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

Read the full judgment text of FAMV 64/2020 on BabelCite. This Court of Final Appeal judgment was delivered on 15 September 2020 before Ribeiro PJ, Fok PJ, Cheung PJ.

Civil procedure – leave to appeal – misnomer – mistake as to identity – amendment of writ – substitution of party – time bar – Hague-Visby Rules Article III rule 6 – RHC Order 20 rules 1 and 5(3) – whether mistake of naming defendant A as B with same name but different address is misnomer or identity – whether amendment of address after limitation period correctable under O.20 r.1 or only r.5(3) – whether such correction involves substitution – whether writ stops time bar under Hague-Visby Rules – leave granted on four questions – appeal listed for hearing on 13 January 2021.

Legal issues: Leave to appeal – questions of law of requisite importance

Outcome: Leave to appeal granted on four questions of law; appeal to be heard on 13 January 2021.

Case No.FAMV 64/2020[2020] HKCFA 26
Court
Court of Final Appeal
Date15 Sep 2020
JudgeRibeiro PJ, Fok PJ, Cheung PJ
Case Document
100%Judiciary

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)

_______________________

BETWEEN    
  BENCHMARK ELECTRONICS (THAILAND) PCL 1st Plaintiff
(1st Respondent)
  VIASAT, INC. 2nd Plaintiff
(2nd Respondent)
  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)
  SHIMANO EUROPE BIKE HOLDING B.V. 4th Plaintiff
(4th Respondent)
  SHIMANO EUROPE FISHING HOLDING B.V. 5th Plaintiff
(5th Respondent)
  SHIMANO BENELUX B.V. 6th Plaintiff
(6th Respondent)
  SHIMANO EUROPE HOLDING B.V. 7th Plaintiff
(7th Respondent)
  SOMPO JAPAN INSURANCE COMPANY OF EUROPE LTD. 8th Plaintiff
(8th Respondent)
  HUSQVARNA AB 9th Plaintiff
(9th Respondent)
  and
  CARGO CONTAINER LINE LTD. Defendant
(Applicant)

_______________________

Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Fok PJ and Mr Justice Cheung PJ

Date of Hearing and Determination: 15 September 2020

________________________

DETERMINATION

________________________

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)