Cheung, Joseph Wai Leuk v. Chan Kwok Pin and Others

HCPI 264/2012

[2021] HKCFI 1448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 264 OF 2012

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BETWEEN

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Before:  Hon Marlene Ng J in Chambers

Date of Hearing:  27 April 2021

Date of Handing Down Decision:  24 May 2021

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D E C I S I O N

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I. INTRODUCTION

1.On 28 September 2020, the 1^st defendant (Chan Kwok Ping, “D1”) and the 2^nd defendant (Yim Tse Kin (“Yim”) sued on his own behalf and on behalf of all other members of Wing Chun Ip Chun Academy (“WCIC Academy”), “D2”) filed a summons inter alia for leave to amend their Defence filed on 20 June 2013 (“Defence”) in the manner marked in red as per the draft annexed thereto (subsequently replaced by a revised draft annexed to the letter dated 28 October 2020 by D1-2’s solicitors Rowdget W Young & Co (“DSols”) to the court (“Draft”) and for consequential directions as to pleadings and witness statements. The plaintiff (“P”) opposed the Summons, and the argument hearing came before me on 27 April 2021 (“Hearing”).

2.As evident from the action number of the present action, this piece of litigation was of some history. For proper understanding of the application and opposition under the Summons, it is necessary to set out in some detail the claim/defence and the procedural history.

II.  P’s CLAIM AND D1-2’s DEFENCE

3.P claimed (but D1-2 denied[1]) he was a student in the beginners’ Wing Chun classes held at the dance studio in the basement of Shatin Town Hall Building (“STHB Venue”) at 8:00pm to10:00pm every Sunday night in/about March and April 2009 (“Wing Chun Classes”).

4.P claimed (and D1-2 admitted [2]) that (a) D2 was the organiser of the Wing Chun Classes, and (b) WCIC Academy was a registered society in Hong Kong situated at Ground Floor, No 23 Tsung Mun Street, Aberdeen, Hong Kong, but “is now called Wing Chun Ip Chun Academy Limited [“WCICA Limited”] and has become a limited company incorporated” in Hong Kong situated in Room 2113, Wong Shek House, Ping Shek Estate, Kowloon, Hong Kong since 22 January 2013.

5.P further claimed D1 as WCIC Academy’s servant, agent and/or employee was a teaching instructor at the Wing Chun Classes, and a founder member and director of WCICA Limited. D1 and D2 denied such allegations save and except D1 admitted (a) he was/is a teaching instructor at the Wing Chun Classes, and (b) one of the founder members and directors of WCICA Limited.[3] In short, D1-2 denied D1 was a servant, agent and/or employee of WCIC Academy.

6.According to the Statement of Claim filed on 23 May 2013 (“SoC”) through P’s then solicitors Wong & Tang (“W&T”) on 23 May 2013, it was P’s case that:

(a)	At/about 8:15pm on 22 March 2009, P attended a Wing Chun Class for the 1st time (“1st Class”). During the 1st Class, P paid $300 in cash being class fees for 4 Wing Chun Classes (“Class Fees”) without being given any receipt, and D2 received the Class Fees.
(b)	At/about 8:00pm on 29 March 2009, P attended a Wing Chun Class for the 2nd time (“2nd Class”) and subsequently left such class at/ about 10:00pm.
(c)	At/about 8:15pm on 5 April 2009, P attended a Wing Chun Class for the 3rd time (“3rd Class”). D1 was the teaching instructor of the 3rd Class in the course of his employment with D2 and/or as agent/ servant of D2.
(d)	P was 15 minutes late for the 3rd Class which was scheduled to start at 8:00pm, so he apologised to D1 for his lateness.
(e)	D1 asked P to call him “Si Hing” (師兄), but P refused and insisted on calling him “Mr Chan”.
(f)	At/about 9:00pm during the 3rd Class, D1 was teaching other students about the punching movement of Wing Chun when P challenged his teaching method as to the proper movement. D1 became angry over P’s lateness, P’s refusal to call him “Si Hing” and P’s challenge against his teaching method.
(g)	Later during the 3rd Class, D1 asked P to punch him, but when P refused D1 wrongfully assaulted P by using his right hand to strike P on the back of the neck, which amounted to an assault/battery (“Incident”). As a result of the Incident, P suffered pain, injury, loss and damage.
(h)	At/about 5:30am on 6 April 2009, P used his mobile telephone to call and report the Incident to the Shatin Police Station. At/about 6:30am on 6 April 2009, P attended Prince of Wales Hospital for medical treatment.
(i)	At/about 5:11pm on 18 June 2009, P attended Siu Lek Yuen Police Station Reporting Centre to report the Incident to the police.

7.P claimed his pain, injury, loss and damages as a result of the Incident were caused by the negligence of D1, and D2 was vicariously liable for the negligence of D1 being its servant, agent and/or employee:

(a)	failing to keep P away from any danger during the 3rd Class;
(b)	failing to have any or any sufficient regard for possible injury suffered by P;
(c)	failing to keep any proper lookout;
(d)	failing to forewarn P before the strike;
(e)	failing to stop and/or slow down and/or use less force so as to avoid a forceful strike;
(f)	failing to behave up to the standard of a reasonably competent Wing Chun teaching instructor;
(g)	failing to teach and/or instruct P with due care and attention.

8.P further claimed his pain, injury, loss and damages as a result of the Incident were also caused by D2’s negligence:

(a)	failing to take any or any adequate steps to ensure that a competent teaching instructor was engaged to teach P;
(b)	causing/allowing D1 who was incompetent to teach the Wing Chun Classes when it knew or ought to have known it was dangerous to do so;
(c)	failing to exercise any or any adequate supervision, management and control over D1’s work to ensure he would teach the Wing Chun Classes properly and safely;
(d)	failing to engage competent teaching instructor to teach P at the Wing Chun Classes.

9.In the SoC, P pleaded that insofar as might be necessary P would also rely on the doctrine of res ipsa loquitur.

10.On 20 June 2013, D1, D2 and the 3^rd defendant (“registered bearers of certificate and/or license and/or society of [WCIC Academy]”, “D3”) through DSols filed their Defence. Apart from pleading their stance as set out in paragraphs 3-5 above, D1-3 averred as follows:

(a)	P’s allegations in paragraph 6(a)-(c) above were denied, and it was averred there was no attendance record as to P’s attendance of the 1st, 2nd and 3rd Classes as alleged.
(b)	P’s allegations in paragraph 6(d) above were denied, and it was averred that at all material times the Wing Chun Classes were scheduled to be held from 8:00pm to 10:00pm, but students were allowed/free to come in after 8:00pm and leave before 10:00pm.
(c)	P’s allegations in paragraph 6(e)-(f) above were denied, and it was averred that D1 never asked any student of a Wing Chun Class to call him “Si Hing” as alleged, but if P were actually hit and/or assaulted by an instructor of the Wing Chun Class on 5 April 2009 as alleged (which was denied), P should have complained to Ip Chun “Sifu” (師父) or the master present at the time.
(d)	P’s allegations in paragraph 6(g) above were denied, and it was averred that all students of a Wing Chun Class would be taught the foundation of Wing Chun called Xiao Nian Tou (小念頭) in the 1st 3 months, and would not be trained in and/or allowed to be involved in any form of kung fu fighting in the alleged 3rd Class;
(e)	P’s allegations in paragraph 6(h)-(i) above were not admitted, and it was averred that (i) if P were actually hit and/or assaulted on 5 April 2009 as alleged (which was denied), P should have reported to the police immediately and/or on the same day, and (ii) P’s report to the police on 18 June 2009 (ie 74 days after the alleged Incident) was solely to cause nuisance to D2, but the police refused to follow up on P’s case as the police considered there was no case of assault and/or battery.

11.In the Defence, D1-3 further denied (a) P’s pain, injury, loss and damages were the result of D1’s strike and/or were caused by D1/D2 as P alleged, and/or (b) the alleged Incident was caused by the negligence of (i) D1/D2 or (ii) D2’s servant/agent as alleged or at all. Further or alternatively, D1-3 also claimed that if P were a student of the relevant Wing Chun Class and the Incident occurred as alleged (which was denied), P’s pain, injury, loss and damages as might be proved at trial were wholly caused or contributed to by P’s own negligence in failing to take reasonable or sufficient care/precaution for his own safety to prevent/avoid the alleged Incident.[4]

III.  PROCEDURAL HISTORY

12.On 3 April 2012, P (then self-represented) filed the Writ of Summons (“WoS”) in the present action against D1-3 for personal injuries, losses and damages as a result of the Incident. D2 was then named as the WCIC Academy. On 28 May 2012, DSols wrote (a) to inform P they acted for D1-3, (b) to suggest that P in failing to serve the WoS was not serious in his claim, (c) to suggest that P was making use of the WoS to defame D1-3 and to “[fabricate] a serious willful allegation against [D1-3] whereby [D1-3’s] name and/or goodwill have been seriously damaged”, and (d) to ask P to serve the WoS on DSols who had instructions to accept service.

13.On 26 September and 12 December 2012, the PI Master adjourned the Checklist Review (“CLR”) hearings respectively scheduled to be heard on 27 September and 17 December 2012 eventually to 31 January 2013. In January 2013, P applied for legal aid.[5] On 29 January 2013, P wrote to WCIC Academy for production of his personal data held by such academy, including the application form that he as student filled out in March 2009. On 18 February 2013, DSols replied to say WCIC Academy would check whether there were any records of P in March 2009.

14.In the meantime on 31 January 2013, the PI Master adjourned the CLR hearing to 2 April 2013. On 18 February 2013, DSols filed Notice to Act for D1-3. On 8 March 2013, DSols wrote to the Director of Legal Aid (“DLA”) to give inter alia the following information said to assist the DLA in assessing P’s application for legal aid:

(a)	on 5 April 2009, P reported to Shatin Police Station alleging he was “beaten by a Mr Lee at the night on about 4th April 2009 during a Wing Chun class conducted at [the STHB Venue]”;
(b)	the police refused to follow up on such report because “the police officer could not find any damage on [P’s] body. The police asked [P] why he did not report the incident to the Sifu (師傅) at the scene, and [P] explained he did not feel pain at that moment”;
(c)	“[afterwards, P] complained the police officer to his senior. The senior followed up the case with Sifu Ip Chun (葉準師傅) thereafter the senior tried to contact [P] through the contact details given by [P] but to no avail”;
(d)	“the record and/or statement kept by the Shatin Police Station should have more details about [P’s] attempted report to the police”.

15.In March 2013, the DLA refused P legal aid.[6] On 3 April 2013, DSols filed 3 acknowledgments of service to give notice of intention to defend on behalf of D1-3. P was absent at the CLR hearing on 2 April 2013, so Master Leong adjourned the CLR to 20 August 2013.

16.On 23 April 2013, W&T filed Notice to Act on behalf of P. On 2 May 2013, Master Leong ordered inter alia that unless P filed/ served his Statement of Claim and Statement of Damages by 23 May 2013, P’s claim would be struck out. On 23 May 2013, P by W&T filed his SoC, his Statement of Damages (“SoD”) and his Medical Reports. According to the SoD, P’s pleaded claim was in excess of $5,800,000. On 20 June 2013, D1-3 filed their Defence. On 15 August 2013, D1-3 filed 3 statements of truth by D1 himself and by Yim on behalf of D2 and D3 to verify that the facts stated in the Defence were true.

17.On 19 August 2013, Master Leong inter alia granted directions for the parties to serve Lists of Documents and to exchange witness statements within 28 days and 56 days respectively, and to adjourn the CLR hearing to 26 November 2013. On 16 September 2013, D1-3 filed their List of Documents.[7]

18.In October 2013, P again applied for legal aid,[8] so the proceedings herein were automatically stayed. On 21 November 2013, Master M Wong adjourned the scheduled CLR hearing to 19 December 2013. On 15 November 2013, DSols again wrote to the DLA referring to their letter dated 8 March 2013 (see paragraph 14 above). On 13 December 2013, DSols wrote to W&T that WCIC Academy as a society registered under the Societies Ordinance Cap 151 (“SO”) was not a legal person that could sue or be sued, and that P had no claim for reliefs against D3, so P’s claims against D2-3 were bound to fail and/or liable to be struck out, hence DSols urged P to discontinue his claims against D2-3 with costs to D2-3.

19.By a Legal Aid Certificate filed on 16 December 2013, P was granted legal aid by the DLA for his claim herein. By a Notice of Issue of Legal Aid Certificate filed on the same day, Burke & Co (“PSols”) became assigned solicitors for P. On 17 December 2013, PSols filed Notice to Act for P. On the same day, DSols informed PSols their refusal to postpone the CLR hearing scheduled on 19 December 2013, and they sent to PSols copies of filed court documents in the present action. On 18 December 2013, PSols replied inter alia to request for copy discovered documents, to address on case management issues, and to propose case management directions. In such letter, PSols also replied to DSols’ letter dated 13 December 2013 (see above paragraph), saying they would make appropriate enquiries vis-à-vis D2-3, and querying “who gave [DSols] instructions to act for them” “[if] there is no such organization as [D2-3] ……”

20.At the CLR hearing on 19 December 2013, Master Roy Yu inter alia directed P to file/serve his List of Documents within 28 days, and adjourned the CLR hearing to 17 February 2014. On 31 December 2013, DSols replied to PSols’ letter dated 18 December 2013 (see above paragraph), including pressing for a substantive reply vis-à-vis D2-3, and stating their instructions were “[D1] was and is not an employee of [D2] nor [D3]. Furthermore, neither [D1, [D2] nor [D3] booked the [STHB Venue] in March and April 2009”.

21.On 3 January 2014, PSols replied inter alia (a) saying they were then conducting search with the Societies Registrar but understood WCIC Academy was a registered society, (b) asking whether it was D1-3’s stance that there was no registration for WCIC Academy in which case who gave instructions to DSols to act for D2, (c) saying they were then checking with W&T about P’s claim against D3, and (d) noting DSols’ instructions (see above paragraph) and saying they had written to Leisure and Cultural Services Department (“LCSD”) on 24 December 2013 “to clarify the booking. If [D1-3] know who did book the hall on 5^th April 2009 – please let us know”.

22.Actually, in/about October/November 2013, WCIC Academy had already obtained from LCSD a copy of the booking form for the Wing Chun Class at the STHB Venue on 5 April 2009 (“Booking Form”) which showed on its face that the booking was done by Ip Chun in his personal name (see paragraph 24 below). This would explain why DSols stated in their letter dated 31 December 2013 that their instructions were that “…… neither [D1, [D2] nor [D3] booked the [STHB Venue] in March and April 2009” (see paragraph 20 above). But D1-3 through DSols did not reply to PSols’ letter dated 3 January 2014 on this (see (d) in the above paragraph) and/or did not make discovery of the Booking Form they obtained by filing/serving supplemental list of documents.

23.On 15 January 2014, DSols replied inter alia that (a) D2 was a registered society but not a legal person, and (b) D2-3 would apply to strike out P’s claim against them with costs if there were no substantive reply within 14 days. On 16 January 2014, PSols replied inter alia (i) to disagree D2 was not a legal person, and (ii) to urge DSols to allow them time to clarify with W&T about D3 as it appeared there was no urgency. On the same day, P filed his List of Documents.

24.In the absence of substantive reply from D1-3, it was PSols who on 13 February 2014 wrote to provide DSols with copies of their letter to LCSD on 24 December 2013 and LCSD’s reply on 13 February 2014 with copy Booking Form that showed the booking of the STHB Venue for the Wing Chun Class on 5 April 2009 “is made by Mr Ip Chun - apparently in his own name and not for any organization”, so PSols queried whether DSols could “…… check whether or not this is correct – or should we approach Mr Ip Chun direct”.

25.At the CLR hearing on 17 February 2014, Master Roy Yu inter alia adjourned P’s application for specific discovery of documents listed in the schedule to PSols’ letter dated 12 February 2014 to the court[9] (“Specific Discovery Application”) for argument, and granted consequential directions for filing affirmation evidence. On 3 and 28 March 2014, P filed the 1^st and 2^nd affidavits of their solicitor Mr Burke to support the Specific Discovery Application. Mr Burke’s 1^st affidavit stated inter alia that (a) enquiries by P (who issued the WoS himself) indicated D2 arranged the Wing Chun Class (paragraph 7), and (b) D2 admitted “they operated the Wing Chun class – but the booking form [DSols] now have …… - shows it was booked in the personal name of Mr Ip Chun. It may be that he did it on behalf of [D2]” (paragraph 14). Mr Burke’s 2^nd affidavit again noted inter alia that (i) D2 admitted to have organised the Wing Chun Class on 5 April 2009 (paragraph 8) and (ii) the “written agreement with the Government – is not in the name of [WCIC Academy], but in the name of Ip Chun …… Ip Chun signed the agreement and paid the deposit” (paragraph 10), and queried whether there were “…… other agreements to show [D2] took over the booking …… If not – [PSols] will probably have to amend to add Ip Chun as a Defendant” (paragraph 10).

26.On 25 March 2014, D1-3 filed the 2^nd affirmation of their solicitor Ho Kim Hung (“Ho”) to oppose the Specific Discovery Application. Ho inter alia reiterated that DSols’ letter dated 31 December 2013 “…… confirmed that [D1] was not an employee of [D2] or [D3] …… [and] that, at the material times, the [STHB Venue] was not booked by [D1, D2 and D3] ……” (paragraphs 6 and 9(d) – see paragraph 20 above). The hearing for argument in respect of the Specific Discovery Application was scheduled for 29 April 2014.

27.On 25 March 2014, D2-3 filed a summons to strike out P’s claim against them on the grounds that D2 was not a legal entity, and that P did not seek any relief against D3 in the SoC (“Striking Out Summons”). On 25 March 2014, D2-3 filed Ho’s affirmation in support of the Striking Out Summons. On 3 April 2014, Master Roy Yu inter alia adjourned the Striking Out Summons for argument to be heard together with the Specific Discovery Application on 29 April 2014. On 16 April 2014, the DLA filed Notice of Assignment of Counsel (“Counsel Notice”) assigning Mr Wright to act for P.

28.On 17 April 2014, P filed a summons inter alia for leave to amend the WoS and SoC in the manner marked in red as per the drafts annexed to such summons and to join Ip Chun as the 4^th defendant with other consequential reliefs (“Amendment/Joinder Summons”), which summons was returnable at the hearing on 29 April 2014:

(a)	In the draft Amended WoS, Ip Chun was proposed to be added as the 4th defendant. In the draft Amended Indorsement of Claim, P claimed for personal injuries, losses and damages as a result of the Incident “arising out of contract and/or negligence and and/or assault and battery and/or trespass to the person and/or breach of statutory duty” on the part of D1, D2, D3 and/or Ip Chun as the intended 4th defendant and their servants or agents.
(b)	In the draft Amended SoC, P claimed that:
	(i)	D2, D3 and/or Ip Chun as the intended 4th defendant were the organiser of the Wing Chun Class;
	(ii)	D1 was the teaching instructor of the Wing Chun Class being the servant, agent and/or employee of D2, D3 and/or Ip Chun as the intended 4th defendant;
	(iii)	D2, D3 and/or Ip Chun as the intended 4th defendant was the recipient of the Class Fees;
	(iv)	D1 was the teaching instructor of the 3rd Class (1) in the course of his employment with D2, D3 and/or Ip Chun as the intended 4th defendant and/or (2) as agent/servant of D2, D3 and/or Ip Chun as the intended 4th defendant;
	(v)	P’s pain, injury, loss and damages were caused by the negligence and breach of duty of (1) D1 for which D2, D3 and/or Ip Chun as the 4th intended defendant were vicariously liable, and/or (2) D2, D3 and/or Ip Chun as the intended 4th defendant;
	(vi)	an additional particular of negligence vis-à-vis D1 of “striking [P]” was proposed;
	(vii)	the existing particulars of negligence by D2 was proposed to be particulars of negligence by D2, D3 and/or Ip Chun as the intended 4th defendant.

29.On the same day, P filed Mr Burke’s 3^rd affidavit to support the Amendment/Joinder Summons, which (a) sought to rely on Mr Burke’s 1^st and 2^nd affidavits, and (b) stated the intended claim against Ip Chun was on the basis that “he is the one who booked the function rooms for the Wing Chun class – as organiser. This is shown in the documents from [LCSD] ……”

30.Ip Chun attended the hearing on 29 April 2014. In respect of the Amendment/Joinder Summons, Master Leong inter alia granted leave for Ip Chun to file/serve affidavit in opposition within 28 days and for P to file/serve affidavit in reply within 14 days thereafter, and adjourned paragraph 2 of the Amendment/Joinder Summons (ie P’s application to join Ip Chun as the 4^th defendant in the present action, “Joinder Application”) for argument.[10] Master Leong then proceeded to hear arguments on the Specific Discovery Application, the Striking Out Summons, and the remaining parts of the Amendment/Joinder Summons.

31.On 5 June 2014, Master Roy Yu inter alia granted time extension (a) until 3 July 2014 for Ip Chun to file/serve affirmation in opposition in respect of the Joinder Application, and (b) until 17 July 2014 for P to file/serve affidavit in reply.

32.On 6 June 2014, Master Leong handed down his reasoned Decision (“6/6/14 Decision”), and granted inter alia the following order (“6/6/14 Order”):

(a)	on the Specific Discovery Application, D1 was ordered to make an affidavit stating whether certain identified documents[11] were, or had at any time been, in his possession, custody or power, and if not then in his possession, custody or power, when he parted with them and what had become of them, and there be no order as to costs for such application;
(b)	on the Striking Out Summons, it was ordered that P’s claim against D2-3 be struck out,[12] and costs of and occasioned by such summons and costs of the claim against D2-3 be to D2-3;
(c)	on the remaining parts of the Amendment/Joinder Summons, paragraphs 1, 3, 4 and 5 of such summons were dismissed, and costs of and occasioned by paragraphs 1, 3, 4 and 5 of such summons be to D1-3;
(d)	there be counsel’s certificate for the hearing on 29 April 2014;
(e)	if costs were not agreed, D1-3 were to lodge/serve statement of costs within 28 days, and P were to lodge/serve list of objections within 28 days for summary assessment.

33.It was clear from the 6/6/14 Decision that Master Leong (a) disallowed specific discovery of documents identified in (a)-(e), (iii)-(iv) and (viii)-(x) of footnote 9 above (see paragraphs 23-43, 47-58 and 66-76), (b) noted P already had the documents in (i)-(ii) of footnote 9 above (paragraphs 44 and 46), and (c) allowed specific discovery of the documents in (v)-(vii) of footnote 9 above (paragraphs 59-65 – see paragraph 32(a) above). Further, the learned master held that the proposed amendments to P’s pleadings were not appropriate as P’s claim against D2-3 were struck out (paragraphs 83-85).

34.On 9 June 2014, DSols filed Notice to Act for Ip Chun. The hearing for argument in respect of the Joinder Application was scheduled on 3 September 2014. On 11 June 2014, Master Roy Yu inter alia adjourned the CLR hearing scheduled on 24 June 2014 to 17 September 2014.

35.On 19 June 2014, P filed Notice of Appeal (“P’s Appeal”) against inter alia the following aspects of the 6/6/14 Order, which appeal was scheduled to be heard on 21 November 2014 (and which Bharwaney J re-fixed to be heard on 27 November 2014):

(a)	the orders in paragraph 32(b)-(c) above;
(b)	the dismissal of the following specific discovery requests:
	(i)	vis-à-vis D1 for copy identity card and documents that recorded the work he had done in March and April 2009 (see (a) and (d) in footnote 9 above);
	(ii)	vis-à-vis D2 for D1’s work records under section 49A of the Employment Ordinance Cap 57, “attendance list” and “teaching list” for the Wing Chun Class on 5 April 2019 (ie the 3rd Class), and the teaching manual (see (e) and (iv)-(vii) in footnote 9 above).

36.On 4 July 2014, D1 filed his affirmation pursuant to the 6/6/14 Order to confirm the “attendance list” and “teaching list” referred to in paragraph 32(a) above were not and had not been in his possession, custody or power, and to the best of his knowledge such documents did not exist.

37.On 4 and 9 July 2014, D1-3 lodged their statement of costs and revised statement of costs pursuant to the 6/6/14 Order. On 30 July 2014, P filed his list of objections to D1-3’s revised statement of costs. On 5 August 2014, Master Leong summarily assessed D1-3’s costs under their revised statement of costs in the total sums of $85,000 (pre-legal aid) and $185,000 (post-legal aid). On 19 August 2014, P filed his List of Objections to D1-3’s revised statement of costs “and summary assessment dated 5 August 2014”, which asked for deferral of the summary assessment of costs and for taxation of such costs with an oral hearing. I assume this was filed for the purpose of P’s Appeal.

38.On 7 July 2014, Master Leong inter alia granted directions that (i) unless Ip Chun as the intended 4^th defendant filed/served his affirmation to oppose the Joinder Application within 14 days he would be debarred from adducing any affidavit in opposition, and (ii) P was to file/ serve affidavit in reply within 14 days thereafter. On 11 July 2014, Ip Chun filed his affirmation and D1’s 2^nd affirmation to oppose the Joinder Application:

(a)

Ip Chun’s affirmation explained inter alia that he started teaching Wing Chun to his own students in/about late 1960s, and that he had been teaching Wing Chun formally/informally for over 40 years. Over the years many of his numerous students went on to teach Wing Chun to their own students in Hong Kong and overseas, and his students and their students would sometimes organise gatherings among themselves. As the number of students grew, they formally registered themselves under the SO as WCIC Academy (詠春葉準同學會), which Chinese name showed it was formed by a group of alumni and which in 2010 changed its name to WCIC Academy (詠春葉準學會) (paragraph 7). Ip Chun’s affirmation went on to say that at all material times Ip Chun was/is not involved in the management of WCIC Academy, but out of respect to their “Sifu” (師傅) members of such academy would sometimes consult Ip Chun on matters relating to the organisation. However, Ip Chun was/is not a decision-maker at such academy, and he merely gave his opinion/advice when asked. Ip Chun’s affirmation also said members of WCIC Academy would invite Ip Chun to join their gatherings, which often included practising Wing Chun, and he would practise with them, but he was not an employee, servant or agent of WCIC Academy (paragraph 6). Ip Chun’s affirmation complained that more than 5 years had lapsed since the alleged Incident on 5 April 2009 (paragraph 8), so there was inordinate/inexcusable delay by D1-2 in taking out the Amendment/Joinder Summons (paragraph 9). It was said that P’s claim against Ip Chun in negligence was barred by section 27 of the Limitation Ordinance Cap 347 (“LO”) (paragraph 11), and P’s claim against Ip Chun based on vicarious liability was bound to fail because at all material times (including 5 April 2009) D1 was not his employee, servant or agent (paragraph 12(1)), and D1 never acted in a course of employment with Ip Chun (paragraph 12(2)).

(b)

D1’s 2nd affirmation claimed that at all times (including 5 April 2009) D1 was not an employee of Ip Chun, but a full-time engineer employed by Ove Arup & Partners Hong Kong Limited.

39.In August 2014, P’s Legal Aid Certificate was extended to cover P’s Appeal against the 6/6/14 Order in relation to the Striking Out and Amendment/Joinder Summonses (see paragraph 35(a) above).[13] Legal aid did not cover P’s Appeal against the 6/6/14 Order in relation to the Specific Discovery Application (see paragraph 35(b)(i)-(ii) above).

40.On 3 September 2014, Master Leong heard arguments on the Joinder Application. On 22 September 2014, Master Leong handed down his reasoned Decision (“22/9/14 Decision”), and granted leave for Ip Chun to be joined as the 4^th defendant in the present action with costs to P to be summarily assessed (“22/9/14 Order”). By the 22/9/14 Decision, Master Leong accepted that P was not reasonably expected to acquire knowledge of Ip Chun’s alleged involvement in organising the Wing Chun Classes until 13 February 2014, so time limitation should not start to run until this date. The learned master also rejected the contention that P’s claim against Ip Chun was bound to fail.

41.On 30 September 2014, Ip Chun as the 4^th defendant filed Notice of Appeal against the 22/9/14 Order, and sought dismissal of the Joinder Application with costs of and occasioned by such application and the appeal (“Ip Chun’s Appeal”). In October 2014, P’s Legal Aid Certificate was extended to cover opposition to Ip Chun’s Appeal.[14] On 24 October 2014, Master Leong extended time for P to submit/serve cost statement pursuant to the 22/9/14 Order until 14 days after decision was made on Ip Chun’s Appeal.

42.On 17 November 2014, P filed a summons inter alia for leave to amend the WoS to appoint representative(s) to act for D2 (then named as WCIC Academy) as the court might direct or to appoint Yeung Tat Wing Fire, Wong Long Ming or Kwok Hal Man for such purpose (“Representation Summons”). On the same day, P filed Mr Burke’s 4^th affidavit to support the Representation Summons, P’s Appeal on matters in paragraph 35(b) above, and Ip Chun’s Appeal. Mr Burke by such affidavit noted P sued D2 / Ip Chun qua organisers, but as D1 claimed he was not employed by D2 and/or Ip Chun, “it is not clear on what basis [D1] would [be] teaching a beginners’ class in Wing Chun” and there were no documents to show D1 was trained/certified as a Wing Chun tutor/teacher (paragraph 9). Mr Burke also pointed out that Ip Chun failed to state his involvement in the Wing Chun Classes, and to explain why he booked the STHB Venue and made payment for the booking (paragraph 23).

43.On 25 November 2014, P filed his 3^rd affidavit to support the Representation Summons and Ip Chun’s Appeal. By such affidavit, P intimated his intention to withdraw P’s Appeal in respect of the matters in paragraph 35(b) above. P went on to say as follows:

(a)	P decided to do a Wing Chun beginners’ class after seeing notice of a course ran at the STHB Venue, which advertisement was in the name of WCIC Academy with a picture of Ip Chun stating he personally taught Wing Chun (paragraph 6(2) and (4));
(b)	Ip Chun attended the Wing Chun Classes, but did not do teaching for the students, and P paid the Class Fees in the sum of $300 to Ip Chun (paragraph 6(5));
(c)	P was late for the 3rd Class. During the 3rd Class, Ip Chun gave a demonstration with an overseas student that was recorded in a YouTube video (“YouTube Video”) (paragraph 6(7)), and P was seen in such recording wearing a blue top (paragraph 6(8));
(d)	later during the 3rd Class, D1 as the class instructor struck the back of P’s neck in a demonstration (paragraph 6(9));
(e)	the Wing Chun Classes were advertised in the name of WCIC Academy. P had not thought of suing Ip Chun, and he was unaware of Ip Chun’s involvement in the Wing Chun Classes until PSols obtained LCSD’s Booking Form on 13 February 2014 (paragraph 5(4));
(f)	PSols found out from LCSD’s Booking Form that Ip Chun booked and paid for the STHB Venue on 5 April 2009, and advised P that D1-2 had no explanation for this (since DSols never gave any substantive reply on their indication to check with Ip Chun) (paragraph 8).

44.P’s Appeal, Ip Chun’s Appeal and the Representation Summons were returnable before Bharwaney J on 27 November 2014 (“27/11/14 Hearing”):

(a)

For P’s Appeal and the Representation Summons, it was said that at the hearing before Master Leong on 29 April 2014 P presented a draft amended WoS proposing to appoint 3 individuals (who were not current office-bearers of WCIC Academy) to act for D2.[15] DSols had no instructions to act for them and could not accede to the proposed appointments/amendments. It was explored at the 27/11/14 Hearing whether suitable office-bearer(s) of WCIC Academy (which society did exist and could be sued upon appointment of proper representative) could be appointed to act on behalf of D2.

(b)

For Ip Chun’s Appeal, PSols accepted the Joinder Application was made after expiry of the primary limitation period against Ip Chun, so it was explored at the 27/11/14 Hearing whether “the proper course is to issue a new writ, serve it on Mr Ip Chun and let him see whether he raises limitation defences and then, if he doesn’t, the matter can be consolidated. If he raises limitation defences, the leading case of Walsh v Redpath in the Court of Appeal here has been endorsing that approach”. Nevertheless, Bharwaney J was disinclined to allow Ip Chun’s Appeal at the 27/11/14 Hearing.

45.Bharwaney J then urged both parties to take proactive steps to resolve P’s / Ip Chun’s Appeals, and he granted the following directions:

(a)	the parties were to apply to court within 3 weeks from the date thereof on agreed directions to be made regarding P’s Appeal, Ip Chun’s Appeal and the Representation Summons;
(b)	a CLR hearing be scheduled on 22 April 2015 before Bharwaney J;
(c)	the parties shall prepare their respective or joint orthopaedic expert report before the next hearing;
(d)	costs of and occasioned by the 27/11/14 Hearing be reserved, and P’s own costs be taxed in accordance with Legal Aid Regulations.

46.After the 27/11/14 Hearing, P’s assigned solicitors changed several times in short order. In December 2014, the DLA consecutively re-assigned 2 solicitors’ firms to act for P.[16] In January 2015, the DLA re-assigned Tsang, Chan & Woo (“TCW”)[17] to act for P. On 15 January 2015, TCW filed Notice to Act for P. On 28 January 2015, TCW and DSols reported to Bharwaney J that in the past few weeks (a) the parties had tried to resolve P’s Appeal, Ip Chun’s Appeal and the Representation Summons, (b) then PSols ceased to have instructions, and (c) TCW were still obtaining papers from PSols, but (d) the parties would try to resolve outstanding matters by consent summons as soon as possible. On 29 January 2015, Bharwaney J directed release of the transcript of the 27/11/14 Hearing to facilitate the parties’ efforts.

47.On 21 April, 27 April and 20 May 2015, Bharwaney J on own motion re-fixed the CLR hearing to 29 April, 20 May and 21 May 2015 respectively. In the meantime on 6 May 2015, the DLA re-assigned Au Yeung Cheng Ho & Tin (“AYCHT”) to act for P.[18] On 11 May 2015, AYCHT filed Notice to Act for P. Upon AYCHT’s and DSols’ joint application, Bharwaney J on 19 May 2015 adjourned the CLR hearing to 24 July 2015. On 21 July 2015, AYCHT and DSols jointly informed the court they were in active liaison towards resolution of P’s / Ip Chun’s Appeals including issues as to costs, and a joint orthopaedic expert examination of P had been scheduled, so they asked for a CLR hearing in November 2015 for further case management. On 23 July 2015, Bharwaney J scheduled a CLR hearing before Master Roy Yu on 12 November 2015 for inter alia expert directions as to expert medical evidence. On 9 September and 11 November 2015, P filed his Supplemental and 2^nd Supplemental Lists of Documents.

48.On 10 November 2015, a Consent Summons was filed for the following reliefs (“10/11/15 Consent Summons”):

(a)	order for the parties do file a Consent Summons as regards P’s / Ip Chun’s Appeals within 21 days;
(b)	directions for witness statements, supplemental joint orthopaedic expert examination of P, supplemental joint orthopaedic expert report, revised pleadings as to quantum, arrangement for mediation, and next CLR hearing.

49.Master Leong raised requisitions on an exact timetable for the proposed case management steps in (b) above. On 12 November 2015, upon AYCHT’s and DSols’ joint reply, Master Leong by consent granted an order in terms of the 10/11/15 Consent Summons that (a) set out a date-specific case management timetable (including (i) complying with paragraph 48(a) above on/before 3 December 2015 and (ii) exchanging witness statements on/before 21 January 2016), and (b) adjourned the CLR hearing to 20 May 2016 (“12/11/15 Order”).

50.In the meantime on 10 November 2015, the DLA re-assigned V Hau & Chow (“VHC”) to act for P.[19] On 7 December 2015, VHC filed Notice to Act for P. On 4 December 2015, upon VHC’s and DSols’ joint application, Master Leong extended time for the parties to comply with the order in paragraph 49(i) above on/before 17 December 2015. On 7 January 2015, the DLA re-assigned Mr Sakhrani to act as counsel for P.[20] On 10 March 2016, P filed the joint orthopaedic expert report dated 24 February 2016 by Dr Fu Wai Kee and Dr Arthur Chiang. But the parties still had not complied with the 12/11/15 Order in paragraph 49(i) above. On 19 May 2016, pursuant to a further Consent Summons filed on the same day, Master Leong by consent granted the following order (“19/5/16 Order”):

(a)	time be extended to 30 May 2016 for the parties to file a Consent Summons as regards P’s / Ip Chun’s Appeals;
(b)	directions for exchange of witness statements (by 22 July 2016), revised pleadings as to quantum, compilation of the trial bundle index, arrangement for mediation, and next CLR hearing (18 November 2016).

51.Meanwhile, the parties had been in negotiations since the 27/11/14 Hearing to resolve P’s Appeal, Ip Chun’s Appeal and the Representation Summons, which finally culminated in a Consent Summons filed on 30 May 2016 for inter alia the following reliefs (“30/5/16 Consent Summons”):

(a)	P’s Appeal against the 6/6/14 Order that struck out P’s claim against D2 be allowed;
(b)	leave be granted for P to amend the name of D2 to “[Yim] sued on his own behalf and on behalf of all other members of [WCIC Academy]”;
(c)	P’s appeal against the 6/6/14 Order that dismissed P’s application for specific discovery of certain identified documents be withdrawn;
(d)	the summary assessment of costs by Master Leong on 5 August 2014 be discharged;
(e)	Ip Chun’s Appeal against the 22/9/14 Order joining Ip Chun as the 4th defendant be allowed;
(f)	the Representation Summons be withdrawn;
(g)	the parties shall within 21 days jointly write to court and report on their respective positions on issues of (i) costs in relation to (a)-(f) above, (ii) costs below and (iii) costs of the 27/11/14 Hearing, and any disagreement shall be resolved by paper disposal upon written submissions by the parties.

52.On 15 June 2016, Bharwaney J directed he would take charge of case management in the present action, vacated the CLR hearing on 18 November 2016, and re-fixed the CLR hearing before him on 25 November 2016. The learned judge further directed that the 30/5/16 Consent Summons be dealt with at the CLR hearing on 25 November 2016.

53.On 19 July 2016, DSols informed VHC that they needed more time to prepare witness statements. On 29 July 2016, pursuant to a Consent Summons filed on 21 July 2016, Bharwaney J by consent granted time extension to inter alia exchange witness statements (until 26 August 2016), serve revised pleadings as to quantum, and compile the trial bundle index. On 25 August 2016, VHC requested DSols for more time as P was out of town. On 19 August 2016, pursuant to a further Consent Summons filed on 26 August 2016, Bharwaney J by consent granted time extension until 23 September 2016 for exchange of witness statements.

54.On 21 September 2016, VHC requested DSols for more time as P was still out of town. On 23 September 2016, DSols agreed to postpone exchange of witness statements to 14 October 2016. But there was no reply from VHC. On 13 October 2016, P’s Legal Aid Certificate was discharged.[21] On 26 October 2016, Bharwaney J adjourned the CLR hearing to 27 January 2017. On 16 January 2017, P wrote to court to request adjournment of the CLR hearing pending hearing of his legal aid appeal on 3 March 2017. DSols did not object, and on 18 January 2017 Bharwaney J adjourned the CLR hearing to an early date after 3 March 2017 to be heard by a bilingual judge. P did not proceed to fix date for the CLR hearing, so more then a year later on 20 March 2018 DSols proposed to P to attend the High Court on 26 March 2018 for such purpose. On 29 March 2018, Bharwaney J refused P’s request to postpone fixing the date of the CLR hearing. Subsequently, the CLR hearing was scheduled to be heard by DHCJ Leung on 19 July 2017.

55.On 9 and 13 July 2018, P asked to vacate the CLR hearing due to medical reason, ie he was mentally unfit to attend court hearing. On 12 July 2018, DSols agreed to adjourn the CLR hearing for 3 months. On 18 July 2018, DHCJ Leung adjourned the CLR hearing to 16 November 2018, but directed P to inform the court and DSols of any circumstance that might affect his attendance together with sufficient relevant evidence not less than 14 days before the CLR hearing.

56.On 4 November 2018, P requested adjournment of the CLR hearing due to medical reason, ie he was mentally unfit to attend court proceedings. On 6 November 2018, DSols wrote to court (a) saying Ip Chun (then 94 years old) wished to conclude the legal procedures which should have been resolved long ago, and (b) worrying whether Order 80 of the Rules of the High Court (“RHC”) that concerned persons under disability would be pertinent. On 8 November 2018, DHCJ Leung asked P whether he would proceed in accordance with Order 80 of the RHC. On 13-14 November 2018, P claimed he was mentally capable to sue but mentally unfit to attend court hearing, so he asked to adjourn the CLR hearing for several months. On 15 November 2018, DHCJ Leung adjourned the CLR hearing to 7 March 2019, but reminded that the above issues remained alive and required P to lodge with court and to serve on DSols within 3 days of receipt (and in any event no later than 90 days thereof) a detailed medical report.

57.On 17 January and 13 February 2019, P submitted his medical report, which he claimed would show he was mentally unfit to attend court hearing, to seek an adjournment of the CLR hearing. On 18 February 2019, DSols disagreed with the request to adjourn the CLR hearing on P’s assertion that such hearing would be stressful for him. P and DSols wrote further to court to maintain their respective stance. On 4 March 2019, DHCJ Leung directed P to provide further medical report for clarification, and adjourned the CLR hearing to 22 May 2019. On 11 April 2019, P provided further medical report, claimed he was mentally fit to give instructions but not mentally fit to attend court hearing, and asked to adjourn the CLR hearing. On 11 May 2019, DSols reiterated their stance that P was fit to attend court hearings, and complained that further postponement of the CLR hearing would cause unfairness/hardship to Ip Chun (then 94 years old) who wished to conclude the legal procedures. On 21 May 2019, DHCJ Leung directed the CLR hearing to proceed, and he would rule on P’s application for adjournment at such hearing.

58.At the CLR hearing on 22 May 2019, after hearing submissions from P and DSols, DHCJ Leung ruled against adjournment of the CLR hearing. On 29 May 2019, he handed down Reasons for Decision explaining that (a) medical evidence (reinforced after he heard from P at the CLR hearing) showed P was mentally capacitated to handle legal issues, (b) P would be able to withstand the stress arising from court attendance, (c) P was capable of prosecuting his legal aid appeal, (d) P demonstrated at the CLR hearing he was able to grasp the issues, and (e) fairness to the defence suggested the matter should not be further delayed.

59.At such CLR hearing on 22 May 2019. DHCJ Leung by consent granted an order in terms of the 30/5/16 Consent Summons (see paragraph 51 above) (“22/5/19 1^st Order”). As a result, P could pursue his claim against D2 in the present action (despite the 6/6/14 Order that struck out such claim) and to amend D2’s description to “[Yim] sued on his own behalf and on behalf of all other members of [WCIC] Academy”, but Ip Chun ceased to be a defendant in the present action (despite the 22/9/14 Order that permitted his joinder as the 4^th defendant). At the CLR hearing on 22 May 2019, DHCJ Leung also granted further directions inter alia as follows (“22/5/19 2^nd Order”):

(a)	the parties do liaise on P’s proposal for adducing psychiatric expert evidence, and D1-2 shall report to the court in writing with proposed directions, if any, within 8 weeks;
(b)	at the same time as the report in (a) above, D1-2 do provide the court with a set of documents relevant for considering whether psychiatric expert opinion should be allowed, and if so, what expert directions should be given;
(c)	the CLR hearing was to be adjourned to a date not less than 12 weeks later, and D1-2 shall lodge/serve list of outstanding issues and directions not less than 14 days before such CLR hearing.

60.On the same day but after the CLR hearing on 22 May 2019, DSols sent a 3-page letter to P making detailed proposals on the following matters, and urging for a reply by 31 May 2019:

(a)	D2’s position on costs for P’s Appeal against the 6/6/14 Order that struck out P’s claim against D2;
(b)	D1-2’s position on costs for P’s Appeal against the 6/6/14 Order that dismissed P’s application for certain specific discovery;
(c)	D2’s position on costs for the Representation Summons;
(d)	Ip Chun’s position on costs for Ip Chun’s Appeal against the 22/9/14 Order that granted leave for P to join him as the 4th defendant.

By such letter, DSols also asked for (i) copies of all P’s medical records in the next 14 days, and (ii) copy of P’s letter to the court dated 11 April 2019.

61.On 31 May 2019, P replied to (a) say he had referred the matter to the DLA, (b) enclose a copy of his letter dated 11 April 2019 to the court, and (c) confirm he would give D1-2 a set of his psychiatric medical records. As P indicated, he again applied for legal aid.[22] On 20 June 2019 DSols received P’s psychiatric medical records, and on 10 July 2019 DSols wrote to court for 35 days’ time extension to comply with the 22/5/19 1^st/2^nd Orders. On 23 August 2019, DSols sent (i) a 3-page letter to P explaining why D1-2 opposed obtaining psychiatric expert report, and (ii) a 2-page letter (with annexures) to P explaining they had reached agreement with the DLA on certain cost matters, reiterating D1-2’s position on costs as to P’s Appeal against the 6/6/14 Order that dismissed P’s application for certain specific discovery (not covered by legal aid), and demanding a reply by 30 August 2019. On 27 August 2019 (and pending P’s reply), DSols wrote to the court (with copy to P and the DLA) requesting time extension to comply with the 22/5/19 1^st/2^nd Orders in relation to (1) whether psychiatric expert evidence was required, and (2) how to deal with outstanding issues on costs (although agreement had been reached with the DLA on some cost matters).

62.On 28 August and 2 September 2019, P asked the court what matters he should address as he did not appear to have received DSols’ letter. On 3-4 September 2019, DSols wrote to P and the court to disagree they had not written to P and to say P failed to respond to their proposal. Such dispute continued in similar vein in further inter-solicitors’ correspondence on 7 and 9 September 2019. On 13 and 17 September 2019, PSols (then no longer solicitors on the record for P) and DSols corresponded on the issue of costs, and PSols informed DSols that P was then awaiting DLA’s decision on whether or not to re-instate his legal aid to deal with the matter of psychiatric expert evidence and to question D1-2’s opposition. On 18 September 2019, DSols wrote to the court with copy to P on costs (ie their agreement with the DLA and also the outstanding cost issues), and on psychiatric expert evidence (setting out P’s “unclear” position and D1-2’s opposition). On 26 September and 10 October 2019, PSols wrote to the court on the issues of costs and psychiatric expert evidence.

63.In March 2020, the DLA re-instated P’s Legal Aid Certificate[23] and assigned Mr Brettell of PSols to act for P.[24] On 7 May 2020, PSols filed Notice to Act for P. On 12 May 2020, this court took over case management of the present action, directed all outstanding issues of costs be dealt with by Bharwaney J, and scheduled a CLR hearing on 4 August 2020.

64.On 14, 20 and 30 July and 3 August 2020, DSols and PSols wrote to court setting out their respective stance on psychiatric expert evidence and other case management matters. At the CLR hearing on 4 August 2020, this court granted order inter alia to:

(a)	revise existing expert directions to allow the parties to adduce psychiatric expert evidence from Dr Wong Chung Kwong (“Dr Wong”) (with directions for arranging single joint psychiatric examination of P and compiling single joint psychiatric expert report);
(b)	extend time for exchanging witness statements by P and 2 further witnesses to be named for P, and by D1, Yim, Lee Kat Cheung, Ho Shun Hang and Chu Yiu Kei for D1-D2;
(c)	extend time for filing/serving revised pleadings as to quantum;
(d)	regularise D2’s proper description by amending the WoS;
(e)	deal with other consequential and/or case management matters.

65.On 11 August 2020, pursuant to the directions in paragraph 64(d) above, P filed the Amended WoS that properly described D2. On 17 August 2020, P’s Legal Aid Certificate was extended to cover preparing/exchanging witness statements, obtaining single joint psychiatric expert report, and preparing/filing Revised Statement of Damages.[25] Pursuant to D1-2’s summons filed on 31 August 2020, which was followed by a flurry of letters by PSols and DSols to the court on 1 and 3 September 2020, on 4 September 2020 I granted time extension for exchanging witness statements, for providing P’s witness statements (embargoed from disclosure prior to exchange) to Dr Wong, and for compiling Dr Wong’s single joint psychiatric expert report.

66.Interestingly, the inter-solicitors’ correspondence revealed that:

(a)	DSols’ letter dated 28 August 2020 stated inter alia that D1-2 “have recently been able to contact some people who were present at the Wing Chun Class on the night of 5th April 2009 [ie the 3rd Class]. [DSols] are in the process of taking further instructions from [D1-2] as to whether the said people are willing to be [D1-2’s] witnesses and whether they have made video recordings or took photos during the said class”.
(b)	PSols’ reply dated 28 August 2020 asked DSols for (i) copies of such further statements to enable them to take instructions on whether to object to the time extension sought, and (ii) explanation “…… for delay in locating such witnesses …… as [D1-2] have been aware of the [YouTube Video] since 2014 – over 5 years ago”.
(c)	On 1 September 2020, DSols wrote to the court saying inter alia that D1-2 “have recently been able to contact some people who were present at the Wing Chun class on the night of 5th April 2009. [DSols] are in the process of taking further instructions from [D1-2] as to whether the said people are willing to be [D1-2’s] witnesses and whether they have made video recordings or took photos during the said class ……”
(d)	PSols recorded in their letter to DSols on 2 September 2020 the telephone conversation between the parties’ handling solicitors that day about inter alia the further witness statements D1-2 wished to rely on, but noted that despite request DSols did not name D1-2’s further witness(es) except to say there might be more than one. PSols also queried why D1-2 efforts “…… locate the student shown in the Wing Chun class recorded in the YouTube video of …… 5th April 2009” was not done earlier when P disclosed the YouTube Video in 2014.
(e)	DSols replied on 3 September 2020 to say (i) they could not disclose the names of D1-2’s further witnesses before they confirmed their willingness to be witnesses for D1-2, (ii) D1-2 only contacted further potential witnesses recently because they could not identify many of the individuals in the YouTube Video due to low quality image when it was viewed in 2014, but upon recent review image quality improved[26] so D1-2 were able to identify some individuals shown in such video with whom they had contact.

67.On 28 September 2020, D1-2 filed/served the Summons with its supporting affirmations. On the same day, PSols queried why DSols had not approached them to give explanation and to seek their agreement, and DSols replied saying the Summons was issued on counsel’s advice and suggesting postponing exchange of witness statements to save time/costs. On 29 September 2020, PSols complained about the format of the draft Amended Defence annexed to the Summons and raised a number of queries, including why the proposed amendments were not made earlier, the dates/names of D1-3’s existing statements/ witnesses, and in particular the following:

“(3)  Who do D1 and D2 say – organized the Wing Chun class. If it is Mr Ip Chun – are they going to plead that

(4)  If what is now said is true – and D2 has no involvement in the class etc – then do [D1-3] say that means [P] has no basis for a claim against them.

If so – and [P] therefore decides not to pursue against D2 – what Order for costs would [D2] propose on such withdrawal.

(5)  On that matter and assuming [D1-3] now say Mr Ip Chun (your client) was the organizer in place of D2 – will Mr Ip raise any limitation defence if a claim is now pursued against him, again”

68.On 9 October 2020, DSols sent to PSols revised draft Amended Defence, and claimed the Summons had been filed as soon as possible on the basis set out in the supporting affirmations. “As regards to the issue regarding the organizer of the Wing Chun Class, the positions of [D1-2] have been pleaded in the [revised draft Amended Defence] which is self-explanatory. …… All along, it has been [D2’s] case that [P] has no reasonable claim against [D2] to the subject proceedings ……”, but D2 was willing to negotiate/resolve the matter amicably should P decide to withdraw his claim against D2. DSols further said in the letter as follows:

“6.  The positions of [D1-2] have been pleaded in the draft amended Defence which is self-explanatory. If [P] do wish to pursue a claim against Mr Ip Chun, it is pre-mature and will cause prejudice to Mr Ip Chun by asking him to confirm his defence when the basis and the details of [P’s] claim against him is unknown. For the avoidance of doubt, all of Mr Ip Chun’s rights are hereby expressly reserved.

7.  Moreover, [P’s] attention is drawn to the comments made by the Honourable Mr Justice Bharwaney at the [27/11/14 Hearing] at page 26, line M of the transcript, ‘…… if there is a clear limitation issue, the proper course is to issue a new writ, serve it on Mr Ip Chun and let him see whether he raises limitation defences and then, if he doesn’t, the matter can be consolidated ……’ His Lordship further referred to paragraph 20/8/7 of the relevant White Book at page 27, line R.”

DSols suggested it was reasonable and would save time and costs to postpone exchange of witness statements.

69.On 15 October 2020, PSols replied inter alia to (a) complain there was still no explanation of the delay in D1-2’s application to amend the Defence, (b) request DSols to point out where in the draft Amended Defence the organiser of the Wing Chun Class at the STHB Venue on 5 April 2009 was identified, (c) request DSols “to confirm it is now the case of [D1-2] that the class was “Organized” by Mr Ip Chun” and they were still acting for Ip Chun (and if so, whether Ip Chun would raise a limitation defence if a claim were to be brought against him), and (d) propose a cost position for D2’s consideration if P were to withdraw the claim against D2 on the basis that D2 was not the organiser of the Wing Chun Class on 5 April 2009. On the same day, PSols reported to the court that Dr Wong had examined P on 16 September 2020 on the basis of P’s “embargoed” witness statement which had not been exchanged since the Summons sought leave to amend the Defence as well as further time to exchange witness statements.

70.On 19 October 2020, PSols chased DSols for a reply to their letter dated 15 October 2020, and DSols replied to reiterate their previously stated stance, to enclose a revised draft Amended Defence that marked up certain typographical errors, and to add that (a) D1-2 could not confirm on behalf of any third party that he/she “organised” the Wing Chun Classes, (b) DSols had no instructions to act for Ip Chun in any intended claim to be issued against him, (c) D1-2’s witnesses were D1, Yim, Lee Kat Cheung, Ho Shun Hang and Chu Yiu Kei, and (d) it was reasonable to postpone exchange of witness statements until after the issues as to pleadings were resolved.

71.On 21 October 2020, PSols replied inter alia to (a) note D1-2 declined to point out where in the revised draft Amended Defence the person whom D1-2 believed to have “organised” the Wing Chun Class on 5 April 2009 was identified, (b) advise that PSols would write directly to Ip Chun as DSols did not act for him, (c) note there was still no explanation “why “All of a Sudden” [D1-2] realized that D2 had not organized the Wing Chun class”, and (d) ask for signed/dated witness statements verified by statement of truth that “identify anyone other [than] D2 as the “Organizer””. On 27 October 2020, PSols wrote again to DSols to chase for a reply.

72.On 27 October 2020, DSols reiterated their previously stated stance, and declined disclosure prior to exchange of privileged witness statements. On 28-29 October 2020, PSols and DSols further corresponded to reiterate their respective stance. On 29 October 2020, PSols wrote to ask DSols inter alia whether they had asked D1 who “attended the Wing Chun class” “who organized it”. In the meantime, DSols wrote to court on 28 October 2020 to enclose the Draft, ie a corrected version of the draft Amended Defence annexed to the Summons that cured some minor typographical errors.

73.On 30 October 2020, P’s Legal Aid Certificate was extended to cover opposition to the Summons.[27] The call-over hearing of the Summons on 3 November 2020 was prefaced by PSols’ letter dated 30 October 2020 to the court that set out P’s stance/queries, and DSols’ reply on 2 November 2020 that reiterated inter alia as follows:

“2. [D1-2] reiterate once again that on the issue of the organizer of the Wing Chun Class, the positions of [D1-2] have been pleaded in the [Draft] which is self-explanatory. Furthermore, [D1-2] are not in a position to confirm on behalf of any 3^rd party that he/she ‘organized’ the Wing Chun Class. As mentioned previously, the basis of [D1-2’s] present application to amend the defence has been set out in the affirmations in support of the present application.

3.  We are instructed that [Yim] was not a student of the Wing Chun Class,”

74.At the hearing of the Summons on 3 November 2020, I granted leave for D1-2 to replace the draft Amended Defence annexed to the Summons by the Draft annexed to DSols’ letter dated 28 October 2020 to the court, and also granted case management directions for filing affirmation evidence and fixing adjourned hearing for argument. On 18 November 2020, the DLA assigned Mr Sakhrani to act for P.[28] On 19 January and 4 March 2021, I extended time for filing/serving affidavits in opposition and in reply.

75.Separately, DSols wrote to Bharwaney J on 19 May 2020 to seek directions on the outstanding costs issues. On 23 July 2020, Bharwaney J directed the parties to jointly write to him within 14 days on any agreed costs and on any proposal for determining costs that had not been agreed. On 30 and 31 July and 6 and 11 August 2020, PSols and DSols wrote to court to set out their respective stance, and sought time extension to file written submissions. On 28 September 2020, Bharwaney J handed down his decision (by way of paper disposal) on the outstanding costs issues.

IV.  DRAFT

76.At the Hearing, Mr Sakhrani helpfully clarified that P had no objections to the proposed amendments in paragraphs 1, 2, 3(2), 3A, 5 and 9-18 of the Draft, and that P only opposed the following proposed amendments in the Draft (“Disputed Amendments”):

(a)	“3. As to Paragraph 2:- (1)    It is denied that [D2] was the organizer of the Wing Chun Class as alleged by [P] or at all. …… (2) Save as aforesaid, Paragraph 2 is denied. Paragraphs 2-3 of the [SoC] are admitted.”
(b)	“4. As to Paragraph 4:- (1) [D1] denies he is one of the founder members and directors of [WCICA Limited]; (2) It is denied that [D1] was a teaching instructor in the Wing Chun Class and was [D2’s] servant, agent and/or employee at all material times. (3) [D1] avers that he was at the material time a qualified Wing Chun instructor. However, [D1] took part in the Wing Chun Class as a senior/experienced student in Wing Chun and shared his experience in Wing Chun with other participants of the Wing Chun Class, and in this manner assisted in the teaching of the Wing Chun Class. (4) At the material time, [D1] assisted Ip Chun Sifu (師傅) with the Wing Chun Class as a volunteer and on a pro-bono basis. [D1] in fact paid for the full class fees of the Wing Chun Class. (5) [D1] was not employed and/or instructed by [D2] and/or any party to participate in the Wing Chun Class. [D1] took part in the Wing Chun Class purely in his own personal capacity. [D1] did not participate in the Wing Chun Class for and on [D2]. (6) Save as aforesaid, Paragraph 4 is denied. [D1] admits that he was and still a teaching instructor in the Wing Chun Class and is one of the founder members and directors of [WCIC Academy]. Save as aforesaid, [D1-3] deny paragraph 4 of the [SoC].”
(c)	“6. As for Paragraph 6:- (1) It is denied that [D2] was the recipient of the Class Fees. (2) It is not admitted that [P] during the [1st Class] paid the Class Fees of $300 in cash being class fees for 4 classes and [P] was not given any receipt. (3) Save as aforesaid, Paragraph 6 is denied. Paragraph 6 of the [SoC] is denied and [P] is put to strict proof thereof.”
(d)	“6A. Paragraph 7 is not admitted. [P] is put to strict proof thereof.”
(e)	“7. Paragraphs 7 and 8 of the [SoC] are denied is not admitted save and except the Wing Chun Class was scheduled to start at 8:00 pm. [D1-3] aver that there were no attendance record in respect of [P’s] attendance in the [2nd Class] and the [3rd Class] as alleged.”
(f)	“As to Paragraph 9:- (1) It is denied that [D1] was a teaching instructor of the [3rd Class] and was in the course of his employment with [D2] and/or being the agent and/or servant of [D2]. (2) It is further averred that [D1] took part in the [3rd Class] as a senior/experienced student in Wing Chun and shared his experience in Wing Chun with other participants of the [3rd Class], and in this manner assisted Ip Chun Sifu (葉準師傅) in the teaching of the [3rd Class]. (3) The matters pleaded in paragraph 4 hereof are repeated. (4) [D1] further avers that at all material times, the time scheduled for Wing Chun Class was from 8:00pm to 10:00pm, but the participants were allowed and/or free to come in at any time after 8:00pm and free to leave the class before 10:00pm. (5) Save as aforesaid, Paragraph 9 is denied. Paragraph 9 of the [SoC] is denied. [D1-3] aver that at all material time, the time scheduled for Wing Chun Class was from 8:00pm to 10:00pm, but the students were allowed and/or free to come in at any time after 8:00pm and free to leave the class before 10:00pm.”

77.By the Disputed Amendments,

(a)	D1-2 sought to withdraw the admissions that D1 was (i) the teaching instructor at the Wing Chun Class and (ii) the founder member and director of WCICA Limited (“D1 Admissions”).
(b)	D1-2 sought to withdraw the admission that “at all material times” he was the organiser of the Wing Chun Classes (defined as “the beginners’ class of the Wing Chun class held at the [STHB Venue] at 8:00pm to 10:00pm every Sunday night in/about March and April 2009” – see paragraph 1 of the SoC) (“D2 Admission”).

V.  AFFIRMATION EVIDENCE

78.On 28 September 2020, D1-2 filed D1’s 3^rd affirmation (“D1 3^rd Aff”) and Yim’s affirmation (“Yim 1^st Aff”) to support the Summons. On 18 January 2021, P filed his 4^th affidavit to oppose the Summons (“P 4^th Aff”). On 1 March 2021, D1-2 filed Yim’s 2^nd affirmation (“Yim 2^nd Aff”) in reply.

(a)  D1 3^rd Aff

79.D1 claimed the purpose of the proposed amendments to the Defence was to more accurately state D1’s role/involvement in the Wing Chun Class and the circumstances of the alleged Incident. While D1 was a qualified instructor in Wing Chun, he wished to clarify his role/ involvement in “the Wing Chun Class in question” at the material time, ie he took part in the Wing Chun Classes as a senior/experienced student in Wing Chun and shared his experience in Wing Chun with other participants of the Wing Chun Classes, and in this manner D1 assisted Ip Chun “Sifu” (葉準師傅) in teaching the Wing Chun Classes. D1 claimed to be a volunteer to assist Ip Chun “Sifu” with the Wing Chun Classes on pro bono basis in his own personal capacity, and in fact he paid for full class fees like the other students of “the relevant Wing Chun Class”.

80.D1 claimed he was not employed/instructed by WCIC Academy or any third party to take part in “the Wing Chun Class in question”, and did not act for and on behalf of WCIC Academy or any third party when he took part in such Wing Chun Class. Upon “checking the records”, D1 was not a founder member of WCIC Academy or a director of WCICA Limited at any time.

81.D1 claimed the atmosphere of “the Wing Chun Class” was very harmonious, and he was unaware of any assault/complaint and/or unpleasant exchange between participants at “the Wing Chun Class on 5^th April 2009” as P alleged or at all.

(b)  Yim 1^st Aff

82.Yim noted that in/about 2002 a group of students of Ip Chun “Sifu”, a master in Wing Chun, set-up WCIC Academy (詠春葉準學會) under the SO. Yim was a founding member of WCIC Academy and was appointed as chairman of such academy in 2002-2005 and 2010-2015, but was not involved in the administration of such academy in 2006-2009. Yim was chairman of such academy in 2013, so when P contacted such academy regarding his claim herein, Yim represented such academy to give instructions to DSols.

83.Upon service of the SoC, DSols asked Yim to comment on its contents, and particularly to confirm whether WCIC Academy was the organiser of the Wing Chun Classes held at the STHB Venue from 8:00pm to 10:00pm every Sunday night in/about March and April 2009. As WCIC Academy did not hold regular members’ meeting in 2013, Yim relied on his own personal knowledge to give instructions to DSols, but he did not enquire with Ip Chun “Sifu” about this so as not to trouble him and to make him worry about this matter.

84.Yim said he learned Wing Chun from Ip Chun “Sifu” since about 1996 at Wing Chun classes ran by Ip Chun “Sifu” at premises in “Prince Edward”, and he was not a regular student of the Wing Chun Classes held at the STHB Venue as he would only attend classes there on special occasions (eg on the birthday of Ip Chun “Sifu” and/or for the Wing Chun Competition).

85.Yim claimed that to his best knowledge when he gave instructions to DSols in 2013, Ip Chun “Sifu” had been teaching Wing Chun Classes at the STHB Venue since 1990 either on Saturday or Sunday night, but Yim thought that such classes there were organised by WCIC Academy for the following reasons:

(a)

Some members of WCIC Academy helped Ip Chun “Sifu” with the Wing Chun Classes at the STHB Venue, but to Yim’s best knowledge they were all volunteers.

(b)

Prior to 2009, Yim heard that Ip Chun “Sifu” had suggested for WCIC Academy to take up organisation of the Wing Chun Classes at the STHB Venue as Ip Chun “Sifu” was given to understand Shatin Town Hall was going to impose a new rule for booking the STHB Venue that would allow priority to sports associations over individuals, and at that time Ip Chun “Sifu” had been booking the STHB Venue for the Wing Chun Classes in his own name.

86.Yim claimed when he gave instructions to DSols in 2013 to draft the Defence he truly believed the Wing Chun Classes at STHB Venue in March/April 2009 were organised by WCIC Academy. But as the present action progressed, Yim claimed to realise he was mistaken. Yim claimed to note it was Ip Chun “Sifu” who booked the STHB Venue in March/April 2009 when he perused the Booking Form P obtained from LCSD, so he inquired with other members of WCIC Academy (“especially members who helped Ip Chun Sifu organised the Shatin Wing Chun Class”) on the organisation of the Wing Chun Classes at the STHB Venue in March/April 2009, and “[upon] further inquiry” and contrary to Yim’s belief in the above paragraph, “[Yim] was given to understand that [WCIC Academy] did not take over the organisation of the [Wing Chun Class at the STHB Venue] as Ip Chun Sifu later found out that as he had been booking the venue at the given time slot for a long time, he would be given the first priority over others anyway when booking the venue. Hence, there was no need for [WCIC Academy] to take over the organisation of the [Wing Chun Class at the STHB Venue]”. So Yim claimed Ip Chun “Sifu” continued to organise the Wing Chun Classes at the STHB Venue by himself (with some help from others) and in his own name.

87.Yim then went on to say as follows:

“Moreover, [Yim] found out that the members of [WCIC Academy] who were helping Ip Chun Sifu with the [Wing Chun Class at the STHB Venue] were acting purely in their own personal capacity and not acting for or on behalf of [WCIC Academy]. They were not instructed or requested by [WCIC Academy] to volunteer to help Ip Chun Sifu. The volunteers were not employed or instructed by [WCIC Academy] to assist Ip Chun Sifu. The volunteers who attended the [Wing Chun Class at the STHB Venue], including [D1], in fact paid for the class fees of the [Wing Chun Class at the STHB Venue] like other participants of the class, and they do not accept any remuneration for assisting Ip Chun Sifu.”

88.Yim then asserted that WCIC Academy “had never taken any part in the organisation and management of the [Wing Chun Classes at the STHB Venue]. Regrettably the position as pleaded in the Defence was inaccurate due to [Yim’s] honest but mistaken belief as explained above, and [he] sincerely [wished] to clarify that”.

(c)  P 4^th Aff

89.P complained that (a) D1-2’s application to amend the Defence in fact sought to withdraw the admission that D2 organised the 3^rd Class (ie the D2 Admission) at which P was injured by D1 who struck him on the back of his neck, and (b) D1-2 thereby intended to substantially change their case. P opposed such application on 5 grounds.

90.First, P claimed (a) the D1 3^rd Aff alleged D1’s wish to plead more accurately his role/involvement at the Wing Chun Class in question and the circumstances of the Incident, but it did not explain why D1 previously made the D2 Admission, and (b) the Yim 1^st Aff alleged Yim had made a mistake but, upon perusal of the Booking Form that P obtained and upon enquiries with the members of WCIC Academy, he was given to understand such academy did not organise the Wing Chun Classes, but he did not explain whether it was D1 who gave this information, and why this was not resolved before the Defence was filed on 20 June 2013.

91.P noted (a) the Incident happened more than 11 years ago, (b) D1-2 were legally represented by DSols since end of 2012 (and P believed DSols’ partner Ho was a member of WCIC Academy), (c) D1 was involved in the management/organisation of D2 and was present at the Wing Chun Classes at the STHB Venue, (d) Yim was joined to represent D2 on the basis that he was involved in the management/organisation of D2 (but D2 did not say if Yim was present at the relevant Wing Chun Classes), and (e) the Summons was filed more than 6 years after the 27/11/14 Hearing that considered the involvement of D2. Against such background, DSols did not tell PSols/court of any intention to withdraw the D1-2 Admissions (i) during P’s Appeal, (ii) during subsequent court hearings (eg CLR hearings at which directions for, say, exchange of witness statements were considered, and D1-2 advised that their witness statements were completed/signed with statements of truth), and (iii) at more recent court hearings including those on 4 August and 4 September 2020. PSols sought explanation from DSols, who only said “[the Summons] was on the advice of counsel” even though (as P understood) D1-2 had been represented by counsel since at least 2014.

92.Secondly, P complained the Summons was very late given that the WoS was issued on 3 April 2012. On 29 January 2013 P wrote to ask D2 to check P’s registration for the Wing Chun Classes, and on 18 February 2013 DSols replied that D1-3 were checking for P’s record. P claimed that who organised and was responsible for the Wing Chun Classes at the STHB Venue was a fundamental issue, so he expected D1 and members of WCIC Academy to have considered this and to have given instructions to DSols, who in turn would have sought instructions and documents to identify this. P further expected this issue to have been actively re-considered when PSols provided LCSD’s Booking Form to DSols in February 2014. But up until the Summons, D1-2 admitted WCIC Academy oragnised the Wing Chun Classes that P attended at the STHB Venue. It was said that to allow D1-2’s proposed amendments now would cause serious delay as the present action was almost ready for trial once the single joint psychiatric expert report was available (which availability was delayed due to DSols’ refusal to exchange witness statements by 29 September 2020 as directed by the court).

93.Thirdly, P claimed the proposed amendments were unclear. If WCIC Academy did not organise the Wing Chun Classes at the STHB Venue, then logically someone else must have done do, but paragraph 4(4) of the Draft merely averred “…… [D1] assisted Ip Chun …… with the Wing Chun class ……” without clearly identifying who (if not WCIC Academy) organised the Wing Chun Classes. P claimed that PSols had sought clarification from D2 to no avail although D1-2 seemed to suggest it was Ip Chun.

94.Fourthly, P claimed against D1 as the person who assaulted him and D2 as the entity who organised the Wing Chun Classes at the STHB Venue and who was responsible for the actions of D1 as one of its instructors, and it was said P would suffer prejudice if the proposed amendments were allowed:

(a)	P did not know if D1 had sufficient means to meet any judgment or costs order against him in this action. Apparently there was no insurance cover for D1-2 in respect of P’s claim, but P was confident the members of D2 would have combined assets to meet any damages and costs awarded in P’s favour.
(b)	If P were to bring a claim against Ip Chun now, there would be a limitation defence. Following the 27/11/14 Hearing, P was granted legal aid to issue a claim against Ip Chun, but P understood from PSols no such claim was issued because it was considered not necessary as D2 had admitted it was the party who organised the Wing Chun Classes at the STHB Venue.
(c)	P claimed there would be problems now in investigating into the organiser of the Wing Chun Classes at the STHB Venue in 2009 as (i) the website from where P found out WCIC Academy was the organiser of the Wing Chun Classes at the STHB Venue was no longer active, and (ii) LCSD informed PSols that advertising details during such period were no longer available.

95.Fifthly, P claimed that if WCIC Academy was not the organiser of the Wing Chun Classes at the STHB Venue, this should have been raised at the beginning of the present action or at least when PSols sent LCSD’s Booking Form to DSols. If it were raised then and if it were correct WCIC Academy were not the organiser of the Wing Chun Classes at the STHB Venue, then all contested applications regarding naming/ representation of D2 would have been redundant, and all related costs would have been wasted. It was said that despite enquiry by PSols, D2 had not made proposals on wasted costs if D1-2 were allowed to amend their Defence to withdraw the D2 Admission.

(d) Yim 2^nd Aff

96.Yim explained that in/about October 2013, some members of WCIC Academy suggested to him that such academy might not be the one who booked the STHB Venue for the Wing Chun Classes in/about March and April 2009. To check this, D2 decided to obtain the relevant Booking Form with help from other members of WCIC Academy, which was done in October/November 2013. LCSD’s Booking Form so obtained revealed that at the material times it was Ip Chun “Sifu” who booked the STHB Venue in his own name. Yim claimed this was the 1^st time he was made aware WCIC Academy was not the party who booked the STHB Venue in/about March and April 2009. After that, PSols sent copy Booking Form to DSols on 13 February 2014. On the basis of the above chronology, Yim had to correct what was said in the Yim 1^st Aff as to the time when he first knew who booked the STHB Venue, ie it was not when DSols received LCSD’s Booking Form from PSols in February 2014, but should be when D2 obtained LCSD’s Booking Form “[in] or about October or November 2013”. Yim claimed he was mistaken “due to the lapse of time”.

97.Yim claimed P applied for legal aid in/about February or March 2013 but was refused (see paragraphs 13-15 above), and P re-applied for legal aid in 31 October 2013 which caused the present proceedings to be automatically stayed for 42 days (see paragraph 18 above). Yim claimed he did not clarify with other members of WCIC Academy and/or Ip Chun “Sifu” on the organisation of the Wing Chun Classes at the STHB Venue as (a) he strongly believed the alleged assault never happened, was confident P would not be granted legal aid, and thought absent legal aid P would not proceed with his claim, and (b) he wished “to avoid disturbing and making Ip Chun Sifu worry”. But to Yim’s surprise, P was granted legal aid on 12 December 2013 (see paragraph 19 above).

98.P originally named WCIC Academy as D2, and Yim was advised that WCIC Academy as a society registered under the SO was not a legal entity that could sue or be sued, so P’s claim against WCIC Academy was bound to fail and/or liable to be struck out. But to minimise costs, Yim instructed DSols to first invite P to discontinue his claim against WCIC Academy. Correspondence ensued between W&T/PSols and DSols between 13 December 2013 and 16 January 2014 (see paragraphs 18-23 above). Yim then made further inquiries as to the organisation of the Wing Chun Classes at the STHB Venue set out in paragraphs 86-87 above.

99.Yim explained that in/about February 2014 it was thought there was a reasonable chance to strike out P’s claim against D2, so to save time/costs such application was made instead of an application to amend the Defence. Yim then summarised the developments in paragraphs 27-50 above. By reason of the 12/11/15 and 19/5/16 Orders (see paragraphs 49-50 above), D1 proceeded to prepare witness statements, but Yim claimed that pending resolution of P’s Appeal against inter alia the 6/6/14 Order that struck out P’s claim against D2, it was not considered appropriate to apply to amend the Defence.

100.Yim said “[P] was aware of the fact that the [STHB Venue] was booked by Ip Chun Sifu and not [WCIC Academy] since February 2014”, and he noted the promotional materials for the Wing Chun Classes displayed at Shatin Town Hall and exhibited to the P 4^th Aff made no reference to WCIC Academy. Yim suggested P’s belief that the Wing Chun Classes mentioned on WCIC Academy’s website were all organised by such academy was misconceived as such website merely gave a summary of the Wing Chun classes taught by Ip Chun “Sifu”, which was obvious as such summary also included classes taught at other athletic clubs, and one could not sign up for those classes through such website or WCIC Academy.[29] Further, to Yim’s best knowledge, Ip Chun “Sifu” had been teaching Wing Chun Classes at the STHB Venue since 1990 (ie long before the WCIC Academy was founded). Moreover, D1-2 all along denied D1 was D2’s servant, agent and/or employee.

101.Yim then summarised the events referred to in paragraphs 51-62 above. Yim then claimed that in view of the upcoming CLR hearing scheduled on 12 May 2020, D1-2 reviewed the contents of the witness statements drafted in 2016 and sought counsel’s advice. In/about August 2020 D1-2 engaged new counsel Mr Hui to review the case, and in/about September 2020 Mr Hui advised D1-2 to rectify the mistakes in the Defence and to clarify D1-2’s position as soon as possible, preferably before exchange of witness statements so as to enable the parties to cover all factual issues in one round of witness statements to save time and costs.

102.Yim explained that as the present case had been left idle from 2016 to 2019 due to various adjournments at P’s requests, the matter of WCIC Academy not being the one who booked the STHB Venue was overlooked until D1-2 took counsel’s advice for finalising the witness statements, so D1-2 did not apply to amend their Defence sooner. But “once [D1-2] became aware of the above issue, [D1-2] prepared for the application as soon as possible and the summons to amend the Defence was taken out on 28^th September 2020”.

103.Yim agreed D1-2 were not covered by insurance, but suggested the relevant consideration was “who should be the correct party/parties to take responsibility of [P’s] claim, if necessary, based on the facts of the case and not the speculation as to whether the parties have the means to meet any possible judgments. [P] had attempted to join Ip Chun Sifu to these proceedings some years ago. To the best of [Yim’s] knowledge, [P] applied to join Ip Chun Sifu as the 4^th Defendant to these proceedings by taking out [the Amendment/Joinder Summons] on 17^th April 2014 and the issue of limitation period existed long before [D1-2’s] present application to amend the Defence. [Yim] believe Ip Chun Sifu had raised the issue of limitation period in or about 2014 as shown in his affirmation in opposition to [P’s] said application filed on 11^th July 2014”. Yim urged the court to allow D1-2 to amend the Defence to correct/clarify their position for fair resolution of the dispute in this matter.

VI.  LEGAL PRINCIPLES

104.On general legal principles concerning amendment of pleadings, Mr Hui referred Order 20 rules 5 and 8 of the RHC, and the principles I discussed in Chen Yusheng v Wo Ming Engineering Limited & anor.[30] Mr Sakhrani had no quarrel with those broad principles, and I do not propose to repeat them here.

105.But here P resisted D1-2’s application to amend the Defence on the basis the Disputed Amendments constituted withdrawal of admissions, so the court must first consider whether admissions had in fact been made.[31] I have no doubt the D1-2 Admissions were admissions by way of pleadings (see paragraphs 4-5 above), and the Disputed Amendments were D1-2’s attempts to withdraw admissions made by them (see paragraph 77 above).

106.The significance of an admission by a litigant is that if it covers an element of a claim, then that element can be taken as proved and the other party need not adduce evidence at trial to prove such element. Consequently, withdrawal of an admission will have significance for the other party. It is therefore a matter of discretion of the court as to whether leave to withdraw an admission should be granted.[32]

107.Mr Hui referred to Gale v Superdrug Stores Plc in which the English Court of Appeal held that when a defendant seeks to withdraw or amend an admission the judge has to balance the prejudice which the defendant will suffer if he is deprived of his prima facie right to resile from his admission against any prejudice which the plaintiff stands to suffer if the admission is withdrawn. It was said that such prejudice has to be established specifically, and the lack of a good reason for the defendant’s change of position is merely one factor to be considered, and the discretion of the judge is a general one in which all the circumstances have to be taken into account.[33]

108.Mr Hui pointed out that this court cited Gale with approval in paragraph 12 of my judgment in Chen Yusheng. 2 points need to be made on this. First, Cheng Yusheng is not concerned with amendment of pleadings that amounts to withdrawal of admission. Rather, it concerns a proposed amendment to correct an error of factual averment (ie description of the plaintiff’s body posture during relevant activity as averred in the pre-action letter, the application in employees’ compensation proceedings, and the statement of claim in the common law action, all of which were in the English language and made about the same time when the plaintiff was represented by his former solicitors), was due to incorrect translation such that there was a mistake between P and his solicitors, and such proposed amendment was to bring such factual averment in line with the description of the plaintiff’s body posture in his Chinese witness statements (verified by his own statements of truth) filed shortly thereafter in both sets of proceedings. There was no new cause of action, no change to pleas as to the relevant activity, and no need for any new evidence. There was also no prejudice as the defendant could not identify any eye-witnesses, and thus had no positive case to put forward. I also found in that case the alleged delay would not overcome the just and fair need to correct such an error/mistake. As DHCJ Keith Yeung SC (as he then was) analogously explained in Chow Kam Hung v Hoi Kong Ironwares Godown Co Ltd:[34]

“36. …… I am not satisfied that the defendants have made any admissions in respect of the status of the Land. Whilst the defendants have made certain factual averments which may be relevant to certain elements of Chow’s claims, I am not satisfied that any clear and unambiguous admissions have been made.

……

37. In any event ……

(a)  Any admissions that the defendants may have made were not express. Nor were they implied by operation of the [RHC]. They were averments of fact made in the pleadings. It is understandable in the circumstances that the applications were made in the form of amendment of pleadings as opposed to withdrawal of admissions. ……” (my emphasis)

109.Secondly, I referred to Gale not for the court’s approach towards withdrawal of admissions or amendment of pleadings, but to deal with the defendants’ contention that the proposed amendment would adversely affect their litigation/settlement strategies due to loss of litigation/cost advantages on the basis that (a) if the plaintiff were bound by the pleaded body posture that was inherently “improbable or unlikely and that lacked common sense”, it would be unlikely for him to prove his pleaded case, but (b) the plaintiff stood to have a higher chance of success if he could amend his pleadings to bring it into line with his witness statement filed years ago because, as the defendants accepted, the body posture described in such witness statement was more probable. It was to reject the plaintiff’s insistence on such adversarial/tactical forensic advantage decried in the post-CJR era in face of the primary aim of securing just resolution of the dispute that I cited Lord Millett’s observation in Gale to the effect that where amendments to pleadings were justified, the court would strive to avoid injustice but not disappointment (paragraphs 52-54).

110.But more importantly, as Mr Hui conceded at the Hearing, the proper approach to the exercise of discretion whether or not to allow withdrawal of an admission has been explained by the Court of Appeal in Re Ng Wai Jing,[35] applying the principles in Sowerby v Charlton[36] and Braybrook v Basildon and Thurrock University NHS Trust[37] with the admonition that the majority judgments in Gale premised on pre-CJR practice must be approached with caution in the post-CJR era:

“16. Mr Chan placed particular reliance on these parts of the majority judgments in Gale v Superdrug Stores Plc [1996] 1 WLR 1089 and he emphasised these words as italicised:

In my judgment leave should normally be granted if the application is made in good faith, raises a triable issue with a reasonable prospect of success, and will not prejudice the plaintiff in a manner which cannot be adequately compensated … It is not normally necessary for a party to justify his decision to amend his pleadings or withdraw an admission. It is enough that he wishes to do so. (1100A to C, per Millett LJ)

A party withdrawing an admission is to be regarded in a more favourable light. Excuse (or lack of it) is not entitled, in my judgment, to any particular emphasis: it is just part of the overall picture and will carry no more weight than the particular circumstances require. (1097G to H, per Waite LJ)

17. Gale v Superdrug Stores Plc was applied by the Court of Appeal in Re Chung Wong Kit (a bankrupt) [1999] 1 HKLRD 410. Mr Chan quoted this passage in the judgment of Rogers JA at 413J–414C with particular emphasis on these words as italicised:

[it was] argued that the respondents should not have been allowed to rely upon this affirmation as it constituted a withdrawal of an admission which was being made without proper explanation. This however is not a rule of law in itself but just an example of the proposition that a party should not be permitted to resile from an admission unless it was just to allow it to do so having regard to the interests of both sides. … in determining whether it is fair to allow a party to resile from an admission, it is not sufficient for the Court to presume prejudice to the opposing party but it is necessary to balance the prejudice suffered by the admitting party if deprived of his right to resile against any prejudice which the relying party has specifically established he will suffer if the admission is withdrawn.

18. Mr C Y Li, SC, who appeared with Mr Adrian But for the defendant, submitted that the need for the applicant to put forward a convincing credible explanation of the circumstances in which the admission was in fact made is nonetheless a powerful factor (although not conclusive) in considering whether to give leave to withdraw an admission, see Tse Yuk Tin v Chee Cheung Hing & Co Ltd [1984] HKLR 391 at 395E-G; Ho Wai Yin v Cheng Suet Yee (unrep., HCAP 18/2003, 29 June 2005, at [3] and [8]. The question whether there is a proper explanation why the admission was made goes to the issue of good faith on the part of the applicant (Singh Balwinder v Sino Phil Engineering Services Ltd [2007] 1 HKLRD 560 at [10]). We do not understand Mr Chan to have disputed these propositions.

19. Gale v Superdrug Stores Plc was decided before the Civil Procedure Rules came into effect on 26 April 1999. As stated by the English Court of Appeal in Sowerby v Charlton [2006] 1 WLR 568 at [34], the judgments of the majority in Gale v Superdrug Stores Plc should now be approached with caution because they were concerned with the effect of a regulatory regime which has been abolished and in particular there were features of the pre-CPR practice, as described in the judgment of Millett LJ, which would no longer be acceptable practice post-CPR. In [35], the Court went on to cite the unreported decision of Sumner J in Braybrook v Basildon and Thurrock University NHS Trust [2004] EWHC 3436 (QB) at [45], which offered this valuable guidance on the way in which a court should exercise its discretion when determining whether or not to permit the withdrawal of an admission that was made after the action was commenced:

(1)  In exercising its discretion the court will consider all the circumstances of the case and seek to give effect to the overriding objective.

(2)  Amongst the matters to be considered will be:

(a)  the reasons and justification for the application which must be made in good faith;

(b)  the balance of prejudice to the parties;

(c)  whether any party has been the author of any prejudice they may suffer;

(d)  the prospects of success of any issue arising from the withdrawal of an admission;

(e)  the public interest, in avoiding where possible satellite litigation, disproportionate use of court resources and the impact of any strategic manoeuvring.

(3)  The nearer any application is to a final hearing the less chance of success it will have even if the party making the application can establish clear prejudice. This may be decisive if the application is shortly before the hearing.

20. The court in Sowerby v Charlton ended with these words in [36]:

Above all, the exercise of any discretion will always depend on the facts of the particular case before the court. The words ‘will consider all the circumstances of the case’ have particular resonance in this context.

21.   We think the above guidance should apply equally to Hong Kong in view of the underlying objectives in O.1A r.1(a) to (d) and (f) of the Rules of the High Court (Cap.4A, Sub.Leg.) introduced as a result of the Civil Justice Reform.”

111.The above principles have been adopted and followed in the Court of First Instance in Goldbay Fortis Limited v Rich Resource Development Limited,[38] Chow Kam Hung[39] and Tsang Siu Tung v The Incorporated Owners of Argyle House (No 43 Argyle Street) (sued on its own behalf and representing all owners of Argyle House, No 43 Argyle Street erected on the remaining portion of Kowloon Inland Lot No 2245).[40]

VII.  DISCUSSION

112.I note D1-2 made the D1-2 Admissions in the Defence filed on 20 June 2013 (see paragraphs 4-5 and 77 above), but even on their own case, they became aware of their alleged error/mistake over the D1-2 Admissions very shortly thereafter in February 2014 (see paragraph 98 above), so the introduction of the Disputed Amendments by way of the Summons was D1-2’s attempt to resile from the D1-2 Admissions after awareness of the alleged error/mistake for some 6 years despite being legally represented all along.

113.Turning first to the D1 Admissions, Mr Hui submitted the D1 3^rd Aff and the Yim 1^st/2^nd Affs established that when preparing the Defence D1-2 was unaware the D1 Admissions were incorrect, ie D1 wrongly admitted he was a teaching instructor of the Wing Chun Classes at the STHB Venue as well as a founding member and director of WCICA Limited. Mr Hui further submitted the Disputed Amendments would clarify that (a) D1 was a qualified instructor in Wing Chun, (b) he was not a teaching instructor of the Wing Chun Classes at the STHB Venue (mistakenly admitted in the Defence), and (c) he only attended such Wing Chun Classes as a senior/experienced student who paid full class fees for such classes like other students. It was said D1 assisted Ip Chun in teaching the Wing Chun Classes by sharing his experience with other students, but he did so only in his own capacity and on pro bono basis. Mr Hui reminded that all along D1-2 denied D1 was an employee, servant and/or agent of D2.

114.But in the D1 3^rd Aff and Yim 1^st/2^nd Affs, D1-2 did not offer any explanation let alone a cogent one as to the circumstances in which the D1 Admissions were made as early as in June 2013. In my view, the following must have been within D1’s personal knowledge all along:

(a)	whether D1 himself attended and/or participated in the Wing Chun Classes at the SHTB Venue in March/April 2009 (including the Wing Chun Class on 5 April 2009);
(b)	whether D1 was a qualified instructor in Wing Chun;
(c)	if D1 attended and participated in the Wing Chun Classes at the STHB Venue (including the Wing Chun Class on 5 April 2009), (i) whether Ip Chun was present at such classes in March/April 2009 (including the one on 5 April 2009), and (ii) whether D1 actually attended and participated as a student or as teaching instructor;
(d)	if D1 did so as a student, whether he paid the class fees, and if so, to whom did he pay his class fees;
(e)	if D1 did so as a teaching instructor, whether it was Ip Chun, WCIC Academy or indeed anyone else who asked him to be such teaching instructor;
(f)	if he participated in the Wing Chun Classes (including the Wing Chun Class on 5 April 2009), whether his participation was to assist Ip Chun “Sifu” in teaching the Wing Chun Classes;
(g)	if so, whether he did so as volunteer in personal and pro bono capacity or otherwise.

115.Although not expressly admitted in the Defence, the D1 3^rd Aff acknowledged that (a) D1 attended the Wing Chun Classes at the STHB Venue, (b) D1 attended the Wing Chun Class on 5 April 2009 (otherwise he would not have wished to clarify his role/involvement in “the Wing Chun Class in question” at the material time), and (c) he assisted Ip Chun “Sifu” in teaching the Wing Chun Class on 5 April 2009 (ie the Wing Chun Class in question). That being the case, D1 must have known in mid-2013 (when the events were in more recent memory than in 2020 when the Summons was filed) the matters in paragraph 114(a)-(g) above.

116.Further, D1-2 were all along legally represented by DSols, and D1 and Yim verified the facts in the Defence (including the D1 Admissions) to be true. There was no suggestion in the D1 3^rd Aff and/or Yim 1^st/2^nd Affs that D1 failed to understand and/or misunderstood the contents of the Defence (including the D1 Admissions). D1 and Yim did not require translation of the contents of the Defence when they signed their statements of truth. D1 could not be said to be unsophisticated (insofar as understanding the factual averments of the D1 Admissions were concerned) when he was an engineer employed a global firm of designers, engineers, planners and building consultants. In my view, Mr Sakhrani rightly queried how D1-2 came to make the D1 Admissions if they were incorrect, and Mr Hui rightly conceded at the Hearing there was no explanation in D1-2’s affirmation evidence. I find such silence deafening.

117.Likewise, there was no credible explanation as to why it was admitted that D1 was a founder member and director of WCICA Limited in 2013 if it were not the case. D1 himself must have known whether he himself was such founder member and/or director. Even if he were uncertain about this (although he did not say so in the D1 3^rd Aff), D1-2 with the benefit of legal representation could have easily enquired with WCICA Limited or conducted company search with the Companies Registry to check WCICA Limited’s articles of association, any Notice of Change of Company Secretary and Director (Appointment/Cessation) and/or Return of Allotments that were filed. There was no suggestion in the D1 3^rd Aff that D1-2 did not take P’s SoC seriously when D1-2 gave their instructions for preparation of the response in the Defence, and/or that D1 failed to understand or misunderstood the contents of the Defence when he verified its contents by his statement of truth.

118.As explained by the Court of Appeal in Re Ng Wai Jing, the question whether there is proper explanation why the admission was made goes to the issue of good faith on the part of the applicant. Regrettably, there was material lacuna in the affirmation evidence in this respect before the court.

119.As for the reason/justification for wishing to resile from the D1 Admissions, the D1 3^rd Aff and Yim 1^st/2^nd Affs did not offer any explanation as to (a) when and how D1-2 discovered the alleged mistakes/errors over the D1 Admissions in the Defence, and (b) why D1-2 left it until September 2020 to apply to court to resile from the D1 Admissions. I note that although P was initially self-represented and lost legal aid in the course of the present litigation, he never abandoned his claim against D1 whom he alleged to be the one who actually struck/ assaulted him. Moreover, D1 disputed liability all along, but (unlike D2-3) never made any application to strike out P’s claim against him. In such circumstances, even on the basis on D1’s own case, there was every reason for him to put his pleadings in order at first opportunity so that, as he claimed, his role/involvement in the Wing Chun Classes would be accurately pleaded/averred. Again, there was a lacuna in the affirmation evidence as to why this was not done until more than 7 years later.

120.Moreover, the D1 3^rd Aff claimed that upon “checking the records” D1 was not a founder member of the WCIC Academy and/or a director of WCICA Limited at any time. First, the D1 3^rd Aff did not state D1 was not a founder member of WCICA Limited (which was part of the D1 Admissions). Secondly, D1 did not say who checked “the records”, when “the records” were checked, what “records” were checked, and what information was actually revealed in “the records”. Thirdly, none of such records were exhibited to the D1 3^rd Aff, especially if such records vis-à-vis WCICA Limited were obtainable via public search at the Companies Registry. Fourthly, even if D2 kept “the records”, there was no reason why Yim could not produce them as exhibits to the Yim 1^st/2^nd Affs in support of the Summons, which was filed on behalf of D1-2.

121.It was starkly evident there was no explanation for D1-2’s present turnaround on the D1 Admissions. There was not even suggestion that the so-called errors/mistakes were spotted late, which itself would hardly be a reason. Taking all the circumstances into account, including the circumstances in which D1-2 sought to resile from the D2 Admission discussed below, I am not persuaded on the evidence that the proposal to amend the Defence to resile from the D1 Admissions was made in good faith.

122.As for the balance of prejudice, D1-2 was saying no more than they now wished to resile from the D1 Admissions and to plead their case as set out in the Disputed Amendments, and that they should be allowed fair opportunity to do so. But if I were to allow D1-2 to resile from the D1 Admissions, the prejudice would be obvious. P carried the onus of proving his case which hitherto had been prepared on the basis of the D1 Admissions, ie he would not need to investigate into or to adduce evidence to prove the D1 Admissions. Unlike contracting parties disputing over a mutually agreed contract or feuding neighbours contesting over adjoining land issues, which parties would be expected to have some personal experience/knowledge of the relevant factual matrix, P in this case was an “outsider” with no personal knowledge as to (a) the “organiser’s” internal arrangements for teaching Wing Chun at the Wing Chun Classes at the STHB Venue and/or (b) the establishment, organisation and directorship of WCICA Limited. If D1-2 were allowed to resile from the D1 Admissions, P would have to start afresh to investigate into and collate evidence on such matters (if he could) by way of seeking discovery, administering interrogatories and searching for witnesses to prove those matters. But by now (ie more than 11 years after the Incident) the facts would be, as Mr Sakhrani submitted, quite stale, and as seen in paragraph 120 above, D1-2 was not even upfront about “the records” that were checked to support the present application. I also reiterate the further discussion in paragraphs 150-152 below on the balance of prejudice.

123.Having reached the above views, it is unnecessary for me to deal with Mr Sakhrani’s arguments in paragraphs 12-13 of his written submissions that the attempt by the Disputed Amendments to resile from the D1 Admission would be futile because D1’s “admission” in the D1 3^rd Aff as to D1’s involvement in “the Wing Chun Class in question” (ie that he was a qualified instructor in Wing Chun and was at the material time assisting Ip Chun “in the teaching of the Wing Chun Class”) would be sufficient to establish both (a) personal liability on the part of D1 if it were found at trial that he did strike/assault D1, and (b) vicarious liability on the part of the “organiser” of the Wing Chun Class in question. In respect of (b) above, Mr Sahkrani referred to Lord Reed’s observations on vicarious liability in Cox v Ministry of Justice[41] cited in my judgment in Tsoi Wing Yuk v Perfect Marble Company Limited & anor,[42] but in that case I found there was no vicarious liability in the part of the two defendants. Mr Sakhrani did not refer to the subsequent decision in Ho Kwok Kei v AS Watson & Company, Limited & ors[43] in which G Lam J doubted whether it was open to the Court of First instance to follow the Cox line of authorities and to expand the scope of vicarious liability in view of the Court of Final Appeal’s current guidance that a person is not vicariously liable for the tort of his independent contractor or the independent contractor’s employee.[44] But as explained above, there was no need for me to deal with the niceties of the law on vicarious liability, which in any event was not argued at the Hearing. Nevertheless, whilst I would not go so far as to say what D1 confirmed in the D1 3^rd Aff would be sufficient to establish liability in (a) above, at the very least it would be pertinent to the issue of liability.

124.As for the D2 Admission (ie D2 was the “organiser” of the Wing Chun Classes at the STHB Venue), Mr Hui submitted that the Disputed Amendments were for correction of genuine error/mistake in the Defence, and that D1-2 were unaware of such error/mistake at the time when the Defence was prepared. In asserting that D1-2 were unaware of the alleged error/mistake, Yim claimed he gave instructions to DSols on behalf of the WCIC Academy from his own personal knowledge, but he was the Chairman of such academy in 2013 but not in 2009.

125.After the SoC was served, Yim was asked by DSols about its contents. As a starting point, the pleaded particulars of negligence against D2 in the SoC (see paragraph 8 above) were plainly against D2 qua “organiser”. Further, Yim was particularly asked by DSols as to whether WCIC Academy was the “organiser” of the Wing Chun Classes at the SHTB Venue from 8:00pm to 10:00pm every Sunday night in/about March and April 2009 (see paragraph 83 above). In the Defence D1-2 denied the particulars of negligence in the SoC, but admitted WCIC Academy was the “organiser” of the Wing Chun Classes at the STHB Venue, which pleading was verified by D1’s and Yim’s statements of truth. There was no suggestion in the Yim 1^st/2^nd Affs that Yim did not know, failed to understand and/or misunderstood the contents of the SoC and/or the Defence, ie that D2 was sued qua “organiser” and it was admitted that D2 was such “organiser”.

126.The Yim 1^st Aff claimed:

(a)	Yim knew the WCIC Academy was being sued qua organiser over the Incident at the Wing Chun Class at the STHB Venue on 5 April 2009 (see above paragraph);
(b)	DSols particularly asked Yim about whether WCIC Academy was the “organiser” of the Wing Chun Classes at the STHB Venue in March/April 2009 (see paragraph 83 above);
(c)	Yim knew Ip Chun “Sifu” had been teaching Wing Chun Classes at the STHB Venue since 1990 either on Saturday or Sunday night (see paragraph 85 above);
(d)	some members of WCIC Academy as volunteers helped Ip Chun “Sifu” with the Wing Chun Classes at the STHB Venue (see paragraph 85(a) above);
(e)	Yim did not regularly attend the Wing Chun Classes at the STHB Venue (see paragraph 84 above);
(f)	Yim was not involved in the administration of WCIC Academy in 2009 (see paragraph 82 above);
(g)	WCIC Academy did not hold regular meetings in 2013 (see paragraph 83 above).

127.On Yim’s own explanation in the Yim 1^st/2^nd Affs, he had no personal factual knowledge about whether or not the Wing Chun Classes at the STHB Venue in March/April 2009 were “organised” by WCIC Academy, but at the very least he would have known the persons most likely to have that information would be (a) Ip Chun “Sifu” who taught Wing Chun at the Wing Chun Classes at the SHTB Venue in March/April 2009, (b) the teaching instructors and/or volunteer members of WCIC Academy who helped Ip Chun “Sifu” at such Wing Chun Classes, and/or (c) the chairman, other office-bearers and/or persons involved in the administration of WCIC Academy in 2009.

128.In respect of paragraph 127(a) above, Yim claimed he did not enquire with Ip Chun “Sifu” so as not to trouble him and make him worry. But this did not sit well with DSols’ letter dated 8 March 2013 to the DLA, which letter stated that P reported to the Shatin Police Station on 5 April 2009 (see paragraph 14(a) above), but when the police refused to follow up on such report P complained to the senior police officer who followed up the case with Ip Chun “Sifu” (see paragraph 14b)-(c) above). As Yim said he represented WCIC Academy to give instructions to DSols, so DSols must have received the aforesaid information set out in their letter dated 8 March 2013 to the DLA from D1 and/or Yim.

129.More importantly, the aforesaid liaison between the police and Ip Chun “Sifu” pre-dated the SoC filed on 23 May 2013 and the Defence filed on 20 June 2013 as such liaison was recorded in DSols’ letter dated 8 March 2013 to the DLA. Plainly, Ip Chun “Sifu” already knew about P’s complaint which had already escalated to involve police investigation, and Yim also knew Ip Chu “Sifu” was aware of such matters even before the SoC was served. Against such factual matrix, Yim’s suggestion that he did not make enquiries with Ip Chun “Sifu” so as not to trouble/worry him was not easy to understand. Actually, to Yim’s and/or D1’s knowledge, Ip Chun “Sifu” had been “troubled” by the police, so enquiries about the Incident and P’s complaint would not have surprised him. It was also quite telling that the DSols’ letter dated 8 March 2013 revealed the police directed their enquiries to Ip Chun “Sifu”, which should have been a pointer for D1-2 as to the direction for enquiries to be made.

130.In respect of paragraph 127(b) above, Yim did not explain why he did not approach (a) the persons who assisted Ip Chun “Sifu” in teaching the Wing Chun Classes at the STHB Venue, such as members of WCIC Academy who volunteered to help Ip Chun “Sifu” with the Wing Chun Classes at the STHB Venue (see paragraph 85(a) above), and/ or (b) D1 who appeared to have attended the Wing Chun Classed at the STHB Venue (including the one held on 5 April 2009) (see paragraph 115(a)-(b) above), who appeared to have assisted Ip Chun “Sifu” in teaching the Wing Chun Class on 5 April 2009 (see paragraph 115(c) above), and who together with D2-3 were represented by the same solicitors DSols:

(a)

In my view, it would have been practical/sensible (and perhaps even necessary given Yim’s alleged lack of personal knowledge) to direct enquiries towards members of WCIC Academy who had volunteered to help Ip Chun “Sifu”. After all, such members should help to defend their own academy/society against P’s claim, and this would not trouble/worry Ip Chun “Sifu”. Indeed, P had no qualms about approaching other members of WCIC Academy, “especially members who helped Ip Chun Sifu organised the Shatin Wing Chun Class”, in February 2014 as to the “organisation” of the Wing Chun Classes at the SHTB Venue in March/April 2009 (see paragraphs 86-87 and 98 above), and in my view there was no or no good explanation why Yim did not approach them a few months earlier.

(b)

Yim’s alleged reticence was perplexing as he must have known from the SoC that P averred D1 was a teaching instructor at the 3rd Class, and from the Defence that D1 averred he was not a servant, agent or employee of WCIC Academy (see paragraph 5 above). A quick enquiry with D1 would have revealed to Yim the facts/matters in paragraph 115(a)-(c) above.

131.In respect of paragraph 127(c) above, Yim did not give any explanation as to why he did not approach the chairman, office-bearers and/or persons involved in the administration of WCIC Academy in 2009 for pertinent information, especially when he claimed (a) he was not involved in the management of such academy in 2009, (b) the Incident occurred in 2009, and (c) he was particularly asked about the situation in 2009 (see paragraph 83 above). I find it hardly credible that Yim would choose to rely on his own personal knowledge (when he was not involved in the administration of such academy in 2009) to give instructions to DSols in 2013. Yim did not disclose who were the office-bearers or administrators of the WCIC Academy in 2009 and/or whether any of them was still an office-bearer or administrator of such academy or was still reachable in 2013. The possible overlap in personnel could not be excluded since members of such academy were the alumni of Ip Chun “Sifu” and/or his disciples, and Yim himself was chairman of such academy for 9 years from 2002-2005 and 2010-2015.

132.Further, as alluded to above, Yim being the chairman of WCIC Academy in 2002-2005 would have known about such academy’s activities during that period, and indeed the Yim 1^st Aff claimed Yim knew Ip Chun “Sifu” had been teaching Wing Chun at the STHB Venue since 1990 (ie including the period from 2002-2005), and some members of such academy helped Ip Chun “Sifu” as volunteers at the Wing Chun Classes at the STHB Venue. Given Yim’s understanding as to (a) the involvement of Ip Chun “Sifu” in relation to the Wing Chun Classes at the SHTB Venue and (b) the assistance rendered by members of WCIC Academy for such classes allegedly qua volunteers rather than qua members of such academy, it was not easy to understand why Yim, even on his case, would have given instructions to DSols that the Wing Chun Classes at the SHTB Venue in March/April 2009 were “organised” by WCIC Academy without enquiries.

133.So Yim’s explanation boiled down to the allegation in paragraph 85(b) above that “prior to 2009” he heard suggestion from Ip Chun “Sifu” for WCIC Academy take over the Wing Chun Classes at the SHTB Venue because Shatin Town Hall was going to impose a rule that would prioritise booking of such venue by sports associations over individuals. Yim did not condescend upon particulars as to the time when (ie how long it was before 2009) and from whom he heard such suggestion. If Yim (as he claimed) had in mind such suggestion when he gave instructions to DSols in 2013, he did not say in the Yim 1^st/2^nd Affs that he queried/checked (or caused DSols to query/check) whether such suggestion had been implemented by March/April 2009 or at least whether the STHB Venue was booked in the name of Ip Chun “Sifu” or WCIC Academy, especially when Yim (on his own contention) knew Ip Chun “Sifu” had been teaching Wing Chun Classes at the STHB Venue since 1990 and some members of WCIC Academy had been acting as volunteers to help Ip Chun “Sifu” with those classes. Further, the aforesaid suggestion from Ip Chun “Sifu” should surely have been raised with the chairman or persons involved in the administration of WCIC Academy prior to and/or in 2009, and one would have thought Yim would have made enquiries with the relevant chairman or persons involved in the administration of WCIC Academy as to follow up on such suggestion.

134.I find the Yim 1^st/2^nd Affs failed to give persuasive or convincing explanation as to why Yim thought the Wing Chun Classes at the STHB Venue were “organised” by WCIC Academy, and they smacked of afterthoughts to justify the claimed subsequent “discovery” of the alleged error/mistake. I bear in mind it was not D1-2’s case that Yim did not understand or was confused about the D2 Admission. Rather, Yim claimed he did give instructions to such effect to DSols, and he knew/ understood the D2 Admission which he verified by his own statement of truth. Indeed, Yim said he believed the D2 Admission was true when the Defence was filed, but it transpired he was mistaken. But in my view, his explanation as analysed above did not withstand scrutiny, and the matters he raised would at best indicate an obvious need for him to investigate further rather to offer comfort for his alleged belief that WCIC Academy “organised” the relevant Wing Chun Classes at the STHB Venue as they raised queries rather than allayed doubts as to who was the “organiser”. In fact, the Defence suggested that D1-2 carried out more investigation than Yim suggested (ie his knowledge of the matters in paragraph 126 above without actual personal knowledge as to whether or not the Wing Chun Classes at the STHB Venue in March/April 2009 were “organised” by WCIC Academy – see paragraph 127 above) when D1-2 put forward a positive averment that there were no attendance record at the 1^st, 2^nd and 3^rd Classes as alleged (see paragraph 10(a) above and also paragraph 36 above). Yim did not explain how D2 came to know this if D2 were not the “organiser” of such Wing Chun Classes and if no enquiries were made to the persons in paragraph 127(a)-(c) above before the Defence was filed. I am not persuaded D1-2 gave a convincing account for Yim’s asserted belief that the Wing Chun Classes at the STHB Venue in March/April 2009 were “organised” by the WCIC Academy. This, as explained in Re Ng Wai Jing, would go to the issue of good faith on the part of D1-2.

135.Yim claimed he subsequently found out his belief that WCIC Academy “organised” the Wing Chun Classes at the STHB Venue in March/April 2009 was mistaken. The Yim 1^st Aff claimed Yim first realised his alleged error/mistake on seeing LCSD’s Booking Form served by PSols in February 2014 (see paragraph 86 above), but the Yim 2^nd Aff clarified that Yim saw LCSD’s Booking Form at an earlier time in October/November 2013 and learned it was Ip Chun who booked the STHB Venue for the Wing Chun Class on 5 April 2009 in his own name (see paragraph 96 above), which was consistent with DSols’ letter dated 31 December 2013 stating that their instructions were that “…… neither [D1], [D2] nor [D3] booked the [STHB Venue] in March and April 2009” (see paragraph 20 above).

136.Yim tried to excuse the above differences in the Yim 1^st Aff (filed on 28 September 2020) and the Yim 2^nd Aff (filed on 1 March 2021) “due to lapse of time”. But the discrepancies in the 2 accounts did not merely go to the time when Yim had sight of LCSD’s Booking Form:

(a)	In the Yim 2nd Aff, Yim claimed the reason he discovered the alleged mistake was because some members of WCIC Academy suggested to him in/about October 2013 that such academy might not be the one who booked the Wing Chun Classes at the STHB Venue in March/April 2009, which caused D2 to obtain the Booking Form from LCSD (see paragraph 96 above). But Yim did not explain who those members were and why they would have approached him in October 2013 when he (being the one who dealt with the DSols) gave instructions to DSols from his own knowledge and did not approach them earlier with enquiries (see paragraph 83 above). Yim also did not disclose and exhibit LCSD’s Booking Form and/or correspondence with LCSD (as P did by way of PSols’s letter dated 13 February 2014 – see paragraph 24 above) to show it was obtained by D2 only in October/November 2013.
(b)	In the Yim 1st Aff, Yim claimed it was after receipt of LCSD’s Booking Form from PSols that he took the initiative to make enquiries with other members of WCIC Academy, “especially members who helped Ip Chun Sifu organised the Shatin Wing Chun Class”, on the “organisation” of the Wing Chun Classes at the STHB Venue in March/April 2009, and “upon further enquiry” Yim was “given to understand” that WCIC Academy did not take over such Wing Chun Classes (see paragraph 86 above). Again, Yim did not identify the members of WCIC Academy to whom he made enquiries, the actual explanations given by such members, what “further enquiry” he made, the persons to whom he directed such further enquiries, and the actual answers he received that gave him to understand WCIC Academy did not “organise” the Wing Chun Classes at the STHB Venue in March/ April 2009.
(c)	From (a)-(b) above, the 2 accounts Yim gave were quite different as to who and what triggered the “enquiries”, and the proffered explanation for the discrepancy of “due to lapse of time” was less than convincing when even on Yim’s contentions, D1-2 were aware of the Booking Form and alleged error/mistake since October/ November 2013 and February 2014, and he was alerted to a need to rectify the D2 Admission by the time the contents of the witness statements were reviewed and counsel’s advice was sought in view of the upcoming CLR hearing scheduled on 12 May 2020 (see paragraph 101 above). That being the case, Yim at the very least had more than 4 months to think over these matters and to seek/receive counsel’s advice before the Summons was filed, and to come up with such a differing account another 5 months later in the Yim 2nd Aff after sight of the P 4th Aff in opposition necessarily raised concern.

137.As explained in the above paragraph, Yim was shy in disclosing what were the actual answers he received from his enquiries or “further inquiry”. Further, given that Ip Chun “Sifu” was involved in the present action consequent upon the Amendment/Joinder Summons and Ip Chun’s Appeal, any concern about not troubling Ip Chun “Sifu” and not letting him worry would have fallen away. By that time, Ip Chun was well aware of the present litigation, and he also instructed DSols to act for him. One would have thought that given Yim’s understanding all along of the matters as set out in paragraph 126 above, and given his realisation from LCSD’s Booking Form since October/November 2013 that the Wing Chun Class at the STHB Venue on 5 April 2009 was booked in Ip Chun’s name, immediate steps would have been taken to seek confirmation from Ip Chun “Sifu” upon P’s service of the Amendment/Joinder Summons in April 2014. But Yim did not say he did so approach Ip Chun “Sifu”, and did not explain whether paragraph 13 of the Yim 1^st Aff that “Ip Chun Sifu therefore continued to organise the Shatin Wing Chun Class by himself (with some help from others) and in his own name” (see paragraph 86 above) were his own surmise or an actual answer to his enquiries made to, say, Ip Chun “Sifu”, D1 and/or other member(s) of WCIC Academy.

138.Having made the D2 Admission and knowing there was need to resile from such admission on the ground of error/mistake since October/November 2013 (or February 2014), one would have thought full/early efforts should have been made to identify as best as D1-2 could who actually was the “organiser” of the Wing Chun Classes at the SHTB Venue in March/April 2009 (including the one held on 5 April 2009), and to frankly set out for P/court details of those investigations to justify the withdrawal of the admission. But, as Mr Sakhrani pointed out, D1-2 had been coy about this. In fact, such coyness was already alluded to in Mr Burke’s 4^th affidavit filed on 17 November 2014 (see paragraph 42 above) against the background of queries previously raised in Mr Burke’s 1^st, 2^nd and 3^rd affidavits filed on 3 and 28 March and 17 April 2014 (see paragraphs 25 and 29 above), which were directed to the identity of the “organiser” of the Wing Chun Classes at the STHB Venue in March/April 2009 (including the one held on 5 April 2009). And all this time, according to the Yim 1^st/2^nd Affs, D2 knew about the error/mistake as to the D2 Admission. I also reiterate the analysis in paragraphs 135-137 above, and refer to the inter-solicitors’ correspondence set out in paragraphs 68-73 above in which D1-2 via DSols time and again insisted the Draft was self-explanatory and declined to confirm on behalf of any third party that such third party organised the Wing Chun Classes. 3 points arose out of D1-2’s such stance which, in my view, did not provide enlightenment that would aid their application to withdraw the D2 Admission:

(a)	In my view, the Draft was not self-explanatory as to who D1-2 would assert to be the “organiser” of the Wing Chun Classes if not WCIC Academy, and there was no substantive reply to PSols’ repeated requests for enlightenment in this respect. Even at the Hearing, Mr Hui did not identify this from the Draft.
(b)	PSols’ enquiry was whether it was D1-2’s contention now that it was Ip Chun who “organised” the Wing Chun Classes at the STHB Venue (including the one held on 5 April 2009) (see paragraph 69(c) above), and not whether DSols could give confirmation on behalf of any third party. And if the answer was in the affirmative upon the former enquiry, PSols asked whether D1-2 acquired such stance from D1 and/or witnesses they intended to call (see paragraphs 71-72 above).
(c)	PSols went on to enquire whether DSols still acted for Ip Chun, and if so, PSols raised further enquiries about Ip Chun’s stance over the “organisation” of the Wing Chun Classes and any limitation issue if a fresh claim were brought against him (see paragraph 69(c) above), but as DSols replied they had no further instructions to act for Ip Chun (see paragraph 70 above), PSols stated they would make their own enquiries with Ip Chun (see paragraph 71 above).

139.Like Mr Sakhrani, I find it strange that D1-2, who knew as early as in October/November 2013 (or February 2014) of a need to resile from the D2 Admission even though they parked such application for the time being pending the outcome of the Striking Out Summons, would not have made appropriate enquiries, obtained answers to those enquiries, and formulated their own reasoned stance as to who was the “organiser” of the Wing Chun Classes at the STHB Venue in March/April 2009 (including the one on 5 April 2009) so as to support such application before the facts turned stale, especially when Ip Chun’s affirmation and D1’s 2^nd affirmation filed on 11 July 2014 to oppose the Amendment/ Joinder Application (see paragraph 38 above) fell shy of saying he was or was not the “organiser” of the Wing Chun Classes at the STHB Venue in March/April 2009 (including the 1^st, 2^nd and 3^rd Classes). Ip Chun deposed that he taught Wing Chun for more than 40 years, but many of his students also “went on to teach Wing Chun to their own students in Hong Kong and overseas”, and as the number of students grew the alumni formally registered themselves as WCIC Academy, but he was not involved in such academy’s decision-making. In my view, the tenor of such affirmation was that Ip Chun’s disciples became teaching instructors on their own and they congregated to form WCIC Academy, which might invite Ip Chun “Sifu” to gatherings that often included practising Wing Chun, and D1’s 2^nd affirmation claimed he was a senior/experienced student of Ip Chun “Sifu” who would share experience at the Wing Chun Classes, which combined allegations seemed to point away rather than towards Ip Chun being the “organiser” of the relevant Wing Chun Classes, and which therefore rendered D1-2’s particular enquiries/investigations and particular answers/results as well as D1-2’s own stance as to who was the “organiser” if not WCIC Academy all the more significant in the present application to resile from the D2 Admission under the Summons. Regrettably, D1-2 sidestepped the issue and did not condescend upon such particulars.

140.The particular enquiries/investigations and answers/results were significant because whilst LCSD’s Booking Form for the STHB Venue on 5 April 2009 in Ip Chun’s name was a piece of relevant evidence, it was not necessarily determinative because Ip Chun had been booking such venue for many years and yet Ip Chun’s affirmation filed on 11 July 2014 and the Yim 1^st Aff (see paragraphs 38 and 85(a) above) suggested some of Ip Chun’s disciples/students who went on to teach Wing Chun themselves congregated to form WCIC Academy, which members (including D1) as volunteers helped Ip Chun “Sifu” with teaching the Wing Chun Classes at the STHB Venue. Indeed, according to Yim, he at one stage thought WCIC Academy might have taken over the Wing Chun Classes at the STHB Venue from Ip Chun “Sifu”. Thus, LCSD’s Booking Form of itself would not necessarily preclude WCIC Academy to be the “organiser” of the relevant Wing Chun Classes. Much would turn on the relevant factual matrix, which (as discussed above) underlined the importance of a full/cogent explanation from D1-2 which was not really forthcoming.

141.Mr Sahkrani submitted D1-2’s application by way of the Summons smacked of strategic manoeuvring in an attempt to get both D2 and Ip Chun “off the hook” by resiling from the D2 Admission and distancing D2 from the Wing Chun Classes at the STHB Venue in March/ April 2009 (including the one held on 5 April 2009), while at the same time protecting Ip Chun by providing the least factual information about Yim’s enquiries/investigations and direct answers that Yim received. Whilst I need not go so far as Mr Sakhrani suggested, I find D1-2’s explanation fell short of providing a credible or convincing explanation to show the application was made in good faith.[45]

142.Turning to issue of delay in taking out the Summons to resile from the D2 Admission by way of the Disputed Amendments, I would say a lapse of over 6 years from February 2014 when Yim claimed to have first realised the alleged error/mistake (see paragraph 98 above even though he already sighted LCSD’s Booking Form in October 2013) to September 2020 when the Summons was filed was quite lengthy (especially when D1-2 were all along legally represented), which delay obviously cried out for an explanation. But D1-2 made no attempt in the D1 3^rd Aff and the Yim 1^st Aff filed in support of the Summons to explain the delay. Instead, D1-2 waited until after P filed the P 4^th Aff in opposition before he gave an explanation for the delay in the Yim 2^nd Aff in reply. Such approach gave little opportunity for P to raise factual objection by affidavit evidence to dispute D1-2’s justification for the delay when D1-2 should in fact have been upfront in the first place given the nature of the application and the need to demonstrate good faith.

143.As seen in paragraphs 96-100 above, Yim claimed D1-2 did not take step to seek leave to resile from the D2 Admission (despite awareness that it was an error/mistake in that it did not reflect D1-2’s case) since February 2014 because D1-2 thought P would not get legal aid (see paragraph 97 above), but when that hope was dashed and P secured legal aid, D1-2 decided to make a strategic move to park the application to resile from the D2 Admission by applying to strike out P’s claim against D2-3. But D1 could not have forgotten about the alleged error/mistake because during this period relevant witness statements were under preparation pursuant to Master Leong’s orders in 2015 and 2016 (see paragraph 99 above). Further, Mr Burke’s 1^st, 2^nd and 3^rd affidavits filed in March/April 2014 time and again referred to D2 Admission and queried D1-3’s stance as to D2’s and/or Ip Chun’s role qua “organiser” in respect of the Wing Chun Classes at the STHB Venue in March/April 2009 (see paragraphs 25 and 29 above). Even though Ho’s 2^nd affirmation referred to LCSD’s Booking Form not being in D1-3’s name, it fell short of pointing out that the D2 Admission was erroneous/mistaken (see paragraph 26 above).

144.Yim then went on to say the present action was then delayed by P’s application/discharge of legal aid, P’s various changes of assigned solicitors, P’s Appeal, the Representation Summons, the 27/11/14 Hearing and P’s various requests to adjourn hearings due to his medical condition during the period from October 2016 to March 2020 when he was self-represented. It was said that since the present action was left idle from 2016 to 2019, the matter of WCIC Academy not being the one who booked the STHB Venue was overlooked until D1-2 reviewed the contents of the witness statements drafted in 2016 for the purpose of the CLR hearing on 12 May 2020, and sought counsel’s advice to finalise the witness statements (see paragraphs 101-102 above).

145.I am not persuaded by such explanations. First, notwithstanding all the reasons put forward in the above paragraph about the present action being idle, P losing legal aid now and then, and P having changes of assigned solicitors, P never abandoned his claim against D2. Even when Master Leong struck out P’s claim against D2-3, P did not meekly accept such result but instead appealed against the 6/6/14 Order. Further, even when P was self-represented during the period from 2016 to 2020, P alleged he had difficulty in attending court hearing, but he never indicated any intention to abandon his claim against D2. D1-2 under advice from DSols should have been well aware of P’s stance.

146.Secondly, without even attempting to go back to distant past, still it must have been abundantly clear to D1-2 who had the benefit of DSols’ legal advice that as of 30 May 2016 it was the parties’ common intent that P’s claim against D2 would resume to proceed. This was because on that day DSols on behalf of D1-2 signed the 30/5/16 Consent Summons that reflected the parties’ agreement that P’s Appeal against the 6/6/14 Order that struck out P’s claim against D2 be allowed, and that leave be granted for P to amend the name of D2 to its present form (see paragraph 51(a)-(b) above). Thus, there should no longer be any doubt that P’s claim against D2 could and would in due course proceed.

147.By that time, on D1-2’s case, they already realised the D2 Admission was an error/mistake, and they had been so aware since more than 2 years ago since October/November 2013 or February 2014. As alluded to in paragraphs 138 and 143 above, the affidavit evidence filed for the Specific Discovery Application, the Amendment/Joinder Summons and the Representation Summons (see also paragraphs 25, 26, 29 and 42 above) all referred to the D2 Admission and/or D2’s role qua “organiser” of the Wing Chun Classes at the STHB Venue in March/April 2009, and these were the very application/summonses that were resolved by the 30/5/16 Consent Summons. An application to amend the Defence to resile from the D1-2 Admissions could have been made by mid-2016 to be returnable at the same time as the hearing of the 30/5/16 Consent Summons. After all, D1-2 could take out such application on their own without need for P’s consent. But even if D1-2 would not formally make such application at that time, there was no reason by mid-May 2016 not to alert PSols in writing that D1-2 intended to resile from the D1-2 Admissions. The fact that the 30/5/16 Consent Summons was not promptly determined and/or the fact that P then lost legal aid did not mean the present litigation was altogether idle. Knowing that P’s claim against D2 would inevitably proceed, it was incumbent on D1-2 who had to seek the court’s indulgence to resile from the D1/D2 Admissions to put their cards on the table as soon as practicable rather than to keep such intention up their sleeve.

148.Thirdly, at the latest by 22 May 2019 when DHCJ Leung granted the 22/5/19 1^st Order in terms of 30/5/16 Consent Summons thereby reinstating P’s claim against D2, there was no longer any further impediment to D1-2 taking out an application to resile from the D1-2 Admissions. To say that D1-2 then sat back whilst P was not legally represented or that they had overlooked the matter until more than a year later when they took counsel’s advice to finalise witness statements could not amount to any good reason that would excuse the delay, especially when Yim (who allegedly made the error/mistake in 2013 and who fully realised the alleged error/mistake in early 2014) was all along the same person who gave instructions to DSols, who in turn all along represented D1-2 (and Ip Chun too). As explained above, the need to resile from the D1-2 Admissions arose out of D1-2’s own matters, and did not require P’s cooperation and/or did not arise from inter partes case management.

149.I am not persuaded there was good reason for the substantial delay. Moreover, the significant delay had consequences. Not having alerted P of the alleged error/mistake over the D1-2 Admissions in the course of negotiations between the parties following the 27/11/14 Hearing to resolve P’s Appeal, Ip Chun’s Appeal and the Representation Summons, the parties’ negotiations culminated in the Consent Summons filed on 30 May 2016 that in practical terms allowed P’s claim against D2 to proceed (even though the court below struck out such claim) and disallowed P’s joinder of Ip Chun as the 4^th defendant in the present action (even though the court below granted leave for such joinder). Bearing in mind that P’s claim against D2 was inter alia qua “organiser” of the relevant Wing Chun Classes (see paragraph 8 above), the D2 Admission must have been a pertinent consideration in P’s insistence on P’s claim against D2, and P’s willingness to abandon the joinder of Ip Chun as the 4^th defendant (see paragraph 94(b) above). Mr Hui submitted it was not so, and suggested P abandoned such joinder because of the observations of Bharwaney J at the 27/11/14 Hearing that the proper course for P was to seek a joinder but to issue a new writ given the expiry of the primary limitation period in respect of P’s claim against Ip Chun (see paragraph 44 above). But even taking into account such observations that fell from the learned judge, the fact P obtained legal aid to issue a claim against Ip Chun after the 27/11/14 Hearing but decided not to do so and instead negotiated a resolution of P’s Appeal, Ip Chun’s Appeal and the Representation Summons that allowed it to proceed against D2 and to abandon the joinder of Ip Chun went a long way to support P’s considered stance of focusing on D2 qua “organiser” in view of the D2 Admission. I bear in mind that 30/5/16 Consent Summons and the eventual 22/5/19 1^st Order that allowed Ip Chun’s Appeal was not subject to any qualification that it would not preclude P from commencing fresh claim against Ip Chun, which proviso would have been natural if a fresh claim was contemplated in order to avoid any argument about re-litigation abuse. In any event, the practical reality was that in the 1½ years from the 27/11/14 Hearing to 30/5/16 Consent Summons (and thereafter), P did not issue any fresh claim against Ip Chun, and he explained it was unnecessary as P’s claim against D2 would be reinstated with the D2 Admission (see paragraph 94(b) above).

150.If D1-2 were allowed to resile from the D2 Admission, I am persuaded that P would suffer prejudice. Whilst it was true that P carried the onus of proving his case, an essential element of his claim against D2 qua “organiser” (see paragraph 8 above) was prepared on the basis of the D2 Admission, especially after the dust had settled on P’s Appeal, Ip Chun’s Appeal and the Representation Summons as a result of the 30/5/16 Consent Summons and the 22/5/19 Order.

151.In my view, to throw open the admitted factual issue in D1-2 Admissions now (more than 6 years after Yim allegedly realised the alleged error/mistake) when the facts were stale would cause hardship on P. First, it would not be easy for P, who was an “outsider” to (a) the WCIC Academy, (b) its relationship (if any) with Ip Chun and (c) the arrangements (if any) amongst WCIC Academy, Ip Chun and his disciples (some of whom were qualified teaching instructors and/or members of WCIC Academy) in relation to the Wing Chun Classes at the STHB Venue in March/April 2009, to gather evidence to prove D1-2 Admissions more than 11 years after the Incident. None of the individuals to whom Yim made enquiries were identified; the details of Yim’s enquiries/ investigations and the direct answers/results from the counterparties were not provided; and the records sighted by Yim were not disclosed. The difficulties in investigation/enquiries highlighted above extended not just to gathering evidence to prove the D1-2 Admissions, but also to ascertaining which alternative party to sue qua “organiser” if D2 were to resile from the D2 Admission. As P explained, the website from which P first gathered information was no longer active, and LCSD told PSols that they no longer had the advertising materials during the relevant period. Thus, the potential sources for further investigation to look for materials on previously admitted facts (for which no evidence was required to prove the same) were lost.

152.Yim (and Mr Hui) suggested P would suffer no real prejudice if the Disputed Amendments were allowed because by now P knew LCSD’s Booking Form was in Ip Chun’s name, the promotional materials for the Wing Chun Classes made no reference to the WCIC Academy, the website of the WCIC Academy did not say it “organised” the Wing Chun Classes, Ip Chun had been teaching Wing Chun at the SHTB Venue long before the WCIC Academy was founded, and D1-2 had all along denied D1 was WCIC Academy’s servant, agent and/or employee (see paragraph 100 above). But such argument did not take away the distinct advantage of an admission as explained in paragraph 106 above, ie P did not have to prove the admitted fact. Further, the fact P had a copy of LCSD’s Booking Form did not mean that P had done the investigation and searches for these proceedings in or about 2014. P had not looked into finding witnesses, seeking discovery and raising interrogatories as there was no need to so do so in relation to a fact already admitted in 2013.

153.Further, if P were to issue a fresh claim against Ip Chun, P would undoubtedly have to face a stiff limitation defence given that Ip Chun raised such defence to resist the Amendment/Joinder Summons in 2014. As at 2014, notwithstanding any procedural argument as to whether P had chosen the right procedural route for raising a claim against Ip Chun, the limitation issue was canvassed before Master Leong, and if D1-2 were to resile from the D2 Admission and P then had to issue a fresh claim against Ip Chun, P could at least pray in aid the favourable analysis by Master Leong in his 22/9/14 Decision to mount a respectable argument that time would not start to run until 13 February 2014, and that P’s claim against Ip Chun was not bound to fail. But by now even such favourable analysis would not have aided P since any limitation period commencing from 13 February 2014 had expired as well. Further, Ip Chun is now 96 years old. Even if he is still in robust health, the need for him to recall events and to investigate into matters more than 11 years ago when Ip Chun’s Appeal was allowed by consent without reservation of right to commence fresh claim would be powerful factors now (in contra-distinction to the situation in 2014) to bar fresh claim by reason of the limitation defence or to bar any attempt to override time limit under section 30 of the LO. This, in my view, must be significant prejudice.

154.In my view, P would suffer prejudice that could not be compensated by costs by reason of the late application to resile from the D1-2 Admissions. It was not good enough to say, as Mr Hui submitted, that P would not be precluded from testing D1-2’s explanation and challenging their credibility at trial, that the long delay had no effect because the trial dates had not been fixed, or that the proposed amendments to the Defence would not cause any substantial delay (when P would have further investigate, gather evidence and/or issue fresh claim to reposition himself following withdrawal of the D1-2 Admissions).

155.In all, I am not persuaded that D1-2’s present application was made in good faith, that there was good/sufficient reason for the delay in making such application, that the balance of prejudice and/or the public interest would favour permitting D1-2 to withdraw their admissions, which would further delay this litigation of many years by requiring P to take steps to prove otherwise admitted facts when the present case was quite close to being set down for trial upon imminent exchange of witness statements and availability of the single joint psychiatric report. It is far too late and too unfair to P for D1-2 to re-write their defence allegations.

VIII.  CONCLUSION

156.In the premises, I grant the following order:

(a)	leave for D1-2 to amend the Defence in the manner marked in red as per paragraphs 1, 2, 3(2), 3A, 5 and 9-18 of the Draft, but not the Disputed Amendments;
(b)	D1-2 do file and serve the Amended Defence within 7 days from the date of this order;
(c)	leave for P to file and serve his Reply (if any) within 14 days thereafter;
(d)	notwithstanding expiry of the time prescribed in paragraph 1 of my order dated 4 September 2020, there be extension of time until 21 days from the date of this order for the parties to serve and exchange witness statements as to fact.

157.There is no reason why costs should not follow event. I grant a costs order nisi that D1-2 shall pay P costs of and occasioned by the Summons (including all costs reserved if any) to be taxed if not agreed, and P’s own costs be taxed in accordance with Legal Aid Regulations.

Mr Ashok Sakhrani, instructed by Burke & Co, for the plaintiff

Mr Wilson Hui, instructed by Rowdget W Young & Co, for the 1^st and 2^nd defendants