Success Lane Development Ltd v. Fergurson Hong Kong Ltd t/a New World Millennium Hong Kong Hotel

DCCJ 2191/2023

[2024] HKDC 482

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2191 OF 2023

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DECISION

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INTRODUCTION

1.This is the plaintiff’s eleventh-hour application, by its summons filed on 19 March 2024 (“P’s Adjournment Summons”), to adjourn the hearing scheduled to take place on 27 March 2024 with 1 day reserved for substantive arguments on (1) the plaintiff’s summons filed on 16 November 2023 for leave to re-amend the amended statement of claim (“P’s Amendment Summons”) and (2) the defendant’s summons filed on 20 December 2023 for specific discovery, joint inspection and expert evidence (“D’s Discovery Summons”). In P’s Adjournment Summons, the plaintiff also seeks leave to file an amended summons to amend P’s Amendment Summons within 42 days, presumably to enhance the draft re-amended statement of claim attached to P’s Amendment Summons.

2.Not only was this application a late application. The solicitor appearing for the plaintiff at the hearing was also 20 minutes late, alleging that he had to take instructions from the plaintiff only this morning because the counsel they would like to instruct confirmed only last night that he could not attend today’s hearing. This excuse is totally unacceptable. The plaintiff took out the summons on 19 March 2024, and I was very surprised that he thought that he could wait for the counsel’s confirmation last night and then only took instructions from the plaintiff this morning.

PURPORTED REASONS FOR ADJOURNMENT

3.The plaintiff had been acting in person on the court record until 14 March 2024, the date when the plaintiff’s current solicitors Messrs Titus filed a Notice to Act. Although the plaintiff had been acting in person, I must say that the legal documents prepared by the plaintiff thus far looked professional (for example, the draft re-amended statement of claim with proper case title and proper colours and underlining for proposed amendments in P’s Amendment Summons and in well-written typed English, and in the past, when applying for an interlocutory injunction, filing detailed skeleton submissions citing various cases). In any event, on 19 March 2024, the plaintiff issued P’s Adjournment Summons. The Summons is supported by an affirmation made by a solicitor of Messrs Titus, which contained only the following four paragraphs:-

“1. I am a Solicitor in the employ of Messrs Titus …

2. I was only engaged on 14^th March 2024 and I did on 14^th March 2024 file the Notice of Act …

3. On 1 March 2024, DDJ Michelle Lam delivered 2 decisions, and HHJ Harold Leong also issued his decision on 5 March 2024. I filed the applications for 2 sets of leave to appeal against these decisions on 15^th March 2024 and 19^th March 2024, respectively.

4. Upon reviewing the documents for the hearing on 27 March 2024, I would require more time to finalize the Plaintiff’s draft re-amended writ, formulate arguments in opposition to the Defendant’s Discovery Summons and engage Counsel.”

5.There is no explanation of why the plaintiff decided to engage lawyers only on 14 March 2024, when it commenced the present action on 2 June 2023.

6.Thus, in essence, the plaintiff’s only purported reasons for the adjournment are that its new legal team just picked up the matter, that they were tied up with other applications in the proceedings, and that they would need time to review the documents.

LEGAL PRINCIPLES

7.These purported reasons would exist almost whenever there is a change in legal team, but it is trite that a change in legal team in itself is not a good reason for adjournment: see Fortune Asset Development Ltd v De Monsa Investments Ltd [2009] 4 HKLRD 439 at §14 per Au-Yeung J; Macau First Universal International Ltd v Ding Xiaohong, HCA 992/2010, 19 May 2011 at §5 per Au-Yeung J. I see no difference in a situation where a litigant-in-person changes his representation from himself to a new law firm. I trust that in proper discharge of their duties, the incoming legal team must have assessed its capacity before deciding to take up the matter, and the client must have been properly advised that there is no guarantee for adjournment of any pending hearings, given that the Court has also to consider the rights and interests of the other party in the balancing exercise on a case-by-case basis. In this regard, I find the case submitted by the plaintiff, Sun Hing Cheong Textile Ltd v Chan Wai Ming and others [2018] HKCFI 765, helpful only to the extent of illustrating the general principles. The facts in that case have no resemblance to the present case at all.

8.In this balancing exercise, prejudice is an important factor. This is a matter I shall now consider.

PREJUDICE

9.If I would allow the adjournment, D’s Discovery Summons would be delayed. A delay in the disposal of a summons in itself (whether eventually it would be allowed or not) is a prejudice: see Poon Ka Man Jason v Cheng Wai Tao [2018] HKCFI 771 at §68 per Au-Yeung J, even if in my view, the plaintiff offered to pay wasted costs. In this regard, I note that the defendant filed and served its skeleton submissions on 13 March 2024. Although this is earlier than PD 5.2 requirement, it was perfectly legitimate for the defendant’s legal team to start the preparation by 13 March 2024 for the hearing of 27 March 2024.

10.If I would not allow the adjournment:-

(1)  the plaintiff’s new legal team would have only about 3-4 days (from 19 March 2024, the date when the new legal team filed the application for the last set of appeal and so the legal team should be able to be focused on reviewing other documents) to 22 March 2024, when the plaintiff should file and serve its skeleton submissions) to prepare for the hearing. That said, this prejudice must have already surfaced as a risk in the solicitors’ mind when they decided to take up the matter on 14 March 2024 because, as said, and the solicitors must have been aware, there can be no guarantee that an adjournment must be granted. Further, the plaintiff has not provided any reason for why it saw fit only to engage lawyers on 14 March 2024, when it commenced the action back on 2 June 2023. All these are the plaintiff’s own decisions. As the plaintiff (who I assume has been properly advised) has its eyes wide-opened to such risk, then I should pay less regard to any prejudice that the plaintiff would suffer as a result of a non-adjournment.

(2)  The plaintiff may lose its chance to enhance its draft re-amended statement of claim, and time and costs may be wasted when the plaintiff would have later to take out yet another application to further amend the statement of claim. However, the difficulty I have is that I do not know what enhancements the plaintiff (or the plaintiff’s solicitors) would make because there is no draft produced before me – I simply am not in any position to assess the merits of any “enhancements”. On the other hand, the plaintiff would still be entitled to take out a further summons for any further amendments. (Of course, whether that further summons for any further amendments would be allowed would be determined with reference to the applicable legal principles, but this is always the case whether I would allow the adjournment here or not.)

(3)  Further, as I noted above, the documents prepared by the plaintiff when acting in person look professional. The point here is that the papers the plaintiff’s solicitors have now taken over are not in any haphazard manner that would require substantially extra time for reviewing. I draw comfort from the fact that the plaintiff’s solicitors were indeed able to lodge with the Court of Appeal applications for leave to appeal on 15 and 19 March 2024. I have no reason to think that the plaintiff’s solicitors would just file some papers with the Court of Appeal without proper understanding of the case.

CONCLUSION

11.Considering all the above, I refuse the plaintiff’s adjournment application. Therefore, I dismiss P’s Adjournment Summons with costs to the defendant, to be summarily assessed, payable forthwith.

Mr C L Ng of Messrs Titus, for the Plaintiff

Mr H Y Leung of Messrs Y T Chan & Co, for the Defendant