former solicitors for the 1^st defendant (“D1”) and the  2^nd, 3^rd and 4^th defendants (“D2, D3 and D4”) enclosing the Writ of Summons and Notice to Insurer for their information and making enquiries as to the relevant employees’ compensation insurance policy.  On 3 March 2012, Plf’s Former Solicitors wrote to follow up on their earlier enquiry.  On 6 March 2012, D2, D3 and D4 replied by saying they and Famoso Co never employed any employee.

4.  On 21 March 2012, Plf’s Former Solicitors sent demand letters to D2, D3 and D4 setting out the plaintiff’s claim, requesting certain documents, and enclosing various documents including police documents, medical reports, expert medical reports, medical certificates and various expense receipts.  On 19 April 2012, D2, D3 and D4 replied to say that Famoso Co never employed the plaintiff.

5.  On 18 July 2012, Plf’s Former Solicitors wrote to me as PI Master to request for an adjournment of the CLR scheduled on 2 August 2012 on the grounds that (a) the Writ of Summons had not been served, (b) the plaintiff had been awaiting the outcome of the ICAC investigation and (c) the ICAC gave her a DVD recording upon completion of their investigation, but further time was required to review the recording, take instructions and prepare the plaintiff’s pleadings.

6.  On 20 July 2012, as PI Master I granted the following order (“1^st CLR Order”):

(a) unless the plaintiff served the Writ of Summons on D1, D2, D3 and D4 (collectively, “Ds”) on or before 4pm on 7 September 2012, her indorsement of claim against D1, D2, D3 and/or D4, whoever as appropriate, be struck out and her claim against the relevant defendant(s) in the present action be dismissed (“Unless Order”);

(b) the plaintiff was to serve the Notice of CLR filed on 13 February 2012, her questionnaire filed on 19 July 2012, her Mediation Certificate filed on 13 February 2012 and sealed copy of the 1^st CLR Order at the same time as service of the Writ of Summons;

(c) the CLR scheduled on 2 August 2012 be vacated;

(d) upon compliance with the Unless Order within the prescribed time, the CLR be adjourned to 22 November 2012.

7.  On 9 August 2012, the DLA filed Notice of Discharge of legal aid for the plaintiff.

8.  On 20 November 2012, the plaintiff filed the affirmation of service by Chiu Kin Keung (“Chiu”).  By such affirmation (“Chiu 1^st Aff”), Chiu stated he assisted the plaintiff who had mobility problems to serve on the Ds the Writ of Summons (as prepared by Plf’s Former Solicitors). He claimed that on 2 September 2012 he served the Writ of Summons on the Ds via a document delivery service called “SF Express”, and that confirmation of such service was verified by the electronic tracking record on the website of “SF Express”.  Chiu said that after her legal aid was discharged, the plaintiff (and Chiu) sought assistance at the Resource Centre for Unrepresented Litigants (“Centre”) on 13 September 2012.  Upon realising the Writ of Summons had not been sealed, they obtained four sealed copies and on 17 September 2012 served the same on the Ds via “SF Express”.

9.  But there were no documents or schedule of served documents exhibited to the Chiu 1^st Aff, so it was unclear whether the Writ of Summons was actually served on the Ds before or after 7 September 2012 being the deadline imposed in the Unless Order.  If the Writ of Summons was served after 7 September 2012, the automatic sanction under the Unless Order would have effect. But if it had been served on or before 7 September 2012, the present action would remain viable and the court could proceed with the CLR.

10.  The plaintiff attended the 2^nd CLR on 22 November 2012 (“2^nd CLR”) and the Ds were absent.  As PI Master I directed the plaintiff to file supplemental affirmation of service within 28 days to verify service of the Writ of Summons and other prescribed documents (which affirmation should identify the person who was served, the specific documents that were served, and the date, place and mode of service with supporting documents, and which should confirm that the documents so served had not been returned), and without prejudice to the Unless Order I also adjourned the CLR to 24 January 2013.  The supplemental affirmation of service was intended to clarify the matters in paragraph 9 above.

11.  On 26 November 2012, the plaintiff filed Chiu’s supplemental affirmation of service (“Chiu 2^nd Aff”). Chiu confirmed he knew the Writ of Summons should be served on/before 4 pm on 7 September 2012.  Since the plaintiff’s legal aid was discharged and she had mobility problems, Chiu assisted the plaintiff to serve the Writ of Summons.  As the former solicitors for the Ds declined to accept service, Chiu gave the Writ of Summons prepared by the Plf’s Former Solicitors to “SF Express” on 31 August 2012 to serve on the Ds.  Chiu claimed that according to the electronic tracking record of “SF Express”, the Writ of Summons served on 1 September 2012 had not been returned.  The relevant delivery slips and downloaded electronic tracking record were exhibited.

12.  Chiu went on to say that on 14 September 2012 he accompanied the plaintiff to attend the Centre and there they discovered the Writ of Summons served on the Ds via “SF Express” were unsealed copies, so on the same day they obtained four sealed copies of the Writ of Summons which he gave to “SF Express” to serve on the Ds. According to the electronic tracking record of “SF Express”, the Writ of Summons served on 18 September 2012 was not returned. The relevant delivery slips and the downloaded electronic tracking records were exhibited.

13.  On 27 November 2012, the Ds received another package from “SF Express” containing various documents prescribed by the 1^st CLR Order including the Writ of Summons.

14.  On 28 November and 13 December 2012, the plaintiff filed two affirmations of service verifying service of the Chiu 2^nd Aff on the Ds by post on 26 November 2012.

15.  On 14 December 2012, D1 by their solicitors (“D1’s Solicitors”), D2, D3 and D4 filed their respective acknowledgment of service giving notice of intention to defend.  On 7 January 2013, the solicitors for D2 and D3 filed their Notice to Act.

16.  At the 3^rd CLR on 14 February 2013 (“3^rd CLR”) attended by the plaintiff, D1’s Solicitors and the solicitors for D2 and D3 (“D2/3’s Solicitors”) with D4 absent, Master K Lo directed (a) the plaintiff to serve her supplemental affirmation of service on the Ds, (b) thereafter the Ds to file and serve affirmation stating whether, when and how they received the Writ of Summons and the other prescribed documents and to exhibit those documents for reference, (c) thereafter the plaintiff to file and serve her affidavit in reply, and (d) the CLR be adjourned to 14 June 2013 (“3^rd CLR Order”).

17.  Pursuant to the 3^rd CLR Order, the plaintiff on the same day filed supplemental affirmation of service verifying service by post on the Ds of the Chiu 1^st and 2^nd Affs and the plaintiff’s affirmations filed on 28 November and 13 December 2012.

18.  On 8 March 2013, D2 filed her affirmation on behalf of herself and D3, and D4 filed her affirmation.  On 25 March 2013, D1 filed D2’s affirmation. All such affirmations were filed pursuant to the 3^rd CLR Order.  By such affirmations, the Ds claimed that D2 and D3 trading as Famoso Co and D4 formerly trading as Famoso Co never employed the plaintiff or any other employee, and D2, D3 and D4 were not involved in the Accident.  The affirmations noted that the plaintiff had made reports to the police and ICAC, but the police had completed their investigation.  On/about 17 February 2012, D1’s Solicitors, D2, D3 and D4 received the letters by the Plf’s Former Solicitors dated 15 February 2012.  D2, D3 and D4 received the follow up letters dated 3 March 2012 by Plf’s Former Solicitors. They replied by letter dated 6 March 2012.  These letters have been referred to in paragraph 3 above.  On/about 23 March 2012, D2, D3 and D4 received letters dated 21 March 2012 together with some documents from Plf’s Former Solicitors. D2, D3 and D4 replied by letter dated 19 April 2012. These letters have been referred to in paragraph 4 above.  On 9 August 2012, D2, D3 and D4 received the Notice of Discharge of legal aid for the plaintiff.  In early September 2012, the Ds received a package from “SF Express” containing a Notice of CLR filed on 13 February 2012 and a blank questionnaire without any Writ of Summons.  On 18 September 2012, the Ds received a further package from “SF Express” containing the 1^st CLR Order and the Writ of Summons.  After seeking legal advice, they assumed the plaintiff’s claim in the present action had been dismissed since the Writ of Summons was served after 7 September 2012.  On 27 November 2012, the Ds received another package from “SF Express” as referred to paragraph 13 above. As a matter of precaution, the Ds filed acknowledgment of service on 14 February 2013.

19.  On 14 March 2013, the plaintiff filed her affirmation for extension of time to file her affirmation in reply under the 3^rd CLR Order.  She explained that she needed professional help due to her limited education and ignorance of Hong Kong law, and that her renewed application for legal aid was still pending. She said if such application were refused, she would seek assistance from the Bar Association’s pro bono scheme.  On 14 and 15 March 2013, the plaintiff’s brother filed affirmations of service verifying service of the plaintiff’s affirmation dated 14 March 2013 on D1’s Solicitors, D2/3’s Solicitors and D4.

20.  On 2 April 2013, the DLA refused the plaintiff legal aid.  On 5 April 2013, D4’s solicitors (“D4’s Solicitors”) assigned by the DLA filed Notice to Act.  On 11 April 2013, the plaintiff filed her affirmation confirming D4’s refusal to accept service of her supplemental affirmation of service under the 3^rd CLR Order.

21.  On 24 April 2013, the plaintiff wrote to the Ds to request that the forthcoming CLR be adjourned sine die pending inter alia her appeal against the DLA’s refusal of legal aid.  On 2 May 2013, the plaintiff filed her affirmation confirming service of such letter on D1’s Solicitors, D2/3’s Solicitors and D4’s Solicitors.  By their letter dated 26 April 2013 to the plaintiff, D2/3’s Solicitors and D4’s Solicitors disagreed with her proposal.

22.  By a written decision handed down on 2 July 2013 (“Master Decision”) pursuant to the hearing of the 4^th CLR on 14 June 2013 (“4^th CLR”) attended by the plaintiff, D1’s Solicitors, D2/3’s Solicitors and D4’s Solicitors, Master Leong (a) ruled that the plaintiff had failed to comply with the Unless Order in that she failed to serve the Writ of Summons on or before 4 pm on 7 September 2012 such that her indorsement of claim against the Ds had been struck out and the present action had been dismissed, and (b) granted a costs order nisi (which had since been made absolute) that the plaintiff do pay costs of the action to the Ds to be taxed if not agreed (“Order”).

II.  PRESENT APPLICATIONS

23.  On 13 August 2013, the plaintiff applied for leave to appeal against the Order out of time (“Leave Application”), and if the court were to grant such leave, to appeal against the Order (“Appeal”). She filed/served her affirmation in support on the same day.  The plaintiff claimed she was hospitalised between 18 July and 2 August 2013 at United Christian Hospital (see hospital discharge slip dated 2 August 2013 which confirmed she was hospitalised for “mechanical low back pain, numbness and neck pain” and letter by the hospital on the same day confirming her hospitalisation for “back pain, neck pain and limb numbness”).[1]  The plaintiff said that even if she had been procedurally incorrect, she should not be penalised by having her claim extinguished altogether as a result of the sanction under the Unless Order coupled with the expiry of the limitation period.  Her claim for employees’ compensation had been settled, and she believed she had a sustainable cause of action on her common law claim.  She wished to summons various witnesses to give evidence at the Appeal on the question of service of the Writ of Summons.

24.  The plaintiff applied for legal aid to prosecute the Appeal, but was refused on 19 September 2013.  On 4 October 2013, the plaintiff’s present solicitors (“Plf’s Solicitors”) filed their Notice to Act.

25.  On 28 February 2014, the plaintiff filed a summons under Order 2 rules 4-5 and Order 3 rule 5 of the RHC for extension of time to apply for relief from sanction under the Unless Order and for an order that service of the Writ of Summons on the Ds on 18 September 2012 be deemed good and effective service or alternatively leave to extend time to serve the Writ of Summons (“Relief Summons”).

26.  On the same day, the plaintiff filed her affirmation in support of the Relief Summons (“Relief Affirmation”).  She claimed that since the Accident, her health and physical condition deteriorated rapidly to such an extent that she was completely wheelchair bound and dependent on others, and she had been in and out of hospital.  As a legally aided person she relied on her assigned solicitors to handle the present action.  When her legal aid certificate was discharged on 9 August 2012, she was overwhelmed and lost.  With her lack of legal knowledge and her physical condition, she relied on Chiu (who is from the Hong Kong Federation of Trade Unions and a supervisor of the division of the Hong Kong Construction Industry Employees General Union) to serve the Writ of Summons and other court documents on the Ds.

27.  In the Relief Affirmation, the plaintiff said that on 31 August 2012 Chiu through “SF Express” served documents on the Ds, who received them on/about 1 September 2012.  On 14 September 2012, Chiu accompanied the plaintiff to the High Court to make enquiries and discovered some documents had to be sealed.  After those documents were sealed they were served via “SF Express” and the Ds received them on 18 September 2012.  The plaintiff claimed she was unaware that the Ds received the Writ of Summons only on 18 September 2012 and not on 1 September 2012.

28.  In the Relief Affirmation, the plaintiff frankly acknowledged she knew she had to serve the Writ of Summons on the Ds by 7 September 2012. The Writ of Summons was apparently not properly served on the Ds before such deadline.  But due to her deteriorating health and physical condition and her need to rely on others due to lack of legal knowledge, she was confused and all along thought the unsealed documents were extra copies.  At the 1^st CLR, she was not informed that she had failed to comply with the Unless Order, but was merely directed to re-send the entire set of documents to the Ds.  The Ds confirmed they received further documents on/about 27 November 2012.  At the 3^rd CLR the Ds tried to strike out the Writ of Summons, and she only learnt of the problem when the Ds filed their affirmations pursuant to the 3^rd CLR Order. Up till the 4^th CLR, the plaintiff was still confused, and just realised what happened upon receipt of the Master Decision. But she had made genuine efforts to comply with the Unless Order. Her default was unintentional, and the delay of only 11 days would not have caused prejudice to the Ds.

29.  The plaintiff had been hospitalised from 18 July to 2 August 2013, and she claimed she lodged the Appeal as soon as she practically could after discharge.  The delay was a short one.  She wanted to seek legal assistance, but had financial difficulty in securing private legal representation. Further, her condition deteriorated after August 2013 and she had to consult different doctors and specialists. She had been hospitalised on an on-and-off basis.  She was easily stressed and could not concentrate or talk for sustained periods, which made it difficult for her to give instructions to her legal representatives.  She understood that the limitation period for her claim in relation to the Accident had expired. Unless she obtained relief from sanction she would have no chance to bring her common law claim which she believed was viable.  She accepted she was late in seeking relief from sanction, but she had been unaware of the need to seek relief until she was advised by her legal representatives.

30.  In light of the contents of the Relief Affirmation which appeared to acknowledge that the Writ of Summons had not been formally served on or before 7 September 2012 as prescribed by the Unless Order, I enquired with Ms So, counsel for the plaintiff, at the Hearing whether or not the plaintiff would pursue the Appeal.  Ms So informed me that the plaintiff would seek leave to withdraw the Appeal and pursue the Relief Summons for relief from the sanction in the Unless Order. Without objection by the Ds, at the Hearing I granted leave for the plaintiff to withdraw the Notice of Appeal dated 13 August 2013 with costs to the Ds to be paid by the plaintiff in any event to be taxed if not agreed, and D4’s own costs to be taxed in accordance with Legal Aid Regulations.

III. LEGAL PRINCIPLES

31.  Ms So, Mr Chong (solicitor for D1), Ms Mak (solicitor for D2 and D3) and Mr Hui (counsel for D4) have no disagreement over the legal principles in relation to the nature of an unless order, the nature of the automatic sanction in an unless order, and the exercise of discretion for relief from sanction under Order 2 rule 4 of the RHC set out in Top One International (China) Property Group Co Ltd v Top One Property Group Ltd,[2] Daimler AG v Leiduck,[3] and my decision in Lee Sai Nam v Li Shu Chung & anor.[4] I have set out the principles in some detail in Lee Sai Nam, and I adopt those principles without repeating them here.

32.  Pursuant to Order 2 rule 4 of the RHC, application for relief from sanction should be made within 14 days of the failure to comply with the unless order.  In Lee Sai Nam, which concerned an application for relief from sanction that was overdue for almost a year, I stated that in considering whether to extend time to grant relief from sanction the court has to consider all relevant factors, particularly (a) the length of the delay, (b) the reasons for the delay, (c) the merits of the proposed application for relief from sanction, and (d) the degree of prejudice to the other party. The factor in (c), ie consideration of the merits of the application for relief from sanction, will bring into focus the nine factors in Order 2 rule 5(1) of the RHC.

33.  Order 2 rule 5(1) of the RHC requires the court considering any application for relief from sanction to take into account the nine factors set out below and any other relevant factor:

(a) the interests of the administration of justice;

(b) whether the application for relief has been made promptly;

(c) whether the failure to comply was intentional;

(d) whether there is a good explanation for the failure to comply;

(e) the extent to which the party in default has complied with other rules and court order;

(f) whether the failure to comply was caused by the party in default or his legal representatives;

(g) in the case where the party in default is not legally represented, whether he was unaware of the rule or court order, or if he was aware of it, whether he was able to comply with it without legal assistance;

(h) whether the trial date or the likely trial date can still be met if relief is granted;

(i) the effect which the failure to comply had on each party; and

(j) the effect which the granting of relief would have on each party.

IV.  RELIEF FROM SANCTION

34.  The starting premise is that the plaintiff now accepts there had been non-compliance with the Unless Order. She claimed she missed the deadline because she was confused, and she held reasonable and bona fide belief (but which she now admits to be erroneous) that she had complied with the Unless Order.  But irrespective whether she was justifiably confused or not, she claimed her default was not contumelious or deliberately defiant, and she did not intend to flout the Unless Order.

35.  On the other hand, Mr Hui suggested that the plaintiff should have been able to comply with the Unless Order without legal assistance because she had Chiu’s assistance after her legal aid was discharged.  Since Chiu must have litigation experience from his trade union background, it was inconceivable that he would regard the unsealed document (which Chiu claimed they only found out upon visiting the Centre on 14 September 2012) as the Writ of Summons, and such unsealed document was more likely to be the 1^st CLR Order as Master Leong found in the Master Decision, so the plaintiff’s and Chiu’s explanation for non-compliance with the Unless Order and of being confused was incredible.

36.  Mr Hui and Ms Mak also submitted that the serious allegations made by the plaintiff at the 4^th CLR that the Ds had received the Writ of Summons on 1 September 2012 but conspired to ignore the same until 18 September 2012 so as to strike out her claim (which contradicted her present stance that she was unaware that the Ds only received the Writ of Summons on 18 September 2012 and not 1 September 2012) would cast serious doubt on the credibility of her assertion that she had made genuine efforts to comply and bona fide believed she had complied with the Unless Order. On such basis, it was suggested the plaintiff had no good explanation for the failure to comply with the Unless Order.

37.  To put the matter in context, there could be no doubt that the plaintiff had some health and mobility problems.  At this stage, it is not for me to determine whether her allegations were genuine or not, or whether her health and mobility problems were attributable to the Accident.  Quite shortly (ie about three weeks) after her legal aid was discharged, the plaintiff on her own and without legal help had to arrange for service of the Writ of Summons and other court documents to comply with the Unless Order. She had little legal knowledge or experience in litigation and relied on Chiu to help her, and the affirmation evidence showed it was Chiu who made arrangements on her behalf for service of various documents on the Ds at the end of August 2012.  The Chiu 1^st and 2^nd Affs clearly confirmed it was Chiu who assisted her in these matters.  I am not persuaded that in the early aftermath of the discharge of her legal aid the plaintiff could have managed on her own to effect service of documents without help from Chiu.  

38.  One of the nine factors is whether the failure to comply was caused by the party in default or his legal representatives.  Although Chiu was not a lawyer, it must be a relevant consideration as to whether Chiu (being a third party assisting the plaintiff) had erred in omitting the Writ of Summons when he sent out the first batch of documents via “SF Express” on 31 August 2012. The Chiu 1^st and 2^nd Affs confirmed (and indeed as evident from the Ds’ affirmations) he corrected the error by getting sealed documents and sending them (including the Writ of Summons) to the Ds as part of the second batch of documents which the Ds received on 18 September 2012. It is therefore plain that the plaintiff was reliant on Chiu to make these arrangements.

39.  Mr Hui and Ms Mak asked me to take a cynical view in that Chiu being experienced in these matters would not have made a mistake.  But the reality as confirmed by the Ds in their affirmations was that Chiu did make a mistake in that the Writ of Summons was omitted from the first batch of documents received by the Ds on 1 September 2012.  Chiu as a person from the trade union had no other discernible interest to serve in this matter except to help the plaintiff.  Both the plaintiff and Chiu frankly acknowledged their awareness of the Unless Order and the need to serve the Writ of Summons and other prescribed court documents by 7 September 2012.  The plaintiff also knew that the Writ of Summons was a protective writ, and the limitation period for her claim in relation to the Accident had expired.  Against her knowledge of the need to comply with the Unless Order, there is no logical reason for the plaintiff or Chiu to deliberately withhold the Writ of Summons from the first batch of the documents in their anxious attempt to comply with the Unless Order by sending the first batch of documents to the Ds.  The only logical conclusion must be that there was a mistake.

40.  Given that Chiu was the one who masterminded the service of the documents, the plaintiff’s claim of her own confusion was not improbable.  But even if I am wrong and the plaintiff knew there had been a mistake, it does not alter the fact that she with the help of Chiu tried to comply with the Unless Order, and they made quick efforts thereafter to get the unsealed documents sealed and to send out the Writ of Summons and other documents to the Ds which they received them only 11 days after the deadline imposed in the Unless Order.  These matters showed that all along the plaintiff was actively trying to comply with the Unless Order.

41.  Further, the plaintiff’s efforts to comply with the Unless Order must not be viewed in isolation and must be put in the context of the subsequent procedural history which showed that once clear directions were given to her by way of the 2^nd and 3^rd CLR Orders she took steps to and did comply with those orders and meticulously filed affirmations of service to document her efforts even though she was unrepresented. In my view, this is not reflective of a cavalier attitude to rules and court orders.  This is not a case of a plaintiff who had gone to ground and made no effort to comply with the unless order at all.  Rather, the plaintiff here was more anxious to move her claim along rather than to delay or hinder the proceedings.  In my view, it cannot be said that the plaintiff’s failure to comply with the Unless Order was intentional or deliberate.

42.  Mr Chong argued that failure to comply with an unless order due to a litigant overlooking the matter would be a strong reason for not granting relief, hence the plaintiff cannot rely solely on her own negligence/incompetence to avoid the sanction imposed under the Unless Order. I am not persuaded that such argument assists. Here, the plaintiff did not overlook the matter, rather she was actively but unsuccessfully trying to comply with the Unless Order by serving documents with the help of Chiu.

43.  The Ds also cast a sinister gloss over the plaintiff’s assertions of conspiracy against them and questioned whether she had good reason for non-compliance with the Unless Order.  Bearing in mind that the plaintiff was unrepresented at that time and in her confusion she believed she had already served the Writ of Summons in time, she was understandably frustrated by what she perceived to be the Ds’ concerted effort to stonewall her by maintaining her claim had been dismissed.  It was not until later that she realised the Writ of Summons was served out of time.  I am unable to infer any deviousness from the plaintiff’s allegations.  But even if I am wrong and her allegations against the Ds made at the 4^th CLR were unjustified, it does not alter the fact that she had made active attempts to comply with the Unless Order in early September 2012 and continued to do so after 7 September 2012 by Chiu sending out the second batch of documents (which included the Writ of Summons).

44.  As to the effect of the failure to comply with the Unless Order and the countervailing effect of granting of relief, I note that the limitation period had expired.  If the plaintiff is unable to obtain relief from the sanction under the Unless Order, her claim for damages in relation to the Accident will have ended before it can really start even though the Writ of Summons was in fact issued within time and the plaintiff did make active but unfortunately incomplete efforts to comply with the Unless Order before the expiry of the deadline imposed thereunder.

45.  Mr Chong argued that the court should not deprive the Ds of their expectation that the claim was no longer available to the plaintiff. However, the present situation was not one in which the Ds could say everything had gone quiet after the Accident and they had no idea that a claim would be sprung upon them when they expected there would have been no claim as time creeped beyond the limitation deadline.  Here, the Plf’s Former Solicitors have sent the Writ of Summons to the Ds for information two days after its issuance.  They also triggered the pre-action protocol under Practice Direction 18.1 by serving the demand letters (equivalent of the pre-action letters) on the Ds in March 2012.  In the circumstances, the Ds well knew and indeed expected the plaintiff to pursue her common law claim in relation to the Accident.  Plainly, the plaintiff had not been a “sleeping dog”, and the non-compliance with the Unless Order due to regrettable omission to include the Writ of Summons in the first batch of documents received by the Ds on 1 September 2012 (but with belated remedial step of sending inter alia the Writ of Summons by the second batch of documents that was eventually received by the Ds on 18 September 2012) merely created a windfall limitation argument for the Ds.  I further note there is no suggestion by any of the Ds that she/they will suffer any substantive prejudice in meeting the plaintiff’s common law claim on the merits should relief from sanction be granted.

46.  Mr Hui also suggested that the plaintiff had not given any reasonable explanation for the lateness in making her application for relief. Ms Mak submitted that the plaintiff had not produced medical evidence to demonstrate that her fragile health and physical condition led to her failure to apply for relief from sanction in the past 18 months.  Mr Hui further reminded that the plaintiff did not make any application for relief from sanction at the 4^th CLR.

47.  But it must be remembered that the plaintiff was unrepresented, and, as Mr Hui agreed, the possibility of seeking relief from sanction under Order 2 rule 4 of the RHC was not raised at the 4^th CLR and not dealt with in the Master Decision.  There is nothing to refute the plaintiff’s suggestion that she had no clue as to this possible course of action until she was advised by her legal representatives.  But practically speaking, the Ds had actually received the Writ of Summons on 18 September 2012 and since then the plaintiff has been pressing for an opportunity to pursue her common law claim. In fact, the plaintiff in layman’s terms had in fact made an alternative application for relief from sanction in the Leave Application by saying that even if she had been procedurally incorrect, she should not be penalised by having her claim extinguished altogether as a result of the sanction under the Unless Order coupled with the expiry of the limitation period.  In my view, this is a loud cry for relief from sanction.  

48.  Ms Mak complained that even though the plaintiff had legal representation since 4 October 2013, the Relief Summons was only filed on 28 February 2014.  However, I note that the original hearing for the Appeal on 8 October 2013 was vacated by consent due to inability by the Plf’s Solicitors to take instructions as a result of the plaintiff’s hospitalisation between 27 September and 3 October 2013. There was therefore some support for the plaintiff’s suggestion of ill-health. Further, the Relief Summons was essentially a formal application under the rules of court for seeking relief out of time, but as explained above, the Ds had been alerted to such intention on her part under the Leave Application.

49.  I also do not agree that the plaintiff has not offered any reasonable explanation for the lateness in making her application for relief from sanction. As I have observed, there is no basis to refute the plaintiff’s claim that being unrepresented she was ignorant of Order 2 rule 4 of the RHC.  Mr Hui submitted that after the Master Decision, even though the plaintiff was hospitalised from 18 July to 2 August 2013, she could have lodged her Appeal and made application for relief from sanction from 2 and 17 July 2013 inclusive. Mr Hui also queried the severity of her disability since the diagnosis for her hospitalisation was merely back pain, neck pain and limb numbness.  At this stage, I am unable to say that the plaintiff’s diagnosis was necessarily indicative of a mild condition. It is only common sense that pain can range from mild to debilitating.  The plaintiff also claimed she had problems with mobility and was wheelchair-bound.  At this stage, it is inappropriate and indeed impossible for me to conduct any critical evaluation of her medical/physical assertions.  But I note the plaintiff had been upfront with her medical condition and in fact quite a number of factual and expert medical reports had been disclosed to the Ds under cover of the demand letter dated 21 March 2013.  Further, the plaintiff had been feeling unwell such that she was hospitalised by 18 July 2013.  In such context, I do not find the plaintiff’s assertion that it was not practically possible for her to put forward a formal application for the Appeal and for relief from sanction in the few days before her hospitalisation to be surprising.

50.  In conclusion, notwithstanding suggestions otherwise by Mr Chong, Ms Mak and Mr Hui, I am not persuaded that the plaintiff’s non-compliance with the Unless Order and her delay in applying for relief from sanction were contumelious or deliberately defiant acts.  I do not think there was intention to ignore or flout the Unless Order.  The plaintiff’s disobedience was due to her (and more likely Chiu’s) inadvertence or error, which was subsequently corrected albeit 11 days out of time.  The plaintiff had made serious effort to comply but had been unsuccessful due to (a) excusable reason be it bad luck, incompetence or inadvertence or (b) circumstances beyond her control (ie she entrusted Chiu to serve the Writ of Summons and other prescribed documents on the Ds in time but he omitted to do so).

51.  I bear in mind that compliance with court orders is a fundamental part of the administration of justice, and that the court and the litigants should not be complacent about delays.  Here, the application for relief from sanction was made substantially out of time. However, this was only one of the factors for deciding whether to grant extension of time for making such application.  Even though the plaintiff here had committed procedural error, the Ds had been alerted to the issuance of the Writ of Summons in February 2012 and of her intention to pursue her common law claim for about half a year before the deadline imposed under the Unless Order, and that essentially was the substantive purpose of the Relief Summons, ie to lift the sanction under the Unless Order so that the plaintiff could serve the Writ of Summons and to proceed with the present action.  This case is not one in which the plaintiff had done nothing about the Unless Order.  In fact, it was unusual in that the plaintiff being the defaulting party was in fact the party who was all along acting in a proactive manner.  Hence, the gravity of her wrong was not as serious as Mr Chong, Ms Mak and Mr Hui would have portrayed, which would suggest that the consequences of the sanction should be mitigated by the extent of the breach as it turned out.  After all, service of the Writ of Summons on the Ds was only 11 days late.  I am also not persuaded that the Ds would be badly prejudiced by any relief from sanction.

52.  Taking into account all the circumstances (including the nine factors under Order 2 rule 5(1) of the RHC) and the gravity of the consequences for the plaintiff if she could not obtain an extension of time to seek relief from sanction, I find it will work a real injustice if the sanction is maintained.  In my view, this runs counter to the interests of the administration of justice as well as the underlying objectives in Order 1A rule 1(d) of the RHC to ensure fairness between the parties, which provisions are to ensure the just resolution of their disputes as required by Order 1A rule 2(2) of the RHC.  What the court must strive to do is to avoid injustice. Upon considering all the circumstances, the factors relevant to the exercise of the discretion to extend time for seeking relief from sanction, and also the factors for the application for relief, I am satisfied that I should grant leave for the plaintiff to apply for relief against sanction under the Unless Order out of time, and upon such leave being granted to allow relief against sanction.

V.  CONCLUSION

53.  I therefore grant the following order:

(a) leave for the plaintiff to make the application for relief from sanction in respect of the Unless Order out of time;

(b) relief be granted to the plaintiff from the sanction imposed in the Unless Order;

(c) the Writ of Summons shall be deemed to have been served on the Ds on 18 September 2012;

(d) there be retrospective extension of time until 14 February 2013 for the Ds to file their respective acknowledgment of service;

(e) the acknowledgment of service filed on 14 February 2013 by D1’s Solicitors on behalf of D1 shall stand as D1’s acknowledgement of service of the Writ of Summons in this action;

(f) the respective acknowledgment of service filed on 14 February 2013 by D2, D3 and D4 shall stand as their respective acknowledgment of service of the Writ of Summons in this action;

(g) there be extension of time until 21 days from today for the plaintiff to file and serve her Statement of Claim and Statement of Damages, and each such document shall be accompanied by its statement of truth;

(h) there be extension of time until 21 days from today for the plaintiff to file and serve her Medical Reports pursuant to Order 18 rule 12 of the RHC;

(i) within 28 days thereafter, the D1, D2 and D3, and D4 shall file and serve their respective Defence, and each such Defence shall be accompanied by its statement of truth;

(j) within 21 days thereafter, the parties shall serve and exchange List of Documents, and there be inspection of documents within 7 days thereafter;

(k) CLR be adjourned to 19 June 2014 at 9:30am before this court in chambers with 30 minutes reserved for further case management;

(l) attendance of counsel at the adjourned CLR is dispensed with;

(m) this court shall be notified at once and in any event within three days if any of the above directions are not met with detailed reasons;

(n) D4’s solicitors shall send a copy of this order to the legal aid counsel in charge of this case to ensure there is no delay in compliance with these directions due to late assignment of counsel or due to late issuance of an appropriate certificate.

(o) liberty to apply.

54.  At the Hearing, I did suggest that further case management should be returned to the PI Master.  But given that I have dealt with the Relief Summons and further given that the procedural history cried out for swift progress of the case in future, I consider that at least the next CLR should be made returnable before me.  I will also pass this case to the PI Judge to seek his directions as to whether continued case management should be docketed to ensure timely and effective progress.

55.  There is no reason why costs should not follow event. I have debated over the disposal of costs for resisting the application for relief after the Relief Summons and the Relief Affirmation had been filed/served, but in the end bearing in mind the fact that in the Relief Summons the plaintiff offered to pay costs of the application for relief from sanction (and Ms So did not resile from such stance at the Hearing) and upon more mature consideration of all the circumstances, including the fact the plaintiff came to court for indulgence, I have come to the conclusion that the plaintiff should pay the Ds their costs of the Relief Summons (including all costs reserved if any) in any event to be taxed if not agreed, and D4’s own costs be taxed according to Legal Aid Regulations. I accordingly grant a costs order nisi to such effect.

VI.  POSTSCRIPT

56.  I note this is now two years after the issuance of the Writ of Summons. If at the 3^rd CLR a brief hearing was scheduled to be heard shortly after 18 March 2013 (ie the deadline for the Ds to file affirmations to explain when and what documents they received), say, in late March or in April 2013 instead of June 2013, such earlier hearing would have elicited the fact that the Ds had received the Writ of Summons merely 11 days late. It would also have been useful on that occasion to inform the unrepresented plaintiff of the statutory provision for relief from sanction under Order 2 rule 4 of the RHC.  Whether she would then choose to seek relief or not, the matter could have been swiftly dealt with on the basis of existing affirmations to save time, minimise costs and achieve procedural economy for all concerned.  The court has a duty to proactively manage the litigation, and all parties including the Ds have a duty to assist the court to further the underlying objectives.  It is hoped that the parties in this litigation will now re-focus their energies on moving the case along towards final disposal as quickly as possible.