Yip Wei-man v. Ip Sui-lau and Another

Case No.HCA 2733/1977

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA002733/1977

IN THE HIGH COURT

	1977 No. 2733

BETWEEN
	YIP Wei-man by his next friend CHIM Yuk-kam	Plaintiff
	and
	IP Sui-lau	1st Defendant
	IP Sui-yeung	2nd Defendant

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Coram: Zimmern, J.

Date of Judgment: 2nd March 1978.

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ORDER

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1. Upon the hearing of this running down action before me this morning there was no application by counsel for the plaintiff to amend the amended Statement of Claim. The Particulars of Injuries under paragraph 5 read as follows:

"As per Medical Report dated the 10th September 1976 by Dr. Maria Kwong and Medical Report dated 18th March 1977 by Dr. R.G.M. Wedderburn annexed to the Writ herein."

There were affixed to the Writ of Summons with the amended Statement of Claim indorsed therein copies of the two medical reports comprising of some four typed pages. This piece of pleading was such a flagrant transgression of the rules 6, 7 of Order 18 of the Rules of the Supreme Court that I ordered the plaintiff to amend the Particulars of Injuries to comply with the said rules, delete the medical reports from the claim and further ordered that the case be adjourned and not to be restored to the list until the amendments have been made.

2. About a weak ago a case was set down before me but happily the matter was settled before the case was called and counsel and solicitors for the parties came into chambers to record the terms of settlement. I commented then on the state of the defence and counterclaim. The claim against the defendant was as drawer of cheques dishonoured on presentation and as a guarantor under a guarantee in writing. The defence and counterclaim were based solely on an allegation of duress - that the plaintiff had locked and detained the defendant in certain premises and forced him to sign the cheques and the guarantee. The plaintiff was a limited company. Cases with such pleadings ought not to have been set down for trial.

3. Reverting to the present case the pleader might well have directed a clerk to fill in the Particulars of Injuries from the medical reports and the clerk uninitiated in the esoteric mechanics of pleading took the short way out and the pleader unwittingly failed to notice the mistake. This of course does not excuse the pleader or is a pleader who after receiving service of such a claim deigns to serve a defence to it excused for his answer should only have been amended or else.

4. I come to the Summons of Directions under Order 25 and I cite the well-known passage in the 1976 White Look at page 423:

	"Scope of this Order - This Order is taken from R.S.C., O. 25 (as amended by R.S.C., 1964), which had replaced the former O. 30 which was itself entirely new when made in 1954 (R.S.C. (Summons for Directions) 1954), as a result of the recommendations of the Evershed Report. The principal intention of those recommendations was that there should be a thorough stocktaking relating to the issues in an action and the manner in which the evidence should be presented at a trial with a view to shortening the length of the trial and saving costs generally. It was recommended that this stocktaking should take place except in certain forms of action, at a late stage of the proceedings after completion of discovery and inspection of documents.
	The former O. 30 did not follow this recommendation, for it had provided that the summons for directions was to be issued after the close of pleadings but before discovery had taken place. This new O. 25, however, does indirectly embody the recommendation that the summons for directions should be issued after discovery, for it provides for the issue of the summons one month after the close of pleadings or 14 days after any extended time for discovery. The result is that by the time of the first hearing of the summons, the parties should normally have completed their discovery, and this should enable the parties to fulfil their duties under r.6, infra, to assist the Court to make a really thorough stocktaking of the action, and to enable the Court to exercise its robust powers, particularly under rr. 3 and 4, infra. It should also enable the parties to reduce the number and scope of interlocutory applications, such as those for further and better particulars, for interrogatories, and further discovery. In this way, the new O. 25 has considerably strengthened the summons for directions and it should have the advantage of disposing of actions with greater expedition and a considerable saving of costs."

There can be no thorough stocktaking without diligent preparations for such stocktaking by the parties and vis-a-vis pleadings these include a review whether amendments are necessary. This Order also thrusts on the Court hearing the summons the duty to consider in particular, if necessary of its own motion, whether any order should be made or direction given in the exercise of the powers conferred by, inter alia, Order 20 r.5 which deals with amendment of writ or pleading with leave.

5. Order 25 is there for very specific purposes and it is time that more regard should be had for its provisions and purposes. Speaking for myself in future if leave to amend any pleading is made at the trial which reasonably ought to have been made at the hearing of the summons for directions, then if granted the order for costs might well be personal. As it were in the present case I made no order as to costs for the day's hearing and the costs incurred and thrown away by the amendment.

Representation:

Miss McGrowther (Vincent Lo & Co.) for the plaintiff.

Sakhrani (H.A. Hoosenally & Co.) for the defendants.