Benchmark Electronics (Thailand) Pcl and Others v. Cargo Container Line Ltd

CACV 593/2018

[2020] HKCA 168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 593 OF 2018

(ON APPEAL FROM HCAJ NO 65 OF 2016)

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Before: Hon Kwan VP, Barma JA and Au JA in Court

Dates of Written Submissions: 15 and 29 November 2019, 6 December 2019

Date of Judgment: 23 April 2020

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.On 4 October 2019, the Court of Appeal (Kwan VP and Barma JA) dismissed the defendant’s appeal^[1] from the decision of Anthony Chan J on 9 April 2018^[2], in which the judge refused to set aside the concurrent amended writ of summons and service on the defendant and to discharge the order of the master granting leave to the plaintiffs to issue the concurrent amended writ of summons and serve the same on the defendant out of the jurisdiction in the British Virgin Islands.

2.The short point considered by the courts is whether there was substitution of a new party or merely correction of a misnomer when the address of the defendant in the writ was amended, there being two different entities with the identical name of Cargo Container Line Ltd, one was incorporated in Malta and the other in the BVI (“CCL BVI”).  This action was brought by the plaintiffs for damages against the contract carrier under six bills of lading.  The bills of lading, which did not provide the address or any information as to the whereabouts of the contract carrier, were issued by CCL BVI.  The Court of Appeal upheld the judge’s ruling that the amendment of the address of the defendant was correction of a misnomer.

3.The defendant issued a notice of motion on 1 November 2019 seeking leave to appeal to the Court of Final Appeal contending that the intended appeal involves four questions of great general or public importance.  We do not propose to set them out.  Reliance is also placed on the “or otherwise” limb, which, as acknowledged by the defendant, is usually dealt with by the Appeal Committee as a matter of practice.

4.The order sought to be appealed from is an interlocutory order. Appeals from interlocutory orders to the Court of Final Appeal are rare and exceptional. Leave to bring such an appeal will generally be refused unless it can clearly be seen that (1) the proposed appeal genuinely raises a question of law of great general or public importance; (2) the result of the appeal would indeed turn on how that question is answered; and (3) such result is likely to make a significant contribution to the just disposal of the litigation (Pacific Electric Wire & Cable Co Ltd v Hu Hung Chiu & Anr, FAMV 73/2007, 13 March 2008, at §§7 to 8).

5.We are not persuaded that the questions formulated in the notice of motion or the proposed appeal would genuinely raise questions of great general or public importance.  The defendant’s submissions, which are largely repetitive of the arguments made at the hearing of the appeal, have been fully addressed in the Court of Appeal judgment.  The questions as formulated only serve to obfuscate the central issue, which is whether there was substitution of a new party or merely correction of a misnomer in the particular circumstances of this case.

6.How that issue is to be resolved must be fact-sensitive. Questions 1 and 3 cannot be answered without reference to the essential facts of the case.

7.The defendant does not dispute the correctness of Lord Woolf MR’s statement in Signet Group Plc v Hammerson UK Properties Ltd, unreported, 9 December 1997, that “there was always power without Order 20 rule 5(3) to correct a misnomer even if the limitation period had expired”^[3]. It is common ground that Order 20 rule 5(3) has no application to the Hague-Visby Rules time limit.  Mr Sussex SC’s contention is that once Order 20 rule 5(3) was enacted, the test previously devised by the courts^[4] to assist them to decide if the amendment was correction of a misnomer or substitution of a new party was “subsumed” by the statutory provision and no longer has any kind of application in light of the new regime in Order 20 rule 5.  Question 2 is premised on this contention.

8.We do not think this is reasonably arguable.  What Order 20 rule 5(3) does is to allow the correction of a name of a party even if it is alleged it would have the effect of substituting a new party, if the court is satisfied that the mistake sought to be corrected was genuine and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.  This provision was enacted to alleviate inter alia the injustice apparent from the distinction between correcting a misnomer and substituting a new party^[5].  And as we have explained^[6], with the benefit of Order 20 rule 5(3), in most situations a party seeking to amend under Order 20 rule 1 would have found it unnecessary to establish that the effect of the amendment is not to substitute a new party.

9.The plaintiffs here are unable to rely on Order 20 rule 5(3).  As the limitation period under the Hague-Visby Rules has expired, for the amendment to be made under Order 20 rule 1, they would need to establish that this was correcting a misnomer^[7]. There is no good reason why the previous test may not be applied to assist the court to resolve this question. The statements in the authorities cited by Mr Sussex^[8] to support his contention that the previous test is irrelevant and no longer has any application have been taken out of context.  Nor do we think the statement of Phillips J in The Anna L [1994] 2 Lloyd’s Rep 379 at 390 column 1^[9] (an amendment “merely [to] clarify by (for instance) correction of spelling, initials, title or corporate status the name that the plaintiff had intended to plead from the outset”) quoted by Mr Sussex sets out exhaustively the only amendments that would be permissible after expiry of the relevant time limit, where Order 20 rule 5(3) may not be relied upon.

10.As for question 4, it is linked to the other three questions and is not free-standing, as pointed out by Mr Smith SC.  In any event, it does not raise any question of great general or public importance as the relevant principles are clear.

11.For all the above reasons, we decline to give leave to the defendant to appeal to the Court of Final Appeal.

12.We order the defendant to pay the plaintiffs’ costs of this application. We consider the amount claimed in the plaintiffs’ statement of costs for summary assessment reasonable.  We allow the amount in full at $127,960.

Mr Clifford Smith SC, instructed by Clyde & Co, for the Plaintiffs (Respondents)

Mr Charles Sussex SC and Mr Nick Luxton, instructed by Hill Dickinson Hong Kong, for the Defendant (Appellant)