PACIFIC DUNLOP GARMENTS LTD v. FUNDAMENTAL GLOBAL LTD AND OTHERS

HCA 1655/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1655 OF 2008

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R U L I N G

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1. There is an application this morning after the break by the plaintiff to adjourn this trial. The sole reason advanced was that Mr Yeung, who appears for the plaintiff, feels unable to continue with the conduct of this trial and therefore a different counsel would have to be instructed to take his place.

2. When asked by this court, Mr Yeung felt unable to elaborate upon the reason for his position. Despite the unusual nature of this application, the court will not normally press counsel on such reasons and Mr Cheung, who appears for the defendants, has very fairly taken the same position.

3. This is certainly a very undesirable situation.  This trial has actually started and the plaintiff’s first witness is in the witness‑box, going through his evidence-in-chief.

4. On the other hand, this is not a case where a party can satisfactorily conduct the trial without the assistance of counsel.  Whilst deeply dissatisfied with the situation, Mr Cheung has not been able to point to any prejudice on the part of the defendants which cannot be compensated with costs.  Had it not been the case, I may feel compelled to press Mr Yeung for some elaboration of the reason for the application.

5. I have considered the feasibility of adjourning the case but re‑fixing it to be heard by myself so that the work done on this case will not go wasted.  Unfortunately, that has proved not to be practical.  In these circumstances, I reluctantly accede to the application and make an order for a trial de novo.  The parties will have to obtain fresh trial dates for this case.

6. As regards costs, quite rightly Mr Yeung feels unable to resist the costs consequence which normally flow from such an application.  He did not resist the application for indemnity costs either.  I do believe that there will be un‑recovered costs for the defendant if the order is confined to one of party and party.  As Mr Cheung has submitted, it is quite unfair for them to have to prepare for two trials.

7. In the circumstances, I make an order that the costs of and occasioned by the adjournment be paid forthwith by the plaintiff on indemnity basis to be taxed if not agreed.

8. I will also order that there shall be a speedy trial for this action.