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FAMV No. 64 of 2020
[2020] HKCFA 26
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 64 OF 2020 (CIVIL)
(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACV NO. 593 OF 2018)
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| BETWEEN |
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BENCHMARK ELECTRONICS (THAILAND) PCL |
1st Plaintiff
(1st Respondent) |
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VIASAT, INC. |
2nd Plaintiff
(2nd Respondent) |
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NAVIGATORS UNDERWRITING AGENCY LIMITED AND/OR ACE UNDERWRITING AGENCIES LIMITED SUING ON THEIR OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF LLOYD’S SYNDICATE 1221 AND/OR LLOYD’S SYNDICATE 2488 AND THE OTHER INTERESTED UNDERWRITERS SUBSCRIBING TO COVERNOTE NO. B0753PC1206508000 AND/OR MARINE CARGO POLICY NO. MC-3019 |
3rd Plaintiff
(3rd Respondent) |
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SHIMANO EUROPE BIKE HOLDING B.V. |
4th Plaintiff
(4th Respondent) |
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SHIMANO EUROPE FISHING HOLDING B.V. |
5th Plaintiff
(5th Respondent) |
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SHIMANO BENELUX B.V. |
6th Plaintiff
(6th Respondent) |
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SHIMANO EUROPE HOLDING B.V. |
7th Plaintiff
(7th Respondent) |
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SOMPO JAPAN INSURANCE COMPANY OF EUROPE LTD. |
8th Plaintiff
(8th Respondent) |
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HUSQVARNA AB |
9th Plaintiff
(9th Respondent) |
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and |
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CARGO CONTAINER LINE LTD. |
Defendant
(Applicant) |
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Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Fok PJ and Mr Justice Cheung PJ
Date of Hearing and Determination: 15 September 2020
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DETERMINATION
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Mr Justice Ribeiro PJ:
1.We are satisfied that the following questions of law are of the requisite importance and ought to be submitted to the Court for decision, namely:
(a) Where a plaintiff knows the exact name of the entity he wishes to sue (A), but mistakenly names in his writ another entity with the exact same name but a different address (B), does the mistake constitute a misnomer or a mistake as to identity? (Question 1)
(b) Is the above mistake capable of correction by amending the address under RHC Order 20 rule 1, if the amendment is made before service but after the relevant period of limitation current at the date of issue of the writ has expired, or is it only capable of correction under RHC Order 20 rule 5(3), if applicable? (Question 2)
(c) Does a correction to amend the address in the above circumstances involve the substitution of a party? (Question 3)
(d) If, in the above circumstances, a plaintiff is suing on a cause of action which is subject to the time bar contained in Article III rule 6 of the Hague-Visby Rules, does his writ, when issued, identifying as defendant a named entity which could refer to either A or B, but with B’s address, constitute the bringing of suit against A for the purposes of Article III rule 6, so as to stop the time bar from operating? (Question 4)
2.The appeal will be listed for hearing on 13 January 2021.
(R A V Ribeiro)
Permanent Judge |
(Joseph Fok)
Permanent Judge |
(Andrew Cheung)
Permanent Judge |
Mr Charles Sussex SC and Mr Nick Luxton, instructed by Hill Dickinson Hong Kong, for the Defendant (Applicant)
Mr Clifford Smith SC, instructed by Clyde & Co, for the Plaintiffs (Respondents)
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