TIN SHUI WAI DEVELOPMENT LTD v. ATTORNEY GENERAL

------------------

---------------------------------

JUDGMENT (REVISED)

---------------------------------

1. I have now to consider an application by the plaintiff for leave to re-re-amend some already re-amended further and better particulars of the statement of claim. The defendant takes objection to the proposed amendment on the ground that it is embarrassing.

2. The matter arises in this way. The plaintiff's claim (as described in the re-amended further and better particulars) is a claim "for the damage caused by the delay in giving possession caused by the Government's breaches of contract." (This is a delay in giving the plaintiff possession of the land the subject-matter of the agreement between the parties constituted by a letter dated 29th July 1982 to which I have already referred in another interlocutory judgment and to which I need not refer again.)

3. In formulating its case in relation to the alleged delay, the plaintiff has listed, in Appendix A to the re-amended further and better particulars of the statement of claim, the principal activities which it says were required to be accomplished by the defendant after 29th July 1982 in relation to its obligations. The Appendix sets out the dates within which each such activity ought to have taken place, and when in fact it did take place.

4. In Appendix A, the plaintiff sets out a number of activities relating to (1) land clearance; and (2) land formation. In relation to each of these activities, the plaintiff states when the activity began and finished and states when that activity ought to have been begun and finished (being in each case an earlier date than the actual date).

5. One would have expected, when the case came to be opened, that the plaintiff would have contented itself with a reference to the facts set out in the pleadings for the purpose of establishing the delay of which it complains. But in fact, in opening the case, the plaintiff submitted to the court a bar-chart which, it appears, will be the subject of some expert evidence which the plaintiff intends to lead. This bar-chart sets out a description of a number of different activities showing when each activity in fact began and finished and when, as the plaintiff will apparently say, that activity ought to have been begun and ought to have finished. This is no doubt a convenient form in which to set out the plaintiff's case; but the defendant claims to be embarrassed because a significant number of the activities mentioned in the bar-chart find no place in the statement of claim or in any of the particulars given under it. The plaintiff has made it clear that it does not intend to amend so as to incoporate particulars of these activities as part of the plaintiff's case in relation to delay.

6. The defendant claims to be entitled to have the bar-chart, or at any rate the facts to which it refers, incoporated in the pleadings, so that there shall be no doubt about the case that he has to meet, and so that if any subsequent amendments are required, it will be for the plaintiff to explain why it is that those amendments are being sought. At present, the position is that the bar-chart is simply a piece of paper; the dates given on it have no significance so far as the plaintiff's pleaded case is concerned.

7. These are substantial objections, but in the end I have come to the conclusion that it would not be right to refuse the plaintiff the leave to amend for which it has asked. What it asks to do now is to make certain amendments to the dates already contained in the re-amended further and better particulars of the statement of claim in relation to the two matters to which I have referred, that it is to say, land clearance and land formation. The material facts upon which the plaintiff relies are facts which relate to these two activities. It is true that the activities as set out in the bar-chart are broken down into 7 different classes and not into the 2 classes to which the pleading refer. But I have to ask myself, as I think: Does this pleading set out all the material facts upon which the plaintiff is going to rely, and if so, is there any substance in the objection based upon the ground of ambarrassment?

8. Certainly, it is unfortunate that, in the particulars, some only of the allegations of delay are contained and the bar-chart contains a significant number more. But this is not, as I see it at present, a matter for me to decide now.

9. The present amendment seems to me to be entirely within the rules. I accept that the allegations as to delay which the plaintiff apparently intends to make are allegations of fact, not matters of evidence. Insofar as the plaintiff's case depends on delay, it must set its case out fairly and squarely. In my judgment, it has done so. It pleads delay in relation to land clearance and land formation (and delivery of possession). The fact that the bar-chart which has been put before me classifies the activities over which there was delay in a different way seems to me to be neither here nor there. The plaintiff pleads all the material facts. Whether a fact is material or not is to be tested by seeing whether the plaintiff's case would succeed if all the facts were admitted, and the only argument was as to matters of law. In my judgment, the plaintiff's pleading, satisfy this test. I do not, therefore, uphold the defendant's objection. It will be a matter for consideration, when the evidence is led, whether upon the pleadings the particular question addressed to the witness is one which is directed to a matter which has been pleaded. If the question is directed to a matter which has not been pleaded, I shall disallow the question. Further than that, I do not think I can go. It does not seem to me that every fact upon which a plaintiff relies must be a material fact. The plaintiff may seek to lead evidence of a number of facts which are not in the pleading sense "material", but which are helpful or even necessary to a proper understanding of the issues between the parties. The necessity to decide whether any question is or is not a proper question is one which the court will have to face in due course. In my judgment it does not have to face such questions now.

10. Accordingly, I propose to allow the amendment, and to deal with matters which arise as to evidence when the time comes. For the moment, I shall simply give leave to amend as asked.