XCHRX CHAN YIU CHEONG, RAYMOND v. THE ATTORNEY GENERAL on behalf of THE COMMISSIONER OF CORRECTIONAL SERVICES

H.C.P.I. 1159 of 1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

ACTION NO. 1159 OF 1995

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RULING

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1. I have before me a summons dated 5th May 1998 taken out by the Defendant which summons was amended pursuant to my Order dated 5th June 1998. The summons seek to strike out the Plaintiff's claim for want of prosecution. I have also before me a second summons taken out by the Plaintiff dated 6th May 1998 for leave to serve a Statement of Claim out of time. Both summonses are to be dealt with together as laid down by the judgment in the case of Costellow v. Somerset County Council [1993] 1 All ER 952.

2. The matter arises in this way. The Plaintiff, who was a Correctional Services Officer, suffered an accident while at work at the Lai Chi Kok Reception Centre on 26th November 1992. On 23rd November 1995 (i.e. three days before the limitation period would expire in a personal injuries case) the Plaintiff issued a Writ of Summons with an endorsement of claim. The Writ was served on the Defendant who acknowledged service of the Writ and gave Notice of Intention to Defend on 13th December 1995. After that date, the rules of practice prescribed a 14 day period in which the Plaintiff has to serve on the Defendant a Statement of Claim. No such step was taken by the Plaintiff. In fact the matter went to sleep until March 1998 when the Plaintiff gave Notice of Intention to Proceed. On 5th May 1998 the Defendant took out its present summons which is now before me in its amended form to strike out the Plaintiff's claim for want of prosecution under Order 19 rule 1. On the following day, the 6th May 1998 the Plaintiff issued his summons asking for an extension of time to serve the Statement of Claim. Prima facie therefore, there has been a delay of some 29 months for the service of a Statement of Claim by the Plaintiff and under Order 19 rule 1 the court has a discretion to dismiss the Plaintiff's claim for want of prosecution. In these circumstances the nature of the delay and any possible prejudice that may result therefrom to the Defendant will have to be gone into.

Nature of the Delay

3. The Plaintiff was put on sick leave after the accident. In June 1994 he had made an application for legal aid to pursue his claim for damages arising from the accident. However, he was refused legal aid because he did not qualify for legal aid as he was still on full pay during his sick leave. In March 1995 the Plaintiff instructed Messrs. Hastings to pursue his claim for employee's compensation arising from this accident. In October 1995 he changed solicitors and instructed his present solicitors Messrs. Bobby Tse & Co. He was advised that there was a limitation period of 3 years from the date of the accident, and as a result he gave instructions to his new solicitors to issue a Writ before the expiry of the limitation period. After issuing the Writ, and after the Defendant had acknowledged service of the Writ, no further steps were taken in the matter. The reason for this seems to be twofold. Firstly, that the Plaintiff did not have sufficient funds to conduct litigation on his own and he had made this known to his solicitors. His instructions to them to issue the Writ was so that he could preserve his rights to claim before the expiry of the limitation period. Secondly, the Plaintiff was waiting to see whether he would be retired from the Correctional Services Department because during the time of his sick leave he was asked to attend medical boards and assessments as well as review of assessments for the purpose of determining whether or not he should be retired from the Correctional Services Department as a result of his injuries.

4. Ultimately on 17th November 1996 the Plaintiff was retired by the Correctional Services Department. Following this he made a second application for legal aid. As to the exact date of this application it is not apparent from the affidavit evidence but it appears that that application for legal aid was made some time after his retirement from the Correctional Services Department since a Legal Aid Certificate was granted to him in July 1997. After legal aid was granted, it appears from the Affirmation of Lam Pui King, the solicitor handling the Plaintiff's case, that the Legal Aid Department specifically instructed the Plaintiff's solicitors to obtain counsel's advice on liability and quantum before serving a Statement of Claim. As a result papers were sent to counsel in August 1997. However, counsel's advice on liability and quantum was only given in March 1998, and only then was a Statement of Claim settled by counsel. It was then that the Notice of Intention to Proceed was filed by the Plaintiff's solicitors.

5. The Plaintiff advances two further reasons to explain away the delay. Firstly that he was advised by his then solicitors to wait for his medical condition to become stabilised before making a claim, and secondly that while he was still employed in the Correctional Services Department he was worried about the adverse effect a claim against the Correctional Services Department may have not only on his career but also that of his wife who was employed by the same department. These two reasons, if they be valid reasons at all, could only pertain to the time before the issue of the Writ in November 1995, and as such they do not count for very much.

6. It is the delay after the issue of the Writ that I am concerned with since the Writ was issued within the limitation period. In that respect I note firstly that up to the time legal aid was granted to the Plaintiff, it was a conscious decision on his part that no further procedural steps be taken in the matter due to his financial situation before he was granted legal aid. After legal aid was granted, a further 8 months or so elapsed. There is no clear explanation as to why it took counsel 8 months to come out with an advice on liability and quantum and a draft Statement of Claim. Moreover, there is no explanation why, in the circumstances of this case, the Legal Aid Department should instruct the Plaintiff's counsel to obtain an advice on liability and quantum before serving a Statement of Claim when it must have been clear to them that the Writ had been issued back in November 1995.

Prejudice to the Defendant

7. The Defendant complains that because of this long delay which is now coming close to 6 years after the accident the Defendant has suffered the following prejudice :-

8. Firstly, the recollection of events by witnesses will fade with the passage of time. The Defendant acknowledges that brief witness statements were taken from the eye-witnesses immediately after the accident, these statements were brief statements taken probably for internal investigation rather than to defend a claim for negligence.

9. Secondly, one of the witnesses a Mr. Wong Kwok Kay had passed away on 29th September 1996 and although from his statement he did not actually see the Plaintiff fall, he did hear the Plaintiff shout and immediately came to render assistance to the Plaintiff so that he could have given evidence as to what happened immediately before and immediately after the accident.

10. Thirdly, the Defendant complains that because of this long delay he has been deprived of the chance of having the Plaintiff medically examined at a time close enough to the accident so as to be able to assess the Plaintiff's injuries and/or resultant disabilities. This, says the Defendant, is further complicated by the fact that the Plaintiff had sustained other injuries from a traffic accident totally unrelated to this one on 30th January 1993 whereby he had fractured his left 8th and 9th ribs, and sick leave was granted from 30th January 1993 to 22nd March 1993.

The Law

11. The leading case in this matter is Birkett v. James [1977] 2 All ER 801. The basic rule laid down in that case is that an action may be struck out where the court is satisfied firstly that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and secondly, that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendant. Moreover, the general burden of proof on an application to strike out for want of prosecution is on the defendant.

12. What then is inordinate delay. This cannot be precisely defined but must depend on the facts of each particular case. However, it is clear that for delay to be inordinate it must exceed, and probably by a substantial margin, the times prescribed by the rules of court for the taking of steps in the action. Applying that to our present case therefore it would seem that the delay of failing to serve a Statement of Claim for some 29 months after Notice of Intention to Defend had been given amounts to an inordinate delay.

13. Secondly, delay which is inordinate is prima facie inexcusable (see Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 1 All ER 543). It is therefore for the Plaintiff to make out a credible excuse for the delays. Again applying that to the present case, even granting that the first part of the delay, namely from Notice of Intention to Defend until the granting of legal aid, can be excused, that part of the delay after granting of legal aid i.e. after July 1997 is inexcusable even if that delay is the fault of the Plaintiff's lawyers. The fact that the Legal Aid Department specifically instructed the solicitors to obtain counsel's advice before serving the Statement of Claim is not a good excuse either.

14. For these reasons I have come to the conclusion that the delay in this case was inordinate and inexcusable.

15. Was the Defendant prejudiced by the delay so that it is impossible to have a fair trial of the issues in the action? As was stated by Slade LJ in Rath v C S Lawrence & Partners [1991] 3 All ER 679 at 688

"...a causal link must be proved between the delay and the inability to have a fair trial or other prejudice, as the case may be."

16. Prejudice to the defendant may take different forms. In many cases the lapse of time will impair the memory of witnesses, in other cases witnesses may die or move away. The prejudicial effect of delay depend largely on the nature of the issue in the case. Courts will look at all the circumstances and at all the periods of inordinate and inexcusable delay for which the plaintiff or his advisers are responsible and will then seek to answer the question has this delay caused or is it likely to cause serious prejudice such that it is not possible for the defendant to have a fair trial of the issues in the action?

17. From the draft Statement of Claim which the Plaintiff seeks to serve out of time, the Plaintiff's claim is pleaded on this footing:-

(a) that the Defendant is the occupier of the Lai Chi Kok Reception Centre;

(b) that the Plaintiff was an employee of the Defendant who had the duty to provide and maintain a safe system and safe place of work for the Plaintiff and not to expose the Plaintiff to a risk of injury which the Defendant, its servant or agent knew or ought to have known;

(c) that on 26th November the Plaintiff was assigned to the outer compound of the Reception Centre to work;

(d) that while performing his work and as a visitor there, the Plaintiff stepped into an uncovered drainage and fell to the ground and sustained injury and damage;

(e) that the accident was caused by the Defendant's negligence or breach of statutory duty in that he permitted the drainage to be left uncovered and unguarded thus becoming a danger and trap to visitors and failed to give the Plaintiff warning of the uncovered drainage; and

(f) damages claimed under the heads of pain and suffering, loss of earnings both actual and future and special damages in respect of hospital charges, travelling, tonic food and cost of a massage machine.

From what has been pleaded, it seems the likely issues as to liability would be the matters stated in paragraphs (d), (e) and (f) above.

18. These are issues which in my opinion do not require recollection of fine and minute details. Moreover, the Defendant did not dispute that there were some five or six witnesses present when the Plaintiff had his accident. One may have passed away but there still remains four or five. Each had given a brief statement, which would have focused on the cause of the Plaintiff's fall if it was taken for the purpose of an internal investigation - else why obtain statements from witnesses at all.

19. As for the medical aspect, there would undoubtedly be medical records from the Caritas Hospital where the Plaintiff was admitted immediately after the accident. The Defendant will, no doubt, either have those records from the medical boards and assessments or be in a position to obtain them. Those medical boards and assessments, if they were carried out to ascertain whether the Plaintiff was fit to resume his duties would no doubt have been directed at the Plaintiff's injuries and his resultant disabilities therefrom. Furthermore, the fact that the Plaintiff had been injured from another accident in January 1993 - almost two years before the Writ was issued - and the complications therefrom would be a matter that would have to be tackled in any event, whether or not the Plaintiff was guilty of delay in the action.

20. As for the Plaintiff's loss of earnings, no one could be in a better position than the Defendant, as the Plaintiff's employer, to adduce evidence in that respect with all its documented records.

Conclusion

21. In all the circumstances of this case, while there has been inordinate and inexcusable delay by the Plaintiff in serving a Statement of Claim, I am not convinced, for the reasons given, that the Defendant has been prejudiced by the delay such that it is impossible for the Defendant to have a fair trial of the issues in the action.

22. Accordingly, the Defendant's summons is dismissed. I will further order that the Plaintiff have leave to file a Statement of Claim within 7 days from today notwithstanding that the time limited for such service has expired.

Costs

23. The Defendant's summons having been dismissed, costs would normally be awarded against the Defendant. However, the fact that the Plaintiff succeeded on its summons to extend time for filing of the Statement of Claim, the costs of that application would still have to be borne by the Plaintiff due to his delay. In the process it cancels out each other since both summonses were heard together. Accordingly, the fairest order would be that there be no order as to costs and I shall make an order nisi to that effect.

24. For costs purposes, I was asked by Mr. Yeung to apportion the time for today's hearing. This was due to the fact that the hearing started with the Defendant asking for a short adjournment to prepare a summons asking for leave to file its amended summons out of time and in the process I also dismissed the Defendant's summons dated 24th September as it was wholly misconceived. I apportion that one hour of the morning was taken up for that. The rest of the two hours was taken up by the arguments in respect of which this Ruling is given.