XCHRX TSANG CHUNG WAN v. LI MING AND OTHERS

1996, No. P.I. 1063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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Ruling

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Application to amend

1. This is an application by the Plaintiff by Summons dated 26th February, 1998 to amend the written judgment handed down on 11th February, 1998 but which has not been drawn up and perfected. In my earlier judgment I had given judgment to the Plaintiff as against the 1st Defendant but had found the 2nd and the 3rd Defendants not liable to the Plaintiff. The Plaintiff now seeks for me to amend my judgment by finding the 3rd Defendant also liable to the Plaintiff.

Jurisdiction

2. The normal practice where a judgment has been drawn up and perfected is that a Court's jurisdiction to vary same will be confined to cases of accidental slip or omission and/or clerical inaccuracy or mistake. If, however, the order has not been drawn up, whether made in chambers or in open court, the position is quite different. It is within the powers of a judge to alter his judgment at any time before it is entered and perfected.

3. That the judge had such a power to do so was recognized by Jessel M.R. in the case ofRe St. Nazaire Co. (1879) 12 Ch. D. 88 where he said at page 91: "A judge can always reconsider his decision until his order has been drawn up". This was also recognized to be so in the case of Re Suffield and Watts (1888) 20 Q.B.D. 693 where Esher M.R. said at page 696: "He made the order of April 6 under the jurisdiction conferred by the Solicitor's Act, and after he had once made it, and it had been drawn up and perfected, he had no jurisdiction to alter it."

4. This is still the practice today as can be seen in the White Book in marginal note 42/1/4 under the heading "Effect of judgment before entry". Despite the fact that Mr. Millar, appearing for all the Defendants, was unable to make a formal admission as to jurisdiction, it is clear from this and from the above cases that the Courts do have such jurisdiction.

5. The exercise of that jurisdiction is, however, quite a different matter. It was held In re Barrell Enterprises [1973] 1 W.L.R. 19 by the Court of Appeal in England that save in the most exceptional circumstances a matter could not be reopened where oral judgments had been given even though the order had not been passed and entered.

6. This was followed by the Court of Appeal in Hong Kong in the case of The Association of Expatriate Civil Servants of Hong Kong v The Secretary for the Civil Service and The Secretary for Justice (unreported) Civil Appeal No.260 of 1995 where at page 2 of the judgment, Mortimer V-P, delivering the judgment of the Court, said:

"The point taken is that the judgment of this Court has not been perfected and therefore it is open to him to make such an application. Let me say at once that there is no doubt whatsoever that the court has such a power. The court has power to hear a party before the judgment is perfected as it is not functus. However, the circumstances in which a court will entertain such an application are very limited indeed."

Basis for the Application

7. The application by Mr. Chan was for me to re-open the arguments put forward by him and by Mr. Pirie at the trial relating to the interpretation of Regulation 45 of the Construction Sites (Safety) Regulations. This matter had already been argued by both counsels at the trial. However, Mr. Chan now says that because of an oversight on his part, he had failed to draw my attention to the interpretation contained in Regulation 2 - in particular Regulation 2 (2) (a) and (b). His argument now is that Regulation 2 (2)(a) and (b) makes it quite clear that the 3rd Defendant, being the main contractor on site, is also caught by Regulation 45 to be the contractor responsible for any mechanical equipment and is therefore under a duty to ensure that when it is used on site, it is not operated except by workman who is trained and competent to operate it. In support of that argument Mr. Chan cites the case of R v. Chan Ka Kui (HCMA674/84, Bewley J, 20/12/84) and also the case of AG v. Liu Ching Sun [1986] HKC 302.

8. Before considering the merits of the argument put forward by Mr. Chan, I must decide, on the basis upon which this application is put forward, namely, due to the oversight of counsel, certain regulations which should have been drawn to my attention at the trial were not, whether that amounts to such exceptional circumstances that I should exercise my jurisdiction to allow the matter to be re-opened for argument. In re Barrell Enterprises (supra), Lord Justice Russell said at page 24:

"It is clearly not permissible for a party to ask for a further hearing merely because he has thought of a possible ground of appeal that he originally overlooked."

9. Based on the words of Lord Justice Russell quoted above, I have come to the conclusion that the failure of counsel, when arguing the law at the trial of this matter, to point out to me relevant parts of the regulations which would support his argument is not such an exceptional circumstances as to allow me to entertain a further hearing after I have delivered my judgment although the same had not yet been drawn up and perfected. I therefore decline to exercise my jurisdiction to do so.

10. Having declined to exercise my jurisdiction to do so, I take the view that it would not be right or proper for me to go into the merits of the further substantive arguments which I have heard in relation to the breach of statutory duty of the 3rd Defendant since the only remaining recourse for the Plaintiff now, if he wished to pursue that, would be to bring this matter on appeal in so far as the 3rd Defendant's liability is concerned.

Costs Nisi Order of the Judgment

11. When I handed down judgment on 11th February, 1998 I found in favour of the Plaintiff against the 1st Defendant but dismissed the Plaintiff's claim against the 2nd and the 3rd Defendants. In the circumstances I made a costs order nisi that:-

(a) the Plaintiff pays the 2nd and 3rd Defendants their costs;

(b) the 1st Defendant pays the Plaintiff's costs of the action; and

(c) the 1st Defendant do reimburse the Plaintiff the costs due by the Plaintiff to the 2nd and 3rd Defendants.

12. Mr. Millar who appears at this hearing for the defendants submits that the normal rule of costs following the event should not have been departed from in this case in that the 1st Defendant should not have been ordered to reimburse the Plaintiff the costs due by the Plaintiff to the 2nd and 3rd Defendants. He does not dispute the rest of the costs order.

13. In making the costs order nisi in the way that I did, I had to decide whether it was reasonable in all the circumstances for the Plaintiff to have joined the 2nd and the 3rd Defendants in the action bearing in mind the doubts and uncertainties that such a plaintiff may be faced with before the case is actually heard and decided (see Leung Lai Ha and anr. v Hon Sau Ling and anr. [1993] 1 HKLR 86).

14. The Plaintiff's claim as pleaded claimed against the 2nd and the 3rd Defendants on the basis of occupier's liability as well as for breach of statutory duty. It was only at the hearing that the Plaintiff's counsel conceded that breach of statutory duty could not be levelled against the 2nd Defendant.

15. In the Defence filed on behalf of all three defendants, the only clear admission made was that the 3rd Defendant was the main contractor, the 2nd Defendant a sub-contractor of the 3rd Defendant and the 1st Defendant a sub-sub-contractor. There was not even an admission as to which of the three defendants was the employer of the Plaintiff. Again it was only at the trial that counsel for the defendants conceded that the 2nd and the 3rd Defendants were occupiers of the site and therefore under a duty of care to the Plaintiff who was working on the site.

16. Moreover, at page 3 of the Bundle of Documents which was used at the trial there is a standard form of the Notice by Employers of an Accident to an Employee given to the Commissioner of Labour pursuant to the Employees' Compensation Ordinance which is signed by and bears the chop of the 3rd Defendant and in which the 2nd Defendant is named as the employer of the Plaintiff. This notice was given as a result of the accident to the Plaintiff, the subject matter of this action.

17. Having heard arguments from both sides and in all the circumstances, I am satisfied that the Plaintiff has shown that it was reasonable, in the light of all the attendant uncertainties before trial, to have joined the 2nd and 3rd Defendants in this case and to have maintained the claim against them.

18. Accordingly the original costs order nisi shall stand as the costs order and I do not see fit to make any amendments thereto.

Costs of this hearing

19. This hearing was originally fixed for half an hour to hear the Defendants application in respect of the costs order nisi which application was made by letter from the Defendants' solicitors. However, the Plaintiff then issued a Summons returnable on the same date for me to amend my judgment in respect of the liability of the 3rd Defendant. I estimate that two-thirds of the entire hearing involved matters and arguments relating to the Plaintiff's Summons. I shall accordingly make an order nisi that :-

(1) two-thirds costs of this hearing be paid by the Plaintiff to the 3rd Defendant;

(2) one-third costs of this hearing be paid by the 1st Defendant to the Plaintiff; and

(3) Plaintiff's own costs be taxed in accordance with Legal Aid Regulations.