Charles Henry Craggs v. Attorney General
Read the full judgment text of CACV 193/1980 on BabelCite. This Court of Appeal judgment.
1. In Birkett v James (1978) A.C. 297 it was held that an action for breach of contract would not be struck out for want of prosecution where the primary period of limitation had not yet expired and the defendant would have a right to start a fresh action. That principle was applied in Tolley v Morris (1979) 1 W.L.R. 592 to an action in tort where, although the primary limitation period had expired, the plaintiff was under a disability and the applicable period of limitation had not yet expired.
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CACV000193/1980 Limitation of actions - claim under Fatal Accidents Ordinance - application to strike out for want of prosecution - two of three dependants under disability - no useful purpose would be served by striking out claims of those under disability - claim of each dependant should be regarded as separate action - principle in Tolley v Morris extended - third dependant's claim should be struck out unless he could establish ground for exercise of court's equitable discretion under s.30 of Limitation Ordinance. Date(s) of hearing: 6th and 21st May, 1981 Date of Delivery of judgment: 21st May, 1981 Jackson-Lipkin, Q.C. & G. Rodway (Helen A. Le & Co.) for Appellant. Barlow for Respondent.
----------------- Coram: Sir Alan Huggins, V.-P., Leonard & Cons, JJ.A. Dates of hearing: 6th and 21st May, 1981 Date of Delivery of judgment: 21st May, 1981 Jackso-Lipkin, Q.C. & G. Rodway (Helen A. Lo & Co.) for Appellant. Barlow for Respondent. Date of Judgment: 21st May 1981. ----------------- JUDGMENT ----------------- Sir Alan Huggins, V.-P. (reading the judgment of the Court): 1. In Birkett v James (1978) A.C. 297 it was held that an action for breach of contract would not be struck out for want of prosecution where the primary period of limitation had not yet expired and the defendant would have a right to start a fresh action. That principle was applied in Tolley v Morris (1979) 1 W.L.R. 592 to an action in tort where, although the primary limitation period had expired, the plaintiff was under a disability and the applicable period of limitation had not yet expired. The question which we have to decide in the present case is whether the principle should be extended to a case under the Fatal Accidents Ordinance where (1) two out of three dependants would have, by reason of a disability, an indefeasible right to bring a fresh action, and (2) the third dependant, who had no such right, could nevertheless seek a direction of the Court under section 30 of the Limitation Ordinance that the relevant limitation provision should not apply to his claim. 2. The Official Administrator sues on behalf of the estate of a deceased person and on behalf of his dependants on the ground of alleged negligent treatment in a Government hospital. The death occurred on 20th December 1971 and the writ was issued on 12th June 1972, well within the limitation period prescribed by section 28(3) of the Limitation Ordinance. The summons to strike out the action was dated 17th September 1980. It is common ground that at the present date one of the dependants is still an infant, that another attained his majority less than three years ago, and that the third is now aged 27 years. 3. We are told, rightly or wrongly, that at the hearing before the Registrar he stopped Counsel for the Plaintiff from arguing on the issue whether there had been inordinate and inexcusable delay and proceeded to dismiss the application on the ground that two of the dependants would have the right to bring a fresh action. The Plaintiff appealed to the Judge in Chambers. 4. Again, we are told that the Judge was disturbed to find that insufficient time had been allotted for the hearing of the appeal and, with the consent of Counsel for the parties, decided to hear argument on what I will call "the Birkett v James point" first: he would, if necessary, hear argument on the issue of delay at an adjourned hearing. The issue argued was put to him in this form:
5. The Judge came to the conclusion that the principle in Birkett v James had no application unless all the claimants had an indefeasible right to bring a fresh action. As the eldest dependant had no such right, he held that if sufficient delay was established the application to strike out should be granted. He clearly expected that the hearing of the appeal before him would continue upon the delay issue. However, the Plaintiff chose to appeal to this Court on the Birkett v James point without waiting for the conclusion of the appeal before the Judge. On an application to dismiss the present appeal as incompetent this Court (differently constituted) decided that the provisions of the Supreme Court Ordinance compelled us to proceed with the appeal. I reached that conclusion with some reluctance, for, although there may occasionally be instances where an interlocutory appeal upon a point of law will serve a useful purpose, in the vast majority of cases it is better to wait until the whole proceedings have been completed in the court below. 6. One other procedural matter must be mentioned. The Judge's written reasons are dated 14th November 1980, which was the date of the hearing. Counsel assert that no decision was given on that date and that the reasons were not received until some day after 4th December 1980. There is a copy letter before us which does suggest that a copy of the reasons for the decision was forwarded to one of the parties under cover of a letter dated 4th December 1980 and we are told that a similar communication was sent to the other side. We do not know whether those reasons were a reduction into writing of reasons given orally in Chambers on 14th November, or a statement of reasons prepared on 14th November after the hearing for a decision given in Chambers, or a statement prepared on a later date of reasons for a decision which was given on 14th November or, as Counsel assert, reasons for a decision which had not been given at all before the written reasons were sent to the parties by post. It is, fortunately, not necessary for us to decide on what date the decision was given and I mention the matter only to remind Counsel that, where their recollection of what happened in the court below substantially conflicts upon some material point with that of the judge as recorded by him, the judge should be invited to make whatever comments he thinks fit before the matter is raised before this court. In the absence of such an invitation this court will proceed upon the basis of the written record. 7. A foundation of the Defendant's case is section 22 of the Limitation Ordinance, which is the section extending the primary limitation periods in cases where the claimant is under a disability. Mr. Barlow, for the Defendant, conceded that section 22 applied to the claim under the Fatal Accidents Ordinance, although he argued that the right of action which accrued under that Ordinance accrued to the nominal Plaintiff and not to the dependants on whose behalf he claims. It is thus common ground that section 22 applies, and also that it applies by virtue of section 28(5), although there was considerable discussion as to what that latter sub-section means. It reads:
The first half of that sub-section is in the clearest terms, but the second half is in apparent conflict with it. The explanation is, I venture to think, a drafting error resulting from the application of the Limitation Act 1975 to Hong Kong. That Act amended the Limitation Act 1939 by adding the equivalent of our section 28. Section 28(5) of the 1939 Act reads:
Part II consists of sections 22 to 26 inclusive. However, our "Part II" is not coextensive and the draftsman had to specify the sections which were not to apply. I hope I am not doing him an injustice when I suggest that he looked to see which of our sections had their equivalent included in Part II of the English Act and then substituted "sections 22 to 26" where the Act has "Part II" without appreciating that the grammatical effect was to introduce a contradiction which the English wording avoided. If I am correct, the second half of our section 28(5) should have read "but sections 23 to 26, inclusive, and Part IV shall not apply to the action", the "otherwise" being inappropriate. I refer to this because it may require the attention of the Legislature, but there can be no doubt that Mr. Barlow was right to concede that section 22 does apply. 8. Mr. Barlow was on less firm ground in so far as he suggested that the right of action under the Fatal Accidents Ordinance (as distinct from that under the Law Reform (Miscellaneous Provisions) Ordinance) accrued to the personal representative and not to the dependants. Section 4(1) of that Ordinance reads:
However, provision is made in section 5 for a case where no personal representative does sue on behalf of the dependants:
I agree with the learned Judge that the effect is that "the Ordinance gives a right of action to certain dependants of a deceased person for the pecuniary loss they have suffered from the death of that person occasioned by a wrong doer". The personal representative or representative dependant may be the nominal plaintiff, but each dependant has a separate and distinct right of action and each is in a real sense a plaintiff. 9. The underlying principle in Birkett v James and Tolley v Morris is that the Court will not make an order which will serve no useful purpose: if a plaintiff whose action was struck out for want of prosecution could immediately bring a fresh action, the effect of the order to strike out would be merely to cause delay and expense. Once it is accepted that section 22 of the Limitation Ordinance operates to give the two youngest dependants an indefeasible right to bring a fresh action if their action is struck out, they fall squarely within that principle. 10. It is the eldest dependant who presents the difficulty. The contention on behalf of the Defendant is that there is no just reason why the eldest dependant should benefit from the disability of the others. If he had been the sole dependant, any claim by him would, unless he could pray in aid section 30 of the Limitation Ordinance, now have been statute barred, and, it is submitted, delay in pressing his claim in the present action should lead to an order for striking out that claim: the fact that any "fresh claim" by him would have to be made by rejoining him in the present action rather than by a new action should not affect the position. It was not apparently suggested to the Judge that it might be possible to strike out the claim of the third dependant without striking out the claims of the other two and he took the view that, if the eldest was guilty of delay, the whole action should be struck out, thus (as it were) giving effect to the statute bar against him but leaving the other dependants to start again, as they were entitled to do. Whilst appreciating the justice of that course as regards the eldest dependant, I think that each claim must be considered separately and that it would be open to the Court to strike out the claim of one dependant without striking out that of the other. This is not a normal type of representative action, where several plaintiffs have the same interest: each dependant has a separate interest. That being so I do not think the claims of the two youngest dependants ought to be struck out. 11. That leaves the question whether we ought to strike out the claim of the eldest son when we have regard to the Court's discretion under section 30. Sub-section (1) of that section reads:
In view of the manner in which this case has come before us there is nothing to show that the eldest dependant may be inequitably prejudiced by the application of the limitation provisions, but by the same token there is nothing to show that he would not. In the light of what was said in Walkley v Precision Forgings Ltd. (1979) 1W.L.R. 606 I find it very difficult to see how he could have been prejudiced, but that is a matter for the Judge. In that case a plaintiff, who was of full age, issued a writ for damages for personal injury. There was some delay in the prosecution of the action and, although no application to dismiss it for want of prosecution was in fact made, it was conceded that such an application would probably have succeeded. After the primary period of limitation had expired, the plaintiff commenced a second action based upon the same cause of action. There was an application to strike out the second writ and to dismiss the new action. After the hearing before the Judge in Chambers the plaintiff discontinued his first action. The House of Lords held that the new action ought to be dismissed under the Limitation Act 1939 and that the plaintiff, having started the first action within the primary limitation period, could not bring himself within the equivalent of our section 30: any application under that section would fail in limine. The majority in the House thought that the only exception where it might be proper to give a direction under the section, where the plaintiff had started an action within the primary, limitation period but had subsequently discontinued, would be a case where the discontinuance was induced by some improper conduct on the part of the defendant. Mr. Jackson-Lipkin submits that that case does not apply unless the plaintiff is of full age when the action is brought. I accept that that decision might have been different if the plaintiff had been under a disability throughout the period of the first action, but here the eldest dependant's disability ended more than 3 years ago; if he is prejudiced by the striking out of the action that is the result of his own inaction. 12. It seems to me that the principle as applied in Tolley v Morris may properly be extended so that any consideration of the factors which might, under section 30, justify the non-application of the limitation provisions to a possible new claim should take place before a decision is reached upon the application to strike out: it would serve no useful purpose to strike out the eldest dependant's claim if he could then apply to have it restored. That view is supported by what Lord Wilberforce said in Walkley v Precision Forgings Ltd. at p.610A:
He pointed out that the equivalent of our section 30 specifies no procedure and he thought that its provisions could properly be considered upon a summons to strike out. 13. In the result I think the answer to the issue which is put to us can most conveniently be expressed in this way: "The rationes decidend; of Tolley v Morris (1979) 1 W.L.R. 592 and Birkett v James (1978) A.C. 297 do apply to this action, but the claim of each dependant must be considered separately, and, if satisfied that there was inordinate and inexcusable delay on the part of the Plaintiff in the prosecution of the eldest dependant's claim, the Court would accede to the application of the defendant to dismiss such claim for want of prosecution unless satisfied that, if his claim were dismissed, the eldest dependant should by virtue of section 30 of the Limitation Ordinance have the right to renew that claim". It must not be forgotten that the action which it is sought to dismiss for want of prosecution includes not only the claims under the Fatal Accidents Ordinance but also the claim on behalf of the estate. The principle in Birkett v James has no application to that claim. 21st May 1981. Representation: Jackson-Lipkin, Q.C. & G. Rodway (Helen A. Le & Co.) for Appellant. Barlow for Respondent. |