CARGO CONTAINER LINE LTD v. BENCHMARK ELECTRONICS (THAILAND) PCL AND OTHERS

FAMV No. 64 of 2020

[2020] HKCFA 26

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 64 OF 2020 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 593 OF 2018)

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.  We are satisfied that the following questions of law are of the requisite importance and ought to be submitted to the Court for decision, namely:

(a)  Where a plaintiff knows the exact name of the entity he wishes to sue (A), but mistakenly names in his writ another entity with the exact same name but a different address (B), does the mistake constitute a misnomer or a mistake as to identity? (Question 1)

(b)  Is the above mistake capable of correction by amending the address under RHC Order 20 rule 1, if the amendment is made before service but after the relevant period of limitation current at the date of issue of the writ has expired, or is it only capable of correction under RHC Order 20 rule 5(3), if applicable? (Question 2)

(c)  Does a correction to amend the address in the above circumstances involve the substitution of a party? (Question 3)

(d)  If, in the above circumstances, a plaintiff is suing on a cause of action which is subject to the time bar contained in Article III rule 6 of the Hague-Visby Rules, does his writ, when issued, identifying as defendant a named entity which could refer to either A or B, but with B’s address, constitute the bringing of suit against A for the purposes of Article III rule 6, so as to stop the time bar from operating? (Question 4)

2.  The appeal will be listed for hearing on 13 January 2021.