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Liming Capital Ltd v Clsa Ltd

Judgment Cited in Precedent Map Related
Vincent
Judgment Date03 January 2018
Neutral Citation[2018] HKCFI 6
Judgement NumberHCA2055/2008
Subject MatterCivil Action
CourtCourt of First Instance (Hong Kong)
HCA2055C/2008 LIMING CAPITAL LTD v. CLSA LTD

HCA 2055/2008

[2018] HKCFI 6

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 2055 OF 2008

____________

BETWEEN
LIMING CAPITAL LTD Plaintiff
and
CLSA LIMITED Defendant

____________

Before: Hon Chung J in Chambers
Date of Hearing: 19 May 2017
Date of Decision on Leave to Appeal: 3 January 2018

___________________________________

DECISION ON LEAVE TO APPEAL

___________________________________

Introduction

1. The plaintiff took out this application for leave to appeal on 24 February 2017. It is directed against an order made on 13 February 2017 when this court gave leave for the defendant to file and serve new witness statements respectively made by a Mr Tam (“Tam”) and a Mr Taylor (“Taylor”), both employees of the defendant. The said witness statements are collectively called “the new witness statements” below.

2. This application was taken out on the last of a 4-day trial of this action (from 21 to 24 February 2017). At the end of the trial of this action, directions were given (later extended) for the parties’ respective closing submissions to be made in writing, and to be lodged with court and served in April 2017. Naturally, outcome of this action was not yet decided (and thus unknown) at that stage.

3. While it is understandable for the plaintiff to take out this application in February 2017 in order not to fall foul of the prescribed time limit imposed by RHC Ord 59 r 2B(1), it is not immediately apparent why the plaintiff should decide to proceed with having this application listed for a full hearing on 19 May 2017 (with an estimated hearing time of half an hour) (when the outcome of this action was still unknown).

4. As things later turned out, judgment in this action was handed down on 27 December 2017 whereby judgment was entered in the plaintiff’s favour (and the counterclaim was dismissed).

Background

5. The defendant, through the plaintiff’s introduction, was the placement agent of a share placement. The plaintiff was engaged as the defendant’s consultant in such share placement. The main dispute in this action concerned whether the defendant has paid the plaintiff’s consultancy fee in full.

6. The defendant’s employee who was the main contact with the plaintiff was a Mr Wilson (“Wilson”). Wilson has made witness statements intended for use during the trial of this action (“the Wilson witness statements”). He was also scheduled to testify for the defendant.

7. The relationship between Wilson and the defendant apparently turned bad at some stage, and this ended with Wilson leaving the defendant’s employment in June 2016. By October 2016, the defendant’s legal representatives were made aware of the possibility of Wilson’s uncooperation with the defendant in this action.

8. Wilson’s departure from the defendant (and his uncooperation) has the effect of leaving the defendant without the testimony of a witness who has had direct dealings with the plaintiff. In an attempt to “fill the gap”, the defendant has prepared new witness statements, and sought leave to file and serve the new witness statements by way of a summons (taken out on 3 February 2017 ).

The application for leave to adduce new witness statements

9. The contents of the new witness statements are consistent with:

(a) the factual account given in the Wilson witness statements;

(b) contemporaneous documents already included in the trial bundles,

insofar as Tam and Taylor may be able to speak to the said matters. Such being the case, (according to the defendant) there should not be anything mentioned in the new witness statements which would take the plaintiff by surprise. Nor should the new witness statements disrupt or hinder the trial.

10. The plaintiff, on the other hand, objected to leave being given to file and serve the new witness statements:

(1) the application was made far too late, was in breach of Practice Direction 5.2, and did not comply with the directions given earlier;

(2) in any event, it can be inferred the defendant knew of Wilson’s departure since October 2016 (or latest by the pre-trial review hearing in November 2016 (see also para 20 below)), or perhaps even June 2016. There was no reason given by the defendant to explain why the defendant delayed for so long before taking out this application;

(3) it can be inferred that the defendant’s delay was intended to...

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