LILY TSE LAI YIN AND OTHERS v. THE INCORPORATED OWNERS OF ALBERT HOUSE AND OTHERS

1997, No. HCPI 828

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 828 OF 1997

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R U L I N G

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1. This came before me as an application for an extension of time to file a Notice of Appeal against certain decisions of Master Woolley made on the Check List hearing of this personal injury action on the 7th July 1998. I refused leave because there was no merit in any of the decisions because of challenged, and an underlying misconception concerning matters which may properly be the subject of appeal where the Master has a wide discretion to exercise and is concerned to facilitate early and economical resolution of actions claiming damages for personal injuries. It is necessary to set out a little of the background.

2. There are seven Plaintiffs in this action, six of whom were injured when the canopy at the first floor level of Aberdeen House, situate at the junction of Cheng Tu Street and Sai On Street, collapsed. Another padestrian was tragically killed and the seventh Plaintiff claims on behalf of her estate. The incident occurred on the 1st August 1994 almost 4 years ago. The Writ with Statement of Claim was not issued and served until approximately one month before the end of the 3-year limitation period viz. 31st July 1997. I state that as a fact, not as a point of criticism. I am not concerned with whether there was any fault, but it means that the Defendants did not see the case pleaded against them - and there are six of them - until nearly three years after the event. The Defences of all were served by the 10th November 1997. Happily the matter has proceeded expeditiously since proceedings were commenced but this is a case in which the Plaintiffs are bound to succeed on liability. The canopy collapsed as a result of someone's fault and one or more of the Defendants are liable.

3. The Check List hearing came on before Master Woolley in accordance with the existing Practice Direction. The Lists filed by the parties indicated estimates of the length of trial between 5 and 12 working weeks, a very wide range. I am inclined to think that these are not informed estimates but guesses; in any event they clearly include the time for the quantum evidence and arguments of the seven Plaintiffs. An obvious consideration for the Master would have been the available means of shortening the trial, taking steps to crystallise the issues and avoiding unnecessary expense and an important factor would have been that to which I referred earlier - the Plaintiffs are bound to succeed against one or more Defendants.

4. The purpose of a Check List hearing is to get the parties to provide information which will facilitate the Masters' task in practical management of the action. Court time and resources have to be used sensibly. Sometimes the parties need to be kept on a tight rein. They have to be assisted to "see the wood as well as the trees."

5. The Master made a number of orders all designed to achieve the goals set out. He applied his considerable experience, judgment and discretion to that end. Management of the action necessarily involves management of the parties' representatives and a reconciling of conflicting interests wherever possible.

6. I will deal with the decisions which the Plaintiff seeks to challenge, enumerated in accordance with the Plaintiffs' sequence.

ii) All Defendants are to file and serve a list of Documents within 60 days.

This is an entirely reasonable period. The Plaintiff complains that the period is too generous to the Defendants. Looking at the chronology of this action it lies ill in the Plaintiffs mouth to take such a stance. Having said that I am sure the Master took the view that the Defendants were fully able to meet that deadline. Time runs in the long vacation. There is nothing in this point.

iv) All parties to serve and file witness statements of fact within 90 days.

The Plaintiff complains that this is an excessive period - In my view it is certainly a comfortable period within which to do this. Undoubtedly the Learned Master had this in mind - knowing the tendency on the part of Defendants in particular to leave such basic preparation to the last minute, he has imposed a realistic period. There is nothing in this point.

vi) All non-medical expert reports are to be exchanged and filed within 90 days.

Although the Plaintiffs complain about this decision no reason appears in the affirmation of Mr. Fok nor in Mr. Budge's skeleton argument. However I propose to assume that it must be based on the same point - an excessively long period. There are bound to be a number of expert reports. I concede they may need to be seen by counsel well before trial. If he is to advise on any matter before the pre-trial review a sufficient period for consideration by the experts of all evidence must be given. I anticipate that all Defendants who rely upon expert evidence will have got their experts in line sometime ago. If they have not then it will be their own fault. This is an entirely reasonable period of time. There is nothing in this point.

vii) A split trial was ordered. The Learned Master was entitled to order this. It is entirely in his discretion even if no party had raised it. On the estimates of length of trial given to him, however inadequately considered by the parties, the case is unwieldy. Since the real issue is between the Defendants and can be more swiftly and economically resolved in a split trial, it is entirely reasonable. It is no disadvantage to the Plaintiffs or any of them. There is no reason why the necessary preparation for the quantification of the claims should not continue; indeed, I would expect it to proceed so that as soon as liability has been resolved, the Defendant or Defendants faced with meeting the claims know exactly where they stand. There is nothing of merit in the Plaintiffs' objection to this item in the Master's order.

7. I note that the Master is to review progress in early October. By then the new Practice Direction will be in force. He clearly has in mind excising his discretion within the spirit of the changes as he is entitled to do. All matters remain within his purview and he will have considerable flexibility.

8. This intended appeal by the Plaintiffs was misconceived. Only if a party could demonstrate actual or potential prejudice to its case could it mount a challenge to any aspect of an order which is designed to rationalise and facilitate the resolution of litigation. Merely suggesting that an order or an item in it, will or may affect it tactically, will not do. There is nothing in any item in this order which is remotely prejudicial to any party. An intended appeal of this nature is contrary to the principles of good case management - it wastes time, money and resources and is an example of how extreme adversariality can become.

9. The application is dismissed with costs to the 1st, 2nd, 3rd, 5th and 6th Defendants.