Interprocom Ltd v. Silver Wings Trading Co Ltd

DCCJ 4383/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4383 OF 2012

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

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

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

DECISION

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

Introduction

1.This action was set down for trial on 7 June 2016.  A pre-trial review was held on 7 October 2016.  The trial is now 7 days away.

2.At the eleventh hour, the defendant took out 3 summonses, applying for leave to file 3 supplemental lists of documents, to file supplemental witness statements, to adduce expert evidence on the genuineness of the Armani watches in dispute, to vacate the scheduled trial dates and finally, to amend the defence and counterclaim.

The issue for the trial

3.Both parties have filed its own statement of issues in dispute.  However, for the purpose of the present application, it is common ground that the genuineness and authenticity of the Armani and Dolce & Gabbana watches delivered by the plaintiff to the defendant (“the watches”) is the main issue for trial.

Legal principles

4.Order 25 rule 3 of the Rules of the District Court provides:-

“(1) The Court may, either of its own motion or on the application of a party, give further directions relating to the management of the case or vary any timetable fixed by it under rule 2.

(2) A party may apply to the Court if he wishes to vary a milestone date.

(3) The Court shall not grant an application under paragraph (2) unless there are exceptional circumstances justifying the variation.

...

(8) In this rule –

“milestone date” (進度指標日期) means –

(a) a date which the Court has fixed for –

...

(iii) the trial”

5.Paragraph 42 of Practice Direction 5.2 states:-

“Milestone dates will be immovable save in the most exceptional circumstances and for that purpose, for instance, late instructions from client, change in the team of lawyers, the absence of prejudice to the other party which cannot be compensated for by costs, will not be treated as exceptional circumstances.”

6.Bharwaney J in Parsad v Great Wealthy Engineering Co Ltd [2012] 3 HKLRD 705 had this to say:-

"5. ... whether or not to accede to a party's late application to rely on a witness statement deposing to relevant and admissible facts, must be exercised within the ambit of the Court's management power and in the light of the objectives of Civil Justice Reform, including the need to ensure the cost-effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

6. ... The Court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the late application."

Reasons for the late application

7.In the supporting affirmation, Mr Leung Ying Kit Jacky, deposed that after the commencement of this action, the defendant had made repeated attempts to obtain expert opinion as to the genuineness of the watches including seeking the assistance of Fossil Asia Pacific Ltd (“Fossil”), the authorized service and repair centre of the Amani watches in Hong Kong, but to no avail.  It was only very recently that the defendant learned from a business acquaintance that it might test the genuineness of a watch by sending it to Fossil for repair as a customer.  The attempt was made on 5 October 2016 and a certificate was issued by Fossil on the following day stating that the watch was fake and counterfeit.

8.Through the defendant’s solicitors, Fossil was requested to give expert evidence as to the genuineness of the watches.  Finally, on 22 November 2016, Fossil has agreed by e-mail to examine all the watches and to give 7 reports on the genuineness of each individual style of the watches.

Discussion

9.By the nature of this case, the court is required to determine the genuineness of the watches.  Obviously, expert evidence is an important piece of evidence.  Without the assistance of expert evidence, the court is left with the evidence of the factual witnesses to consider and assess.  The determination of the genuineness of the watches based on the credibility of the factual witnesses is indeed not the best way to resolve the dispute between the parties.

10.In my view, the administration of justice demands that where possible, the court should have all the evidence relating to the issue in question at the trial.

11.Expert evidence is of course relevant and in fact of considerable importance to this case. It is a double edged sword, which can be of assistance to either one of the parties, depending on its findings and conclusion.  Therefore, by allowing the defendant the chance to call expert evidence, it does not follow that it will be advantageous to the defendant.

12.At the end of the day, the parties’ prospect of success in this action to a certain extent depends on the findings and conclusion of the expert.  Hence, the expert evidence may enhance the parties’ desire to resolve the matter amicably without the need of a trial.

13.I accept that exceptional circumstances have been demonstrated in this case.  I accept that the defendant has used its best endeavour to obtain expert evidence but can only get hold of the same very recently.

14.By allowing the defendant’s application will of course vary the milestone date.  However, I am satisfied that no prejudice is thereby caused to the plaintiff.

Conclusion and order

15.For the foregoing reasons, I allow the defendant’s application and make the following orders:-

(1)   leave to the defendant to file and serve (a) a supplemental List of Documents of the defendant; (b) a 2^nd supplemental List of Documents of the defendant; (c) a 3^rd supplemental List of Documents of the defendant on or before 30 November 2016 and there be an inspection of documents within 7 days thereafter;

(2)   leave to the defendant to file and serve supplemental witness statement dealing with matters arising out of the 3 supplemental Lists of Documents of the defendant on or before 2 December 2016;

(3)   leave to the plaintiff to file and serve supplemental witness statement (if any) in response to the 3 supplemental Lists of Documents on or before 16 December 2016;

(4)   leave to the defendant to adduce expert evidence on the genuineness of the watches in dispute in this action;

(5)   leave to the defendant to file and serve its Amended Defence and Counterclaim on or before 30 November 2016;

(6)   leave to the plaintiff to file and serve its Amended Reply and Defence to Counterclaim (if any) on or before 14 December 2016;

(7)   the scheduled trial dates of 6 to 9 December 2016 are vacated; and

(8)   a Case Management Conference shall be held on 19 April 2017 10:30 am at Court No 45.

Costs

16.These late applications were made by the defendant through no fault of the plaintiff.  The plaintiff has the right to oppose the applications.  The defendant should bear the costs of these applications.

17.I order that the defendant shall pay the plaintiff the costs of and thrown away by these applications, to be taxed if not agreed, with certificate for counsel.

Mr Austin Yiu, instructed by Patrick Mak & Tse, for the plaintiff

Mr Jacky Chan Hei Ching, instructed by Hoosenally & Neo, for the defendant