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Chan Ka Kui v Global Stevedoring Service Co Ltd And Others

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date22 December 2016
Year2016
Judgement NumberDCPI2712/2014
Subject MatterPersonal Injuries Action
CourtDistrict Court (Hong Kong)
DCPI2712/2014 CHAN KA KUI v. GLOBAL STEVEDORING SERVICE CO LTD AND OTHERS

DCPI2712/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO.2712 OF 2014

______________

BETWEEN
CHAN KA KUI (陳家駒) Plaintiff
and
GLOBAL STEVEDORING SERVICE COMPANY LIMITED
(高寳貨運服務有限公司)		 1st Defendant
HONG KONG INTERNATIONAL TERMINAL LIMITED
(香港國際貨櫃碼頭有限公司)		 2nd Defendant
VANQUISH HOLDINGS LIMITED
(韋竣集團有限公司)		 3rd Defendant
VANQUISH CHINA LIMITED
(韋竣中國有限公司)		 4th Defendant

______________

Before: Deputy District Judge S.H. Lee in Chambers
Date of Hearing: 15 Dec 2016
Date of Decision : 15 Dec 2016
Date of Reasons for Decision : 22 Dec 2016

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

REASONS FOR DECISION

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

1. By summons jointly filed on 11 Aug 2016 (“the summons”), all 4 defendants (“the defendants”) applied to discharge order of Master J. Chow dated 25 Nov 2015 (“the Order”) extending the validity of the Writ of Summons issued on 4 Dec 2014 (“the Writ”) for 3 months from its expiry up to 4 Mar 2016, and that the Writ and its service on the defendants be set aside.

2. After hearing submissions from counsel Mr Y. L. Cheung for the plaintiff (“Mr Cheung”) and counsel Mr Jonathan Chang for the defendants (“Mr Chang”), I acceded to the application and I now give my reasons.

Grounds for discharge

3. Plaintiff’s application, inter alia, to extend the validity of the Writ for 12 month from its expiry was made ex parte before Master J. Chow(“the ex parte application”) by way of 1st affidavit of Chow Siu Yin (“Ms Chow”) dated 26 Oct 2015 (“Chow’s affidavit”).

4. The defendants put forward 3 grounds to discharge the Order: (1) there was material non-disclosure in the ex parte application; (2) there was no good reason to trigger the court’s discretion to extend the validity of the Writ; and (3) in any event, the court ought to have exercised its discretion against such extension.

Chronology

5. On 31 May 2012, plaintiff, a gantry crane operator, allegedly sustained personal injuries at work under the employment of 1st defendant at the container terminal operated by the 2nd defendant in an accident involving a container truck registered in the name of the 3rd and/or 4th defendants (“the accident”).

6. On 30 July 2013, a legal aid certificate was issued to plaintiff for taking proceedings for injuries he sustained in the accident, limited to preparation for issue of proceedings, consideration of settlement and issue of a generally endorsed writ (not including service) and one Mr Lee of plaintiff’s solicitors was assigned to act as his solicitor.

7. On 21 Oct 2013, pre-action letters were sent by plaintiff’s solicitors to 1st and 2nd defendants, and correspondence thereafter ensued between plaintiff’s solicitors and solicitors acting for 1st and 2nd defendants.

8. Both 1st and 2nd defendants denied liability to plaintiff and a proposed joint orthopedic examination of plaintiff also failed through with them.

9. In mid-Aug 2014, upon assignment of the Director of Legal Aid (“the Director”), counsel Mr Damian Wong (“Mr Wong”) gave his advice on merits of plaintiff’s claim (“Mr Wong’s advice”)

10. On 15 Sep 2014, pre-action letters were sent by plaintiff’s solicitors to 3rd and 4th defendants.

11. On 4 Dec 2014, the Writ with a general endorsement was issued against the defendants.

12. On 31 May 2015, the 3-year limitation period for plaintiff’s personal injuries claim in the accident expired.

13. On 26 Oct 2015, the ex parte application was made with filing of Chow’s affidavit.

14. On 25 Nov 2015, the Order was made, extending the validity of the Writ to 4 Mar 2016.

15. The 12-month validity of the Writ was originally due to expire on 4 Dec 2015.

16. On 26 Feb 2016, plaintiff’s solicitors served the Writ on the solicitors for 1st defendant and the 2nd to 4th defendants.

17. On 3 Mar 2016, after hearing plaintiff’s solicitors and solicitors for 1st and 2nd defendants, Master J. Chow gave leave to plaintiff to file and serve Statement of Claim etc on or before 5 May 2016 and adjourned the checklist review.

18. The extended validity of the Writ would have expired on 4 Mar 2016.

19. Between 4 and 10 Mar 2016, the defendants acknowledged service in turn, indicating their intention to contest these proceedings.

20. On 14 Oct 2016, Mr Cheung was re-assigned by the Director as counsel for plaintiff in lieu of Mr Wong.

Chow’s affidavit

21. It is a 3-page and 9-paragraph short affidavit. Ms Chow was an assistant solicitor of plaintiff’s solicitors and she had conduct of the action under supervision of its partners.

22. At para 4 thereof, she said the Writ was issued on 4 Dec 2014 “so as to protect plaintiff’s common law claim from being statute-barred (italics supplied)”.

23. Ms Chow referred to Mr Wong being assigned by the Director to advise on merits of plaintiff’s case on the issue of liability, quantum and evidence at para 5 thereof.

24. At para 6 thereof, Ms Chow said “However, there has been the problem of difficulty in communication and breakdown of confidence between [Mr Wong] and the plaintiff. The plaintiff, therefore, is in the course of seeking approval from [the Director] to engage counsel Mr Eugene Yim (“Mr Yim”) in place of Mr Wong to give opinion on the continuing merits of his claim”.

25. At para 7 thereof, Ms Chow moved on to say: “In the circumstances, in order to avoid any wasting of costs and time, the plaintiff is prepared and agreed to wait for [the Director]’s approval to engage Mr Yim for his advice on the continuing merits of the plaintiff’s case before making decision on whether to proceed with the present proceedings (italics supplied)”.

26. “For the matters above-mentioned”, said Ms Chow at para 8 thereof, “the Writ has not yet been served upon [the defendants] up to the present (italics supplied)”.

27. Finally, at para 9 thereof, Ms Chow prayed for 12-month extension of the validity of the Writ, adjournment of checklist review and appropriate costs orders.

Evidence filed before me

Defence evidence

28. Mr Tong Yee Ching (“Mr Tong”), a consultant in the firm of solicitors acting for 3rd & 4th defendants, made an affirmation dated 11 Aug 2016 on behalf of the defendants.

29. Mr Tong adverted to events in para 11 to 19 above and added that no Statement of Claim etc. was filed on any of the defendants on or before 5May 2016.

30. He further gave details of the 3 grounds of discharge as they appeared in the summons, in particular explaining what real prejudice the defendants had suffered by reason of the extension of the validity of the Writ.

Plaintiff’s evidence

31. In reply, plaintiff made an affirmation dated 7 Nov 2016 (“plaintiff’s affirmation”) first confirming those matters at para 5 to 9 above.

32. Upon reported of Mr Wong’s advice in mid-Aug 2014, plaintiff said he disagreed with a number of issues so advised by Mr Wong. Through plaintiff’s solicitors, he applied to the Director for assignment of alternative counsel to give a further opinion on his claim. On receipt of his application, the Legal Aid Department raised concern about Mr Wong’s advice as well as possible duplication of costs caused by intended re-assignment. The Director continued to consider his application for re-assignment and/or to extend legal aid certificate to cover further proceedings. Plaintiff’s solicitors, it was said, kept on following up the matter and continued to liaise with the Director urging for approval of the applications.

33. To protect his legal interest and to avoid his claim being time-barred, the plaintiff said he instructed his solicitors to issue the Writ on 4 Dec 2014.

34. After issue of the Writ, said plaintiff, liaison between his solicitors and the Director above continued. He was duly reported from time to time and he instructed plaintiff solicitors to carry on in the hope of obtaining approvals from the Director so that he would be in a position to proceed with the action further.

35. The plaintiff went on in his affirmation to refer to the ex parte application, the grant of the Order and the service of the Writ on the defendants notwithstanding his legal aid certificate did not include service.

36. Plaintiff stressed that if the ex parte application was not in order or if Master J. Chow rejected it, plaintiff’s solicitors would still have ample time to re-submit a fresh application with further affidavit covering such concerns raised by the court, or he would consider service of the Writ within its original expiry date and then apply for stay and/or extension of time to file and serve pleadings pending approval being granted by the Director.

37. He believed that he and his solicitors had all along acted with due diligence in balancing the difficulties and protecting the interest of the Director and himself in the action and to proceed with it according to relevant rules.

38. The defendants had, he said, been notified of his claim and its circumstances by way of pre-action letters and had had opportunities to investigate the same. He verily believed that these proceedings so far had caused them no prejudice at all.To the contrary, if this court, the plaintiff emphasized, rule in favour of the summons, it would cause him serious prejudice, injustice and unfairness which would be beyond compensable extent.

Analysis

39. I have fully and carefully considered all materials, authorities and submissions of all parties before me.

40. I am afraid this case cannot be decided on sympathy alone. It is necessary to look at the law: Chow Ching Man & Others v Sun Wah Ornament Manufatory Ltd & Others [1996] 2 HKLR 338, CA, 340A, per Bokhary JA (as he then...

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