POOSAALA RAM PRASAD father of POOSAALA RAJA RAM v. CATHAY PACIFIC AIRWAYS LTD

HCA 1575/2016

[2025] HKCFI 416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1575 OF 2016

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D E C I S I O N

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A.  INTRODUCTION

1.  By a Notice of Appeal dated 8^th November 2024 (“the Notice of Appeal”), the Plaintiff (“Mr Poosaala”) appeals against the order of Master Dick Ho dated 22^nd October 2024 (“the Order”). The Master had, inter alia:

1.1  dismissed Mr Poosaala’s summons dated 16^th July 2024 for leave to amend his Statement of Claim (“SOC”) and Writ of Summons dated 14^th June 2016 (“P’s Amendment Summons”), and

1.2  struck out the SOC and dismissed the action with costs to the Defendant (“Cathay Pacific”), pursuant to Cathay Pacific’s summons of 19^th July 2024 (“D’s Strike Out Summons”).

2.  In the Notice of Appeal, Mr Poosaala also sought an order to reinstate his application, made by summons dated 4^th March 2019, for “correction of Plaintiff’s name” (“the Correction Summons”).

B.  THE FACTUAL BACKGROUND

3.  Mr Poosala’s son (“the Son”) entered into a contract of carriage by air travel from Hong Kong to India on 31^st October 2015.[1] At the time, the Son was a minor, not yet thirteen years old. (No issue arises in relation to the validity of the contract by reason of the Son’s minority.)

4.  It is Mr Poosaala’s case that he requested the “Meet and Assist” Service to be provided by Cathay Pacific at Rajiv Gandhi International Airport as the Son was new to India and travelling alone. However, the service was not provided and Mr Poosaala’s brother, who was supposed to meet the Son at the airport, was unable to contact the Son. The Son eventually emerged in the arrivals hall with an unknown person.

5.  It is Cathay Pacific’s case that in accordance with its Meet and Assist Service, a member of staff at Rajiv Gandhi International Airport held up a placard bearing the Son’s name at the airbridge where all passengers passed through, but as the Son did not identify himself, the Cathay Pacific staff and its ground handling agent personnel were unable to locate him. Cathay Pacific says that its contract was with the Son and not Mr Poosaala, and that the terms of carriage stipulated that for special services provided free of charge, it would not be liable for any loss, expense, breach of contract or other damage should Cathay Pacific be unable to provide the service. Mr Poosaala had not requested or paid for the Unaccompanied Minor service offered by Cathay Pacific.

6.  Mr Poosaala issued proceedings on behalf of the Son on 14^th June 2016, claiming US$250,000 for “gross negligence of service and gross deficiency of service”, and “compensation towards mental agony”. Mr Poosaala sought to sue in a representative capacity.

6.1  The name of the Plaintiff in the writ was stated as “Poosaala Ram Prasad Father of Poosaala Raja Ram”.

6.2  Paragraph 1 of the SOC stated “Plaintiff, Poosaala Ram Prasad is a father and representing on behalf of his son Poosaala Raja Ram…”

6.3  The “Verification” attesting to the truth of the matters in the SOC stated “I, Poosaala Ram Prasad father of Poosaala Raja Ram representing on behalf of his son, the Plaintiff do hereby declare that the facts detailed … are true….”

7.  On 25^th January 2018, Cathay Pacific filed and served its Timetabling Questionnaire, inviting the court to consider whether Mr Poosaala, who was representing the Son as a next friend or guardian ad litem, should be acting by a solicitor in accordance with RHC O.80 r.2(3).

8.  On 10^th April 2018, Master H Au-Yeung directed that as the Son was a minor, Mr Poosaala should instruct a solicitor to act for him in the proceedings forthwith, as required by RHC O.80 r.2(3).

9.  On 27^th April 2018, Mr Poosaala attended a case management conference in person, purporting to act on behalf of the Son. Mr Registrar KW Lung adjourned the matter and again ordered Mr Poosaala to instruct a solicitor to act for the Son.

10.  On 12^th February 2019, Master H Au-Yeung gave directions in advance of the scheduled case management hearing, noting that no Notice to Act had yet been filed by any solicitor for the Plaintiff’s Son, and directing that if no such notice were filed by 4pm on 22^nd February 2019, the case management hearing would be vacated and the action stayed until such a Notice was filed.

11.  No Notice to Act was filed by any solicitor in accordance with the directions. The case management hearing of 4^th March 2019 was vacated, and the action was stayed.

12.  On 4^th March 2019, Mr Poosaala issued the Correction Summons. A three-minute hearing was fixed for 13^th March 2019. At that hearing, Master J Wong ordered that the summons be adjourned sine die with liberty to restore, as no Notice to Act had yet been filed.

13.  No further steps were taken by Mr Poosaala before the Son attained majority on 6^th December 2020.

14.  On 3^rd June 2024, Cathay Pacific filed the Affirmation of Lau Cynthia Tiffeny in support of the summons it sought to issue that day for striking out the SOC and dismissing the action. However, it was unable to file the summons as a Notice of Intention to Proceed had to be filed and served first. Cathay Pacific served Mr Poosaala on 10^th July 2024.

15.  On 16^th July 2024, Mr Poosaala issued P’s Amendment Summons for leave to amend the SOC and Writ. In his supporting affirmation, Mr Poosaala exhibited a draft Writ and Amended SOC. In the draft Amended Writ, Mr Poosaala had crossed out the words “Father of Poosaala Raja Ram” within the name of the Plaintiff, leaving his own name “Poosaala Ram Prasad” as that of the Plaintiff. In the draft Amended SOC, in paragraph 1, Mr Poosaala had crossed out the reference to representation of the Son. He also added a number of allegations:

15.1  that the Cathay Pacific staff at the counter in Hong Kong had assured him that “it is [Cathay Pacific’s] responsibility, the Cabin Crew will look after young unaccompanied passenger from boarding the plane to till hand over to the nominated person at arrival airport”;

15.2  that Cathay Pacific was guilty of “willful misconduct”; and

15.3  under “Relief”, that in addition to mental agony, Cathay Pacific should pay compensation for “willful misconduct, emotional distress, loss of companionship, and breach of contract”.

16.  On 19^th July 2024, Cathay Pacific issued D’s Strike Out Summons.

17.  On 22^nd October 2024, Master Dick Ho heard P’s Amendment Summons and D’s Strike Out Summons, and made the Order which is the subject of the current appeal.

C.  D’S STRIKE-OUT SUMMONS

18.  Counsel for Cathay Pacific, Mr Lai Chun Ho, submitted that insofar as Mr Poosaala was seeking to continue the action as a representative of the Son, he could not do so, as the Son had already attained majority and was no longer under any disability. He cited Brown v Weatherhead (1844) 4 Hare 122 for the proposition that the next friend of an infant who has attained majority is not entitled to proceed with litigation commenced on behalf of the infant.

19.  I agree that Mr Poosaala therefore has no authority to represent the Son to continue with the action. This is notwithstanding a letter of authorisation which Mr Poosaala produced, said to have been signed by the Son, authorising him to represent him in the proceedings (“the Authorisation Letter”).

20.  That is not the end of the matter, as the Son, having attained majority, can elect whether or not to proceed with the litigation. See NSW Insurance Ministerial Corporation v Abualfoul (1999) 162 ALR 417 at [31] to [33] (Sackville J).

21.  The Authorisation Letter on the one hand suggests that the Son is not abandoning the action, but at the same time suggests that he does not seek to proceed with it himself. Mr Poosaala also indicated in one of his written submissions at paragraph 3.2.2 that “Upon attaining majority, a former minor becomes entitled to act in their own capacity in legal proceedings, unless they choose to remain a party. Poosaala Raja Ram [the Son] has not expressed any desire to remain involved in these proceedings.” It would therefore appear that the Son does not wish to proceed with the litigation in his own right.

22.  In these circumstances, Cathay Pacific seeks to strike out the action (insofar as it is taken as an action brought by the Son) for want of prosecution.

23.  There is no dispute that the principles are those set out in Wing Fai Construction Co Ltd v Yip Kwong Robert (2011) 14 HKCFAR 935 at [75], [80] (Ma CJ).

23.1  Striking out is a remedy of the last resort, and should only be used where it would be plain and obvious to do so. If there are other measures that are more appropriate to be taken, this ought to be done.

23.2  Abuse of the process of the court is the foundation for the exercise of the jurisdiction to strike out for delay.

23.3  Abuse can take many forms. Mere delay will not necessarily amount to abuse. The delay should be both inordinate and inexcusable, and abuse should be shown.

23.4  Where abuse is clearly demonstrated, proceedings can be struck out even where prejudice to the defendant cannot be shown. However, in the majority of applications to strike out for delay, the aspect of prejudice will often be extremely relevant.

23.5  The conduct of the parties is a relevant consideration for the court, both to the question of abuse as well as to the overall justice of the case. Post-CJR, all parties to the proceedings have an obligation to prosecute the proceedings and assist the court in furthering the underlying objectives, so that it is highly relevant to consider any failure on the part of the parties in this regard.

23.6  The court must also have regard to the considerations wider than those of the immediate parties. There are other litigants who are entitled to have their disputes resolved and their day in court. Thus, the fact that the limitation period has not expired is not a factor militating against striking out for want of prosecution.

23.7  The power to strike out for delay is discretionary and derives from the inherent jurisdiction of the court. The inherent jurisdiction of the court exists to avoid injustice, prevent abuse, preserve the dignity of the court and facilitate the administration of justice. In exercising its discretion, a court must ultimately ask itself the question of whether or not in the circumstances, it is just to strike out. A mechanistic approach in which the bigger picture is lost sight of is to be eschewed.

24.  The court takes a broad view of what constitutes prejudice. It includes prejudice to the court, the administration of justice, and other litigants. See Asparou Ianev Dimitrov as administrator of the estate of Kaloian Ianev Dimitrov (deceased) v Dominic Tak Ming Lau [2024] HKCA 1011 at [42] (Cheung JA, giving the decision of the Court of Appeal).

25.  I accept Mr Lai’s submission that the action should be struck out for want of prosecution, given that:

25.1  the action was started more than eight years ago, but has not proceeded beyond the pleadings stage;

25.2  the delay is contumelious and amounts to an abuse of process:

25.2.1  Mr Poosaala did not instruct a solicitor to act on behalf of the Son, despite Master H Au-Yeung’s order of 10^th April 2018 and Mr Registrar KW Lung’s order of 27^th April 2018, and culminated in the action being stayed from 22^nd February 2019. Mr Poosaala says that he did try to obtain legal aid, but his applications were refused; he did not however instruct a solicitor privately;

25.2.2  subsequently, the Son came of age in December 2020, but he did not take any step in these proceedings. He has not sought to resist the Strike Out Summons, or to bring this appeal, save to (apparently) sign the Authorisation Letter. Nor has he sought to explain the delay. Furthermore, according to Mr Poosaala, the Son in fact has no interest in being involved in these proceedings. As Mr Lai submitted, the implication of Mr Poosaala’s current stance that the Son was erroneously named as a party in the first place means that the Son never had any genuine intention to prosecute these proceedings; and

25.3  it is prejudicial to Cathay Pacific for the action to remain hanging over its head, and prejudicial to the administration of justice and to the interests of other litigants for the court’s resources to be taken up with an action which the plaintiff himself shows no interest in prosecuting.

26.  I therefore conclude that the SOC should be struck out for want of prosecution. In the light of my views regarding P’s Amendment Summons as set out below, the action itself should also be struck out for want of prosecution.

D.  P’S AMENDMENT SUMMONS

27.  By P’s Amendment Summons, Mr Poosaala seeks to amend the Writ and SOC, adding himself as a plaintiff to the action in his own right.

28.  As Mr Lai submitted, by the time that P’s Amendment Summons was issued, the limitation period in respect of any claim that Mr Poosaala may have had against Cathay Pacific had already expired. The limitation period for a claim based on contract or tort is six years: s.4 Limitation Ordinance (Cap.347). Any cause of action which Mr Poosaala may have had would have accrued on 31^st October 2015, and the applicable limitation period would have expired in October 2021, almost three years before P’s Amendment Summons was issued.

29.  The question is therefore whether O.15 r.6(5)(a) or (b) applies such as to enable the addition of Mr Poosaala as a party notwithstanding the expiry of the limitation period.

30.  O.15 r.6(5)(a) provides that a party may be added after the expiry of a relevant period of limitation if the relevant period was current at the date when the proceedings were commenced, and it is necessary for the determination of the action that the new party should be added or substituted. The meaning of “necessary” for this purpose is limited to the five scenarios set out in O.15 r.6(6). Mr Poosaala does not come within any of them.

31.  O.15 r.6(5)(b) provides that a party may be added after the expiry of a relevant period of limitation if the relevant period arises under the provisions of s.27 or s.28 of the Limitation Ordinance and the court directs that those provisions should not apply to the action by or against the new party. Section 27 relates to claims for damages for personal injuries. Section 28 relates to the time limit for actions under the Fatal Accidents Ordinance (Cap.22). Neither applies in the present case. (Whilst the draft amended SOC refers to “mental agony” and “emotional distress”, these are not actionable, not being medically identifiable psychiatric illnesses or injuries: Hon Kwan v Zara Asia Limited [2021] HKCFI 2556 at [57] (M Ng J); Charlesworth & Percy on Negligence, 15^th ed., paragraph 2-146.)

32.  In his oral submissions, Mr Poosaala relied on O.20 rr.5(3), 5(4) and 5(5). He submitted that:

32.1  under O.20 r.5(3), his proposed amendment to the SOC should be allowed as being an amendment to correct the name of the Plaintiff (from the Son to himself);

32.2  under O.20 r.5(4), his proposed amendment to the SOC could also be allowed on the basis that it was an alteration of the capacity in which he sought to sue;

32.3  under O.20 r.5(5), his proposed amendments to the SOC could be allowed even if effect of the amendment would be to add a new cause of action.

33.  In relation to O.20 r.5(3), Mr Lai cited Blockchain Group Company Ltd (formerly Ping Shan Tea Group Limited and Huafeng Group Holdings Limited) (in liquidation) v PKF Hong Kong Limited (formerly PKF (a firm)) and PKF (a firm) [2024] HKCFI 903 at [12] to [13] (DHCJ Le Pichon):

“12. Therefore, for O 20 r 5 (3) to apply, the court must be satisfied that

(1) there was a genuine mistake in naming the plaintiff or the defendant;

(2) the mistake was not misleading;

(3) the mistake was not such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued; and

(4) it would be just to allow the amendment:

see International Bulk Shipping and Services Ltd v Minerals and Metals Trading Corp of India [1996] 1 All ER 1017, 1025j-126a.

13. The first requirement is not satisfied unless the mistake is one of name. The mistake has to be a mistake as to the name rather than the identity of the party or as to legal rights: see per Tang PJ in Beijing Tong Gang Da Sheng Trade Co Ltd v Allen & Overy (A Firm) (2016) 19 HKCFAR 705 at §43.”

34.  Mr Lai submitted that O.20 r.5(3) did not apply in the present case as (a) there was no genuine mistake, (b) the alleged mistake in any event was about the identity of the party rather than a mistake about the name of the party, (c) the alleged mistake was misleading and led to reasonable doubts as to the identity of the person intending to sue.

35.  I accept Mr Lai’s submission.

35.1  The Writ and SOC made it clear that Mr Poosaala sought to sue as a representative of the Son. The naming of the Son as the Plaintiff was not a mistake. As Mr Lai pointed out, it was not until Master H Au-Yeung and Mr Registrar KW Lung ordered that a solicitor should be appointed to act on behalf of the Son that Mr Poosaala sought to suggest that in fact, the Son had been mistakenly named as a party to the action.

35.2  In any event, even if there was a mistake as alleged, the mistake was not as to the name of the Plaintiff, but rather, as to the identity of the party suing. It was not the case that there was an error in the writing of Mr Poosaala’s name (which was correctly written), but rather, an (alleged) error as to whether it was Mr Poosaala or the Son (by next friend) who was suing.

35.3  The alleged mistake caused a doubt on the part of both Cathay Pacific and the court as to the identity of the person intending to sue, as evidenced by Cathay Pacific’s Timetabling Questionnaire of 25^th January 2018, and the court’s orders of 10^th April 2018, 27^th April 2018, 12^th February 2019, and 4^th March 2019.

36.  In relation to O.20 rr.5(4) and 5(5), Mr Lai cited Official Solicitor v HSBC International Trustee Ltd [2011] 4 HKLRD 644 at [19], [20] (DHCJ Au-Yeung, as she then was):

“19. A next friend is not a party to an action. This is why discovery cannot be ordered against him …

20. That a next friend is not a party is also borne out by the tenor of the High Court Ordinance …”

37.  Mr Lai submitted that O.20 r.5(4) did not apply in the present case as Mr Poosaala was not seeking to alter the capacity in which he sued, but instead, seeking to add himself as a new party to the action. Similarly, O.20 r.5(5) did not apply as Mr Poosaala could not be considered as “the party applying for leave to make the amendment” as he was not currently a party to the action.

38.  I accept Mr Lai’s submission. Mr Poosaala had all along sought to act as the Son’s next friend rather than as a party in his own right, so that it cannot be said that he is seeking to alter the capacity in which he originally sued, or amending his own pleadings.

E.  THE CORRECTION SUMMONS

39.  By Master J Wong’s order of 13^th March 2019, the Correction Summons was adjourned sine die with liberty to restore, as no Notice to Act had been filed as directed by Master H Au-Yeung on 12 February 2019.

40.  It appears that Mr Poosaala sought to restore this application in his Notice of Appeal, although he did not seek to do so before Master Dick Ho, and has not explained the delay in restoring the application.

41.  Under the Correction Summons, Mr Poosaala essentially seeks to advance the same argument as that under O.20 r.5(3), which I have already addressed.

F.  OTHER MATTERS

42.  I should record that Mr Poosaala made a number of other applications in his written skeleton arguments, for example seeking to strike out what he described as irrelevant and prejudicial material put forward by Cathay Pacific. As these are not applications properly before me, I will not deal with them.

G.  DISPOSITION

43.  Mr Poosaala’s appeal is dismissed. I further make a costs order nisi that the costs of and occasioned by the appeal should be paid by Mr Poosaala to Cathay Pacific, to be summarily assessed on the papers. Cathay Pacific is to lodge and serve a statement of costs, limited to 1 page, within 5 days; Mr Poosaala is to lodge with the court and serve on Cathay Pacific’s solicitors his objections, if any, limited to 1 page, within 7 days thereafter; Cathay Pacific has leave to lodge and serve a reply, if any, limited to 1 page, within 3 days thereafter. The assessment will be conducted on the papers.