BUCCELLATI HOLDING ITALIA SPA v. RAPID CHEER DEVELOPMENT LTD. AND OTHERS

HCA 11429/1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 11429 OF 1993

____________

____________

_______________

J U D G M E N T

_______________

1. This is an appeal against an order of the Master ordering that the plaintiff's claims be struck out.

2. The facts of this case demonstrate that there was extensive delay of some 8 years from the date of the issue of the writ.

3. The plaintiff says the delay was the result of, inter alia, some disagreement with its former solicitors and that it was distracted for a protracted period of time by proceedings elsewhere in relation to the registration of a trademark.

4. The defendants say that there has been inordinate delay and an abuse of process.

5. On the question of abuse of process, the defendant says that the actions of the plaintiff demonstrate an intention not to proceed to trial. They also submit that the plaintiff has been impervious to the consequences of delay and that, in effect, the plaintiff has warehoused the action whilst dealing with other matters.

6. On the question of inordinate delay, the defendants complain that a fair trial has been prejudiced by the length of the delay which has continued both before and after the expiry of the limitation period.

7. I am satisfied that the conduct of these proceedings by the plaintiff has been such that the defendants have been unduly and unfairly prejudiced, that the plaintiff's actions amount to an abuse of process and that the action should be discontinued, and the appeal is therefore dismissed.

(Submissions re costs)

COURT: Costs of and occasioned by the appeal, including costs relating to the application by the plaintiff to admit further evidence, shall be to the defendants. There is an existing order for costs before the Master which will stand.