Soshila Keswani v. Motiram Keswani

DCCJ 579/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 579 OF 2013

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DECISION

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1.Let me first of all deal with the defendant’s summons dated 20 June 2017.

2.It is in fact a time summons for retrospective leave to serve a notice of non-admission in relation to a copy confirmation note dated 23 July 2007, and it is a document being item 27 of the plaintiff’s list of documents dated 27 January 2014.  The significance of this notice of non-admission is this.  By operation of Order 27 rule 4 of the Rules of the District Court, in the absence of challenge within 21 days after the disclosure of document, the authenticity of document was presumed to be admitted.

3.Mr Wong, counsel for the defendant seeks assistance from an authority, that is, Silver Stone Development Limited v Lau Kwong Ching James [2006] 4 HKC 100.  I have considered the decision and I find particular relevance to the present application come from paragraphs 17 and 18.  In summary, the real question is whether justice requires the court to allow late service of the notice of non-admission of the document in question and whether allowing the late challenge (which should have been done in May 2014 - that is two years ago), whether that would cause prejudice to the other party and whether it would have any effect on the trial as scheduled.

4.I have explained the practical effect of that notice to the plaintiff in person by informing her that the document will not be removed from the trial bundle and that is not the application of the defendant, and therefore she would still be able to rely on the document, but have to prove the authenticity of it, which, at the end of the day, would be a matter for the court to decide if it is of any relevance.  The plaintiff then said she would leave the matter to the court to decide.

5.I have also asked the defendant about the relevance of the document in question and I am given to understand that they do not see the relevance of it in relation to the triable issues of these proceedings, but they have considered the fact that the plaintiff took a very serious view of the document and they could not at this stage be sure as to what use the court would make out of it or how the court would view the matter.  They therefore seek to obtain leave to challenge the authenticity of the document.

6.Having considered all the circumstances, in particular the fact that this late challenge, if allowed, would not cause any forensic prejudice to the plaintiff nor would it affect the trial dates, I am prepared to make an order in terms of the defendant’s summons dated 20 June 2017.  That is, retrospective leave be granted to the defendant to serve the notice of non-admission dated 9 June 2017 on the plaintiff.  For the record, that notice had already been filed in court and the leave is now sought and I grant to the defendant to serve the notice on the plaintiff, and costs of this application be to the plaintiff in any event.

The plaintiff, Soshila Keswani, appeared in person

Mr Thomas Wong, instructed by Wilkinson & Grist, for the defendant