WONG MUI v. LAW KWAI YAU

DCMP1740/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1740 OF 2006

____________________________

______________________

_______________

R U L I N G

_______________

1. The applicant seeks to discontinue the originating summons relying on Order 21 rule 2(3)(a).

2. Mrs Chan, counsel representing the plaintiff, referred to a number of English authorities on a similar provision in the English Supreme Court Practice.  Based on the authorities cited today, it has been interpreted by the English courts that under Order 21 rule 2 the plaintiff can withdraw the writ or the originating summons within 14 days of the defendant’s filing of defence or affidavit by service of a Notice of Discontinuance.  Although a defence affidavit had not been served within that 14 day period, under Order 21 rule (3A) the plaintiff can serve a Notice of Discontinuance within the time specified under rule 3(3A) and (3B).

3. Most of the authorities cited to me today, in particular the case of Castanho v Brown & Root, the House of Lords had dealt with this issue referring to the plaintiff’s right to serve Notice of Discontinuance within 14 days of the defence without leave, subject to the court’s discretion on costs.  The Practice Notes on page 380 to 381 of the Hong Kong Civil Procedure 2006, Order 21/5/3, on the time for service of the Notice of Discontinuance or withdrawal without leave, under Order 21 rule 2(3A) and (3B), the editors have this to say:

“It must also be noted that the time for service of such notice on any of the defendants is not fixed by reference to the date when the defence or the affidavit evidence of the defendant has been served but by reference to the date of the defence or the affidavit evidence last served, or the date by which the defence or the affidavit evidence of any other defendant ought to have been served”. 

4. Mrs Chan further pointed to page 380 in the fifth paragraph where the editors had this to say:

“Although the plaintiff has the unqualified right under rule 2(1) to discontinue his action without the leave of the court before the service of the defence on him and indeed within 14 days after such service, yet if he abuses such right by serving a notice of discontinuance after obtaining substantial advantages in the action to the prejudice of the defendant, e.g. by securing substantial interim payments and an admission of liability or otherwise, he will be guilty of an abuse of the process of the court and the court will then have power to set aside his notice of discontinuance, but nevertheless, the court in its discretion may grant him leave to discontinue on terms and will not grant an injunction against him to restrain him from bringing or continuing an action based on the same cause of action to restrain him from bringing or continuing the action based on the same cause of action in a foreign court, e.g. in Texas, USA, where he is advised that he can obtain substantially higher damages for personal injuries than he can in England, where he can show that he will gain a legitimate personal or juridical advantage by doing so and that on the critical question between advantage to him and disadvantage to the defendant, the balance is in his favour (Castanho v Brown & Root .)”

5. Obviously this passage of the editors on page 380, referred to the House of Lords decision in Castanho v Brown & Root.  After going through the authority of Castanho v Brown & Root, it is clear the House of Lords did not go as far as to say that the plaintiff have an unqualified right to discontinue an action without leave before service of the defence, because in that case, defence was served and the plaintiff in that case did a forum shopping and choose to issue the writ in England and served it on the defendant, then decided to pursue his claim in Texas where it was possible for him to obtain a larger sum of damages. 

6. Reading through the authorities in support cited by Mrs Chan today, one may come to the conclusion that the English authorities cited would support the service of a Notice to Discontinue before a defence has been filed or affidavit evidence has been filed in an action.

7. In the present case the plaintiff did serve on the defendant the originating summons immediately after its issue.  Within six days of the service, a letter dated 26 June 2006 was sent by the defendant’s solicitor, pointing out to the plaintiff’s solicitor, that under section 12(2) of the Conveyancing Property Ordinance, the application must be heard in the Court of First Instance.  Consequently the plaintiff had no choice but to discontinue these proceedings in the District Court.  The plaintiff did so without wasting any further time, because in that letter the defendant was threatening further costs which would be incurred should the plaintiff fail to discontinue the action in time.

8. I agree it is a most sensible approach, and considering all the authorities cited in support, I agree that Order 21/1, read together with Rule 2(3A) and (3B), one can interpret it to include a situation where the plaintiff, before service of the defence, can serve a Notice of Discontinuance and the plaintiff can do so any time and within the 14 days where defence or affidavit evidence ought to be filed and the Notice of Discontinuance would be a valid one without the leave of the court.  This right is, of course, subject to the court’s discretion on costs and on terms should there be any abuse of the court, and also subject to costs that may have been incurred by the defendant. 

9. Therefore, I accept Mrs Chan’s submission on behalf of the plaintiff today and the Notice of Discontinuance without leave is a valid one.