王錫華 v. Cheung Fung Ying

DCCJ 5683/2018

[2022] HKDC 1010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5683 OF 2018

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BETWEEN

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Before: His Honour Judge KC Chan in Chambers (Open to Public)

Date of Hearing: 13 September 2022

Date of Decision: 13 September 2022

Date of Reasons for Decision: 15 September 2022

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REASONS FOR DECISION

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1.By her Amended Summons dated 8 July 2022, the defendant applied to dismiss the plaintiff’s action on the ground that it is an abuse of process for want of prosecution.

2.The plaintiff all along has been represented by the same firm of solicitors, namely Messrs Lim & Lok. Though Mr Lok appeared at the last hearing on 24 June 2022 and also at this hearing, he informed the court that his firm had no instructions from the plaintiff. The plaintiff has not filed any affirmation evidence in opposition or made any submission to contest the defendant’s application.

3.At the conclusion of the hearing I struck out the plaintiff’s action and ordered him to pay the defendant’s costs on an indemnity basis.

4.These are my reasons.

Applicable principles

5.The relevant principles have been comprehensively reviewed and reinstated by Ma CJ in Wing Fai Construction Company Limited v Yip Kwong Robert (2011) 14 HKCFAR 935. I need only quote the part relevant to the present circumstances:-

“75. It is not appropriate to deal on a comprehensive basis with the many nuances that can arise in an application to strike out for want of prosecution (such as the different shades of prejudice that can arise when proceedings have been subjected to delay) but the following principles ought to be borne in mind in most cases:-

(1) It is first important to bear in mind that striking out is a remedy of the last resort, as stated above, and only where it would be plain and obvious to do so. If there are other measures that are more appropriate to be taken, they ought to be.

(2) Abuse of the process of the court is the foundation for the exercise of the jurisdiction to strike out for delay.

(3) Abuse can take many forms. The Birkett v James second limb will continue, where it is proved, to be a form of abuse so that inordinate and inexcusable delay causing real prejudice would be an abuse. … .

(4) In the context of abuse, some mention should be made of ‘warehousing’. I have already referred to this earlier. Merely for a party to start proceedings and then delay (which will often involve a failure to comply with the applicable rules of court) will not necessarily amount to an abuse justifying an order to strike out an action. The appropriate remedy in such cases may be for the court to exercise some of the powers I have already mentioned (such as the making of peremptory orders, the payment into court of substantial sums etc). In order for the ‘warehousing’ of claims to justify striking out, it must be clear that the plaintiff is abusing the process of the court. Accordingly, where the ‘warehousing’ of claims indicates that there is simply no intention to bring proceedings to a conclusion or there is a “wholesale disregard” of the rules or court orders, abuse can be found to exist:- see Grovit v Doctor at 647G-H; Arbuthnot Latham at 1436F-G. In Arbuthnot Latham, reference was made to “stale proceedings which bring the litigation process into disrespect” (at 1437C-D). I also place emphasis on another passage contained in Lord Woolf’s judgment in that case (at 1437E): “The courts exist to assist parties to resolve disputes and they should not be used by litigants for other purposes”. In Grovit v Doctor, as we have seen, the abuse took the form of the plaintiff refusing to progress the proceedings despite a letter from the defendants’ solicitors asking the plaintiff to proceed with the action or abandon it:- at 645H-646A.

…

(11) I would also reiterate that under the new CJR regime, it remains the position that the fact any delay was caused by the plaintiff’s legal representatives, will not be relevant to the exercise of the court’s discretion. This was the position before: see Birkett v James at 324A-E. For better or worse, acts done or omitted to be done by a party’s legal representatives will be attributable to that party.”

The action and procedural history

6.The plaintiff was the owner of Flat C4, 15/F, Block C, San Po Kong Mansion, Nos 92-98 Choi Hung Road, Kowloon.

7.On 13 December 2018, the plaintiff issued the Writ herein endorsed with a Statement of Claim against the defendant claiming that since 2016 water has been leaking from the defendant’s flat directly above (Flat C4 on 16/F) causing damage, which the plaintiff claimed at HK$124,500.

8.The Defence and Counterclaim was filed on 21 May 2019 by the defendant acting in person. The plaintiff’s Reply and Defence to Counterclaim was filed on 3 July 2019.

9.After the close of pleadings, no further steps were taken by the plaintiff.

10.The defendant became legally represented on 16 August 2019.

11.On 30 May 2020, the defendant served onto the plaintiff an expert report dated 3 May 2019 (which complied with Order 38 rule 37C) in which was set out the investigations performed by the expert, from which he found and opined, among others, that the origin of water seepage was at the common corridor above 16/F and not the defendant’s flat.

12.After a lapse of almost a year after the close of pleadings and on 5 June 2020, the defendant issued a Case Management Summons and filed her Timetabling Questionnaire. The plaintiff then filed his Timetabling Questionnaire on 11 June 2020. The plaintiff then filed another Timetabling Questionnaire on 17 July 2020 indicated mediation has been attempted but successful and that the plaintiff’s List of Documents will be filed within the time to be directed by the court.

13.On 21 July 2020, Registrar Lui gave various usual case management directions, including filing of lists of documents within 14 days and filing and exchange of witness statements as to facts within 56 days. The Registrar there also gave leave and directions for the filing of expert reports on the cause of the leakage and on the damage and the quantum of repair costs to make good the damage.

14.Pursuant to these directions, the defendant filed her List of Documents on 5 August 2020, her witness statement and her father’s both on 24 September 2020. The plaintiff has not filed his List of Documents or any witness statement.

15.The defendant in her Listing Questionnaire filed on 17 December 2020 indicated that she has been unable to comply with the directions to file a joint statement of the experts because of the failure of the plaintiff to file his List of Documents and witness statements and to serve his expert report, and hence there was no meeting of the experts.

16.On 24 December 2020, Master Rita So, among others orders, made the following unless orders (“1^st Unless Orders”):-

(a) Unless the plaintiff do file and serve a List of Documents on or before 4 pm on 14 January 2021, the plaintiff be deemed to have elected not to adduce any documentary evidence at trial; and

(b) Unless the plaintiff do file and serve witness statement(s) as to facts on or before 4 pm on 11 February 2021, he be deemed to have elected not to adduce factual witness evidence at trial.

17.Despite these being peremptory orders, the plaintiff failed to comply with them in time or at all.

18.On 28 January 2021, the defendant filed her expert report. The plaintiff did not file any.

19.On 10 March 2021, Master Maurice Lam ordered that unless by 4 pm on 24 March 2021 the plaintiff filed and served his expert report, he be debarred from adducing expert evidence at the trial of this action (“2^nd Unless Order”).

20.On 15 March 2021, the plaintiff filed into court a copy of so-called expert report compiled by Mr Cheung Wai Sum (“the Cheung Report”) dated 30 September 2017 (over a year before the Writ was issued). The Cheung Report did not contain a Statement of Truth or a declaration in compliance with Order 38 rule 37C.

21.I divert a bit to say more about the Cheung Report:-

(a) It was a very sketchy report, to say the least. Its body consisted of only 4 short paragraphs in one page.

(b) According to the Cheung Report, its Appendix 3 purportedly dealt with the issue of what caused the water leakage into the plaintiff’s flat. I will quote that appendix in its entirety:-

“3.1 於2017年08月04日第一次視察物業受樓上滲水引致損壞天花狀況。本人發現15樓C4室廳面天花現在仍然有滲漏問題及滋擾，及引致天花油漆嚴重剝落及冷氣機不能啟動。

3.2 而廳面天花受16樓C4單位影響而導致嚴重滲水引致天花油漆嚴重剝落，及引致冷氣機不能啟動。

3.3 由於16樓C4室滲水源頭沒有停止，所以導致15樓C4室長時間受滲水影響而令天花油漆剝落。

3.4 綜合以上勘察及紅外線溫測檢查報告REF. NO.:KLN-B636，本人確認新蒲崗大廈C座15樓C4室單位內天花出現嚴重滲漏事故及結構構件損壞是源於16樓C4和單位導致系統失效/不妥及長時間受滲水份引致15樓C4室結構天花嚴重受損。”

(c) Enclosed with the Cheung Report was an Infrared Thermographic Scanning Survey Report dated 4 August 2017, but bearing “Ref No.:KLN-C712” and not “REF. NO.:KLN-B636”. As stated in paragraph 1.1 there, the “Objective of the inspection is to identify the location(s) of possible defects on the floor and internal walls and ceiling of the Subject Property”. Three locations on the ceiling of the plaintiff’s flat totalling 0.04 meter square in area were identified as defective. The Infrared report thus was concern with the damage to the ceiling and not with the question of the cause of the leakage.

(d) Therefore, there was no investigation or study by Cheung on the cause of the leakage, but there were merely views or assertions expressed by him.

22.Turning back to the procedural history. As only the defendant filed her Listing Questionnaire on 6 May 2021 in compliance with Master Rita So’s Order made on 24 December 2020 but the plaintiff did not, Master Maurice Lam issued various directions on 14 May 2021 on his own motion, including a direction directing the plaintiff to properly file the original of his expert report containing the said declaration on or before 3 June 2021.

23.The plaintiff failed to comply with the said direction to so file his expert report.

24.As shown by 11 letters written by the defendant’s solicitors to the plaintiff’s enclosed with the Listing Questionnaire filed by the defendant on 9 September 2021, the defendant’s solicitors had been chasing the plaintiff since late March 2021 to properly deal with this matter concerning the plaintiff’s expert report and to arrange for a joint meeting between the experts. The plaintiff’s solicitors did not even have the courtesy of responding to any of these 11 letters.

25.On 15 July 2021, the plaintiff issued a summons applying for leave to appoint another expert in place of Mr Cheung Wai Sum. However, at the hearing on 11 August 2021, the solicitor appearing for the plaintiff withdrew the said summons on behalf of the plaintiff.

26.On 25 August 2021, on his own motion Master Maurice Lam ordered, among others, that

“Unless by 4:00pm on 9 September 2021 the Plaintiff do file with the Court the original copy of the Expert Report prepared by Mr Cheung Wai Sum of Loyal Adjustor Limited dated 30 September 2017 in compliance with paragraph 2 of the said Order of Master Maurice Lam [dated 14 May 2021], the Plaintiff be deemed to have elected not to adduce any expert evidence in these proceedings and be debarred from relying on any expert evidence at the trial.” (“3^rd Unless Order”)

27.The plaintiff did not comply with the 3^rd Unless Order.

28.In the Listing Questionnaire filed by the plaintiff on 20 September 2021, the plaintiff confirmed that his expert report has not been verified by a Statement of Truth and did not contain a declaration in compliance with O 38 r 37C. Yet, the plaintiff did not give any explanation as required under section B of the Questionnaire, but still proposed a direction that the experts would meet within 56 days for the purpose of preparing a joint statement.

29.In the Listing Questionnaires filed by the plaintiff on 6 October 2021, the plaintiff, among others,

(a) Did not confirm that all case management directions have been complied with (Q A3);

(b) Did not confirm that there is no outstanding interlocutory application (Q A4);

(c) Did not confirm that discovery has completed (Q A6);

(d) Did not confirm that the plaintiff has served all witness statements (Q A8);

(e) Did not confirm that expert report the plaintiff intends to adduce has been prepared in accordance with court’s direction (Q A12);

(f) Did not confirm that all experts have been served with a copy of the Code of Conduct (Q A13);

(g) Did not confirm that the expert report has been verified by a statement of truth and contain a declaration in compliance with O38 r37C (Q A14);

(h) Stated that he did not intend to cross-examine the expert called by the other party (Q A15); and

(i) Did not confirm that all steps that ought to be taken to prepare the plaintiff’s case for trial have been duly taken (Q A16);

(j) Did not propose any directions or steps to complete the plaintiff’s preparation for trial; but

(k) agreed to the defendant’s proposed direction to set the case down for trial in the Fixture List.

30.In the next Listing Questionnaires filed by the plaintiff on 25 November 2021 as directed by the Master, the plaintiff repeated the same answers as listed in the preceding paragraph, and proposed the case be set down for trial.

31.Noteworthily, in all the Questionnaires filed by the plaintiff, he did not explain why he has failed to take such steps to properly prepare his case for trial and did not make any proposal or indication as to whether these steps would be taken, and if so, by when.

32.Such circumstances notwithstanding, the Master on 26 November 2021 set the action down for trial before this court in June 2023 with an estimated length of trial of 3 days.

33.By summons taken out on 14 April 2022, the defendant sought to strike the Statement of Claim out and dismiss the action pursuant to O 18 r 19.

34.At the first hearing of that summons on 24 June 2022, this court gave leave to the defendant to amend the summons to strike out the plaintiff’s action on the ground that it is an abuse of process for want of prosecution. I also directed that my order given that day be served by the defendant additionally to the plaintiff’s last known residential address, which the defendant duly did.

Discussion

35.By taking a closer look at the procedural history, it is plain as day that the plaintiff commenced this action but without any intention to prosecute his claim in good faith and has been dragging his feet in every step along the way.

36.Since filing his pleadings, the plaintiff has not taken even one single substantive step in the proceedings. Something as basic as his list of documents was not filed. To date, he has not filed his witness statement. The Masters have closely managed the action by, among others, directed extra rounds of Questionnaires, and then had to issue various peremptory orders to ensure compliance. Nonetheless, the plaintiff blatantly flouted the 1^st Unless Orders. He purported to comply with the 2^nd Unless Order by filing a copy of the Cheung Report, which in substance and in form did not qualify as an expert report. He did not take heed of the Master’s direction to file the original of that report and to have it complied with O 38 r 37C. He did not even respond to the defendant’s said 11 letters. He flouted the 3^rd Unless Order in circumstances that clearly showed he never had any intention to comply and prepare a proper expert report.

37.Without a doubt, there has been wholesale and repeated disregard by the plaintiff of the rules and orders of the court.

38.Yet, the plaintiff apparently continued to instruct his solicitors to appear at various case management hearings, to file numerous Questionnaires and to propose the action be set down for trial; thus stringing the defendant along in these few years into incurring not only the time and costs usually required in defending, but extra and otherwise unnecessary ones to drag the matter along to a resolution.

39.At trial, the plaintiff would be debarred from relying on any documentary evidence, be debarred from relying on any evidence from any factual witness and be debarred from adducing any expert evidence. Since he bears the burden of proof at trial, the coming trial would have been a non-starter so far as his claim is concerned. There plaintiff’s action thus is bound to fail. There is no point in further allowing the plaintiff’s claim to proceed to trial.

40.It is not known why the plaintiff would conduct his claim in such manner. It is most hard to understand why, if he has been duly and properly advised as to the meaning and consequences of his such actions, that he would choose such a course. Such state of affairs regarding the conduct of the plaintiff’s claim is alarming to this court.

41.In my judgment, this is a plain case, and one of the worst cases, of abuse of process.

Disposal

42.For these reasons, I ordered the plaintiff’s action be struck out as an abuse of process.

43.This court was affronted by the plaintiff’s abuse and had to mark its disapproval. The defendant has been dragged into a litigation for more than 3 and a half years over a relatively small claim, and in the meantime been suffering the stress and been bearing the financial burden of paying for her own lawyers for not only the usual, but extra, costs. In my view, this is a clear and appropriate case that the plaintiff should be ordered to pay the defendant’s costs of the plaintiff’s claim, including all costs reserved and the costs of this application with certificate for counsel, to be taxed on an indemnity basis. Thus, I so ordered.

44.In view of the special circumstances, I would direct that additionally a copy of this Reasons for Decision be sent to the plaintiff at his last known residential address with a note in Chinese that if he requires, he may contact my clerk to arrange for the interpretation of these Reasons to him in Punti.

45.I thank Mr Lui for his assistance.

Mr Lok Tze Bong, of Lim & Lok, for the plaintiff

Mr Lui Ka Man, instructed by Huen & Partners, for the defendant