THE BOARD OF TRUSTEES OF CHUNG CHI COLLEGE AND ANOTHER v. CHANWAY INVESTMENT CO. LTD.

Civil Appeal No 61 of 1992

Headnote

    Effect of an order under RSC Order 28 rule 8 and the nature and parameters of the inherent jurisdiction considered.

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J U D G M E N T

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Kempster, JA:

1. On 25 January last the Board of Trustees of Chung Chi College and the Christian Mission to Buddhists issued an originating summons pursuant to Order 113 of the Rules of the Supreme Court claiming as against Chanway Investment Co Ltd and every person in occupation of part of Sha Tin Town Lot No 331 an order for possession of such land. The summons was returnable on 3 March but on that date it became apparent to Godfrey J, from the evidence filed, that he was faced not with a claim against trespassers apt for summary judgment but with a contested boundary dispute. Declining to dismiss the action, designated Miscellaneous Proceedings No 278 of 1992, he ordered that it should be continued pursuant to Order 28 rule 8 and went on to give directions. One direction provided for service of a Statement of Claim by 6 March. The plaintiffs were ordered to pay the defendants' costs to date. Order 28 rule 8 reads:

"8.(1) Where, in the case of a cause or matter begun by originating summons, cause or matter had been so begun and may, in particular, order the it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof.

    (2) Where the Court decides to make such an order, Order 25, rules 2 to 7, shall, with the omission of so much of rule 7(1) as requires to serve a notice specifying the orders and directions which they require and with any other necessary modifications, apply as if there had been a summons for directions in the proceedings and that order were one of the orders to be made thereon.

    (3) This rule applies notwithstanding that the cause or matter in question could not have been begun by writ.

    (4) Any reference in these rules to an action begun by writ shall, unless the context otherwise requires, be construed as including a reference to a cause or matter proceedings in which are ordered under this rule to continue as if the cause or matter had been so begun."

The judge's approach was in conformity with Order 2 rule 1(3):

"The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed."

I do not believe that his exercise of discretion to make this order could properly have been challenged. Certainly no attempt has been made so to do before us.

2. When the Statement of Claim came to hand it was found to include a claim for damages for trespass whereupon the defendants applied to the judge for it to be struck out. On 30 March, having heard the application, Godfrey J held that the relief obtainable in proceedings instituted pursuant to Order 113 was confined to an order for possession albeit the proceedings had been ordered to be continued as if begun by writ. Accordingly he held the defendants' complaint justified. Once more, again penalising the plaintiffs in costs, he made an order with the laudable intention of preserving the momentum of the action. Upon the plaintiffs' undertaking, given without prejudice to the argument that they were entitled to claim the relief they had, to issue a writ of summons and thereby to constitute new and distinct proceedings he ordered that the Statement of Claim filed and the directions given in Miscellaneous Proceedings No 278 of 1992 should stand as the Statement of Claim and directions in the new action. By implication the old action, No 278 of 1992, stood adjourned sine die. The writ in the new action, No A2239 of 1992, was issued that day and, subject to this appeal, pleadings were closed 14 days after service of reply on 14 April.

3. Against the order of 30 March the defendants appeal to this court. The plaintiffs have served a Respondent's Notice and cross-appeal.

4. In my opinion the judge's exercise of discretion on 30 March was vitiated by two errors of law. In the first place it must be presumed that Order 28 rule 8 is included in the rules for some good purpose. Having regard to the provisions of Order 28 rules 4(2), (3) and (4) the interlocutory and trial procedures available for an action commenced by originating summons closely approximate to those for which provision is made, perhaps more conveniently, when an action is commenced by writ. As I see it one of the purposes of the rule is to extend the range of remedies open to a plaintiff without requiring discontinuance and the issue of fresh originating process. Like an order for amendment of a writ, originating summons or petition, an order under Order 28 rule 8 relates back to the date when proceedings were begun as the wording of that rule ineluctably suggests. Just as a boundary dispute could be heard and determined in proceedings commenced pursuant to Order 113 once an order had been made under Order 28 rule 8 so could a claim for damages for trespass albeit, like causes of action mentioned in Order 5 rule 2, no such claim could have been made at the outset. In re Deadman (dec'd) [1971] 1 WLR 426. That decision of Stamp J, in which Order 2 rule 1(3) was specifically invoked, was not drawn to the attention of Godfrey J though In re 462 Green Lane. Ilford [1971] 1 WLR 138, found by Stamp J to have been decided per incuriam, was. In any event Order 5 rule 2 does not provide that a claim for damages for trespass must be begun by writ.

5. In the second place an interlocutory injunction and, I believe, directions may be given on terms in a prospective action prior to the issue of originating process. Re N (Infants) (1967)' Ch 512; Refson v Saggers [1984] 1 WLR 1025. But, like other steps that may be taken prior to issue of writ pursuant to ss 41 and 44 of the Supreme Court Ordinance (Cap 4), such power is expressly sanctioned by s 21L and Order 29 rule 1(3). The enactment of these provisions suggests that no inherent or other relevant power is available to the judge. The inherent jurisdiction is confined to making good procedural lacunae and preventing abuse of legal machinery when the interests of justice so demand. Hemmings v Williams (1871) LR V CP 480; Willis v Earl Beauchamp (1886) XI P 59; Smith v Williams [1922] 1 KB 158; Stewart Chartering Ltd v C & O Managements SA & Ors [1980] 1 WLR 460. As Lord Morris said in Connelly v DPP [1964] AC 1254 at p 1301:

"There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process."

It was not "necessary" for Godfrey J to give directions, even by reference to an existing action, for proceedings not yet instituted.

6. It now falls to determine what order should be made. I would allow the appeal and the cross-appeal, set aside the order of March 30, dismiss the defendants' summons to strike out, stay (new) action No A2239 of 1992, remove the implied stay on (old) action No 278 of 1992 (thus restoring the order for directions made on 3 March), order that the Statement of Claim and Defence and Counterclaim served therein should stand and also that the Reply and Defence to Counterclaim and any list of documents served in action No A2239 of 1992 should be re-served in action No 278 of 1992 within two days of today's date. I would also give leave to set down action No 278 of 1992 in the fixture list (8 days reserved) in substitution for action No A2239 of 1992 as well as liberty to apply for further directions to a single judge of this court as presently constituted. If these directions are appropriate the interesting interlocutory skirmishing between the parties will have achieved little of substance.

7. I would make an order nisi that the costs of the 30 March hearing and two-thirds of the costs of the appeal and cross-appeal should be the plaintiffs' in any event with a certificate for two counsel on the earlier occasion. No costs relating to pages 78 to 419 of the bundle should be taxable as between party and party or solicitor and client.

Cons, V-P:

8. I entirely agree with the judgment of my Lord and with the orders that he has proposed.

Litton, JA:

9. I have read in draft the judgment of Kempster JA and concur in the orders he proposes. As we are differing from the learned Judge in two important respects I wish to add a few words.

Jurisdiction

10. The first matter, argued on the defendant's appeal against the Judge's order of 30th March 1992, is whether the Judge had the jurisdiction to "transplant" the directions previously given in the "old Action" (namely HCMP No. 278/92) into a new Action which, at the date of the order, had not yet been instituted. There are no provisions in the Rules of the Supreme Court for such a course. The inherent jurisdiction of the High Court plainly cannot be invoked for this purpose. The Judge's order that the directions previously given (on 3rd March 1992) "should stand as the directions in the new Action" were not made to enable the court to enforce the rules of practice or to defeat attempts to thwart its process or anything of the kind: matters that lie at the heart of the exercise of inherent jurisdiction, necessary to enable the court to function effectively as a court of law: Halsbury (4th Ed.) Vol. 37 para.14. The Judge's order was calculated to enable the Plaintiffs to get to trial more quickly. Commendable in its aim, this was not a short-cut permitted by the rules, and was outside the inherent jurisdiction of the court.

Order 28 r.8

11. The second matter, argued on the plaintiffs' cross-appeal, is whether the Judge was right in concluding that, despite the order previously given on 3 March 1992 that the proceedings begun by originating summons should continue "as if the cause or matter had been begun by writ", he was nevertheless prevented by Order 113 from dealing with the strike-out summons on 30 March as if the originating process were a writ. The point, of course, is that if a writ had been issued at the outset then plainly the plaintiffs would have been entitled to seek damages for trespass in the Statement of Claim, whether or not the relief by way of damages had been previously mentioned : if the cause of action is stated with sufficient clarity in the writ the plaintiff is entitled to all the reliefs which flow therefrom : Order 18 r.15(2). Here, the cause of action (trespass to land) was plainly stated in the originating process : the originating summons issued in January 1992.

12. As a matter of plain language, I cannot see why the Judge on 30 March, in adjudicating upon the strike-out application, should not have treated the originating summons as if it were a writ for all practical purposes. It is difficult to imagine a wider form of words than those appearing in O.28 r.8. The words "as if the cause or matter had been begun by writ" seem plainly to require a court, once the order under rule 8 has been made, to treat the originating process as a writ for all practical purposes.

13. This view of the effect of O.28 r.8 has the support of Stamp J. in Re Deadman, deceased, Smith v. Garland [1971] 1 WLR 426 where he allowed an application to amend the originating summons by pleading fraud : a course which he could only have properly pursued, having regard to the provisions of Order 5 r.2(b) which required claims based on fraud to be begun by writ, if the originating summons were treated as a writ under Order 28 r.8. That was precisely how Stamp J. dealt with the matter.

14. It appears that Re Deadman, deceased was not referred to in the proceedings before Godfrey J. The Judge relied instead on Re 462 Green Lane [1971] 1 WLR 138 where there was, at the outset, a claim based on fraud (albeit in the alternative). Ungoed-Thomas J. held that, in those circumstances, having regard to the mandatory nature of Order 5 r.2 (requiring such actions to be begun by writ) he could not order that the proceedings should continue as if begun by writ under Order 28 r.8 and give directions for pleadings etc accordingly. The difficulty for the plaintiff in Re 462 Green Lane was, of course, that Order 5 r.2 gave no scope for the action based on fraud to be instituted otherwise than by writ. No such difficulty stands in the way of the plaintiffs in this case: an action alleging trespass to land could have been commenced by writ: There is therefore no reason why the proceedings based on such a cause of action should not be ordered to be continued as if begun by writ, even assuming the reasoning in Re 462 Green Lane to be correct.

Costs

    The appeal has no merit. The Defendants allege that the Judge's order of 30 March 1992 has caused them injustice because it has deprived them of their right to have the matters in dispute determined "in the usual way as provided by the Rules of the Supreme Court". But, under the Judge's order, the Defendants were given leave to seek any interlocutory relief they felt they needed for the proper conduct of the litigation. In argument before us the point was only faintly pressed. What it boiled down to was that if the proceedings had been instituted by writ the Defendants would have had the 14 days provided by the rules to acknowledge service: Order 12 r.5(a). Such a point might have had some merit in the mouth of a stranger to the proceedings. But, here, by the time the point arose on 30 March 1992 the litigation had been on foot for over two months; the Defendants knew what were the Plaintiffs' complaints and had filed affirmations in opposition. By the time the matter came before us pleadings were closed (albeit on the Defendant's part without prejudice to this appeal) and leave had been given to set the matter down for hearing in the fixture list. It is difficult to see how, in these circumstances, justice is served by discharging the directions given by the Judge on 3 March as the Defendants sought by their amended Notice of Appeal.