Read the full judgment text of on BabelCite. was delivered on 20 October 1999 before Hon Mr Justice Stone.
Civil procedure – amendment of pleadings – withdrawal of admission – application by 1st Defendant (Sealand Service Inc.) for leave to amend its Points of Defence to withdraw an admission that it was the contracting carrier under Bill of Lading No. CT319 – contract of carriage of 584 cartons of ski gloves from Shanghai via Hong Kong to Pittsburgh, U.S.A. – goods found damaged with water stains and mildew on delivery – claim valued at US$51,624.85 – Writ issued 10 August 1990 – admission made in 1990 Points of Defence after legal advice and investigation – application made approximately 8.5 years later prompted by Plaintiffs' summary judgment application – applicable legal principle – amendments generally allowed without injustice – test for withdrawal of admission from Gale v Superdrug Stores [1996] 1 WLR 1089 and Re Chung Wong Kit [1999] 1 HKC 684 – discretion to be exercised after balancing prejudice to either side – party resisting withdrawal must produce clear and cogent evidence of prejudice not compensatable in costs – quality of explanation for change of stance is part of discretionary mix per Waite LJ in Gale – court in Tse Yuk Tin v Chee Cheung Hing & Co Ltd [1984] HKLR 391 requires convincing credible explanation where conscious admission is sought to be withdrawn – on the facts the court found the Defendant's explanation unconvincing, internally inconsistent, and a purely tactical manoeuvre timed to respond to the imminent Order 14 application – connecting carrier agreement between Zhejiang Fuchuen Co. Ltd. and the 1st Defendant appeared irrelevant since it concerned shipments to Canada not America – Plaintiffs demonstrated through Mr Kerry's 4th affidavit that due to passage of time they were virtually unable to adduce documentary or other evidence as to circumstances surrounding the issue of Bill of Lading CT319 – Qian Tang unable to provide details of the alleged 1987 agency agreement with Sealand – application dismissed in respect of the withdrawal of the admission – 1st Defendant free to reformulate other proposed amendments by consent – costs of the application to the Plaintiffs in any event to be taxed if not agreed.
Legal issues: Withdrawal of admission of contracting carrier status under Bill of Lading
Outcome: The 1st Defendant's application to amend its Points of Defence was dismissed in so far as it sought to withdraw the admission regarding the existence of the contract of carriage evidenced by Bill of Lading CT319.