LI JIE v. HONG KONG AIRPORT SERVICES LTD

DCPI 209/2022

[2024] HKDC 111

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 209 OF 2022

---------------------------

BETWEEN

---------------------------

---------------------------------------------

DECISION

---------------------------------------------

BACKGROUND

1.  This is the hearing of an appeal brought by the defendant by way a notice of appeal dated 28 September 2023 against an Order made by a master (“the Master”) on 14 September 2023 (“the Order”).

2.  For the background of this case, I would refer to the key events listed out in the following chronology agreed by the parties on 7 November 2023:-

Date	Event
14.2.2019	Date of alleged accident
17.1.2022	Pre-action letter was sent to the defendant at “33rd Floor, One Pacific Place...” (“Pre-action Letter”)
21.1.2022	The plaintiff’s generally endorsed Writ of Summons (“the Writ”) was issued, with defendant’s address stated as “33rd Floor, One Pacific Place…”
24.1.2022	Messrs Holman Fenwick Willan (“HFW”) wrote on behalf of the defendant to Messrs B Mak & Co (“BM”), the plaintiff’s solicitors, in response to Pre-action Letter and requested further particulars of allegations, disclosure of relevant medical documents and a without prejudice quantification.
14.2.2022	Expiry of the 3-year time limitation under common law in relation to the plaintiff’s claim
6.7.2022	According to the 3rd affirmation of Lee Chi Tung Christina dated 14 July 2023, the plaintiff’s related Employees’ Compensation (“EC”) claim (DCEC 2038/2022) was settled and discontinued
4.1.2023	According to the affirmation of Yip Tsz Wing dated 14 July 2023, the secretary of the plaintiff’s handling solicitor underwent a “lasik surgery”
9.1.2023	According to the 2nd affirmation of Lee Chi Tung Christina dated 3 March 2023, the Writ was served on the defendant directly by leaving at “35/F, One Pacific Place...”
20.1.2023	Expiry of the 12-month validity of the Writ
17.2.2023	The plaintiff applied ex-parte for the validity of the Writ to be retrospectively extended for 2 months beginning with the day next following that on which it expired The affirmation of Lee Chi Tung Christina was filed in support of the application
28.2.2023	The court raised requisitions with BM as to the detailed reason(s) why the application to extend the validity of the Writ had not been made before the Writ expired and as to the legal authorities that the court has power to so order, referring to “6/8/HKCP 2022”
2.3.2023	Checklist Review hearing date
3.3.2023	2nd affirmation of Lee Chi Tung Christina was filed in response to the court’s requisitions
22.3.2023	The Master granted an ex-parte order for a retrospective extension of the validity of the Writ for 2 months beginning with the day next following that on which it expired (“the Extension Order”)
28.3.2023	According to the 3rd affirmation of Lee Chi Tung Christina dated 14 July 2023, the Writ was served on the defendant directly by leaving at “33rd Floor, One Pacific Place…”
11.4.2023	HFW wrote to BM to seek a copy of the Extension Order
20.4.2023	HFW wrote to BM requesting (again) a copy of the Extension Order and other documents
12.5.2023	According to the 3rd affirmation of Lee Chi Tung Christina dated 14 July 2023, the judicial clerk returned the draft of the Extension Order with amendments to the plaintiff
16.5.2023	The defendant took out a summons to set aside the Writ and its service (“the Defendant’s Summons”) The affirmation of Tam Lee was filed in support of the application
15.6.2023	According to the 3rd affirmation of Lee Chi Tung Christina dated 14 July 2023, the judicial clerk sealed the Extension Order
16.6.2023	Checklist Review hearing date The Master directed that the hearing of the Defendant’s Summons be determined by paper disposal
14.7.2023	3rd affirmation of Lee Chi Tung Christina and affirmation of Yip Tsz Wing were filed in opposition to the Defendant’s Summons
9.8.2023	2nd affirmation of Tam Lee was filed in reply
14.9.2023	The Master gave the decision and written reasons in relation to the Defendant’s Summons
28.9.2023	The defendant filed and served a notice of appeal to a judge in chambers against the decision

3.  In essence, the Master made the Extension Order on 22 March 2022 to retrospectively extend the validity of the Writ for 2 months: See §1 of the Extension Order.

4.  The Writ was served on the defendant by leaving a copy at the defendant’s registered address at “33^rd Floor, One Pacific Place”.

5.  The defendant’s main complaint is that the plaintiff served the Writ that had already expired according to the Extension Order.

6.  By the Defendant’s Summons, it applied to: (i) set aside the Extension Order; (ii) set aside the Writ and its service; and (iii) dismiss the entire action before the Master.

7.  The defendant relied on 4 grounds for its application under the Defendant’s Summons before the Master, namely:-

(a) There was no “good reason” to extend the validity of the Writ;

(b) There was material non-disclosure as the plaintiff did not inform the court that his claim had been time-barred by the time the application was made;

(c) The Writ was not valid when it was served on 28 March 2023; and

(d) The Writ was not marked with an official stamp showing the period for which the validity was extended as required under O 6 r 8(3) of the Rules of the District Court (“the RDC”).

8.  The Master gave brief reasons for the decision when the defendant’s application was dismissed (“the Decision”).

9.  In the Decision, the Master accepted that the plaintiff had taken active steps to serve the Writ within the validity period and the non-service was due to an innocent clerical mistake instead of a deliberate choice of the plaintiff. Further, upon discovering the defective service, the Master found that the plaintiff had taken immediate action to remedy the situation without any undue delay. Thus, the Master was satisfied that there were good reasons for the extension of the Writ.

10.  Further, the Master did not accept there was any material non-disclosure of information. If there was any, the Master found that the omission was due to an innocent breach. In the Decision, the Master opined that while setting aside the Extension Order might satisfy the need to uphold the public interest in requiring full and frank disclosure, to do so without a regrant will deprive the plaintiff the only opportunity to seek common law damages as a result of the accident. Hence, it would cause injustice in this case. Thus, the Master found the penal effect of setting aside the Extension Order without a regrant is disproportionate to the breach committed by the plaintiff in this case. The Master also found the hardship to be suffered by the plaintiff without a regrant outweighs the prejudice allegedly to be suffered by the defendant.

11.  By a notice of appeal dated 28 September 2023, the defendant appeals against the Decision.

DISCUSSION

Relevant legal principles

12.  It is trite that an appeal from a master to a judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal and the judge is entitled to treat the matter as though it came before him for the first time. Further, a judge hearing an appeal from a master is entitled to, if he thinks fit, to adopt the master’s reasoning in his own judgment without setting out the reasoning himself: Hong Kong Civil Procedure 2024 (“HKCP 2024”), §58/1/2.

13.  As for the general validity of a writ, O 6 r 8(1) of the RDC provides that a writ is valid for 12 months. The 12 months validity period of a writ is strictly construed, and even one day’s delay will result in a plaintiff not being able to proceed with the action: §6/8/1.

14.  Service of a writ after the appropriate period or any later renewal is an irregularity: §6/8/2.

15.  O 6 r 8(2) of the RDC provides that the court may extend the validity of the writ. The learned authors of the HKCP 2024 have made a helpful summary of the relevant legal principles at §6/8/3.

16.  Mr Wong, the defendant’s counsel, highlighted the following principles in his submissions:-

(1) It is the duty of the plaintiff to serve the writ promptly. He should not dally for the period of its validity; if he does so and gets into difficulties as a result, he will get scant sympathy: §6/8/3(1).

(2) The power to grant extension of validity of a writ involves a two-stage process. In the first stage, the plaintiff must establish matters amounting to good reasons for extension or at least capable of so amounting. In the second stage, the court will decide whether or not to exercise its discretion by considering all circumstances of the case, such as the balance of prejudice or hardship: §6/8/3(11).

(3) Carelessness, oversight, mistake, incompetence of the Plaintiff’s legal representatives, the knowledge of the claim by the defendant, an absence of prejudice to the defendant, are all not good reasons: §6/8/3(6).

(4) A writ will not normally be renewed if the effect of which will deprive the defendant of the accrued benefit of a limitation period: §6/8/3(8).

(5) In exercising discretion the judge is entitled to have regard to the balance of hardship, but only where there are matters which, potentially at least, could constitute good reasons for extension. The exercise of discretion, however, follows upon the showing of good reason by the applicant. Hardship to the applicant if the extension is disallowed is not a substitute for good reasons. §6/8/3(10).

17.  Mr Smith SC for the plaintiff on the other hand has highlighted the following principles in his submissions:-

(1) The power to extend the validity of a writ is ultimately an exercise of discretion by the court. The plaintiff accepts that this discretion does not arise unless there are matters capable of amounting to a good reason to renew the validity of a writ: Amadeaus Investment Ltd v Lin Kao Kun [2019] 2 HKLRD 647 at §20 per DHCJ Keith Yeung SC (as he then was).

(2) To determine what constitutes such “good reason”, as held in Amadeaus (supra) at §22 per DHCJ Keith Yeung SC (as he then was):-

(a) The court must look at all the circumstances of the case.

(b) There is not a “large degree of stringency”. ““Good reason is not as high as “exceptional circumstances””.

(c) A relevant consideration is “whether the non-service was the result of the plaintiff’s deliberate choice”.

(d) A “perfect reason is not necessary”.

(3) The plaintiff submits that useful guidance for what constitutes a good reason can further be found in the Supreme Court’s decision of Barton v Wright Hassall LLP [2018] 1 WLR 1119 at §10 per Lord Sumption:-

“In the generality of cases, the main relevant factors are likely to be (i) whether the claimant has taken reasonable steps to effect service in accordance with the rules and (ii) whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired, and, I would add, (iii) what if any prejudice the defendant would suffer by the retrospective validation of a non-compliant service of the claim form, bearing in mind what he knew about its contents. None of these factors can be regarded as decisive in themselves. The weight to be attached to them will vary with all the circumstances.”

(4) In Hong Kong, it has been said that a failure to serve the writ within time, despite reasonable efforts having been made, is “clearly a good reason for leave to renew a writ”, and “[i]t matters not whether the inability to serve … was due to deliberate attempts … to evade service or not”: Grand Pacific Equity Ltd v Rsh sports (HK) Ltd [2006] 4 HKLRD 617 at §29 per Yuen JA.

18.  In this regard, Mr Smith SC submits that the authorities have consistently held that a failure to properly serve a writ within time due to an innocent mistake constitutes a good reason that justifies renewal:-

(1) In Holman v George Elliot and Company Limited [1944] KB 591, the plaintiff had accidentally failed to serve a writ within 12 months because of the neglect of his solicitors. The English Court of Appeal held at 594 per MacKinnon LJ that the failure to serve the writ in time was “owing to the lamentable neglect on the part of the managing clerk of the solicitors then acting for the plaintiff”, and in these circumstances it was “perfectly right and proper” for the judge below to exercise his discretion to extend the validity of the writ.

(2) In Jones v Jones [1970] 2 QB 576, the plaintiff had mistakenly served the writ on the 2^nd defendant when the validity of the writ had already expired. The English Court of Appeal held at 584 per Salmon LJ:-

“The writ was served on him – not validly, it is true, but it was served on him and he knew all about it, on July 3, 1969; so on that basis he is only a few weeks worse off than he would have been if the writ had been served on time. The renewed writ was served on August 19, validly, as it now turns out; so even then he was only about nine weeks worse off than he would have been on June 12

I think that, balancing the hardship to the plaintiff which would have followed had the appeal been dismissed against the hardship which the second defendant may now suffer, the judge was fully entitled to come to the conclusion that it was just and proper and that there was good and sufficient reason, to extend the time for service of the writ upon the second defendant.”

(3) In Tan Kah Eng v Tan Eng Khiam (unrep., HCA 9640/1999, 14 March 2011), it was held that a mistaken belief that the writ had been properly served within time, in circumstances where the validity of the writ had to be renewed as leave to serve the writ out of jurisdiction had been set aside, constituted “a good reason”: §46 per Bharwaney J.

(4) In Waan Chuen Ming v Lo Kin Nam (unrep., CACV 112/2005, 18 January 2006), the Court of Appeal affirmed the finding by DHCJ Carlson that there was good reason to extend the validity of the writ in that case, where the plaintiff’s solicitors had mistakenly served the writ one-week after its expiry as they were unaware of the deadline: §§4, 7, 14 per Rogers VP.

19.  These principles apply where the limitation period has expired. As held in Tan Kah Eng at §§43-44 per Bharwaney J (approved by the Court of Appeal on appeal: [2012] 1 HKLRD 329 at §41 per Sakhrani J:-

(1) The limitation period is “not an absolute bar to the exercise of the court’s discretion to renew the writ”.

(2) If the court is satisfied that a “good reason” or “good cause” has been shown for the renewal, the court is required to “consider all the circumstances of the case, including the balance of prejudice or hardship”, and must “weigh the balance of hardship to the plaintiff if the extension is refused and the hardship to the defendant if it is allowed”.

20.  In other words, the plaintiff submits the test “was the same whether the limitation period expired or not”, but in fairness “the court might apply the test with less rigour where the limitation period had not expired”: HKCP 2023 at p104. [emphasis supplied]

21.  Mr Wong does not seriously dispute the principles set out in the authorities cited by the plaintiff’s counsel. It is in the application of those principles to the present case that the defendant takes issue with.

Findings of the court

22.  Having taken into account of the above principles and applying them to the facts of this case, I do not consider the Decision of the Master can be faulted in any way for the following reasons.

(i) Good reason to extend the validity period and renew the Writ

23.  First, in my view, the defendant has taken too strict and stringent an approach to the plaintiff’s claimed mistake which had allegedly caused the Writ to be served outside the extended validity period. The defendant has in my view unreasonably refused to accept the situation could have been caused by an innocent clerical mistake made by the secretary when typing out the address on the cover letter.

24.  While the case might have become time-barred on 14 February 2022 and the plaintiff had only attempted to serve the Writ at the defendant’s registered address (albeit wrongly at 35/F instead of 33/F of One Pacific Place) on 9 January 2023, the plaintiff was still within time when he did so. In my view, it was not a case where the plaintiff had chosen to wait and serve the Writ at the very last minute, like a day or two before the expiry.

25.  The defendant has made a lot of criticism over the fact that the plaintiff had waited until the “last minute” to serve the Writ. However, that was done 11 days before the expiry of the validity, ie on 9 January 2023. I do not think there is anything wrong with that because: (i) I do not regard serving the Writ 11 days before the expiry was “last minute”; and (ii) there may be a multitude of reasons why a plaintiff chooses not to or simply not able to serve the writ until shortly before the expiry of the validity period. Just because a plaintiff chooses to serve the writ close to the expiry of validity date does not, in my opinion, equal to a “deliberate choice” of non-service out of time as submitted by the defendant.

26.  Second, I notice that there is one very significant factual matter which the defendant has failed to deal with in its written submissions. This is in relation to the alleged clerical mistake made by the secretary at the plaintiff’s solicitors firm when typing out the registered address of the defendant.

27.  Ms Yip, the secretary who had prepared the cover letter to the defendant, in her affirmation filed on 14 July 2023, explained that she had undergone a Lasik surgery on 4 January 2023 with a follow-up appointment scheduled on 12 January 2023. She claimed that after the surgery she suffered from “dryness and pain in her eyes”. Due to the “discomfort, ongoing recovery from the surgery and busy workload on that day”, she accidentally typed out the incorrect address of the defendant.

28.  As both the date of her eye surgery (4 January 2023) and the date of her follow-up appointment (12 January 2023) are supported by documentary evidence, it is in my view plausible that Ms Yip was still suffering from poor eyesight when typing out the cover letter on 9 January 2023. It is also not difficult to imagine that she could easily misread (and then typed out) 35/F instead of 33/F as the defendant’s registered address. I would accept this as a “good reason” why the Writ had been served on the wrong address and therefore not served on the defendant within the validity period. As the standard of showing “good reason” is not as high as of establishing “exceptional circumstances”, I do not think the plaintiff should be judged too harshly under such circumstances: (cf Hashtroodi v Hancock [2004] 3 All ER 530 and Collier v Williams [2007] 1 All ER 991).

29.  Hence, I accept in this case that the failure to serve the Writ in time was due to an innocent clerical mistake rather than a deliberate choice of the plaintiff or his solicitors.

30.  Third, Mr Wong for the defendant tries to argue that the plaintiff had failed to act in between sending the Pre-action Letter to the defendant on 17 January 2022 and the issuing of the Writ on 21 January 2022. In the Pre-action Letter, the plaintiff allegedly failed to send a single document either on liability or quantum which was in clear breach of the provisions of Practice Direction 18.1 (“PD 18.1”). On the other hand, the defendant’s solicitors did promptly reply to the Pre-action Letter on 24 January 2022, requesting for further documents and information including medical reports. The defendant’s solicitors also requested the plaintiff’s solicitors to direct all future correspondence in relation to the matter to them rather than the defendant. However, the plaintiff’s solicitors had simply ignored such requests and therefore failed to engage in any meaningful dialogue with the defendant during the pre-action protocol stage and before the issue of proceedings.

31.  In my view, while the plaintiff’s solicitors had clearly been in breach of the pre-action protocol specified under §§14 to 19 of PD 18.1 when they failed to provide the requested information and documents specified under Schedule A thereof: See my recent decision in Mak Shiu Cheung v Luk Man Tai [2023] HKDC 1801, DCPI 2741/2023 (18 December 2023) at §§33 to 47, this ultimately will be a question of wasted costs or sanctions which the defendant may able to claim against the plaintiff as stated in §§9 and 147 of PD 18.1. With respect to Mr Wong, this has nothing to do with the issues under appeal here.

32.  What is important to note in this case is the fact that the defendant has had notice of the accident / intended common law claim through the Pre-action Letter issued by the plaintiff in January 2022 and the EC action itself. Further, according to the affirmation of the defendant’s solicitor Tam Lee, she has learnt about the issuance of the Writ in late January 2022, which was before the action became time-barred. Hence, in my view, it has not been shown that the defendant has suffered from any real prejudice as a result of the Master’s decision to extend the validity of the Writ.

33.  Fourth, I find nothing wrong for the plaintiff to attempt to serve the Writ on the defendant’s registered address instead of through the defendant’s solicitors. This is despite the request from the defendant’s solicitors to direct all “future correspondence” to them in their reply letter dated 24 January 2022. Serving a writ on a limited company’s registered address is the normal and acceptable form of service. There is nothing improper about that. Besides, in the defendant’s solicitors reply letter, they did not specifically mention that they have instructions to accept service.

34.  In my view, what followed after the service of the Writ on the wrong address was unfortunate but perfectly plausible. The evidence suggests that the plaintiff’s solicitors were unaware of the innocent mistake made by Ms Yip and therefore did not apply to extend the validity of the Writ. Once the plaintiff discovered the defective service, they had taken immediate action to rectify the situation without any undue delay.

35.  Hence, I do not accept the defendant’s submission that the plaintiff had taken a “deliberate decision not to serve the Writ within its initial validity” or attempted any “further delay” the matter after the plaintiff’s solicitors had found out the mistake.

36.  In the aforesaid circumstances, I am satisfied that there existed good reason to renew the Writ.

(ii) Balance of hardship

37.  In my judgment, the Master was correct in finding that the balance of hardship lies in favour of renewing the validity of the Writ for the following reasons.

38.  There is no doubt in my mind that the plaintiff would suffer from significant hardship if the appeal is allowed. I agree with the Master that the plaintiff would lose his only opportunity to seek common law damages as a result of the accident if the court refused to extend the validity of the Writ. He would be deprived of his chance to seek damages from the defendant. The injustice cause to him is therefore plain and obvious.

39.  On the other hand, as mentioned above, the defendant has had notice of the accident and/or intended common law action via the EC Action as well as the Pre-action Letter. The defendant’s solicitors were also aware that a writ had been issued prior to the expiry of the limitation period. Hence, there is in my view no real or forensic prejudice, like difficulty in getting hold of witnesses or gathering documentary evidence, suffered by the defendant in this case: See Chu Gregory v Yick Ngai Logistics (HK) Company Limited [2021] HKDC 463 at §36 per Master Matthew Leung.

40.  In this case, I entirely agree with the Master that the hardship to be suffered by the plaintiff without a regrant far outweighs the prejudice allegedly to be suffered by the defendant.

(iii) Technical objection

41.  Mr Wong for the defendant submits that the Writ was invalidly served on 28 March 2023, since it had already expired and lacked the official stamp.

42.  I agree with Mr Smith SC that this is a poor technical objection which can be easily cured by this court. Should this court dismiss the appeal, such technical “defects” can be cured by ordering the validity of the Writ be extended retrospectively for 2 months from the date of the order to be made by this court. Whereupon the Writ can be validly served again on the defendant without any issues of irregularity under O 2 r 1 and O 3 r 5 of the RDC: See HKCP 2024 at §6/8/1.

(iv) Material non-disclosure

43.  The defendant had relied on this ground in its application before the Master. However, Mr Wong no longer relies on this as a ground in support of the appeal.

44.  Hence, strictly speaking, this court no longer needs to deal with this issue. However, for the sake of completeness, I would like to say that had the defendant pursued this point in the appeal, I would have found that the non-service during the validity of the Writ was clearly due to an innocent clerical mistake rather than a deliberate material non-disclosure on the part of the plaintiff or his solicitors.

CONCLUSION

45.  In conclusion, for the reasons stated above, I would dismiss the defendant’s appeal with costs in favour of the plaintiff, such costs to be taxed if not agreed, with certificate for senior counsel only as I consider this is a simple and straightforward appeal which does not require more than one counsel to argue the case on behalf of the plaintiff.