John M. Russell v Robert A. Marques

CourtDistrict Court (Hong Kong)
Judgment Date21 October 1980
Judgement NumberDCCJ1916/1980
Subject MatterCivil Action
DCCJ001916/1980 JOHN M. RUSSELL v. ROBERT A. MARQUES

DCCJ001916/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1916 OF 1980

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BETWEEN JOHN M. RUSSELL Plaintiff
AND

ROBERT A. MARQUES

Defendant

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Coram: H.H. Judge Cruden

Date of Judgment: 21st October, 1980.

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RULING

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1. This summons applies for an order that the plaintiff be at liberty to file an amended particulars of claim without leave pursuant to Order 20 Rule 3 of the Rules of the Supreme Court.

2. Order 20 Rule 3 of the Rules of the Supreme Court provides that a party may, without leave of the Court, amend any pleading of his once, at any time before the pleadings are deemed to be closed.

3. The following are the relevant dates of the pleadings in this action:-

27.3.80:

Writ and particulars of claim filed.

28.4.80:

Defence and Counterclaim filed.

29.7.80:

Application by plaintiff to fix a date for trial.

6.8.80:

Action fixed for hearing in the running list.

12.8.80:

Reply and Defence to Counterclaim filed.

18.8.80:

Deputy Registrar declines to accept amended Particulars of Claim tendered for filing.

4. So the plaintiff has only once attempted to file an amendment to the particulars of claim.

5. If Order 20 Rule 3 does apply in the District Court pleadings would not close pursuant to Order 18 Rule 20, until 14 days after service of the reply. As the plaintiff attempted to file his amended particulars only 6 days after the filing of the reply he would have been in time.

6. The crucial question is does Order 20 Rule 3 apply in the District Court? It is not expressly excluded pursuant to Rule 9 of the District Court Civil Procedure (General) Rules, Cap. 336, for it is not one of the Rules of the Supreme Court included in the Schedule to the District Court Rules. However, Rule 9 also provides that the application of remaining Rules of the Supreme Court to the District Court is subject to the provisions the District Court Ordinance and the District Court Civil Procedure (General) Rules. So it is necessary to next consider whether Order 20 Rule 3 is excluded by implication.

7. I have recently held in Yu Poon Yin v. Winner Motor Co. V.C.J. Action No. 5326, that pleadings close in the District Court upon a...

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