Saplor Aida Sabiano, The Next Friend of Saplor Agnes Sabiano v. Natasha O. Usher

DCEC 1089/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1089 OF 2014

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Before: HH Judge Levy in Chambers (Not Open to Public)

Date of Hearing: 6 September 2017

Date of Ruling: 6 September 2017

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R U L I N G

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The following transcript of the ruling given in camera is published with the consent of the parties. For clarity, words in brackets were subsequently added and grammatical editing was made to the transcript after the ruling.

1.The question I need to determine this morning, before giving directions, is whether the notice to act in person filed by the next friend dated 6 September 2017 is valid.  It would be useful to briefly say something about the background of these proceedings.

2.These proceedings were commenced on 30 May 2014 in relation to an accident suffered by a domestic helper while she was walking four dogs of the employer.  As a result of the accident, she suffered traumatic concussion and haemorrhage of the brain. As a result, she has become a mentally incapacitated person.  Hence, when these proceedings were commenced, they were commenced by her sister as her next friend on her behalf. 

3.Unfortunately, when these proceedings were commenced, the provisions of Order 80 rule 2(3) (of the Rules of the District Court) that require a next friend to act by solicitors were not observed as the next friend commenced the proceedings in person.  It was only on 4 July 2014 that the present solicitors, Messrs Krishnan & Tsang, filed a notice to act for the applicant.

4.After directions were given by this court requiring the applicant to comply with Order 80 rule 3 by filing the requisite documents, such as a consent to act as a next friend, were the proceedings regularised. The applicant has since been represented by the same solicitors, and the respondent was also represented throughout.

5.On 12 January 2017, a consent summons was filed for the court’s approval of the settlement that had been reached between the parties.  At the first hearing for the settlement approval, I discussed (in the absence of the respondent’s solicitor) with the applicant’s solicitor certain matters concerning the settlement.  The hearing for approval has been adjourned twice to enable the applicant’s solicitors to deal with the matters this court raised.

6.Shortly before the adjourned hearing today, the next friend filed the notice to act (in person) on 4 September.  Before this notice to act was filed, the next friend had earlier on written a letter in her own name to this court, explaining that she wished to change solicitors and would be coming back to Hong Kong from the Philippines very shortly to deal with the matter herself.

7.Since the court was doubtful that the notice to act was a valid notice, the court directed Messrs Krishnan & Tsang to attend the hearing today.  It was submitted by Mr Krishnan, who appeared for the applicant, that this notice to act was valid.  His appearance today is only out of courtesy.

8.Mr Krishnan has referred to me three passages (from the Hong Kong Civil Procedure 2017) to support his submissions by stating that notwithstanding Order 80 rule 2(3), the next friend is permitted to act in person.  The three passages are paragraphs 80/2/15, 80/2/16 and 80/3/4.  It was submitted that, according to the commentaries in the said passages, the role of the next friend was permissive. Hence, the court, having regard to the permissive role of a next friend, should permit the next friend, if she had wished, to act in person. 

9.With respect, I reject these submissions.  As Mr Krishnan has agreed a plain reading of the wording of Order 80 rule 2(3) clearly does not support the arguments that he just put forward. Contrary to his contentions, the wording of the provisions imposes a strict requirement that a next friend has to be represented by a solicitor when a next friend brings proceedings.  

10.My view is further reinforced by Order 62 rule 4 which allows a person who has sued to file a notice to act in person provided that party “is entitled to act in person”.  By Order 80 rule 2(3), the next friend clearly is not entitled to act in person. Hence, the notice of intention to act in person that she had filed is invalid because she is not entitled to file such notice.

11.For these reasons, I hold that the notice to act in person is not valid by the reason of the fact that the next friend is not entitled to file such notice because of the prohibitions in Order 80 rule 2(3).

12.I therefore set aside the notice to act in person.  The notice having been set aside, the existing solicitors for the applicant are therefore still solicitors on record.

Mr Sundaramoothy Krishnan, of Krishnan &Tsang, for the applicant

Ms Karen Wai, of Deacons, for the respondent