H. W. TEXTILES CO LTD v. WORLD TEXTILE PRINTING CO LTD

HCA 1511/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 1511 OF 2001

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J U D G M E N T

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1. I shall first deal with the re-fixing of the trial dates because this is the matter which was taken up by the court, first in time. 

2. The situation was this:  the case was originally fixed for trial before this court from 3 to 10 May this year.  Due to other commitments, this court is not available to deal with the trial, hence the case will have to be re-fixed.  The trial was originally set down for six days and there are available dates in August as well as end of October to which the case can be allocated. 

3. When the matter was brought up by this court on 22 March, the parties indicated that they would prefer to have the trial on a slot which is available in May but only five days were available.  At the same time, the defendant indicated that there will be some further expert evidence.  Because of that, this court had to consider the ramifications of such evidence.  But on the last occasion, this new evidence was not yet available.  The matter was therefore adjourned to the 29th, i.e., today. 

4. On 28 March, i.e., yesterday, the defendants took out a summons asking for leave to amend the defence and also leave to file further witness statements as well as expert evidence.  Having had a look at the new materials, the upshot was that the defendant wanted to take a new point about the plaintiff not having supplied the defendants with the material in accordance with the contract for processing and, therefore, the plaintiff had to bear the consequence of that. 

5. The point turns on the specification in the order placed by the plaintiff with the defendant with regard to the material to be processed, namely, the description of “退漿布”.  The defendant said the materials supplied by the plaintiff were not “退漿布”.

6. Having heard submissions from counsel, although Mr Mak tried to argue that this is a matter on which the defendant was entitled to cross-examine or to explore at the trial in any event, I am of the view that this is a matter which should have been raised specifically in their pleadings as well as evidence. 

7. I agree with  Mr Dawes that the purpose of the late application by the defendant is to raise a new front in this litigation but, as I said, I am going to consider the question of re-fixing of trial first.  This is because, as I had said in previous decisions in deciding whether to allow something new to be brought in at a late stage, the court has to  consider what is the overall impact of this opening of new front to the trial dates.  If the trial dates have to be postponed in any event, the impact of the new point or the disruption caused by this new point taken would be less.  On the other hand, if the trial date does not require any postponement but for the new point being taken, it would place the matter in very different light. 

8. So I propose to consider the application to re-fix the trial dates without consideration of the new point and then to crosscheck what disruption the new point may cause to the trial date. 

9. As I said, the trial was set down for six days.  Mr Dawes tried to convince me this morning that it could be completed within five days.  There will be two factual witnesses on each side and also one expert witness each called by the plaintiff as well as the defendant. 

10. One would have to suppose that at the time of setting-down , the parties have given some careful consideration to the estimated length of trial.  At that stage, the parties’ estimation was six days.  Having the chance to consider the witness statements as well as the expert reports, notwithstanding the indication of Mr Dawes, I am of the view that five days is a little bit tight and there is a real possibility that if the matter is re-fixed to a time-slot for five days, the trial might not be able to be finished.

11. In the circumstances, even without the new dimension caused by the late application of the defendant, I am not minded to re-fix the date to the time-slot in May.  I would instead re-fix the trial to the dates either in August or at the end of October.  I was told by counsel that the August dates are problematic for one reason or another.  In view of that, I will re-fix the trial to the dates in late October, that is, the trial will take place from 31 October to 7 November. 

12. Having come to that decision and, in view of the submissions of Mr Dawes that the plaintiff would still be able to go ahead with the new points being taken, even if the matter is re-fixed to the May dates, notwithstanding that the amendments in the application involved a new front being opened and that I am not very happy with the explanation offered by the defendant about the late application, I must bear in mind that the overriding duty of the court is to do justice between the parties and, if there is any substance in the new point, there must be very good reason before the court should bar the defendant from taking such a point. 

13. Apart from the question of costs, I cannot see the plaintiff will suffer any prejudice with regard to the new point being taken.  In accordance with established principle, I think I should allow the application.  So I will make an order in terms of paragraphs 1 to 4 of the summons of 28 March. 

14. I will however say this with regard to the proper preparation of a case before parties come to the court to ask for the matter to be set down for trial.  This question of the presence of starch in the materials supplied by the plaintiff to the defendant was alluded to in the plaintiff’s expert’s report made on 31 May 2004 and the report was filed on 18 June 2004. 

15. The defendant and those advising the defendant were therefore aware of this piece of information way back in 2004.  Mr Mak has explained to me why this point was not picked up at that stage.  I must say I am not satisfied with that explanation.  The explanation was that the expert had thought that the reference to the presence of starch in the plaintiff’s expert’s report shows some errors in methodology adopted by the plaintiff and the plaintiff’s expert and, therefore, they can attack the plaintiff’s expert on account of that.  However, the defendant’s expert did not see the significance in terms of the plaintiff’s obligation to supply the right material in accordance with the contract.  In my view, given that the plaintiff’s expert has provided that report to the defendant, not only should the defendant’s expert consider it, the defendant and the defendant’s lawyer should consider it together with the defendant’s expert.  They should consider it to see whether there are new points that have to be canvassed or explored.  Had they done so, they would have realised, as Mr Mak did after he had been instructed - and I should add he was only instructed quite recently, so this is not criticism against him in terms of the delay in the application - that as far as the defendant and those advising the defendant at the time when the plaintiff’s expert report was filed are concerned, what should happen is that they should sit together and discuss with the defendant’s own expert if there are new points to be canvassed which might necessitate amendment to pleadings or the filing of further evidence, whether in terms of factual evidence or expert’s report.  That should have been done before parties come back to court to ask for the matter to be set down. 

16. It is time for lawyers to understand the court expects the parties, as well as those advising them, to have made a comprehensive review of the case before they fill in a checklist indicating that all preparatory steps have been completed.  It is simply not good enough for the parties to come to court at the time of pre-trial review and tell the court that “We had a discussion with counsel recently and realised for the first time these new points have to be taken.  We are sorry.  We did not appreciate these points before we applied for the matter to be set down for trial because we had not instructed counsel at that stage.” 

17. This sort of mentality is of no assistance to the efficient and proper administration of justice and I hope it should never happen again.  The court expects reasonably competent solicitors to be able to make proper and adequate preparations before coming to court to apply to set down a matter for trial. 

18. But as far as this case is concerned, for the reasons that I have given, because of the special circumstances which necessitate the re-fixing of the trial in any event, I will grant leave to the defendant in terms of their summons of 28 March 2006.  It should be quite obvious from what I have said just now but for that development, the defendant would not be given leave for this new point to be canvassed. 

(Discussion re directions on amendments)

19. I will direct the plaintiff to file and serve consequential amendments to Reply by 26 April, and further expert report and witness statements by 3 May.

(Submission re pre-trial review)

20. There will be another pre-trial review to a date to be fixed by the trial judge. 

(Submissions re costs)

21. The time of these two hearings are taken up in respect of case management.  Had the defendant made proper preparations for the matter before they applied for setting-down, these hearing would not be necessary.  Of course, I appreciate that, as far as the first pre-trial review was concerned, it was necessitated by the re-fixing of the trial dates and, to that extent, costs have to be incurred in any event.  But due to the new point being taken which this court, as a matter of indulgence, has granted leave to the defendant to do so at this late stage, there has to be another pre-trial review returnable before the trial judge in June.  In the circumstances, I think it is fair to order the defendant to pay the plaintiff’s costs of these two hearings.  As far as the costs are concerned, I propose to fix it pursuant to Order 62, rule 9(4)(b) and, having heard submissions on the quantum, I would reduce the costs of the solicitors.  The total I would order pursuant to rule 9(4)(b) is the sum of $54,000.

22. As far as Mr Dawes’ attendance on the last occasion is concerned, I think it is reasonable and the defendant is also appearing by counsel.  The costs will be payable forthwith.