Chan Ka Kui v. Global Stevedoring Service Co Ltd and Others

DCPI2712/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO.2712 OF 2014

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REASONS FOR DECISION

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1.By summons jointly filed on 11 Aug 2016 (“the summons”), all 4 defendants (“the defendants”) applied to discharge order of Master J. Chow dated 25 Nov 2015 (“the Order”) extending the validity of the Writ of Summons issued on 4 Dec 2014 (“the Writ”) for 3 months from its expiry up to 4 Mar 2016, and that the Writ and its service on the defendants be set aside.

2.After hearing submissions from counsel Mr Y. L. Cheung for the plaintiff (“Mr Cheung”) and counsel Mr Jonathan Chang for the defendants (“Mr Chang”), I acceded to the application and I now give my reasons.

Grounds for discharge

3.Plaintiff’s application, inter alia, to extend the validity of the Writ for 12 month from its expiry was made ex parte before Master J. Chow(“the ex parte application”) by way of 1^st affidavit of Chow Siu Yin (“Ms Chow”) dated 26 Oct 2015 (“Chow’s affidavit”).

4.The defendants put forward 3 grounds to discharge the Order: (1) there was material non-disclosure in the ex parte application; (2) there was no good reason to trigger the court’s discretion to extend the validity of the Writ; and (3) in any event, the court ought to have exercised its discretion against such extension.

Chronology

5.On 31 May 2012, plaintiff, a gantry crane operator, allegedly sustained personal injuries at work under the employment of 1^st defendant at the container terminal operated by the 2^nd defendant in an accident involving a container truck registered in the name of the 3^rd and/or 4^th defendants (“the accident”).

6.On 30 July 2013, a legal aid certificate was issued to plaintiff for taking proceedings for injuries he sustained in the accident, limited to preparation for issue of proceedings, consideration of settlement and issue of a generally endorsed writ (not including service) and one Mr Lee of plaintiff’s solicitors was assigned to act as his solicitor.

7.On 21 Oct 2013, pre-action letters were sent by plaintiff’s solicitors to 1^st and 2^nd defendants, and correspondence thereafter ensued between plaintiff’s solicitors and solicitors acting for 1^st and 2^nd defendants.

8.Both 1^st and 2^nd defendants denied liability to plaintiff and a proposed joint orthopedic examination of plaintiff also failed through with them.

9.In mid-Aug 2014, upon assignment of the Director of Legal Aid (“the Director”), counsel Mr Damian Wong (“Mr Wong”) gave his advice on merits of plaintiff’s claim (“Mr Wong’s advice”)

10.On 15 Sep 2014, pre-action letters were sent by plaintiff’s solicitors to 3^rd and 4^th defendants.

11.On 4 Dec 2014, the Writ with a general endorsement was issued against the defendants.

12.On 31 May 2015, the 3-year limitation period for plaintiff’s personal injuries claim in the accident expired.

13.On 26 Oct 2015, the ex parte application was made with filing of Chow’s affidavit.

14.On 25 Nov 2015, the Order was made, extending the validity of the Writ to 4 Mar 2016.

15.The 12-month validity of the Writ was originally due to expire on 4 Dec 2015.

16.On 26 Feb 2016, plaintiff’s solicitors served the Writ on the solicitors for 1^st defendant and the 2^nd to 4^th defendants.

17.On 3 Mar 2016, after hearing plaintiff’s solicitors and solicitors for 1^st and 2^nd defendants, Master J. Chow gave leave to plaintiff to file and serve Statement of Claim etc on or before 5 May 2016 and adjourned the checklist review.

18.The extended validity of the Writ would have expired on 4 Mar 2016.

19.Between 4 and 10 Mar 2016, the defendants acknowledged service in turn, indicating their intention to contest these proceedings.

20.On 14 Oct 2016, Mr Cheung was re-assigned by the Director as counsel for plaintiff in lieu of Mr Wong.

Chow’s affidavit

21.It is a 3-page and 9-paragraph short affidavit. Ms Chow was an assistant solicitor of plaintiff’s solicitors and she had conduct of the action under supervision of its partners.

22.At para 4 thereof, she said the Writ was issued on 4 Dec 2014 “so as to protect plaintiff’s common law claim from being statute-barred (italics supplied)”.

23.Ms Chow referred to Mr Wong being assigned by the Director to advise on merits of plaintiff’s case on the issue of liability, quantum and evidence at para 5 thereof.

24.At para 6 thereof, Ms Chow said “However, there has been the problem of difficulty in communication and breakdown of confidence between [Mr Wong] and the plaintiff. The plaintiff, therefore, is in the course of seeking approval from [the Director] to engage counsel Mr Eugene Yim (“Mr Yim”) in place of Mr Wong to give opinion on the continuing merits of his claim”.

25.At para 7 thereof, Ms Chow moved on to say: “In the circumstances, in order to avoid any wasting of costs and time, the plaintiff is prepared and agreed to wait for [the Director]’s approval to engage Mr Yim for his advice on the continuing merits of the plaintiff’s case before making decision on whether to proceed with the present proceedings (italics supplied)”.

26.“For the matters above-mentioned”, said Ms Chow at para 8 thereof, “the Writ has not yet been served upon [the defendants] up to the present (italics supplied)”.

27.Finally, at para 9 thereof, Ms Chow prayed for 12-month extension of the validity of the Writ, adjournment of checklist review and appropriate costs orders.

Evidence filed before me

Defence evidence

28.Mr Tong Yee Ching (“Mr Tong”), a consultant in the firm of solicitors acting for 3^rd & 4^th defendants, made an affirmation dated 11 Aug 2016 on behalf of the defendants.

29.Mr Tong adverted to events in para 11 to 19 above and added that no Statement of Claim etc. was filed on any of the defendants on or before 5May 2016.

30.He further gave details of the 3 grounds of discharge as they appeared in the summons, in particular explaining what real prejudice the defendants had suffered by reason of the extension of the validity of the Writ.

Plaintiff’s evidence

31.In reply, plaintiff made an affirmation dated 7 Nov 2016 (“plaintiff’s affirmation”) first confirming those matters at para 5 to 9 above.

32.Upon reported of Mr Wong’s advice in mid-Aug 2014, plaintiff said he disagreed with a number of issues so advised by Mr Wong. Through plaintiff’s solicitors, he applied to the Director for assignment of alternative counsel to give a further opinion on his claim. On receipt of his application, the Legal Aid Department raised concern about Mr Wong’s advice as well as possible duplication of costs caused by intended re-assignment. The Director continued to consider his application for re-assignment and/or to extend legal aid certificate to cover further proceedings. Plaintiff’s solicitors, it was said, kept on following up the matter and continued to liaise with the Director urging for approval of the applications.

33.To protect his legal interest and to avoid his claim being time-barred, the plaintiff said he instructed his solicitors to issue the Writ on 4 Dec 2014.

34.After issue of the Writ, said plaintiff, liaison between his solicitors and the Director above continued. He was duly reported from time to time and he instructed plaintiff solicitors to carry on in the hope of obtaining approvals from the Director so that he would be in a position to proceed with the action further.

35.The plaintiff went on in his affirmation to refer to the ex parte application, the grant of the Order and the service of the Writ on the defendants notwithstanding his legal aid certificate did not include service.

36.Plaintiff stressed that if the ex parte application was not in order or if Master J. Chow rejected it, plaintiff’s solicitors would still have ample time to re-submit a fresh application with further affidavit covering such concerns raised by the court, or he would consider service of the Writ within its original expiry date and then apply for stay and/or extension of time to file and serve pleadings pending approval being granted by the Director.

37.He believed that he and his solicitors had all along acted with due diligence in balancing the difficulties and protecting the interest of the Director and himself in the action and to proceed with it according to relevant rules.

38.The defendants had, he said, been notified of his claim and its circumstances by way of pre-action letters and had had opportunities to investigate the same. He verily believed that these proceedings so far had caused them no prejudice at all.To the contrary, if this court, the plaintiff emphasized, rule in favour of the summons, it would cause him serious prejudice, injustice and unfairness which would be beyond compensable extent.

Analysis

39.I have fully and carefully considered all materials, authorities and submissions of all parties before me.

40.I am afraid this case cannot be decided on sympathy alone. It is necessary to look at the law: Chow Ching Man & Others v Sun Wah Ornament Manufatory Ltd & Others [1996] 2 HKLR 338, CA, 340A, per Bokhary JA (as he then was).

Applicable law and principles

41.The applicable rule for extension of the validity of writs is O.6 r.8(2) of the Rules of District Court, Cap.336H (“RDC”).

42.From the decisions of the House of Lords in Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597 and Waddon v Whitecroft Scovill Ltd [1988] 1 WLR 309, O.6 r.8(2), RDC, is to be construed so that the discretion to extend the validity of a writ does not arise unless the plaintiff first establishes matters amounting to good reason for extension or at least capable of so amounting, and that matters such as the balance of hardship only fall to be considered if the discretion to extend arises in the first place: Chow Ching Man, supra, 341B-C, per Bokhary JA (as he then was)[1], 344I per Liu JA.

43.At 313H-314B of Waddon, supra, Lord Brandon summarized the principles from Kleinwort Benson, supra: as follows: -

“(1) On thetrue construction of Ord. 6, r. 8, the power to extend the validity of awrit should only be exercised for good reason. (2) The question whether such good reason exists in any particular case depends on allthe circumstances of that case. Difficulty in effecting service of the writmay well constitute good reason but it is not the only matter which iscapable of doing so. (3) The balance of hardship between the partiescan be a relevant matter to be taken into account in the exercise of thediscretion. (4) The discretion is that of the judge and his exercise of it should not be interfered with by an appellate court except on special grounds, the nature of which is well-established.”

44.Good reason, said Lord Brandon at 622H-623A of Kleinwort Benson, supra, cannot be defined or its scope circumscribed. Whether there is or is not good reason in any particular case must depend on the all the circumstances of that case and must therefore be left to the judgment of the judge who deals with an ex parte application for grant of an extension, or with an inter-parte application to set aside an extension previously granted ex parte.

45.Bokhary JA (as he then was) had the following to sayat 344C-E of Chow Ching Man, supra on the failure to serve a writ within its validity period as a result of a choice:

“Where the failure to serve a writ within its normal validity period is the result of achoice, then it is necessary to decide whether the choice was made for a good reason, meaningone which supports a deliberate failure to comply with the time limit involved. And no discretionto extend the writ would arise unless the choice was made for a reason which is at least capableof amounting to a good reason.

A perfect reason is not necessary. But nothing short of a good reason is enough, howeverwell-intentioned it may have been and wherever one’s sympathies lie. We are, after all, in thiscontext dealing with a deliberate decision not to comply with a highly important and alreadygenerous time limit. Our system cannot work efficiently in the interests of the general public iflitigants and their advisers can simply presume upon the court’s indulgence. There is alreadyquite enough delay in litigation through mere inattention to time limits; and things would onlyget worse if the courts were to countenance deliberate failures to serve writs within time in theabsence of good reason for the choice.”

46.On material disclosure, the relevant principles are, I accept, well-summarized by Deputy High Court Judge Au-Yeung (as she then was) at para 25 to 31 of her judgment of Velatel Global Communications Inc & Another v Chinacomm Ltd & Others, unreported, HCA 1978 of 2011, 26 Oct 2012.

Material non-disclosure

47.Mr Chang complained of 2 matters having been omitted from Chow’s affidavit, namely:-

(1)  direct case authorities to the effect that generally the time taken in the legal aid process would not amount to good reason for extending the validity of the Writ; and

(2)  the limitation period for plaintiff’s claim has already expired before the ex parte application on 31 May 2015 and any order extending the validity of the Writ would thus have the effect of depriving the defendants of the benefit of a limitation defence.

48.For the 1^stalleged omission, Mr Chang referred to the judgment of Lord Denning MR of  Baker v Bowketts Cakes Ltd [1966] 1 WLR 861, 865D-E, and that of Chapman J. of Stevens v Services Window & General Cleaning Co Ltd [1967] 1 QB 359, 365F-G, which, it is submitted, should have been cited in Chow’s affidavit.

49.It is obvious that Chow had not cited in Chow’s affidavit the aforesaid 2 authorities or such passages, if any, of Hong Kong Civil Procedure (where these 2 authorities are found) for such legal proposition the defendants claim to stand for.

50.In reply, Mr Cheung cited Lord Brandon’s view at 316B-C of Waddon, supra, on aforesaid observations by Lord Denning MR and by Chapman J. in Baker, supra, and Stevens, supra, respectively:

“These observations were made in relation to the particular facts of each case and may well have been justified in relation to them. If, however, those who made them intended to lay down as a general proposition of law that, in deciding whether there is good reason for extending the validity of a writ, delays caused by the operation of the legal aid system should never be taken into account, I am unable to agree with such a proposition. Such delays occur and where they do it would be unrealistic to disregard their effect.”

51.Due to such views of Lord Brandon, Mr Cheung submitted that the plaintiff could not see the need to disclose Baker, supra, and Stevens, supra in the ex parte application.

52.I do not agree with Mr Cheung’s submission. First, there is no evidence before me to support that Chow so thought in settling Chow’s affidavit.

53.Moreover, Lord Brandon in Waddon, supra,never overruled Baker, supra, and Stevens, supra. Those observations by Lord Denning MR and Chapman J. remained justified on the particular facts of the 2 cases, as was made clear by Lord Brandon.

54.In any event, what is material is for the judge to decide. Materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers: para 26 of Velatel Global Communications Inc, supra.

55.The test as to materiality is an objective one, and it is not for the applicant or his advisers todecide the question; hence it is no excuse of the applicantsubsequently to say that he was genuinely unaware, or did notbelieve, that the facts were relevant or important. All matterswhich are relevant to the ‘weighing operation’ that the courthas to make in deciding whether or not to grant the order mustbe disclosed: para 28 of Velatel Global Communications Inc, supra.

56.Objectively speaking, both the 2 authorities cited by Mr Chang as well as the different views of Lord Brandon referred to by Mr Cheung are, I think, material and should all have been put before Master J. Chow for her to consider, weigh and come to her decision. If practicable, Chow could identify in Chow’s affidavit the relevant passage(s), if any, of Hong Kong Civil Procedure (where they are found) for the reference of, and consideration by, the court.

57.For the 2^ndalleged omission, Mr Cheung laid emphasis on para 4 of Chow’s affidavit, where Ms Chow said: “On 4 Dec 2014, [the Writ] was issued ... so as to protect the plaintiff’s common law claim from being statute-barred (italics by way of emphasis)”.

58.In light of the above sentence, Mr Cheung submitted that it would be inconceivable that Master J. Chow had failed to consider the issue of limitation period in extending the validity of the Writ as she did by way of the Order.

59.But the date of accident and the date of expiry of 3-year limitation period for plaintiff’s claim were, I note, not mentioned in Chow’s affidavit. Absent such information, one cannot tell from Chow’s affidavit if such 3-year period had expired or about to be expired by the time of the ex parte application.

60.In my view, it is no answer to defendants’ complaint that Master J. Chow was (or might be) so alerted by para 4 of Chow’s affidavit that she e.g. had (or could have) noticed the date of the accident from the Writ in the court file and had (or could have) calculated the expiry date of the 3-year limitation period before she made the Order as she did.

61.It is no answer to a complaint of non-disclosure that if therelevant matters had been placed before the court, the decisionwould have been the same: para 28 of Velatel Global Communications Inc, supra. The duty remains, I think, on the applicant on the ex parte application to put all relevant matters before the court.

62.Mr Cheung further submitted that, by reference to Lord Brandon’s categorization of applications to extend validity of writ at 615H–616C of Kleinwort Benson, supra, there was no accrued right of limitation for defendants in category (2) cases (like plaintiff’s claim) where the writ was issued before the limitation period has expired but the application to extend was made at a time when the writ is still valid but the relevant period of limitation has expired.

63.However, Lord Brandon went on, I note, to point out at 616D-E of Kleinwort Benson, supra:

“...in ...category (2) case..., the effect of an extension may still enable a plaintiff to serve a writ, which was issued before the relevant limitation period had expired, more than 12 months after expiry of that period. This necessarily involves a departure, in favour of a plaintiff, from the general rule on which a defendant is entitled to rely that a writ against him, if it is to be effective, must be issued before the relevant period of limitation period has expired and must be served on him within 12 months of its issue”.

64.Indeed, it was, I note from Mr Chang’s submission, also in a category (2) case of Waddon, supra[2], at 312G-H that Lord Brandon highlighted the duty of applicant to make full and frank disclosure of limitation period at ex parte applications for extension of writ:

“I feel bound to observe that this affidavit was seriously defective in that it made no mention whatever of the fact that the primary period of limitation applicable to the appellant’s claim would expire shortly. It is the duty of solicitors acting for a party on an ex parte application to the court to make a full and frank disclosure of all matters relevant to such application. The fact to which I have referred was, having regard to long-established authority on the extension of the validity of writs where questions of limitation are involved, not just a relevant matter but a crucial one.”

It is worthy to note that the application for extension in Waddon, supra, was made when the primary period of limitation applicable to the appellant’s claim would expire shortly.

65.In our case, objectively speaking, the fact that the 3-year limitation period of plaintiff’s claim against the defendants for the accident dated 31 May 2012 had already expired on 31 May 2015 must also, I think, be material and should have been put in Chow’s affidavit dated 26 Oct 2015 for Master J. Chow to consider, weigh and come to her decision but, unfortunately, it was not done.

66.Accordingly, I agree with Mr Chang’s submission that defendants’ complaint of non-disclosure is made out and that defendants’ application should be allowed on this ground.

No good reason

67.Were I wrong on the above conclusion, I go on to consider if good reason was shown to trigger exercise of my discretion to allow extension of the Writ.

68.Mr Cheung in his submission reviewed all major steps taken by plaintiff and plaintiff’s solicitors since the accident, as adverted to in plaintiff’s affirmation and Chow’s affidavit.

69.He stressed that plaintiff’s solicitors and plaintiff had all along been properly pursuing plaintiff’s claim. Good progress was made in contacting the defendants. And the Writ was properly issued to protect the claim from being statute-barred.

70.Mr Wong’s advice was, Mr Cheung submitted, properly sought on merits but, on the basis of Mr Wong’s advice, disagreement had occurred between plaintiff and the Director on the “continuing merits” of plaintiff’s claim as Ms Chow had pinpointed at para 6 & 7 of Chow’s affidavit.

71.As public fund is involved, Mr Cheung agreed, the Director was entitled to have regard to merits of plaintiff’s claim and to require time, even lengthy time, to make up its own decision on any application(s), be it re-assignment of counsel for plaintiff and/or extension of legal aid cover.

72.It was against such issue of “continuing merits” of plaintiff’s claim and the background of continuing “liaison” between plaintiff’s solicitors and the Director that the ex parte application was made and the Order obtained.

73.Had the ex parte application been improper and/or rejected by Master J. Chow, the plaintiff would, it is submitted and stressed by Mr Cheung, have considered serving the Writ on the defendants no later than its original expiry date.

74.Plaintiff and his solicitors, Mr Cheung emphasized, had all along acted with due diligence, and proceeded with plaintiff’s claim in accordance with the rules, in balancing the difficulties they faced and at the same time protecting the interest of the Director and of the plaintiff in the action.

75.All things so considered, Mr Cheung submitted that good reason had already been shown to trigger exercise of the discretion to extend the validity of the Writ.

76.I do bear in mind all such events and steps taken by plaintiff and plaintiff’s solicitors as urged by Mr Cheung aforesaid.

77.But while good reason is not defined and depends on the facts of each particular case, in the circumstances of Waddon, supra, good reason for extending the validity of the Writ and good reason for not serving it during the original validity period are “inextricably bound together”: per Lord Brandon at 314G-H. In the circumstances of plaintiff’s case, these two matters also seem to me inextricably bound together.

78.There was, I note, no suggestion in Chow’s affidavit, plaintiff’s affirmation or by Mr Cheung before me that the plaintiff had any difficulty locating, or serving the Writ on, the defendants or any of them e.g. defendants evading service, or they had changed address with new address unknown to plaintiff. To the contrary, plaintiff’s solicitors had established contact with them before issue of the Writ.

79.Secondly, such limitation of plaintiff’s legal aid certificate excluding service of writ of summons is, I think, no obstacle to plaintiff’s serving the Writ within its original validity period.

80.Chow in Chow’s affidavit made no reference, I note, at all to such legal aid certificate limitation in the ex parte application or any application to remove it. Nowhere was it stated that the Writ was not served within time due to such limitation.

81.As a matter of fact, the plaintiff managed to serve the Writ on the defendants on 26 Feb 2016 notwithstanding such limitation in the legal aid certificate, as the plaintiff had to acknowledge at para 14 of plaintiff’s affirmation.

82.At para 16 of plaintiff’s affirmation, he further admitted that had the ex parte application been rejected by Master J. Chow, he would have considered serving the Writ on the defendants no later than their original expiry date. That again, I think, reinforced plaintiff’s ability to serve the Writ on the defendants at any time before its validity expired on 4 Dec 2015.

83.Before me, Mr Cheung further orally informed me from the bar table that plaintiff only applied to the Director to extend his legal aid certificate on 25 April 2016.

84.As such, such limitation of legal aid certificate at the material time had nothing, I think, to do with plaintiff’s failure to serve the Writ on or before 4 Dec 2015.

85.Furthermore, Chow in Chow’s affidavit, plaintiff in plaintiff’s affirmation and Mr Cheung in his submission before me did not, I note, complain of “delay” on the part of the Director in approving any of plaintiff’s application(s), despite delay caused by legal aid process could be considered as good reason in particular circumstances, according to Lord Brandon as I have quoted in para 50 above.

86.Nowhere in Chow’s affidavit, plaintiff’s affirmation or Mr Cheung’s submission was it complained that the plaintiff failed to serve the Writ within its original validity period despite favorable merits of his claim e.g. due to alleged delay on the part of the Director in approving his application to remove such legal aid certificate limitation as to service of proceedings.

87.All in all, the failure to serve the Writ within its original validity period arose, I agree with Mr Chang’s submission, from a conscious and deliberated choice on the part of the plaintiff not to do when he could have done so.

88.In gist, plaintiff decided to hold on the proceedings to await approval of the Director to reassign another counsel and further favorable advice from new counsel on merits of his claim, as per para 7 of Chow’s affidavit.

89.However well-intentioned it may have been and wherever one’s sympathies lie, there was, in my view, no justification for the plaintiff to hold up the service of the Writ within its original validity period pending such future approval by the Director and such future favorable advice from replacement counsel, both of which may never be forthcoming at all.

90.In any event, if forthcoming at all, it is hard to tell how much time was required to get such approval from the Director and, thereafter, such favorable advice from new counsel.

91.In this connection, there was, I note, a conspicuous paucity of evidence and exhibit in para 5 to 8 of Chow’s affidavit and para 9 to 13 of plaintiff’s affirmation regarding, inter alia, the date of application to change counsel, and details of the progress of such application.

92.Indeed, the facts that Mr Wong’s advice was given and that it was given as early as in mid-Aug 2014 were, I note, missing in Chow’s affidavit, which made it looked as if Mr Wong was assigned by the Director to advise after issue of the Writ on 4 Dec 2014 when it was the other way round.

93.Instead of taking out the ex parte application, plaintiff should, I think, serve the Writ on the defendants within its original validity period and, thereafter, agree with them for time extension to file pleadings or, failing that, apply to the court for such time extension (on 3 Mar 2016, Master J. Chow, I note, gave time for plaintiff to file pleadings by 5 May 2016 but I am told that it was not done by the hearing before me). Plaintiff, I note, also referred to such option at para 16 of plaintiff’s affirmation but, unfortunately, it was not done.

94.The fact that it was still within time for plaintiff to serve the Writ had the extension not been granted by Master J. Chow is, with respect to Mr Cheung’s submission, neither here nor there.

95.Both Chapman J. at 366E-367C of his judgment at Stevens, supra, and Lord Brandon at 317G-H of his judgment at Waddon, supra, and at 616H-617C of his judgment atKleinwort Benson, supra, made it clear that no bonus is to be accrued to the plaintiff in such situation.The Writ issued by him and in his hands remainedat all timesa writ which cannot be renewedunless good reason is shown. It is the duty of a plaintiff who issues a writ to serve it promptly, and renewal is certainly not to be granted as of course.

96.The law cannot, and does not, provide for indefinite period for plaintiffto make up his mind to proceed with his claim or not. The law has already provided for a limitation period as long as 3 years for his personal injuries claim and also 12 months for service of the Writ. The latter is a highly important and already generous time limit for service of writ in general.

97.It was, I think, the responsibility of plaintiff and his advisers to act expeditiously within, and to decide within, such generous time limits (including considering the merits of the proposed claim) whether to proceed with the proposed claim or not by serving the Writ within its original validity period.

98.If it be really necessary, instead of public fund assistance by way of legal aid, plaintiff can, one thinks, proceed in person if he is convinced of the merits of his claim.

99.Notwithstanding Mr Cheung’s contrary submission, I do not take the view that the Civil Justice Reform or the underlying objectives so introduced by O.1A r.1, RDC, changed the law with regard to extension of validity of writ in general. Limitation defence remains substantive right of the defendants which I need to pay heed to in securing just resolution of the parties’ dispute by promoting such underlying objectives: see O.1A r.2, RDC.

100.I can do no better than to quote the judgment of Godfrey Lam J. in Sealegend Holdings Ltd v China Taiping Insurance (HK) Co Ltd [2013] 4 HKLRD 508, 516 which Mr Cheung referred me to:

“The law concerning the validity of a writ and its extension is no mere formal procedural rule. Underlying it is the policy of the law that promotes finality to litigation, the prevention of stale claims, and the protection of a defendant from having a claim hanging over his head indefinitely. Inasmuch as a plaintiff with a reasonable cause of action has a right to bring and serve proceedings within prescribed periods, a (potential) defendant has a right not to be vexed by actions that are time-barred or writs that have expired, unless they are extended by the court in accordance with the law...I am not persuaded that, post-Civil Justice Reform, the court should more readily grant applications for extension of the validity of writs.”

101.All things considered, I am afraid plaintiff had not established material amounting or capable of amounting to good reason before me to trigger exercise of my discretion to allow extension of the Writ.

Discretion

102.In view of my conclusions at para 66 and 101 above, I do not find it necessary to consider how I would have exercised my discretion under O.6 r.8(2), RDC, had it been open to me.

Disposition

103.Accordingly, I made orders in terms of para 1 & 2 of the summons as prayed for by the defendants.

Costs

104.As Mr Cheung did not oppose, I also made an order in terms of para 3 of the summons.

105.It remains for me to thank Mr Chang and Mr Cheung for their assistance.

Mr Y.L. CHEUNG, instructed by Au-Yeung, Cheng, Ho & Tin, for the plaintiff

Mr Jonathan CHANG, instructed by T.S. Tong & Co., for the 1^st defendant

Mr Jonathan CHANG, instructed by DLA Piper Hong Kong, for the 2^nd defendant

Mr Jonathan CHANG, instructed by Ng and Partners, for the 3^rd & 4^th defendants