XCHRX LUIGI BENETTON s.r.l. v. FACE TIME INTERNATIONAL LIMITED

1993 No.A4135

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is the second hearing of the appeal. I have ruled that the Defendant was to indicate on affidavit whether the Defendant intents to call any witness at the trial. In response the Defendant has filed an affirmation by its director, one Ng Kwai Yau, stating that the Defendant intends to call witness at the trial of this action.

2. In view of the indication of the desire of the Defendant to call witness at the trial, it is incumbent upon the Defendant to comply with the Master's order dated 10 March 1995 to exchange its witness statement within 60 days. Time for such exchange expired on 9 May 1995. The Plaintiff took out the present summons for an unless order on 8 June 1995. That was dismissed by the Master. The dismissal by the Master is the subject matter of this appeal.

3. There is no explanation given to this court as to why the Defendant failed to comply with the order for exchange of witness statement despite its intention to call witness at the trial. Mr Yeung said that it was probably because the directors of the Defendant are busy. That, of course, is not good excuse in view of the long delay in failure to comply with the master's order. The order was made over 8 months ago and the deadline for compliance expired about 6½ months ago, and today I still have no explanation as to why they had failed to comply with the order. I do not believe I can accept what Mr Yeung stated from bar table to be a probable reason for the failure.

4. It is a case of an unexplained inordinate delay and non-compliance with the Master's Order. The application, as I said before, was taken out under O.25. The failure to serve witness statement is certainly holding up the progress of this case towards setting down. It is obviously not proper for the Court to set down this action when the Defendant is telling the Court that it will be calling witness but has yet to serve any witness statement on the other side. This is particularly so when the Plaintiff has served his witness statements as early as in June this year. The Defendant is having an unfair advantage over the Plaintiff when knowing the Plaintiff's evidence while withholding his own evidence from the Plaintiff. That is not a state of affair that can be tolerated or allowed to persist. The Court has power under O.25 r.6(3) to prevent any party from causing any inordinate and undue delay to the progress of an action towards setting down for trial. This is a case where the Court ought to make an order under O.25 r.6(3) to ensure that justice is done. I do order the Defendant to file with the Court all signed witness statements of witnesses it intends to call at the trial by 4:00 p.m. on 16 December 1995, i.e. 21 days from today which is the time Mr Yeung told me the Defendant would be able to serve its witness statements. I also order that such witness statements are to be served on the Plaintiff within the said time. To ensure the Defendant would not further delay the progress of the action, I also order that in default of the Defendant complying with the order I made above, the Defence and Counterclaim are to be struck out and judgment be entered against the Defendant accordingly with damages to be assessed and costs.

5. The order sought by the Plaintiff in the appeal is for an unless order for the Defendant to serve and file the witness statements within 14 days from the order with the sanction of striking out the Defence and counterclaim. The order I just make is not in the same terms as the order sought. However, I am quite satisfied that justice of the case is that effectively the Plaintiff obtained what it prayed for in the appeal, that is, a draconian order to ensure due compliance by the Defendant of the order for exchange of witness statements. The appeal is, in the premises, allowed for reasons I have given.

[Submission on Costs]