Tam Choi Ling v. Kidsworld International Ltd

HCPI 312/2018

[2018] HKCFI 1794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 312 OF 2018

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J U D G M E N T

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I. BACKGOUND

1.On 8 November 2013, the plaintiff (“P”), who was then legally aided, commenced DCPI2343/2013 against the defendant (“D”) for damages for personal injuries that she claimed she suffered as a result of an accident on 23 November 2010 at a school in Mid-Levels, Hong Kong (“School”) in which she twisted her back in performing her duties as classroom teacher employed by D and deployed to work at the School (“Accident”). P claimed the Accident was caused by D’s negligence, breach of common law duty of care, breach of statutory duty and/or breach of terms of employment.

2.On 23 April 2014, P filed her Statement of Claim, Statement of Damages (claiming damages of about HK$1,170,024.05 with interest) and medical reports.

3.On 24 April 2014, Master S P Yip gave directions inter alia for the parties to file and exchange witness statements as to fact by 3 October 2014.

4.On 4 June 2014, D filed its Defence denying liability and averring the Accident was solely caused or contributed to by P’s contributory negligence. On 30 June 2014, P filed her Reply that disputed D’s averments.

5.On 23 July 2014, D filed its List of Documents (“D’s 1^st List”). In item 10 of Schedule 1 Part 1 of D’s 1^st List, D discovered and disclosed the surveillance report of Verity Consulting Limited (“Verity”) dated 7 July 2014.

6.On 28 July 2014, P filed her List of Documents.

7.On 9 October 2014, Master W Y Ho inter alia (a) extended time until 30 October 2014 for the parties to file and exchange witness statements as to fact, and (b) directed the parties to lodge the joint orthopaedic expert report dated 18 November 2013 (“1^st Joint Report”) which report shall be adduced at trial without calling the makers. The learned master also gave other case management directions.

8.On 30 October 2014, P filed her own witness statement, and D filed the witness statement of 吳灼敏 (or Ng Cheuk Man Cecilia, “Ng”).

9.On 20 November 2014, P filed her Revised Statement of Damages that pleaded a claim for damages of about HK$1,444,324.05 with interest.

10.The 1^st Joint Report was filed on 22 January 2015.

11.On 30 January 2015, Master C H Li gave directions inter alia for (a) parties to file a supplemental joint orthopaedic expert report on or before 13 March 2015, and (b) P to file and serve a Re-Revised Statement of Damages with 28 days of receipt of such joint supplemental joint orthopaedic expert report. The learned master also granted other case management directions.

12.The supplemental joint orthopaedic expert report was compiled on 16 March 2015 (“2^nd Joint Report”).

13.On 17 April 2015, P filed further medical reports, and her Re-Revised Statement of Damages that pleaded a claim for damages of about HK$1,516,159.05 with interest.

14.On 29 May 2015, D filed its Answer to P’s Re-Revised Statement of Damages disputing P’s claim on quantum of damages. In paragraph 5 of such pleading, D averred as follows:

“5. According to the surveillance report dated 7^th July 2014, [P] was seen carrying a bag on her right shoulder on the street. [P] went shopping at Hung Hom Market and she was also seen bending down to look at some products while carrying a bag in her right hand and a bag on each of her shoulders. She was also seen carrying several bags of food in her left hand.”

15.On 12 June 2015, Master C H Li inter alia granted leave for the parties to serve supplemental witness statements as to fact within 35 days. The learned master also granted other case management directions.

16.On 13 August 2015, Master David Cheung inter alia directed P to make discovery of certain bank statements, salary receipts, tax returns and tax payment receipts. The learned master also granted other case management directions.

17.On 14 August and 22 October 2015, P filed/lodged her supplemental witness statement and supplemental list of documents respectively. On 14 August 2015, D filed Ng’s supplemental witness statement.

18.On 14 January 2016, Master David Cheung granted directions inter alia for agreeing the contents of the trial bundle and filing copy indices thereof. The learned master also granted other case management directions.

19.On 1 April 2016, Master Rita So inter alia extended time for the parties to agree the contents of the trial bundle, and reserved the issue of whether the 1^st and 2^nd Joint Reports could be adduced at trial without calling the makers be reserved for consideration and determination at/before the adjourned Checklist Review Hearing.

20.On 3 June 2016, Master Rita So granted inter alia the following order (“3/6/16 Order”):

“1. [P] do within 35 days from the date hereof give specific discovery and provide to [D] copies of the following:

(a) all sick leave certificates from 20^th October 2015 (inclusive) up to the present if any;

(b) employment contracts entered into by [P] from 17^th January 2011 up to the present if any (save and except for [P’s] employment contracts with Caritas St Jospeh Institute for Further and Adult Education Night School and Caritas St Joseph Institute for Further and Adult Kowloon from 8^th October 2012 to 31^st March 2014);

2. [P] do within 35 days from the date hereof make answer to the Interrogatories served on her on 2^nd June 2016 in writing by affidavit (ie on or before 8^th July 2016).”

The learned master granted leave for D to filed and serve Revised Answer to P’s Re-Revised Statement of Damages on or before 4 August 2016, and also granted other case management directions.

21.On 28 June 2016, P filed her affirmation pursuant to paragraph 2 of the 3/6/16 Order, ie her answer to interrogatories.

22.On 5 July 2016, P’s legal aid certificate was discharged. Thereafter, P was self-represented.

23.On 30 September 2016, Master D To granted inter alia the following order (“30/9/16 Order”):

“1. [P] do within 28 days from the date hereof, ie on or before 28 October 2016, comply with paragraph 1(a) of the [3/6/16 Order] namely [P] do give discovery and provide copies of sick leave certificates save and except already disclosed;

2. [P] do within 21 days from the date hereof, ie on or before 21 October 2016, depose by Affidavit or Affirmation whether she has the documents under paragraph 1(b) of the 3/6/16 Order;

3. [P] do within 28 days from the date hereof, ie 28 October 2016 give discovery and provide copies of all documents relating to the alleged traffic accident in 2013 mentioned in her Affirmation filed herein on 28 June 2016 including police statements/notes detailing the alleged traffic accident, medical certificates, medical receipts detailing the extent and nature of her injuries and the effects of such injuries;

……”

The learned master also granted other case management directions.

24.On 28 October 2016, P filed medical reports and documents said to be required under the 30/9/16 Order.

25.On 18 November 2016, P filed a summons to request for specific discovery of various documents including certain CCTV recording, staff handbook, job description, health and safety records, photographs and classroom teacher salary in 2010 (“P’s 1^st Summons”). On the same day, P filed her affirmation in support.

26.On 6 December 2016, Master Rita So granted directions inter alia for the defendant to file and serve affirmation to state whether D has or has had in its possession, custody and control certain items of documents referred to in P’s 1^st Summons, and adjourned P’s 1^st Summons to 27 March 2017 for argument with directions for filing of affirmation evidence in opposition and in reply. The learned master granted other case management directions.

27.On 11 January 2017, D filed Ng’s affirmation to oppose P’s 1^st Summons.

28.On 27 February 2017, D filed a summons for inter alia the following order (“D’s 1^st Summons”):

“1. Unless [P] within 14 days of this Order obeys and complies with paragraph 2 of the [30/9/16 Order] namely that [P] do depose by Affidavit or Affirmation whether she has employment contracts which were entered into by her from 17^th January 2011 up to the present if any (save and except [P’s] employment contracts with Caritas St Joseph Institute for Further and Adult Education Night School and Caritas St Joseph Institute for Further and Adult Kowloon from 8^th October 2012 to 31^st March 2014), the action of [P] be dismissed.

2. The costs of this application be paid by [P] to [D] forthwith.”

29.On 8 June 2017, Master Michelle Soong (a) dismissed P’s 1^st Summons and ordered P to forthwith pay D’s costs summarily assessed at $7,500.00, (b) ordered D to forthwith pay P’s costs of D’s 1^st Summons summarily assessed at $1,200.00, and (c) granted inter alia the following order (“8/6/17 Order”):

(a)   unless P shall comply with paragraph 2 of the 30/9/16 Order on or before 4pm on 22 June 2016, ie P to depose by affidavit or affirmation whether she has employment contracts which were entered into by her from 17 January 2011 up to then if any (save and except P’s employment contracts with Caritas St Joseph Institute for Further and Adult Education Night School and Caritas St Joseph Institute for Further and Adult Kowloon from 8 October 2012 to 31 March 2014), P’s action be dismissed;

(b)   P shall on or before 13 July 2017 file and serve a supplemental list of documents, and there be inspection within 7 days thereafter;

(c)   D shall on or before 29 June 2017 file and serve Ng’s 2^nd supplemental witness statement;

(d)   P shall on or before 13 July 2017 file and serve her witness statement in reply;

(e)   P shall on or before 3 August 2017 file and serve her Re-Re-Revised Statement of Damages (with statement of truth) and any further documents as to quantum that had not yet been disclosed; and

(f)   D shall on or before 31 August 2017 file and serve its Answer thereto (with statement of truth).

The learned master also granted other case management directions.

30.On 21 June 2017, P filed her affirmation in respect of paragraph 1(b) of the 3/6/16 Order and paragraph 2 of the 30/9/16 Order to confirm she never possessed any employment contract except those with Caritas (see also paragraph 29(a) above).

31.On the same day, P filed her affirmation exhibiting 2 documents that had been disclosed/copied to D’s solicitors, ie copy team member handbook and copy job description for class teacher (see paragraphs 25-26 above).

32.On 29 June 2017, D filed Ng’s 2^nd supplemental witness statement.

33.On 13 July 2017, P filed her witness statement in reply.

34.On 17 July 2017, P filed a summons for extension of time to file and serve her supplemental list of documents (“P’s 2^nd Summons”). On the same day, P filed her affirmation in support.

35.On 28 July 2017, Master S H Li inter alia extended time to on or before 15 September 2017 for P to comply with paragraph 4 of the 8/6/17 Order to file and serve supplemental list of documents with costs of $600.00 to be paid to D within 7 days.

36.On 4 August 2017, P filed a summons for extension of time to file and serve her Re-Re-Revised Statement of Damages (“P’s 3^rd Summons”). On the same day, P filed her affirmation in support.

37.On 15 August 2017, Master Michelle Soong granted extension of time for (a) P to file and serve her Re-Re-Revised Statement of Damages (on or before 6 October 2017), (b) D to file and serve Answer thereto (on or before 10 November 2017), and (c) the parties to agree the contents of the trial bundle (by 15 December 2017), and to report to PI Master within 7 days thereafter. The learned master also granted other case management directions, and ordered P to pay D’s costs of P’s 3^rd Summons in the sum of $550.00 within 7 days.

38.On 15 September 2017, P filed her 2^nd supplemental list of documents.

39.On 6 October 2017, P filed her Re-Re-Revised Statement of Damages making a claim for damages of about $1,234,670.00.

40.On 10 November 2017, D filed its Answer thereto disputing P’s claim as to quantum. In such Answer, P maintained the averment set out in paragraph 14 above (but renumbered as paragraph 6 of such Answer).

41.On 21 November 2017, P filed a summons to seek the following directions: (a) “向法官申請被告未披露文件(要求命令), 到有關部門申請”, (b) leave to amend her Writ of Summons and Statement of Claim, (c) inclusion and exclusion of documents in the draft trial bundle which shall be compiled again to include certain documents and exhibits, and (d) “案件現階段的指引” (“P’s 4^th Summons”). On the same day, P filed her affirmation in support.

42.On 1 December 2017, Master S H Li made no order on P’s 4^th Summons except for P’s costs of such summons to be costs in the cause.

43.On 13 December 2017, D filed its PI Questionnaire stating its witness was Ng and proposing to set the case down for trial.

44.On 21 December 2017, D’s solicitors wrote to the PI Master to state the parties had not been able to reach agreement on the trial bundle indices, and to enclose a copy marked with the parties’ disagreements.

45.On 22 December 2017, Master S H Li granted inter alia the following order (“22/12/17 Order”):

(a)   unless P filed and served her summons to seek leave to amend her pleadings on or before 4pm on 19 January 2018, P be debarred from making such application in DCPI2343/2013;

(b)   unless P filed and served her summons to make any other interlocutory application on or before 4pm on 19 January 2018, P be debarred from making any such application in DCPI2343/2013;

(c)   save for (a)-(b) above or save with leave of the court, neither party shall make any further interlocutory application;

(d)   P shall on or before 12 January 2018 file and serve statement of truth to verify P’s supplemental witness statement dated 13 July 2017;

(e)   P shall on or before 12 January 2018 write to the court with copy to D to confirm whether she would abandon any excess above $1,000,000.00 in respect of her claim for damages in her Re-Re-Revised Statement of Damages otherwise the court might transfer DCPI2343/2013 to the Court of First Instance;

(f)   based on the draft submitted to the court at the hearing on 22 December 2017, D’s solicitors shall compile the draft indices of the trial bundle by inclusion of all documents proposed by the parties with disagreements between the parties marked up for identification and adjudication by the court; and

(g)   unless P give D’s solicitors notice in writing as to her observations on the trial bundle indices (ie which documents P or D objected for inclusion in the trial bundle) on or before 9 January 2018, P shall be deemed to have no observations on the draft indices of the trial bundle and to have agreed to let the court determine the contents of the trial bundle.

The learned master also granted other case management directions.

46.On 17 January 2018, P filed a summons for extension of time to comply with paragraph 45(a)-(b), (d)-(e) and (g) above (“P’s 5^th Summons”). On the same day, P filed her affirmation in support, explaining that time extension until 31 January 2018 was required because at the material time she suffered from respiratory track illness (with attendance certificate at Central Kowloon Health Centre on 16 January 2018 in support), but by the time of her affirmation she was ready to comply with paragraph 45(d)-(e) above. On the same day, P filed her further affirmation in support (a) to exhibit her attendance certificate at Central Kowloon Health Centre on 16 January 2018 allegedly for asthma attack, (b) to state she could only prepare part of the relevant papers due to illness (with partial drafts exhibited to her affirmation) and she hoped to complete the drafts by 26 January 2018, and (c) to exhibit her letter to the court dated 15 January 2018 explaining the delay caused by her illness.

47.On 19 January 2018, P filed a summons for leave to amend her pleadings, witness statement and Re-Re-Revised Statement of Damages allegedly to correct inappropriate averments, and to respond to paragraphs 1-2 of the 22/12/17 Order (see paragraph 45(a)-(b) above) (“P’s 6^th Summons”). On the same day, P filed her affirmation in support that (a) requested leave to amend her pleadings (as the contents were allegedly inappropriate) and her witness statements (as there were allegedly contradictions therein), (b) requested leave to amend the contents of her Re-Re-Revised Statement of Damages, and (c) requested extension of time as she had been ill.

48.On 25 January 2018, P filed her further supplemental list of documents, and 2 affirmations setting out her observations on various documents.

49.On 26 January 2018, P filed her statement of truth to verify her supplemental witness statement filed on 13 July 2017.

50.On 26 January 2018, Master S H Li dismissed P’s 5^th Summons and ordered P to pay D’s costs summarily assessed at $3,000.00 (“1^st 26/1/18 Order”). On the same day, Master S H Li dismissed P’s 6^th Summons and ordered P to pay D’s costs summarily assessed at $3,000.00 (“2^nd 26/1/18 Order”).

51.On 31 January 2018, D filed its supplemental list of documents (“D’s 2^nd List”). In item 1 of Schedule 1 Part 1 of D’s 2^nd List, D discovered and disclosed Verity’s surveillance report dated 17 February 2017. Such surveillance report together with CD-ROM of the surveillance recording was annexed to D’s 2^nd List.

52.On 8 February 2018, P filed her affirmation setting out further observations on documents.

53.On 8 and 13 February 2018, P filed 2 further lists of documents.

54.On 15 February 2018, D filed its PI Questionnaire which proposed to add another witness from Verity (name to be confirmed but probably Brenda Poon) with draft witness statement annexed thereto.

55.On 21 February 2018, P filed her affirmation setting out her observations on witnesses and other evidence.

56.On the same day, P filed her affirmation to clarify certain matters in her earlier affirmation filed on 28 June 2016.

57.On 23 February 2018, Master S H Li granted order to transfer DCPI2343/213 to the Court of First Instance, and gave further case management directions. The learned master told the parties D’s application to adduce further witness statement be reserved for determination by the Court of First Instance after the transfer.

58.On 27 February 2018, P filed her affirmation making observations on various matters.

59.On 2 March 2018, P filed her affirmation requesting further receipts for her payment of costs, and exhibited a further discovery document.

60.On the same day, P filed her affirmation setting out her comments on the trial bundle.

61.On 16 March 2018, P filed her affirmation stating inter alia she had sent a letter to the Labour Department on 20 December 2017. On the same day, P filed her affirmation stating inter alia her health condition had been affected by her living environment.

62.On 19 March 2018, P filed her affirmation to complain of late receipt of sealed copy of court order.

63.On 20 March 2018, DCPI2343/2013 was transferred to the Court of First Instance and became HCPI312/2018.

64.On 21 March 2018, P filed her affirmation to say some of her discovered documents had not been included in the draft trial bundle.

65.On 27 March 2018, P filed her affirmation to say she had served various documents on D’s solicitors as she waited for transfer of her claim to the Court of First Instance.

66.On 17 April 2018, D filed a summons seeking leave to file and serve a witness statement of Poon Miu Yee Brenda (Verity’s investigation manager, “Poon”) dated 16 April 2018, a copy of which was annexed to such summons (“Poon Statement”), within 7 days, and for costs of the application to be costs in the cause (“D’s 2^nd Summons”).

67.The Poon Statement explained that on/about 31 October 2013 Verity was instructed to conduct surveillance on P. Poon assigned investigators to conduct surveillance on P, and described the surveillance on P (a) made on 22 December 2013, 13 February 2014, 5 June 2014, 13 June 2014 and 26 June 2014 with the CD-ROM that contained the surveillance recording (“1^st Report/Recording”), and (b) made on 29-30 September 2016 (with observations on P’s physical and mental condition during such surveillance), 10 November 2016, 27 January 2017 (with observations in P’s bodily movements) with CD-ROM that contained the surveillance recording (“2^nd Report/Recording”).

68.At the hearing of D’s 2^nd Summons on 24 April 2018 (“Master Hearing”), Master M Lam granted the following order (“24/4/18 Order”):

(a)   by consent D do have leave to file and serve the Poon Statement annexed to D’s 2^nd Summons within 7 days thereof; and

(b)   costs of the application be paid by D to P assessed in gross sum of $200.00 payable forthwith.

69.On 27 April 2018, D filed the Poon Statement.

II.  APPEAL

70.On 14 May 2018, P filed Notice of Appeal against (a) the 24/4/18 Order that allowed D to file and serve “another witness statement to List of Documents” and asked that the Poon Statement be struck out, and (b) to appeal against the 1^st and 2^nd 26/1/18 Orders out of time (“Appeal”).

71.On the same day, P filed her affirmation in support of the Appeal without leave of the court. P claimed that at the Master Hearing D referred to the 1^st and 2^nd Reports/Recordings in 2014 and 2018 respectively under D’s 1^st and 2^nd Lists, but only produced the former but not the latter surveillance report to Master M Lam as a document and not as a witness statement. “[P] 先是反對, 後獲聆案官指出, [P]不可能反對, 但[P]後查[D]入文件[in D’s 2^nd List on 31 January 2018]是在[P]反對[on 26 January 2018]後, 在L/Docs才要求加入成為Trial Court bundle 之另一份文件 – witness statement. (參考[22/12/17 Order]並不是合理程序。只到作為List of Relevant Dcos之中, 不是證人陳述書, 對證人身份不認同不確認及有問題及與案件關聯性”.

72.On 7 June 2018, P filed her affirmation (“P’s Aff”) stating (a) she received sealed copy of the 24/4/18 Order after she had lodged the Appeal, (b) she complained about service of documents delivered and left at her address for service without notification, and (c) she preferred to be served “by mail with chop”. P also exhibited a letter dated 3 May 2018 that she sent to Master M Lam in which she made the same allegations as set out in her affirmation dated 11 May 2018. In such letter she said inter alia that “[P]最初拒絕[D]的申請[ie D’s 2^nd Summons], 但被法庭提醒[P][D]的申請是沒有理由拒絕的, 最後[P]接受”.

73.The hearing of the Appeal came before me on 8^th June 2018 (“Hearing”).

III.  LEGAL PRINCIPLES: APPEAL

74.It is trite that an appeal from the master to judge in chambers is dealt with by an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time. The judge will give the weight it deserves to the previous decision of the master; but he is in no way bound by it (see Hong Kong Civil Procedure 2018 Vol 1 para 58/1/2 at p 1118).

IV.  LEGAL PRINCIPLES: FURTHER EVIDENCE

75.Mr Wan, solicitor for D, informed the court D had no objection for P to rely on her affirmation filed on 11 May 2018 for the purpose of the Appeal. But he objected to P’s Aff filed on 7 June 2018. In fact, P filed P’s Aff the day before the Hearing, but did not serve the same. P only provided a copy of P’s Aff to Mr Wan at the Hearing. In the circumstances, P conceded at the Hearing she would not rely on P’s Aff for the purpose of the Appeal.

76.It also transpired that P had lodged a bundle of documents in a grey folder for the Hearing (“Grey Bundle”). But P had not served the Grey Bundle on D. In such circumstances, this court did not allow P to rely on and/or use the Grey Bundle for the purpose of the Appeal. Instead, the hearing bundle lodged and served by D was used for the Hearing.

V.  LEGAL PRINCIPLES: APPEAL OUT OF TIME

77.Order 58 rule 1(3) of the Rules of the High Court (“RHC”) provides inter alia that unless the court otherwise orders, notice of appeal against a master’s decision or order must be issued within 14 days after the decision or order appealed against was given or made. Under the proviso “unless the court otherwise orders” in Order 58 rule 1(3) of the RHC and pursuant to Order 3 rule 5 of the RHC, the court has a discretion to grant enlargement of time to appeal.

78.In Postwell Ltd v Cheng Kap Sang [2004] 2 HKLRD 355, 364, DHCJ Wong Yan Lung SC stated that:

“...... Although I agree ...... that the absence of an acceptable explanation for the delay does not preclude the court’s discretion to extend time, I am of the view that in applications for extension of time to appeal an adverse order or adjudication, as opposed to extension of time to remedy other procedural default, the court should be slow to accede to the application in the absence of an acceptable reason for the delay.”

79.In considering whether to extend time to appeal, the court has to consider all relevant factors, particularly (a) the length of the delay, (b) the reasons for the delay, (c) the merits of the proposed appeal, and (d) the degree of prejudice to the other party (see Postwell Ltd at p 363 and Menno Leendert Vos v Global Fair Industrial Ltd & Ors HCMP796/2010, Cheung and Kwan JJA (unreported, 21 June 2010) para 16). DHCJ Peter Ng SC (as he then was) in Hady v Bazar [2012] 3 HKLRD 29, 41 reminded that after the Civil Justice Reform it is incumbent on the court to give effect to the underlying objectives of the RHC when exercising any of its powers (see Order 1A rules 1 and 2 of the RHC), but the court must always recognise the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties (see Order 1A rule 2(2) of the RHC).

80.In respect of the Appeal against the 1^st and 2^nd 26/1/18 Orders, Mr Wan objected to P’s attempt to appeal against these orders at such late stage. At the Hearing, I dealt with the Appeal against these orders on a de bene esse basis (ie the court would hear submissions from both parties on the Appeal against these orders but would reserve decision until this Judgment on whether to grant extension of time for P to appeal against the 1^st and 2^nd 26/1/18 Orders).

VI  LEGAL PRINCIPLES: APPEAL AGAINST CONSENT ORDER

81.There could not be any dispute that the 24/4/18 Order was an interlocutory order. But there was no fundamental distinction between a consent order made in interlocutory proceedings and a consent order made on a final judgment although there is a larger discretion as to orders made on interlocutory applications than as to those which were final judgments. Generally speaking, consent orders may be divided into (a) those that embody or evidence a contract between the parties, and (b) those that were made by the parties without objection. A consent order under (a) above can only be disturbed (whether on appeal or otherwise) if there existed one or more of the recognised vitiating factors that would allow a party to disturb a contract, such as fraud, illegality, mistake or misrepresentation. Absent such vitiating factors, a judge has no power to vary such a consent order made by the master. A consent order under (b) above is merely an order of the court, which can be disturbed (whether on appeal or otherwise) according to normal principles (see Smart Trike Mnf Pte Ltd & ors v Chiu Sui Chun & ors HCA847/2013 (unreported, 16 March 2018) paras 36-55).

82.In my view, the 24/4/18 Order was not a consent order under (a) above since it could not be a contract between the parties. As P submitted, she initially objected to D’s 2^nd Summons, but eventually withdrew her objection after dialogue with the bench whereupon Master M Lam made the 24/4/17 Order. At the Hearing, P submitted she had second thoughts after the Master Hearing because she considered D’s 2^nd Summons was procedurally incorrect, and hence she lodged the Appeal. In my view, this clearly showed the 24/4/18 Order was a consent order under (b) above as there was no contract between the parties. In the circumstances, it can be disturbed on appeal according to normal principles.

VII.  APPEAL AGAINST 24/4/18 ORDER

83.The 24/4/18 Order was a case management order/decision. The essence of P’s complaint against such order was that (a) D previously only disclosed the 1^st and 2^nd Reports/Recordings as “documents” under D’s 1^st and 2^nd Lists but not as witness statements, (b) D only produced Verity’s 1^st but not the 2^nd surveillance report to Master M Lam at the Master Hearing, (c) P did not receive the 2^nd Report/Recording under D’s 2^nd List, and (d) D adopted backdoor and procedurally incorrect approach by asking the court for leave to file/serve the Poon Statement to which she initially objected.

84.It is true D discovered and disclosed the 1^st and 2^nd Reports/Recordings as “documents” under D’s 1^st and 2^nd Lists. But there is no merit in P’s complaint that she had not been served with the 2^nd Report/Recording under D’s 2^nd List. It appeared such report/ recording were annexed to D’s 2^nd List. But even if such report/recording were not so annexed, the Notice to Inspect set out in D’s 2^nd List gave notice to P that she could ask for inspection of such report/recording at the offices of D’s solicitors at a date and at such time to be arranged by P and D’s solicitors (see also Order 24 rule 9 of the RHC). It was therefore incumbent on P to request inspection of such report/recording and to ask for provision of copies thereof (see Order 24 rule 11A of the RHC), and there was no need for D to take the initiative to serve such report/recording.

85.As regards the Poon Statement, it is useful to consider the usual practice and procedure in adducing surveillance evidence. The strict evidential approach is for formal production of surveillance reports and recordings into evidence via a factual witness in the course of giving evidence in court. Such witness is usually the person who conducted and/or arranged the surveillance, and is usually an employee of a third party company that provided the surveillance service.

86.In calling such witness to give evidence, the party who has commissioned the surveillance has 2 options. First, if the witness from the surveillance company is willing to be a witness at such party’s request, then such witness should give a witness statement and the party calling him will file/serve or seek leave to file/serve such witness statement, and then in due course call such witness to attend trial to give evidence. Secondly, if the witness from the surveillance company (being usually an employee of a third party and not an employee of the party who commissioned the surveillance) is not willing to be a witness on a voluntary basis, the party who commissioned the surveillance can issue a witness subpoena and compel such witness to attend trial to give evidence. In this latter scenario, the witness will not give any witness statement, but the court may direct the party wishing to call such witness to give evidence to provide the other party with a statement of the nature of the evidence intended to be adduced (see Order 38 rule 2A(5) of the RHC).

87.Naturally, if (a) both parties are legally represented and (b) there is no dispute as to the identity of the individual being the target subject of the surveillance report/recording (ie that the target subject is the relevant party to the litigation) and as to the contents of the recording, both parties may agree to dispense with formal production of the surveillance report/recording via witness evidence at trial and simply adduce the surveillance report/recording into evidence. This, of course, is not an approach that can be adopted when one of the parties is not legally represented and/or when there is no agreement on the matters in (b) above. In such circumstances, the fair approach for the party who intends to adduce the surveillance evidence to adopt is to formally produce the surveillance report/recording at trial through a witness who can be cross-examined by the other party.

88.In the present case, even without the Poon Statement, there is no stopping D from issuing a witness subpoena to compel Poon to attend the trial to give evidence as a subpoenaed witness and (if she can) to produce the 1^st and 2^nd Reports/Recordings discovered and disclosed under D’s 1^st and 2^nd Lists. There was every likelihood that P would have to face viva voce evidence from Poon at trial irrespective whether the Poon Statement was filed/served or not. But in choosing to voluntarily call Poon as witness and to file and serve the Poon Statement, D gave P a forensic advantage because even before the trial she would come to know from the Poon Statement the essence of Poon’s evidence and would therefore be in a better position to cross-examine Poon and address the surveillance evidence in her submissions at trial. A review of the contents of the Poon Statement also showed there would not be any surprise or prejudice to P because they were in line with the 1^st and 2^nd Reports/Recordings, which had been discovered and disclosed under D’s 1^st and 2^nd Lists. In my view, subject to the matters discussed in paragraph 89 below, Master M Lam was correct in her exercise of case management discretion to grant leave for D to file and serve the Poon Statement.

89.However, if D were allowed to file and serve the Poon Statement, it appeared that fairness would require P be allowed to respond to such witness statement. For example, if certain conduct on the part of P was observed in the surveillance recordings, P might have an explanation for such conduct. The learned master should have considered the countervailing balance of justice to allow P to address the matters raised in the Poon Statement by way of a further supplemental witness statement, but such further supplemental witness statement must be confined to matters in response to the Poon Statement.

90.When this court explained the above matters to P (but emphasised it was a matter for her to consider how she wished to pursue/conduct the Appeal against the 24/4/18 Order), P stated and confirmed she was prepared to allow D to file and serve the Poon Statement on the basis that she be allowed to file and serve further supplemental witness statement in reply thereto. When this was put to Mr Wan, he submitted he would leave this to the discretion of this court.

91.In the circumstances, in respect of the Appeal against the 24/4/18 Order, I affirm the 24/4/18 Order but add a further order/direction that leave be granted to P to file and serve further supplemental witness statement in reply to the Poon Statement within 28 days from the date of this order (time to run during court vacation), but the contents of P’s further supplemental witness statement in reply shall be limited solely to matters in response to the Poon Statement.

92.On the matter of costs, since P did not succeed in setting aside the 24/4/18 Order, and I did not simply uphold the 24/4/18 Order as D urged but granted further case management direction to balance the interests of both parties under the 24/4/18 Order, I consider a fair order on costs would be no order as to costs in respect of this aspect of the Appeal. I therefore grant a costs order nisi that there be no order as to costs in respect of P’s appeal against the 24/4/18 Order under the Appeal.

VIII.  APPEAL OUT OF TIME AGAINST 1^ST AND 2^ND 26/1/18 ORDERS

93.It was incumbent on P to appeal against the 1^st and 2^nd 26/1/18 Orders in a timely fashion. The 1^st and 2^nd 26/1/18 Orders were made on 26 January 2018, so the deadline for appeal was 9 February 2018. In filing the Appeal against these orders on 11 May 2018, P was 3 months’ out of time. In my view, the delay was substantial given that the statutorily prescribed period is 14 days. Whilst recognising P was self-represented, there was no explanation why she did not appeal or make enquiries to ascertain the procedure for appeal from 27 January 2018 to 9 February 2018. Upon delivery of an adverse decision in court or upon receipt of an adverse order which a litigant did not accept, it would be incumbent on such litigant to make enquiries as to how and when to challenge such decision or order.

94.There was no evidence of prior intimation of any intention of appeal against the 1^st and 2^nd 26/1/18 Orders. Further, as evident from paragraphs 51-69 above, the District Court and Court of First Instance since 26 January 2018 had proceeded with case management of the present action on the premise of the 1^st and 2^nd 26/1/18 Orders. Given such developments, cogent reasons for the delay would be required to justify upsetting the case management developments since 26 January 2018. But P did not give any or any sufficient reason for the delay in her affirmation filed on 11 May 2018. In the circumstances, I find the delay unsatisfactory.

95.As regards the merits of the appeal against the 1^st 26/1/18 Order (see paragraph 50 above), such order was made in respect of P’s 5^th Summons (see paragraph 46 above) that sought extension of time until 31 January 2018 to comply with certain parts of the 22/12/17 Order (ie the orders/directions in paragraph 45(a)-(b), (d)-(e)and (g) above). The orders/directions in paragraphs 45(a)-(b) above under the 22/12/17 Order were “unless orders”, ie unless P filed and served summonses for leave to amend her pleadings and to make other interlocutory applications by 4pm on 19 January 2018, P would be debarred form making such applications. I also refer to the appeal against the 2^nd 26/1/18 Order (see paragraph 50 above) which was made in respect of P’s 6^th Summons (see paragraph 47 above) that asked for extension of time and leave to amend P’s pleadings, witness statements and Re-Re-Revised Statement of Damages to correct allegedly inappropriate averments/assertions in response to the 22/12/17 Order. This again related to the 22/12/17 Order that granted “unless orders” for making applications in respect of such matters (see paragraph 45(a)-(b) above).

96.For the “unless order” in paragraph 45(a) above concerning application for leave to amend P’s pleadings, it stemmed from P’s 4^th Summons (see paragraph 41 above) in which P asked for leave to amend her Writ of Summons and Statement of Claim, but Master S H Li made no order in respect of P’s 4^th Summons except provision for costs (see paragraph 42 above). I note P did not annex any draft amended pleadings to P’s 4^th Summons, so the court had no idea what were P’s proposed amendments to her pleadings. Courts are reluctant to grant general leave to amend pleadings without being able to see the proposed amendments to ascertain whether they are properly formulated and/or necessary, and whether they would unfairly prejudice the other party or the conduct of the action itself. Thus, Master S H Li properly exercised his discretion to make no order on P’s 4^th Summons, which would have enabled P (if so wished) to take out proper application to amend by annexing her draft amended pleadings. However, in the 3 weeks up to the Checklist Review Hearing on 22 December 2017 P had not taken out such application. At such hearing on 22 December 2017, Master S H Li again properly exercised his discretion to require P to take out such application in/about a month’s time to ensure that proper case management directions/timetable would not be derailed by applications and/or summonses taken out in a drawn-out and piecemeal fashion. Further, in light of the various extensions of time sought by P in compliance with court orders since mid-2017 (see P’s 2^nd, 3^rd, 4^th and 5^th Summonses), it was appropriate for Master S H Li to impose an “unless order” by his 22/12/17 Order in paragraph 45(a) above. In my view, his order in paragraph 45(a) above could not be faulted.

97.In respect of the “unless order” in paragraph 45(b) above, Master S H Li made no order as to P’s 4^th Summons, which contained a number of interlocutory applications other than application for amendment of pleadings. P had not renewed such applications by fresh summons even up to the Checklist Review Hearing on 22 December 2017, so it was fair and appropriate for Master S H Li to grant time for P to do so, but given the history of P’s various applications for extension of time, it was also appropriate for the learned master to exercise proactive case management by imposing an “unless order”. Again, I am unable to fault the order in paragraph 45(b) above.

98.There was a time lapse of about 2 months between P’s 4^th Summons filed on 21 November 2017 and the expiry of the grace period on 19 January 2018 in respect of the 2 “unless orders” in paragraph 45(a)-(b) above, which I find to be generous. As the deadline imposed by the “unless orders” neared, P filed P’s 5^th Summons on 17 January 2018 for relief against sanction (ie extension of the deadline to 31 January 2018). The reason put forward for the delay was thin. The suggestion P had respiratory illness or asthma attack could not explain the whole period of the delay. The medical certificate only showed consultation on 16 January 2018 but did not give any diagnosis. Further, such medical consultation on 16 January 2018 could not explain why P could not have (a) prepared draft amended pleadings and/or draft witness statements for the purpose of filing a summons for amendment and/or for leave to serve, or (b) filed summons for other interlocutory applications during the aforesaid 2 months’ period. Also, P’s history of applications for extension gave no confidence that matters would progress in a timely fashion. I concur with Master S H Li’s decision to refuse relief against sanction in respect of the 2 “unless orders” by the 1^st and 2^nd 26/1/18 Orders.

99.As regards the orders in paragraph 45(d)-(e) above under the 22/12/17 Order, P had actually complied with the order in paragraph 45(d) above on 26 January 2018 (see paragraph 49 above), so Master S H Li had not erred in making the 1st 26/1/18 Order to dismiss P’s 5^th Summons that sought extension of time for compliance of the order in paragraph 45(d) above. Further, regardless whether P had complied with the order in paragraph 45(e) above to write to the court on or before 12 January 2018 about whether to abandon the excess of her claim above the jurisdiction of the District Court, on 23 February 2018 Master S H Li granted an order for transfer of DCPI2343/2013 to the Court of First Instance. Any appeal against the 1^st 26/1/18 Order for declining to grant extension of time to comply with order in paragraph 45(e) above would be academic and redundant.

100.As regards the “unless order” in paragraph 45(g) above in which P was required to give observations on the trial bundle on or before 9 January 2018 failing which she would be deemed to have no observations on the draft indices of the trial bundle, and to have let the court determine the contents of the trial bundle. By such order P had 18 days to comply with such “unless order”. In my view, it was an entirely correct order at the time because it appeared P and D could not come to agreement on the trial bundle indices and Master S H Li by the 22/12/17 Order had directed D to prepare draft trial bundle indices that included all documents proposed to be included in the trial bundle with disagreements marked up for adjudication by the court. At that stage, the present action was close to being set down for trial, and finalisation of the trial bundle was an essential next step. I am also convinced Master S H Li was correct in making the 1^st 26/1/18 Order to refuse relief against sanction to extend time for compliance with the order in paragraph 45(g) above for P’s illness alone could not have explained the delay. There had been previous court orders directing the parties to agree to the trial bundle, so P must have given consideration to the documents for quite a while, and her medical attendance certificate only concerned 16 January 2016. I am not persuaded Master S H Li could be faulted for the 1^st 26/1/18 Order that dismissed P’s request for extension of time to comply with paragraph 45(g) above.

101.However, given the transfer of DCPI3234/2013 from the District Court to the Court of First Instance, the court had not yet adjudicated on the disagreements on the draft trial bundle indices. Since the 1^st 26/1/18 Order, P filed further supplemental list of documents on 25 January 2018 (see paragraph 48 above), D filed D’s 2^nd List (see paragraph 51 above), P filed 2 further supplemental lists of documents on 8 and 13 February 2018 (see paragraph 53 above), and D filed the Poon Statement on 27 April 2018 (see paragraph 69 above). It was plain there had been change in circumstances since the order made in paragraph 45(g) above, and the draft trial bundle indices must take into account these new matters and developments. Further, in light of my views in respect of the Appeal against the 24/4/18 Order, the statement evidence is not yet closed in the present action. In such circumstances, I am of the view that the order in paragraph 45(g) above under the 22/12/17 Order is now spent, and the PI Master has to exercise his/her case management powers afresh in finalising the trial bundle in light of the present circumstances pending setting down for trial.

102.Save for the matter discussed in paragraph 101 above, I see no basis for disturbing the 1^st and 2^nd 26/1/18 Orders. Robust case management was called for in this case given the time taken by P to progress the present action, especially when the Accident happened more than 7 years ago in 2010 and the present action has not been set down for trial after more than 4 years. It is inappropriate to allow the present action to become embroiled in interlocutory applications that are cost and time consuming to the detriment of both parties, especially when adequate or even generous time had been given to P to regularise her own case as she saw fit.

103.For all of the above reasons, I consider (on de bene esse basis) that the proposed appeal against the 1^st and 2^nd 26/1/18 Orders were unmeritorious and that there was no cogent basis to extend time, and I therefore dismiss P’s application for leave to appeal against those orders out of time. There is no reason why costs should not follow event. I therefore grant a costs order nisi that P shall pay D costs of the application for leave to appeal against the 1^st and 2^nd 26/1/18 Orders out of time to be taxed if not agreed. I do not consider that summary assessment of costs would be appropriate since the mixing of costs of such application and the appeal against the 24/4/18 Order might require more detailed scrutiny by the taxing master.

IX.  POSTSCRIPT: TRIAL BUNDLE

104.But as explained above, the PI Master must exercise discretion afresh in the preparation of the trial bundle in light of new developments since the 1^st and 2^nd 26/1/18 Orders. But careful and tight case management should be exercised to avoid cumbersome satellite applications. In this respect, the PI Master should consider whether or not the following will be useful in exercising case management powers at the next Checklist Review Hearing scheduled to be heard on 20 September 2018 at 9:30am:

(a)   D be asked to lodge/serve a draft trial bundle;

(b)   irrespective of any discovery/disclosure that P had made or might have made earlier, she be asked to lodge and serve the only and final bundle of all further documents she wanted to rely at trial (but whether such documents shall be eventually included in the finalised trial bundle shall be subject to ruling by the PI Master);

(c)   no affirmations or written submissions be filed/lodged by either party save and except P shall file/serve a list of which documents in (a) above she disagrees for inclusion in the trial bundle and D shall file/serve list of which documents in (b) above which it disagrees for inclusion in the trial bundle (but this is only for identification of the disputed documents without elaboration of reasons for objection);

(d)   a hearing be fixed for the PI Master to go through (a)-(c) above to finalise the trial bundle;

(e)   once the trial bundle is finalised at the hearing in (d) above, D is to have carriage of preparing the physical finalised trial bundle before setting down for trial; and

(f)   no document shall be added to the finalised trial bundle by either party, and no further document other than those in the finalised trial bundle shall be adduced at trial.

It should be made clear to P that (b) above is the final, only and last round for her to refer to any document which she may wish to adduce at trial, and the court will not entertain subsequent piecemeal additions to the trial bundle.

X.  POSTSCRIPT: P’s AFFIRMATIONS

105.It is evident from the above chronology that P had an unhappy tendency to file affirmations at her own will to make observations. P should understand that the court will not read such affirmations and they are not evidence that will be adduced at trial. Save for (a) one supporting affirmation to be filed at the same time together with any summons that may be issued by P, and (b) any affirmation that the court by order expressly and specifically grants leave for P to file and serve, any other affirmation filed by P shall be left on the court file and will not be read/used. Neither D nor the court should be burdened with the cost/effort to deal with these unnecessary affirmations unless there is a proper application before the court, and no costs should be allowed for these unnecessary affirmations.

XI.  POSTSCRIPT: MISCELLANEOUS

106.D’s solicitors shall within 7 days from the date hereof submit draft order in English with Chinese translation for approval.

107.Should P require translation of this decision into punti language, she can contact my clerk to arrange an appointment for a court interpreter to verbally translate this judgment to her at the High Court Building at a mutually convenient time.

The plaintiff acting in person and present

Mr William Wan, of Fairbairn Catley Low & Kong, for the defendant