AFSC OPERATIONS LTD AND ANOTHER v. CREATOR PACIFIC LTD AND OTHERS

HCAJ 57/2020

[2026] HKCFI 4273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO 57 OF 2020

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D E C I S I O N

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A.   INTRODUCTION

1.  The 2^nd Plaintiff was and is the owner of the Aviation Fuel Service Facility at the Hong Kong International Airport (“the Facility”) which was and is operated by the 1^st Plaintiff.  Within the Facility, there was and is a jetty that projects out into the water from Sheung Sha Chau (“the Jetty”).  The 2^nd Plaintiff is also the registered owner of the land on which the Jetty was constructed.

2.  The 1^st Defendant was and is the registered owner of the subject barge “Hai Zhuang Bo 38” (“the Barge”).  The 2^nd Defendant was and is the owner and/or operator of a wharf situated at Tsing Chau Tsai, as well as the owner and/or operator of the tugs “Hoi Lian” and “Hai Man”.

3.  The 2^nd Defendant and Hong Kong River Engineering Company Limited (“HKR”) entered into a written contract dated 28 August 2017 (“2017 Tug Agreement”), under which the former agreed that it would from time to time upon request provide tug boat services to vessels nominated by HKR or other parties thereto at the rates and on the terms set out.  It is the 2^nd Defendant’s case that HKR entered into the 2017 Tug Agreement on its own behalf and as an agent on behalf of all other companies (including the 1^st Defendant) in the Prosper Construction Holdings Limited Group (“the Parent Company”).

4.  On 16 September 2018, the super Typhoon Mangkhut started to affect the weather of Hong Kong adversely.  Upon the 1^st Defendant’s request, the 2^nd Defendant orally agreed to provide tug services of Hoi Lian and Hai Man to the Barge, for so long as the 1^st Defendant required such services or the 2^nd Defendant was reasonably able to provide such services over the period covered by Typhoon Mangkhut (“2018 Tug Agreement”).  The services were upon the implied terms of the 2017 Tug Agreement.

5.  The two-wires of Hoi Lian and Hai Man were fastened forward to the bow of the Barge, with one tug on the Barge’s starboard bow, and the other one on her port bow.  Shortly after the hurricane signal no.10 came into force on the same day, the port anchor wire of the Barge parted.

6.  It is the Plaintiff’s case that, due to the negligence of both Defendants, the Barge drifted out of control and collided with the Jetty on several occasions (“the Collision”).

7.  At the material time, the Captain of the Barge, Mr Law Fook Yau (“Mr Law”), was working on the Barge.

8.  On 27 August 2020, the Plaintiffs commenced this action against the 1^st Defendant.  The 2^nd Defendant was joinedas a party on 17 September 2021.  The Plaintiffs claimed against both Defendants for their breaches of duties and/or negligence in relation to the operation of the Barge, which allegedly led to the Collision.

9.  The defences are, amongst others, that the 1^st Defendant, 2^nd Defendant, their servants and agents, were not negligent; that the cause of the Collision was an Act of God and/or inevitable accident; and that the Plaintiffs were contributorily negligent.

10.  On 8 November 2022, the 2^nd Defendant issued a Third Party Notice indorsed with a statement of claim (“TPSOC”) to claim against HKR under the indemnity clauses of the 2017 and 2018 Tug Agreements.  

11.  Before this Court are 4 applications:

(1)  The Plaintiffs’ summons filed on 4 December 2025 for leave to join HKR as the 3^rd Defendant,and to amend the Re‑Amended Writ of Summons and the Amended Statement of Claim (“ASOC”) accordingly (“the Joinder Summons”);

(2)  The 1^st Defendant’s summons dated 11 December 2025 for stay of the intended proceedings against HKR until the handing down of the judgment of the action between the Plaintiffs and the Defendants (“the Stay Summons”); and

(3)  A summons filed by the 1^stDefendant on 29 September 2025 for expert directions, which has been adjourned for substantive arguments after the disposal of the Joinder Summons (“the Expert Directions Summons”); and

(4)  To set down this case for trial.

B.   JOINDER SUMMONS

B1.  The basis for joinder

12.  The Plaintiffs seek to join HKR as the 3^rd Defendant with consequential and material amendments to ASOC, namely:

(1)  Addition of a §5A to allege that HKR was the employer of Mr Law; and

(2)  Addition of a §9A to allege that HKR is vicariously liable for the negligence of Mr Law and to repeat the particulars of negligence in §9 of the ASOC.

13.  The 1^stDefendant and HKR oppose on the ground that the joinder would deprive HKRof a limitation defence.  If HKR is joined, the 1^st Defendant would seek a stay of the Plaintiffs’ action against HKR until after judgment in the action between the Plaintiffs and the Defendants (“Main Action”).

14.  The 2^nd Defendant takes a neutral stance provided that the joinder does not interfere with the trial.  The progress of this action will be delayed by at least another year, possibly longer, given the Plaintiffs’ consistent pattern of procedural delay.  The 2^nd Defendant has provided a guarantee to fend off the Plaintiffs’ action in rem against the 2^nd Defendant.  Any delay will add financial strain on the 2^nd Defendant. 

B2.  Legal principles on limitation period

15.  The Collision occurred on 16 September 2018, so the six-year limitation period for contractor tort expired on 15 September 2024.  The Plaintiffs were time-barred when the Joinder Summons was issuedon 4 December 2025. At this hearing, the Plaintiffs no longer rely on section 26 (postponement of limitation period for fraud, concealment or mistake) but only section 31 of the Limitation Ordinance, Cap 347 (“LO”), which provides as follows:

“(1) This section applies to any action for damages for negligence, other than one to which section 27 applies, where the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both —

(a) the knowledge required for bringing an action for damages in respect of the relevant damage; and

(b) a right to bring such an action,

(referred to in this section as the date of knowledge) falls after the date on which the cause of action accrued.

(2) The period of limitation prescribed by section 4(1) in respect of actions founded on tort shall not apply to an action to which this section applies.

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4).

(4) That period is either —

(a) 6 years from the date on which the cause of action accrued; or

(b) 3 years from the date of knowledge, if that period expires later than the period mentioned in paragraph (a).

(5) In subsection (1) the knowledge required for bringing an action for damages in respect of the relevant damage means knowledge —

(a) of such facts about the damage in respect of which damages are claimed as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment;

(b) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence;

(c) of the identity of the defendant; and

(d) if it is alleged that the act or omission was that of a person other than the defendant, of the identity of that person and the additional facts supporting the bringing of an action against the defendant.

(6) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (1).

(7) For the purposes of this section or section 33 a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek,

but a person shall not be taken by virtue of this subsection or section 33 to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.” (underline added)

16.  The knowledge relevant to this joinder application is the “knowledge of the identity of the defendant” in section 31(5)(c) of the LO, i.e. the identity of Mr Law’s employer being HKR.

17.  Section31(7) extends the concept of knowledge to include “constructive knowledge”, i.e. matters of which the plaintiff ought reasonably to have been aware, even though he was in fact ignorant of them: Andrew McGee,Limitation Periods, 9th ed., at §6.23.  This is an objective test, not a subjective one.

18.  Under section 31(7), the relevant date of knowledge was not when the plaintiff first knew he might have a claim for damages but an earlier date, namely, when the plaintiff first knew enough to justify setting about investigating the possibility that he might have a claim against that defendant: Haward v Fawcetts [2006] 1 WLR 682 (HL) at §23 and 128[1].

19.  Section 31 is commonly used in actions involving latent defects, classic examples being damages for latent building defects or financial loss arising from negligent professional advice: Clerk and Lindsell on Torts, 24^th ed, at §30-71.

20.  Leave to amend should not be given if the effect of this would be to deprive the defendant of an accrued limitation defence, which would be lost as a result of the operation of the relation back rule in section 35(1)(b).  In that situation, the correct approach is to refuse leave to amend, unless the plaintiff can show that the defendant does not have a reasonably arguable case on limitation.  See Global Bridge Assets Ltd v Sun Hung Kai Financial Ltd [2012]4 HKLRD 474, §§21-22, Kwan JA; Sun FocusInvestment Ltd v Tang Shing Bor [2012] HKLRD 738 at §§10-15, Fok JA.

B3.  Relevant date of knowledge

21.  Mr Smith SC, counsel for the Plaintiffs, contends that:

(1)  The relevant date of knowledge of the identity of Mr Law’s employer (“Date of Knowledge”) was 2 February 2023.  It was the date on which the Plaintiffs’ former solicitors receivedacopy of Mr Law’s employment contract from the 1^stDefendant’s solicitor.  The limitation period for the purposes of section 31of LO (“Extended LimitationPeriod”) should be counted from that date.

(2)  The evidence before 2 February 2023included the Marine Incident Report dated 27 September 2018, the 1^st Defendant’s Answer to Plaintiffs’ Request for Further and Better Particulars dated 15 August 2022 (“D1’s August 2022 FBP”), and the Re-Re-Re-Amended Defence of the 1^st Defendant (“D1’s Defence”).  Such evidence expressly referred to Mr Law as an employee of the 1^st Defendant and Mr Law referred to the 1^st Defendant as “my company”.  The Plaintiffs were misled into thinking that 1^st Defendant was Mr Law’s employer.

22.  Mr Wright, counsel for the 1^st Defendant and HKR, however, contends there were other objective facts which would have put the Plaintiffs on inquiry into the employment of Mr Law, latest by 7 November 2022.

23.  Firstly, I agree with Mr Wright that the fact that Mr Law stated that he was employed by the 1^st Defendant in the Marine Incident Report was not conclusive.  That Report was not to explain or determine his employment status but to report a marine incident and to investigate to find out whether there are any new lessons to be learned and what actions needed to be taken to prevent recurrence.

24.  Secondly, without disrespect, the submission of Mr Smith SC overlooks“constructive knowledge”under section 31(7) of LO.  The facts ascertainable by the Plaintiffs or the need to investigate the employer issue arose much earlier than 2 February 2023:

(1)  Between 25 January and 17 June 2019, the loss adjustor appointed by the Plaintiffs’ insurers had carried out an investigation of the Parent Company of the 1^stDefendant and HKR.

(2)  The 2^nd Defendant’s Defence and Answer to the Plaintiffs’ Request for FBP were served on the Plaintiffs on 16 June 2022.  Since that date, the Plaintiffs were well aware of the existence of the 2017 Tug Agreement between the 2^nd Defendant and HKR, such that tug boats “Hoi Man” and “Hoi Lian” were provided to the 1^st Defendant.  A copy of the 2017 Tug Agreement was provided to the Plaintiffs 12 days later.

(3)  D1’s August 2022 FBP:

a)  Referred to the 2017 Tug Agreement;

b)  In referring to HKR, expressly stated that HKR was a related company of the 1^st Defendant;

c)  Informed the Plaintiffs that Mr Cui Qi (“Mr Cui”)and Mr Yu Ming (“Mr Yu”) were the senior management of the 1^st Defendant.  Information in the public domain showed that Mr Cui and Mr Yu were also directors of HKR.

(4)  On 5 September 2022, the 1^st Defendant provided to the Plaintiffs Annexure 1 to D1’s August 2022 FBP, i.e. the written agreements between the 2^nd Defendant and HKR on tug boat service for 2011 and the one dated 28 August 2022 respectively.

(5)  On 8 November 2022, the 2^nd Defendantissued the Third Party Notice and TPSOC against HKR.  The TPSOCpleaded the relationship between the 1^st Defendant, the 2^nd Defendant and HKR, as summarized in paragraphs 3-4 above.

(6)  On 16 December 2022, the 1^st Defendant filed its List of Documents which included written agreements between the 2^nd Defendant and HKR dated 1 January 2011 and the 2017 Tug Agreement respectively; invoices issued by the 2^nd Defendant to HKR for services rendered from 2011 to 2017; and the employment and related payment records of Mr Law.

25.  Thirdly,the Plaintiffs’ claim is in negligence.  Both the 1^st and 2^ndDefendantsdeny liability.  The 2^nd Defendant claims, amongst others, that HKR should be liable instead.

26.  The 2^nd Defendant’s seeks indemnity or contribution against HKR:

(1)  HKR was responsible for making, and ought to have made, a proper plan to ensure that the Barge proceeded to a location where it would obtain as much shelter as possible from the passage of Typhoon Mangkhut; and

(2)  HKR ought to have requested assistance from other tug service providers.

27.  The acts or omissions causing damage to the Plaintiffs had to be those of, the employees of the 1^st Defendant, 2^nd Defendant and/or HKR.  The relationship among 1^st Defendant, 2^nd Defendant and HKR should have alerted the Plaintiffs to investigate whose employee Mr Law was.

28.  Fourthly, there is no suggestion that, as a matter of law, only one entity could be vicariously liable for the negligence of Mr Law.

(1)  Where a person (A) is in the general employment of another person (B), but works under the control of a third person (C), who directs not merely what A is to do but how he should do it, then if A negligently causes injury to someone, C will be vicariously liable as A’s employer pro hac vice: Chung Yuen Yee v Sam Woo Bore Pile (2013) 16 HKCFAR 315 at §15, Lord Hoffmann NPJ, applying Mersey Docks and Harbour Board v Coggins [1947] AC 1.

(2)  If Mr Law(as a borrowed or transferred employee) had performed services that were part of the work, business or organization of both HKR and the 1^stDefendant, it would be just to make both of them liable for his negligence: Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510 at §§77-79, Rix LJ.

29.  Fifthly, Mr Smith SC contends that the Third Party Notice and the TPSOC are not relevant for determining the Date of Knowledge because they do not concern Mr Law as the captain of the Barge or his employment by HKR.

30.  I am not able to agree.  The requisite knowledge required to put the Plaintiffs on inquiry under section 31(7) of LO does not specifically have to be the knowledge of Mr Law’s employment.  Other observable facts (such as those in paragraph 24 above) could have justified setting about investigating as to his employment status.

31.  Sixthly, if the information available by 8 November 2022 was sufficient to prompt the 2^nd Defendant to issue third party proceedings against HKR founded on the conduct of HKR’s employees, that should equally have alerted the Plaintiffs to investigate whose employees were responsible. 

32.  I find that the Date of Knowledge was, latest, 8 November 2022.  The 3-year Extended Limitation Period would have expired, by 7 November 2025.  The Joinder Summons was time-barred.

33.  Alternatively, HKR plainly has a reasonably arguable defence in limitation period.  The Court should, and I do, refuse leave to join HKR: Golden Bridge Assets andSun Focus.

B4.  Exercise of the Court’s discretion

34.  Assuming I am wrong and the Date of Knowledge is 2 February 2023, the Court has discretion to allow amendment and addition of parties, under Order 15, rule 6(2)(b) and Order 16, rule 4(4), to ensure that all relevant matters in dispute in the action can be effectually adjudicated upon by the court and that all relevant parties are before it: Wing Mou Construction Co. Ltd v Cosmic Insurance Corporation Ltd HCCT 40/2001, 20 June 2002, at §15, Ma J (as Chief Justice Ma then was).

35.  The factors relevant to the exercise of discretion include the individual prejudice to the parties in the event an order is or is not made, the stage that the action has reached when the application ismade, any delay in making the application and any delay that may be caused should an order be made: Wing Mou at §15(6).

36.  There is no place for the application of a mechanical rule that the court will invariably refuse an application simply because a party is guilty of serious delay without any good explanation.  The court must conduct an overall balancing exercise: Chan Cheung Ming Jacky v Siu Sin Man [2014] 5 HKLRD 89 at §27, Lam VP (as he then was).

37.  Whilst the ultimate concern of the Court is to achieve a just resolution of the case, it does not mean that a party should be permitted to raise any arguable case at any point in the proceedings, simply on payment of costs.  If a party has been afforded a reasonable opportunity to advance its case, the just resolution of the case does not require that he should be allowed a further opportunity in spite of his own inordinate and inexcusable delay.  See Securities and Futures Commission v Andrew Liu [2022] HKCFI 697 at §§22-23, Coleman J.

38.  By2 February 2023, there were still over 1 ½ years before expiry of the primary 6-year limitation period on 15 September 2024.  The damage was not latent.  And yet the Plaintiffs have failed to raise any inquiry about or sought to amend their case on the employment status of Mr Law until they issued the Joinder Summons. 

39.  Such failure was inconsistent with the Plaintiffs’ assertion that they had been misled into thinking that the 1^st Defendant was the employer of Mr Law.  The Plaintiffs now seek to justify their failure to investigate by elevating a single remark in the Marine Incident Report into a definitive statement of employment status.

40.  The Plaintiffs’ issue of the Joinder Summons after almost 2 years and 10 months from the date of 2 February 2023 constituted unexplained, inordinate and inexcusable delay. 

41.  The Court has balanced the prejudice to the parties.  If the joinder application is permitted, HKR would be prejudiced in the sense of losing the limitation defence under LO.  On the other hand, if the joinder is refused, the Plaintiffs can no longer sue HKR because even the Extended Limitation Period had expired.  However, the Plaintiffs would not suffer any prejudice because the 1^st Defendant has admitted that Mr Law was its employee who had acted under its absolute and entire control, and hencewould be vicariously liable if negligence of Mr Law is established.

42.  No trial dates have yet been fixed, but that does not mean that the Plaintiffs are entitled to another opportunity to amend their SOC.  This action has reached the stage of being ready for setting down for trial, except for the issue of expert directions.  It does not serve the ends of justice to permit the Plaintiffs, after unexplained, inordinate and inexcusable delay, to disrupt the setting down by its joinder application.

43.  Exercising my discretion, I dismiss the Joinder Summons.

C.  STAY SUMMONS

44.  The Stay Summons is now rendered otiose upon dismissal of the Joinder Summons.  However, for completeness’ sake, I just deal with the Stay Summons briefly on the assumption that HKR is joined as a party.

45.  The legal principles for a case management stay have recently been summarized in Ling Meng Chu Pearl v U Po Chu [2026] HKCFI 4022 at §§23-25, Au-Yeung J.  Materially, a stay on case management grounds will only be granted in “rare and compelling circumstances”.

46.  Mr Wright submits that HKR has these potential defences:

(1)  Limitation (presumably meaning under the LO);

(2)  That Mr Law’s employment was transferred to the 1^st Defendant by a tripartite agreement; and

(3)  Even if there was no formal transfer of rights and obligations under the employment contract, in substance Mr Law was employed by the 1^st Defendant, who had absolute and entire control over him.

47.  It does not appear to me that HKR needs to substantially elaborate on or vary any matter raised in 1^st Defendant’s Defence as regards negligence on the part of the Captain of the Barge.  On an employment issue, there is no reason to expect expert evidence.  All procedures on pleading, discovery, and exchange of witness statements can be comfortably dealt with in the period leading up to the trial (expected to be no less than 12 months away).

48.  Mr Law’s negligence, if established, will cause the 1^stDefendant and/or HKR to be liable for damages.  I fail to see why HKR should not be there at the trial of the Main Action to defend itself. 

49.  Mr Yu and Mr Law have to give evidence on negligence, employment and control of Mr Law.  There is no reason for the Court to hear them twice, if there is a management stay, with the risk of inconsistent findings.

50.  The fact that the employment status of Mr Law does not involve the 2^nd Defendant is irrelevant, because it is not uncommon for a case to involve issues concerning only one defendant but not the others.

51.  For the reasons given, there are no rare or compelling circumstances to order a stay.  The Stay Summons is dismissed.

D.  EXPERT DIRECTIONS SUMMONS

D1.  Issues for expert

52.  The Plaintiffs’ case on negligence of the 1^stand/or 2^ndDefendant in the navigation and/or management of the Barge and of the 2 tugs is pleaded in §9 of the ASOC.  Aside from establishing a duty of care against the Defendants, the Plaintiffs have to demonstrate that the Defendants did something or omitted to do something which a seafarer, exercising reasonable care and skill, would not have done or would have done.

53.  The parties have agreed upon a set of 21 questions for the expert(s), with 2 amendments proposed by the Plaintiffs:

(1)  In Q5(a), to add the underlined words as follows: “Was the decision to ride out the storm in the open anchorage (by dropping 2 out of 4 anchors off the Barge) off To Kau Wan one which a reasonable seafarer might have made in the circumstances when exercising reasonable care and skill?”

(2)  To add Q5(b): “Was D1’s act in not attempting to have the Barge towed to the Hei Ling Chau Typhoon Shelter one which a reasonable barge owner might have made in the circumstances exercising reasonable care and skill.”

54.  The Defendants object to the proposed amendments on the basis that the Plaintiffs have no pleaded case along those lines.

55.  In Q5(a), the reference to dropping of 2 anchors out of 4 can be found in no. 48 to D1’s August 2022 FBP.  The request there is how many anchors the Barge dropped and whether that number represented the total number of anchors carried on board the Barge.  The request and answer have nothing to do with the pleaded particulars of negligence.  I disallow the underlined words but allow Q5(a) in its original form.

56.  With regard to Q5(b), §9(3) of the ASOC pleads that the 1^st Defendant negligently failed to move the Barge to Hei Ling Chau Typhoon Shelter after the hoisting of standby signal no.1.  Q5(b) should be allowed.

57.  I have further considered Q18: “What are the key design features, specifications, equipment, facilities and operational and navigational capabilities or characteristics of the respective tugs Hoi Lian and Hai Man?”

58.  There was no suggestion that the accident arose out of faulty design features or specifications of the tugs.  Equipment, facilities, operational and navigational capabilities or characteristics of the tugs are matters of fact; if not, it has not been pleaded how faults in these matters had caused the accident.  I therefore disallow Q18.

59.  I am satisfied that the rest of the issues in the agreed list of expert issues are suitable for expert’s opinion.  Therefore, subject to re‑numbering Q5 as Q5(a), adding Q5(b) and removing Q18, I grant leave to adduce expert evidence on the agreed list of expert issues.

D2.  Number of experts

60.  The Plaintiffs suggest that should be a single joint expert.  The Defendants suggest separate experts.

61.  Order 38, rule 4A (5) set out the circumstances that the Court may take into account in giving expert directions.  Where issues are complex or controversial, the value of the claim is high, or the evidence has a critical bearing on the issue of liability, a single joint expert is generally unsuitable: China Forestry Holdings Co Ltd v KPMG [2020] HKCFI 2615 at §24, Anthony Chan J.

62.  The Plaintiffs’ case on negligence involves complex issues of liability concerning seamanship, navigation and causation.  The expert’s role is not limited to a routine technical assessment, but to evaluate conflicting operational decisions and interpret nautical information in the light of competing factual accounts. The amount involved exceeds HK$100 million, subject to the limitation of liability under the Convention on Limitation of Liability for Maritime Claims 1976.  I am persuaded that the circumstances of this case justify more than one expert’s opinion.  I therefore give leave for each party to appoint its own expert.

E.  SETTING DOWN FOR TRIAL

63.  As Mr Wright submits, a feature of this case is delay.  The Writ was served more than a year after it was issued, despite both Defendants having registered offices in Hong Kong.  The SOC was filed more than a year after issue of the Writ, despite the claim being straight forward and neither document-heavy nor factually complex. The Plaintiffs filed their Reply under compulsion of an unless order.  The 2^nd Defendant delayed in the exchange of witness statements.

64.  After more than 7 years since commencement of this action, the Plaintiffs were still engaged in interlocutory skirmishes.  The expert directions should have been sought years ago.  The Plaintiffs ignored the directions, given in 2025 by Anthony Chan J (as he then was) and this Court, in endeavouring to agree on the scope of expert evidence.  It was the 1^st Defendant who issued the Expert Evidence Summons and drafted the expert directions.  The Plaintiffs did not respond until 17 November 2025, after the deadline. 

65.  I therefore direct that there should not be any more interlocutory applications without showing exceptional circumstances. I give leave to set this case down within 28 days for a split trial on liability.

F.  CONCLUSION AND COSTS

66.  I dismiss the Plaintiffs’ Joinder Summons.  Costs on a nisi basis are to be paid by the Plaintiffs to the Defendants and HKR.

67.  I dismiss the 1^st Defendant’s Stay Summons.  Costs on a nisi basis are to be paid by the 1^st Defendant to the Plaintiffs, the 2^nd Defendant and HKR.

68.  On a nisi basis,

(1)  The costs under paragraphs 66 and 67 are to be set off against each other such that the Plaintiffs do pay 70% of the trial costs of the Joinder Summons to the Defendants and HKR;

(2)  70% of the total time for this hearing is appointed to such cost.

69.  In respect of the Expert Directions Summons, I order as follows:

(1)  Each party should appoint its own expert.  [names to be inserted into the draft order]

(2)  The experts shall give their opinion on the issues of liability set out in their agreed List of Issues, except for Q18.

(3)  Within 8 weeks from the date of this Order, preliminary expert reports shall be exchanged on a without prejudice basis.

(4)  Within 2 weeks thereafter, the experts shall meet on a without prejudice basis to discuss their common opinions and differences.

(5)  Within 2 weeks thereafter, the experts shall prepare a signed joint report which shall succinctly identify:

(a)  The issues on which the experts have reached their common opinions in respect of each of the issues.

(b)  The issues on which the experts are unable to reach their common opinions.

(6)  Within 6 weeks thereafter, the experts shall exchange their final signed reports.  The final reports shall succinctly state the following:

(a)  The issues which the experts are unable to reach a common opinion;

(b)  The competing views on each such issue;

(c)  Why a given expert’s views on each such issue are right; and

(d)  Why an opposing expert’s views on each such issue are wrong.

(7)  Costs of the Expert Directions Summons shall be in the cause.  On a nisi basis, 30% of the total time for this hearing is appointed to the Expert Directions Summons.

70.  I give leave to the parties to set down the action, within 28 days, for a split trial on liability, with an estimated length of hearing of 7 days.  The trial shall not be heard earlier than 9 months from the date of this order.

71.  There shall be a pre-trial review not less than 2 months before the trial date.

72.  Not later than 14 days before the pre-trial review, each party shall lodge and serve:

(a)  a signed pre-trial review checklist in the form set out in Appendix B of Practice Direction 1.1; and

(b)  a joint list of issues, including particulars of negligence.

73.  PTR bundles are to be lodged by the Plaintiffs with the Court no less than 14 days before the PTR.

74.  There shall be liberty to apply.