Read the full judgment text of CACV 304/1999 on BabelCite. This Court of Appeal judgment was delivered on 17 March 2000 before Godfrey VP, Rogers JA, Ribeiro JA.
Civil procedure – want of prosecution – striking out – Birkett v James principles – inordinate and inexcusable delay – prejudice – partial striking out against some defendants – 'late start' case – Limitation Ordinance (Cap 347) s.27 – plaintiff worked in compressed air tunnels in Hong Kong from 1982 to 1984, suffered multiple episodes of the bends and developed dysbaric osteonecrosis; writ issued at end of limitation period in August 1989 – whether plaintiff was guilty of inordinate and inexcusable delay – held, yes; there were two periods of total inactivity totalling over 40 months, namely September 1991 to April 1993 and August 1994 to July 1996 – whether delay caused by inability to obtain legal aid or impecuniosity is excusable – held, no; delays due merely to impecuniosity or mishandling of legal aid application are not automatically excusable, following Ngan Ching Pai v Doctor Chan Wai Lam William – whether a fair trial against the doctors (4th and 5th defendants) remained possible despite delay – held, yes; comprehensive clinical records, medical certificates, x-rays, statutory Compressed Air Register (Form 6) and expert evidence allow the doctors' case to be fairly determined without depending on Dr Wood's faded recollection, applying Hunter v Skingley – whether the judge erred in failing to consider the 'continuing proceedings point' – held, yes; corporate defendants had issued a contribution notice and would almost certainly rejoin the doctors as third parties facing materially the same allegations, so that striking out the action against the doctors would be futile and would merely postpone the very prejudice it was meant to avoid, following Hatter v Port of London Authority, Hollis v London Borough of Islington and City of Westminster v Clifford Culpin and Partner – 'inconsistency point' – whether the decision was inherently inconsistent in allowing trial against the corporate defendants but not the doctors – held, yes; the cases fundamentally overlap, with the case against the corporate defendants raising all the issues in the case against the doctors plus additional issues regarding site conditions, making the decisions irreconcilable – whether the doctors' conduct disentitled them from seeking striking out – held, no estoppel or absolute bar following Roebuck v Mungovin, but the doctors' eight-month delay between the plaintiff's check list notice and their striking-out application was a relevant factor weighing in favour of allowing the appeal – Biss v Lambeth type prejudice from having case hang over doctors' heads, while recognised, was outweighed by the continuing proceedings point – appeal allowed; order dismissing plaintiff's claim against 4th and 5th defendants set aside; costs of appeal and below to be taxed and paid by 4th and 5th defendants to plaintiff, with separate taxation for Legal Aid Regulations purposes – claim against 1st, 2nd and 3rd defendants (MTRC, Kumagai, Nishimatsu) remains to proceed to trial.
Legal issues: Whether plaintiff was guilty of inordinate and inexcusable delay · Whether impecuniosity or difficulty obtaining legal aid excuses delay · Whether a fair trial against the doctors remains possible despite delay · Whether doctors' continuing liability in third party proceedings requires action to proceed against them · Inconsistency between allowing trial against corporate defendants but not doctors · Effect of doctors' conduct on their right to seek striking out
Outcome: Appeal allowed; the order of Suffiad J dismissing the plaintiff's claim for want of prosecution against the 4th and 5th defendants was set aside.
Cited by 2 cases · Cites 1 case