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CACV 225/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 225 OF 2009
(ON APPEAL FROM HCAJ NO. 31 OF 2008)
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| BETWEEN |
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YIP KAM, the Representative of the Estate of CHOW MUK TAI (周木帶), deceased |
1st Plaintiff |
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YIP KAM for and on behalf of the dependants of CHOW MUK TAI (周木帶), deceased |
2nd Plaintiff |
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and |
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ZHONGSHAN FOODSTUFFS & AQUATIC IMPORT & EXPORT GROUP COMPANY LIMITED OF GUANGDONG
(廣東省中山食品水產進出口集團有限公司) |
1st Defendant |
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MAN SHUN SHIPPING COMPANY LIMITED |
2nd Defendant |
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Before: Hon Le Pichon JA, Suffiad and Wright JJ in Court
Date of Hearing: 5 January 2010
Date of Handing Down Judgment: 25 February 2010
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J U D G M E N T
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Hon Le Pichon JA:
1. This was an appeal the plaintiffs from an order of 4 August 2009 of Reyes J whereby he struck out the plaintiffs’ writ of summons and dismissed their action against the defendants. At the conclusion of the hearing judgment was reserved which we now give.
Background
2. On 21 December 2005 a barge owned by the first defendant collided with a motor vessel. Its coxswain and owner, Chow Muk Tai (“the deceased”), fell into the water and drowned. The collision took place just outside Yaumatei Typhoon Shelter.
3. Madam Yip who is the deceased’s widow brought an action as representative of the deceased’s estate and also on behalf of his dependents. The writ was issued on 11 February 2008 claiming damages arising out of the deceased’s death against the first defendant as owner of the barge and the second defendant as its manager.
4. Under section 7 of the Merchant Shipping (Collision Damage Liability and Salvage) Ordinance (Cap. 508), the limitation period is two years. However, subsection (3) empowers the court, “in accordance with the rules of court” to extend the period “to such extent and on such conditions as it thinks fit”. It is common ground that notwithstanding the reference to “the rules of court”, no rules have yet been prescribed.
5. There were two summonses before the judge: the first defendant applied to strike out the writ which was issued 52 days out of time and Madam Yip sought an extension of the time limit for commencing the action to enable her to pursue the action.
6. Madam Yip’s circumstances and her explanation of the delay in issuing proceedings may be summarised as follows. She is 74 years of age and illiterate. She and the deceased married at a young age and for over 50 years they earned their livelihood first as fishermen and later as self-employed coxswains carrying passengers to vessels on their motor launch. They had seven children. Since the deceased’s death, she has relied on one of her children, Chow Tak Ming (“Madam Yip’s son”) to take care of her. He was educated up to primary two.
7. There was a newspaper report that the captain of the barge was suspected to be drunk at the time of the collision. Madam Yip said that the Marine police assured her that they would investigate into the circumstances of the accident.
8. An officer named Ms Yu of the Marine police interviewed and took a statement from Madam Yip’s son shortly after the accident. Thereafter, throughout 2006 and 2007 Madam Yip asked her son to contact Ms Yu regularly for the investigation results. For reasons that are unclear, the report into the collision prepared by the Marine Department (“the report”), completed in July 2006, was never provided to the plaintiffs until late 2007 notwithstanding Madam Yip’s son’s contact with Ms Yu.
9. In early October 2007, Ms Yu informed Madam Yip’s son that the police investigations had been completed and that the Department of Justice would inform him of the outcome. The Department of Justice’s letter (dated 9 October 2007) sent to Madam Yip’s son was to the effect that no charges would be instituted because of insufficient evidence.
10. The report concluded that:
● the master of the barge had failed to make arrangements to maintain a proper lookout as the quartermaster was the only person responsible for steering the vessel and keeping a lookout at the relevant time
● the barge being an overtaking vessel was required to give way to the motor launch but that there appeared to have been no effective alteration of course and speed
● the quartermaster admitted to having consumed alcohol before reporting to duty
● the coxswain of the motor launch appeared not to have taken any action to avoid collision.
11. Madam Yip was extremely disappointed with the decision not to press criminal charges. She had heard that if the quartermaster was convicted, she could rely on the criminal conviction and win the civil claim. While the family decided that, in the circumstances, a civil claim should be brought, they could not afford legal fees. In desperation, in November 2007, Madam Yip asked her son to discuss the matter with one of his district councillors with a view to obtaining free legal advice from duty lawyers. Sometime in December, Madam Yip and her son did meet with a duty lawyer through the district councillor. He advised that Madam Yip had a cause of action but, erroneously, that the limitation period was three years.
12. Having received that advice, within a few weeks, Madam Yip applied for legal aid and was granted it on 30 January 2008. An in rem writ against the barge was issued on 1 February 2008 but had to be discontinued in October 2008 on learning that the barge had been scrapped in September. The writ in this action was issued on 11 February 2008 which was 52 days out of time.
13. To complete this chronology of events, it is to be noted that by letter dated 23 August 2008, the plaintiffs’ solicitors requested the first defendant to nominate a process agent in Hong Kong to accept service of legal proceedings for damages arising out of the fatal injury. This went unanswered. Meanwhile, on 14 November 2008, the plaintiffs obtained an ex parte Rule B attachment order from the United States District Court in a maritime attachment and garnishment application, seeking security for the plaintiffs’ claim.
14. While by late November 2008 DLA Piper had been retained by the first defendant as its solicitors in respect of the Rule B attachment order and was actively opposing it, DLA Piper failed to respond to numerous enquiries made during the first two weeks of December 2008 as to whether they had authority to accept the writ in the present proceedings. Nevertheless, a copy of the writ was delivered to them on 4 December 2008 for their information.
15. In view of DLA Piper’s lack of response, the plaintiffs’ solicitors obtained leave to issue and serve the concurrent amended writ out of the jurisdiction on 17 December 2008. While the documentation was being finalized for service, on 18 February 2009, DLA Piper acknowledged service of the writ on behalf of the first defendant.
The judgment below
16. It was common ground that for the discretion under section 7(3) to be exercised, “good reason” has to be shown. The concept has its origins in the jurisprudence relating to the extension of the validity of writs.
17. The judge considered that the relevant factors to be taken into account might include the following:
“7. …
(1) the length of delay in issuing a Writ;
(2) whether a defendant is to blame for any delay on the plaintiff’s part;
(3) whether the delay is due to circumstances beyond the plaintiff’s control; and,
(4) whether, if time is extended, there will be material unfairness, prejudice or injustice to the defendant.”
The judge cited The “Albany” and “Marie Josaine” [1983] 2 Ll R 195 in support. I will need to return to this in due course but suffice it to say here that it seems not to have been controversial below that Sheen J’s approach in the Albany and the factors he set out (“the Albany factors”) were considered to be correct. No reference to the two-stage approach can be found in either the judgment or the skeleton submissions below of Mr Sussex SC (who appeared for the first defendant both here and below). As will become apparent, the two-stage approach was at the forefront of his submissions in this court.
18. The judge went on to consider the circumstances highlighted by the plaintiffs’ counsel, which he set out as follows:
“8. …
(1) She is elderly (74 years old) and illiterate.
(2) From December 2005 and in the course of 2006 and 2007, Madam Yip (through her son) repeatedly asked the marine police about the result of their investigations into the collision. A “Ms. Yu” of the marine police apparently told Madam Yip “to wait for the investigation results”.
(3) Madam Yip did not learn that the marine police had completed their investigation until October 2007. She was informed by a letter dated 9 October 2007 from the marine police that no criminal charges had been brought due to insufficient evidence. But she could not afford any legal fees at the time to pursue a private action.
(4) In December 2007 Madam Yip’s son was erroneously advised by a Mr. Sammy Yip of Messrs. Y. C. Lee, Pang, Kwok & Ip during a duty lawyer session at the Wong Tai Sin District Office that the time limit was 3 years.
(5) It was only in January 2008 when Madam Yip went with her son to the Legal Aid Department to apply for legal aid that she learned that the limitation “might be 2 years”.
(6) Legal aid was not granted to Madam Yip until 30 January 2008. Immediately following that grant, an in rem Writ against the cargo vessel was issued on 1 February 2008 and the present in personam Writ was issued on 11 February 2008. Having discovered...
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