Au Cheuk Wing v. Mesdames Loretta Ng-quinn Slaton and Others

HCA001175/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1175 OF 1973

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Coram: Trainor, J. in Chambers.

Date of Judgment: 1st August, 1975.

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JUDGMENT

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1. I ordered these proceedings to be struck out with costs to the defendants for want of prosecution and said that I would give my reasons later. I now proceed to do so.

2. Properly to understand the application and the result it is necessary, I think, to review the history of the case.

3. In I962 the plaintiff was the owner of a piece of property known as 372, Lai Chi Kok Road, Kowloon on which there was a building. The property was suitable for development but, apparently, the plaintiff was not in a financial position to develop it. An agreement was entered into between himself and the Shun Fung Investment & Construction Company Ltd. (hereafter referred to as Shun Fung) whereby it was agreed that the Company would build a block of flats on the property. It was also agreed that the Company would pay the plaintiff the sum of $35,000 and on completion of the flats the plaintiff would assign to the Company or its nominees 10 equal undivided 13 shares in the property together with the exclusive right to occupation, possession and enjoyment of the flats on the 3rd to the 11th floors of the building that was erected, the plaintiff to have the three flats on the other floors. The agreement was reduced to writing and was executed on the 10th October, 1962 by one Honway Ng-Quinn, the son of Sydney Ng-Quinn (a partner in the firm of solicitors K.F. Wong & Company who acted as solicitor for both parties) on behalf of the Company, and by the plaintiff. The plaintiff's signature was also witnessed by Sydney Ng-Quinn.

4. On the same day the plaintiff executed a power of attorney in favour of Shun Fung in which was recited the scheme for development of the property set out in the agreement and the other terms. It would appear that this document gave a very wide ranging power to Shun Fung to deal with the property to be developed. Acting under the power contained in the power of attorney Shun Fung executed a mortgage of the property in favour of one Yuet Lee Investment & Construction Co. Ltd. for the sum of $85,000. The affixing of the seal of Shun Fung was witnessed by the same Honway Ng-Quinn and by Sydney Ng-Quinn.

5. On the 4th July, 1963 the mortgage was re-assigned and the property was again mortgaged by Shun Fung to a Mr. Wong Cheuk Man for, again, the sum of $85,000. This mortgage was also witnessed by Sydney Ng-Quinn. There were two transfers of this mortgage, the second being on the 17th October, 1964 when it was transferred to Wong Yiu Sin, the wife of Sydney Ng-Quinn and the mother of Honway Ng-Quinn.

6. In about December, I963 the plaintiff began to have doubts as to the success of the proposals set out in the agreement of the 10th October, 1962. At the end of 1963 or the beginning of 1964 he consulted a Mr. K.Y. Yung, Solicitor, who advised him to see the solicitor who acted for him when the document was prepared and accordingly the plaintiff went to see Mr. Ng. He saw him and was reassured as to the progress of the matter.

7. On the 14th November, 1964 an order was made that Shun Fung be wound up and the Official Receiver was constituted a provisional liquidator of its affairs.

8. The plaintiff became aware of the petition to wind up the Company and he called on Messrs. K.F. Wong & Co. where he was advised that he should wait until the case be settled by the Official Receiver. He was told by a clerk in the deceased's firm not to worry about the matter and was assured that the building would be completed "as soon as the Official Receiver offered to release the case". According to the affidavit of Mr. Anthony Taylor, a solicitor in the firm representing the plaintiff in these proceedings, the plaintiff was also told that the mortgage had been transferred to Madame Wong Yiu Sin and the clerk also showed the plaintiff title deeds relating to the property.

9. The afficait went on to say that the plaintiff was ignorant of the procedure before the Official Receiver and had no idea how long it would take to wind up Shun Fung but he made enquiries in the offices of Messrs. Wong & Co. two or three times a year and was told by a clerk, Mr. Lai, that the matter was proceeding normally.

10. About the 3rd November, 1969 the plaintiff received a letter from a firm of solicitors in which he was asked to discharge the principal and interest outstanding on the mortgage and told that in default of so doing within a month the property would be put up for sale. The plaintiff was unable to raise the necessary money and on many occasions attempted to contact Mr. Ng but was unable to do so.

11. About the end of 1969 or the beginning of 1970 he consulted the Commercial Crimes Office where he was advised that the matter was civil. In December 1969 he consulted the firm of Messrs. Deacons, Solicitors. It was not so stated in Mr. Taylor's affidavit but the fact that the plaintiff consulted Messrs. Deacons might well be due to the result of advice he received from the Law Society of Hong Kong.

12. Apparently on the 18th November, 1969 the plaintiff lodged a complaint against Mr. Ng with the Law Society, and on the 27th November, 1969 he was advised to seek legal advice "most urgently from the defendant firm of solicitors".

13. I am unaware of any activity on the part of the plaintiff between early 1970 and early 1971 but in 1971 he wrote to the Unofficial Members of the Executive and Legislative Council who advised him that he should apply for legal aid. Indeed his case was transferred to the Legal Aid Authorities but he was refused as his income exceeds $500 a month.

14. In March 1971 the plaintiff wrote to a Mr. John Rear, a lecturer in law in Hong Kong University, seeking advice from him.

15. On the 14th of October, 1971 he wrote to Sir Ivo Rigby the then the Chief Justice. The substances of all the complaints made by the plaintiff were that he had been defrauded by Sydney Ng-Quinn who had conspired with his son and wife to cheat him into signing a power of attorney. The advice from the Chief Justice, as sent by the Registrar of Supreme Court, was that the matter should be referred to the disciplinary committee of the Law Society. Mr. Rear advised that he should consult a firm of solicitors.

16. Acting on the advice of Mr. Rear the plaintiff consulted Messrs. Johns on Stokes & Master where he was seen in early September 1971 by Mr. Taylor. I should point out that it was after seeing Mr. Taylor and contrary to his advice, as I understand the position, that the letter was sent to Sir Ivc Rigby. Towards the end of 1971 the plaintiff again consulted Mr. Rear who again referred him back to the firm of Messrs. Johnson Stokes & Master.

17. The plaintiff again saw Mr. Taylor during the early and the middle parts of 1972 and eventually, in September 1972, the plaintiff finally gave instructions to institute proceedings.

18. In November 1972 Counsel's opinion was sought and this was delivered towards the end of January 1973.

19. In January 1973 the plaintiff's solicitors wrote a letter to Mr. Ng in which, after outlying the history of the agreement, the power of attorney and the mortgage it was stated that the writers had received instructions to institute proceedings against the deceased on the basis of negligence and undue influence. The letter went on to ask if the deceased had any proposals to make by way of settling the matter without litigation.

20. There were, apparently, some discussions between Mr. Taylor and a Miss Lo, Solicitor as a result of that letter but nothing appears to have transpired. A writ was issued on the 7th May and some correspondence passed between the plaintiff's solicitors and a firm of solicitors, Messrs. Woo & Woo, with regard to accepting service.

21. On the 30th May Messrs. Woo & Woo wrote to the plaintiff's solicitors saying that they would accept service.

22. On the 20th June a copy of the writ was sent to Messrs. Woo & Woo but this was returned to the plaintiff's solicitors on the 3rd July with a covering letter dated the 30th June informing the plaintiff's solicitors of the death of Mr. Ng on the 27th June. As a result of an exchange of correspondence, the writ issued on the 7th May, 1973 was amended, whereby the deceased's name was deleted from the summons and Loretta Ng-Quinn Slaton,the executrix of his will, substituted. Dolores Pearl Ng-Quinn Koo and Anna Sau Ting Wong, surviving partners in the firm of Messrs. K.F. Wong & Co., Solicitors were made the 2nd and 3rd defendants. The order to amend the writ was made on the 24th December, 1973.

23. On the 3rd February, 1975 the plaintiff's solicitors wrote to Messrs. Woo & Woo who act for the 1st defendant and to Claire W.Y. Ng & Co., Solicitors, who act for the 2nd and 3rd defendants asking if they would consent to the time for delivering and filing the Statement of Claim being extended. The solicitors replied on the 17th and 24th of February respectively saying that their instructions were not to consent to the Statement of Claim being filed out of time.

24. On the 24th February, 1975 the plaintiff's solicitors issued a notice pursuant to 0. 3 r. 6 of the Rules of the Supreme Court of the plaintiff's intention to proceed with the action at the expiration of one month.

25. On the 2nd April, 1975 an inter parte summons for leave to file and serve a Statement of Claim out of time was issued by the solicitors for the plaintiff; and on the 3rd of April a summons was issued by the defendants' solicitors asking for an order that the action be dismissed for want of prosecution by reason of the prolonged or inordinate and inexcusable delay of the plaintiff in proceeding with the action. By consent those summonses were adjourned by the Registrar to a judge in Chambers.

26. The matter came before me on the 27th June.

27. In his affidavit filed the 17th June, 1975 Mr. Taylor deposed that in March 1974 he had drafted a Statement of Claim which he sent to the Counsel to settle. He said as a result he received certain advices from Counsel who also sought further information. He said that he had interviews with the plaintiff and as a result it was necessary to make various searches in the Land Registry and for the plaintiff himself to obtain further information. He said that as a result of the searches and obtaining the further information conferences with Counsel and the plaintiff were held and further directions were given by Counsel. He said it was impossible until January 1975 for him to send to Counsel all the information he required to enable him to settle the Statement of Claim. He said he received the settled Statement of Claim in the beginning of February.

28. The writ, as finally amended, claims damages for the negligence and/or undue influence of the deceased. The damages are claimed against the 1st defendant as his executrix and against the 2nd and 3rd defendants as partners with the deceased in the firm of K.F. Wong & Co.

29. Exhibited to the affidavit of Mr. Taylor was the proposed Statement of Claim. It alleged that at the time of the signing of the agreement of the 10th October, 1962 and the power of attorney the plaintiff was not advised by the deceased, or his firm, as he ought to have been by reason of the solicitor and client relationship that existed between them, that the plaintiff stood to lose all his rights in the property under the said agreement in the event of the liquidation of Shun Fung Company. The Statement of Claim further stated that the plaintiff would rely on the presumption of undue influence by reason of the relationship between himself and the deceased, and the family connection between the deceased and his son, the director of the Shun Fung Company, and the deceased's wife as the assignee of the mortgage.

30. The Statement of Claim went on to say:

31. The Statement of Claim went on then to refer to the letter of the 3rd November, 1969 whereby Wong Yiu Sin demanded the payment of $85,000 in discharge of the mortgage. It refers to the plaintiff's inability to raise the sum and that the property was sold by public auction on the 10th March, 1970 and as a result of the sale the plaintiff suffered loss and damage.

32. Paragraph 24 of the Statement of Claim reads:

"The said loss and damage was caused by negligence and or undue influence of the said Sydney Ng-Quinn, deceased, in that:-

33. Paragraph 19 refers to the solicitor and client relationship between the plaintiff and the deceased and the presumption of undue influence by reason of deceased acting for both parties, and the family connection between the deceased and Shun Fung and the holder of the mortgage.

34. Mr. Swaine of the Inner Bar who appeared for the defendants pointed out that nowhere in the Statement of Claim was there a suggestion that the agreement of the 10th October, 1962 was unfair, nor was there any attack upon the power of attorney. He said that the agreement was a very usual one between owners of land and developers. He said that under the agreement the plaintiff was to receive $35,000 (and did) and three flats and that the developers would receive 10 flats. He said that there could be no suggestion that this was unfair.

35. Again, he said, the first mortgage was not under attack, but what was critized was that the second mortgage, the money from which had redeemed the first, was assigned to the wife of the deceased. Mr. Swaine told the Court that she came to the rescue of Shun Fung and the mortgage was so assigned in order to pay off the assignor and prevent him from taking action on the mortgage.

36. The principal complaint of the plaintiff, Mr. Swaine said, was that the deceased did not warn him of the possibility of Shun Fung becoming insolvent and being wound up. Mr. Swaine was prepared to concede that had the deceased been aware in 1962 that Shun Fung was at risk, of if the deceased should have known such to be the case then the plaintiff would have a cause of action; but nowhere, he said is it suggested that Shun Fung was in any difficulty in 1962 or, if it were, that the deceased was aware of such difficulty or should have been so aware.

37. He referred to paragraph 20 of the Statement of Claim in which it is alleged that the inducement to sign the agreement came from Shun Fung. There was no allegation that in 1962 any representations that were made by that Company were false. It was Mr. Swaine's contention that no cause of action existed; that if one did it was statute barred; and that the plaintiff having accepted benefits under the agreement and having been prepared to accept further benefits could not be allowed now to approbate the agreement at the same time reprobate. Mr. Swaine maintained that if the plaintiff has any cause of action he was guilty of inexcusable and inordinate delay in proceeding with it; that the claim is now stale and that the defendants are considerably embarrassed and prejudiced in preparing their defence. Counsel complained that there was no affidavit from the plaintiff as to why it took nine years, from the winding up of Shun Fung in 1964, to institute proceedings. He said any matter that was in the affidavit of Mr. Taylor with regard to this period was merely hearsay.

38. Mr. Swaine referred to two paragraphs in the affidavit of Mr. Taylor in which he sought to explain the plaintiff's delay in taking action in that he was relying on assurances that he received from time to time in the office of the deceased. These assurances are said to have been given by the deceased or Mr. Lai, but, he said, this contention of the plaintiff was destroyed when one considered certain documents eminating from the office of the Official Receiver, documents which were put in by consent. These, he said, showed that from November 1964 the plaintiff had meetings with the Official Receiver and had been in correspondence with him up to 1968, and he must have been fully aware of the position. He referred to what the plaintiff had done, for example contacting the Law Society, writing to Sir Ivo Rigby and consulting solicitors but, he said, no action was taken and asked who is to bear consequence of this delay.

39. It was the contention of Mr. Swaine all along that if the plaintiff had any right of action it arose in 1962. In 1963 he was, as he said, suspicious and should have taken action then, but on the interpretation most favourable to the plaintiff he certainly should have taken action when he became aware in 1964 that Shun Fung was in liquidation. But nothing constructive was done until the writ was issued in May of 1973. Mr. Swaine would argue, up till September 1971 when the plaintiff saw his present solicitors the delay of 8 or 9 years was entirely the fault of the plaintiff; thereafter there was a delay but the matter was then in the hands of solicitors.

40. Counsel maintained that any delay after the original delay, however, short made the proceedings more and more embarrassing for the defendants. He said the fact that the solicitor in charge of the case left the Colony for some months or, as he called it, "the to-ing and frc-ing" between solicitor and counsel was no justification for it.

41. Counsel referred to a number of cases commencing with Allen v. Sir Alfred McAlpine & Sons Ltd. and Another and two other cases that were decided in conjunction with that case. The cases are reported in 1968 2 Q.B. 243. In the three cases involved in that judgment the delay in proceeding was due, not to the fault of the plaintiffs, but to their legal advisers. As Lord Denning M.R. said:

"It is not that they wilfully neglected the cases. But they have put them on one side, sometimes for months, and even for years, because of the pressure of other work or of other claims on their time. Hence these ills."

And these are not the only examples. A few months ago we had a couple of cases of like sort. One was Reggentur v. Beecholme Bakeries Ltd. (1967) S.J. 216. The other was ... Betger & Co. Ltd. (1967) 2 A.E.R. 657. We said:

"Delay in these cases is much to be deplored. It is the duty of the plaintiff's advisers to get on with the case. Every year that passes prejudices the fair trial."

42. Mr. Swaine also cited. Rowe v. Tregaskes (1968) 1 W.L.R. 1475 where Lord Denning at p.1477 said:

"What is to be done? We have said on many occasions that we consider all the delay, not only the delay after writ, but also the delay before it. The delay in the first two or three years is often the most prejudicial of all."

Another case he cited was Gloria v. Sokoloff and Others (1969) 1 A.E.R. 204. In that case the only issue remaining was damages.

43. The action arose out of a collision between two vehicles in November 1961. The writ was issued almost three years later on the 6th November 1964. On the 18th January, 1967 the defendants took out a summons before the master to have the proceedings struck out for want of prosecution. The master struck out the action on the ground that the delay was prolonged and inexcusable. His decision was confirmed by a judge in chambers and by the Court of Appeal.

44. In Baxton v. Allsop (1971) 1 W.L.R.1310 the plaintiff suffered injury in February 1952 and a writ was issued in October of that year. A defence was delivered in November disputing damages only. Nothing further was done until 1970 when notice of intention to continue was served. On an application the case was dismissed for want of prosecution. The decision was appealed against and the plaintiff undertook not to seek more damages than were offered by the defendants in 1960. The appeal was dismissed. That case was also cited by Mr. Swaine as was Irvine v. Ocean Part Services (1971) 115 Sol. J. 14; and Vaugham v. Parkam (1972) 1 Lloyds Rep. 519.

45. Mr. Taylor who appeared for the plaintiff pointed out that the deceased acted as solicitor not only for the plaintiff at the time the agreement was signed and the power of attorney granted but also for Shun Fung, one of the directors of which was the deceased's son. He said the effect of the agreement and the power of attorney was to give the company almost the powers of an owner of the property. He pointed out that in the circumstances there was a wide field of opportunity for a conflict of duties and therefore the deceased should never have acted for both parties. He said that the two documents were in themselves unexceptional, but the deceased when consulted by the plaintiff should have investigated the financial position of Shun Fung and pointed out to the plaintiff what the position would be if Shun Fung should become insolvent and go into liquidation. He said the deceased had put himself into an intolerable position,his son being a director of Shun Fung,and consequently it was impossible for him to act fairly between the parties. He said in the circumstances undue influence must be presumed.

46. Mr. Taylor referred to an argument of Mr. Swaine that the plaintiff, who had accepted $36,000 and was to receive three flats in the completed building could not now be heard to approbate and reprobate the agreement. He maintained this to be irrelevant and only went to damages. He said the plaintiff never understood the power of attorney and was surprised to learn of the mortgage.

47. Mr. Taylor said he sought Counsel's opinion in November, 1972 but this was only received in January, 1973. He explained the delay from the time his firm first wrote to the deceased on the 8th February, 1973 until the writ was sent to Messrs. Woo & Woo on 30th May, 1973 as being due to the deceased or his solicitors. Further delay was occasioned by the necessity to apply to have the writ amended by reason of the death of the deceased, a delay which was added to by reason of the long vacation intervening. When application came on for hearing it was adjourned at the request of the Registrar, and the matter was only disposed of in January, 1974.

48. Mr. Taylor said he sent a draft statement of claim to Counsel to settle on the 2nd March 1974. He said as a result of Counsel's directions he had to take further instructions from his client and at least three consultations were held. As a result Counsel required further information and it was only in January 1975 that Mr. Taylor was in a position to supply him with all the information he required. In February the settled Statement of Claim was received from Counsel.

49. Mr. Taylor dealt with the plaintiff's delay. He said the plaintiff first had doubts in 1963 about the success of the proposals in the agreement, but being a layman he assumed that everything would turn out alright. Nevertheless he consulted a solicitor who sent him back to the person of whom he complained. Mr. Taylor stressed the then difficulty the deceased was in - his personal conflict by reason of his son being a director of Shun Fung.

50. When the plaintiff became aware in October 1964 of the winding up of the Shun Fung, Mr, Taylor said, he again went to the deceased's firm where he was placated. Mr. Taylor said the winding up of a company is a complicated matter for a layman to understand and although the plaintiff did visit the Official Receiver's office he was unable fully to appreciate the position, and consequently accepted what was said in the deceased's office.

51. In fact, Mr. Taylor said, the plaintiff did not fully realise until the 3rd November, 1969, when he received a letter from the mortgagee's solicitors, that his property was in jeopardy.

52. Mr. Taylor in further excuse of the plaintiff's delay referred to the correspondence with Sir Ivo Rigby and Mr. Rear.

53. Mr. Taylor also referred to what I shall call the McAlpine report and in particular Diplock L.J. at 259:

"What then are the principles which a count should apply in exercising its descretion to dismiss an action for want of prosecution upon a defendant's application? The application is not usually made until the period of limitation for the plaintiff's cause of action has expired. It is then a Draconion order and will not be lightly made. It should not in any event be lightly made. It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possibleoat the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue."

54. Mr. Taylor would say that the plaintiff's delay is excusable and that he is in a position to deliver a Statement of Claim forthwith. He says the case can be disposed off before the end of this year even allowing for the long vacation.

55. This is an unfortunate experience for the plaintiff in that he has lost his property for $35,000, (which was the amount received) but that is something that can have but little influence on me:" hard cases make bad law". I must consider the case on all the evidence before me and on that base my decision.

56. The first thought that occurred to me on reflection on the evidence was that the agreement of the 10th October, 1962, was, as conceded, unexceptional and not on the face of it, disadvantageous to the plaintiff. He received $35,000 and stood to get three flats in addition. The next thought that occurred to me was that the other party to the agreement carried on business until the end of 1964. They are two points which I consider of some relevance in considering the overall position. Another thought that occurred to me was that Mr. Taylor had said the plaintiff was not aware that his property was in jeopardy until he received the letter dated the 3rd November, 1969 from the mortgagee's solicitors. This may have been an unwitting error on Mr. Taylor's part but it is quite clear from the record of the Official Receiver that the plaintiff was fully aware of the position in 1964. He attended a meeting with the Official Receiver when the mortgage and its discharge were discussed, as were possible plans to proceed with the building if the plaintiff and another person interested in the building if the plaintiff and another person interested in the building would forego one flat. It is true however that the plaintiff did tell the Official Receiver that the mortgage was executed under the power of attorney without his consent. The plaintiff attended another meeting with the Official Receiver on the 19th November at which he rejected the suggestion that he forego one flat in consideration of a creditor continuing the building work.

57. There is minute of another meeting between the Official Receiver and the plaintiff. Part of the minute reads: "His house was mortgaged by the Shun Fung Investment & Construction Co. Ltd. for $88,000 (sic) with his consent. The said mortgage is now due to be redeemed although such mortgage may be extended for another term. But he is very keen to know the decision of O.R. so that he can decide what to do next".

58. Apparently the plaintiff discussed the possibility of getting back the property with the work as done by Shun Fung on it and estimated by the Official Receiver to have cost $200,000 without any payment by him. The Official Receiver told him that if he were to make an offer of compensation for the work done he would put the proposition to the creditors. The plaintiff told the Official Receiver that it was impossible for him to make an offer and the matter was dropped. The Official Receiver's record also notes that the Official Receiver advised him to consult his solicitors and concludes "The mortgage is also something to be worried about". There is further minute, of the Official Receiver dated the 19th June, 1968 part of which reads:" Mr. Au said he expected to get a financier to complete the building project on similar terms he had had with Shun Fung. He said he still have to redeem the mortgage of $85,000 plus payment of interest. He reckoned that the financier might earn a profit of $100,000 and he himself get 3 flats consisting of the 1st and 2nd floors".

59. There is I think to be found in that minute and, indeed, in the behaviour of the plaintiff since 1963 evidence to show that his real complaint was not the two documents, agreed by his solicitor to be unexceptional in themselves, but the fact that his bargain had not turned out as he had hoped. His case is based really on the ground that the deceased did not investigate the financial strength of Shun Fung or advise him of what the result would be if Shun Fung went into liquidation and was unable to complete the building. However, if the transaction had not failed he would have been perfectly prepared to reap his reward. He was prepared to approbate the agreement and power of attorney which he now reprobates. His reprobation was not reflected by positive action until 1973.

60. It is surprising in my opinion that no affidavit or affirmation has been filed by the plaintiff himself to support his contentions or explain his delay.

61. That there was inordinate delay on the part of the plaintiff personally is obvious. He, as his solicitor says, had his doubts in 1963, and he knew full well, in my opinion, what the position was in 1964 or certainly in 1965 when he meet the Official Receiver. In those circumstances there was at his disposal, in 1965 at the latest, sufficient material to enable him to proceed with an action to set aside the two documents on the grounds that he is now alleging if he considered those grounds existed. I am not thereby concluding that his right of action arose only in 1964 or 1965 rather than in 1962, but on a consideration of the facts in the way most favourable to the plaintiff the latest date on which his right of action arose would appear to be 1965. If that were so then these proceedings would be statute barred. Mr. Swaine contends that the right of action, if any, arose in 1962; Mr. Taylor says not until the 3rd of November, 1969 when he got the mortgagees letter and knew for the first time of the damage he would sustain. But proof of damage was not an essential to enable him to proceed.

62. I do not have to decide when the right of action arose nevertheless I feel that the possibility of success or otherwise is a matter to which I must give some thought in considering the possible prejudice to the defendant. The more is this so as the plaintiff is, I am given to understand, inpecunious and if the plaintiff were to be unsuccessful the defendant would not be able to recover any costs.

63. There is nothing that has been argued on behalf of the plaintiff that can excuse his delay. Even after he consulted his present solicitors as a result of what Mr. Rear advised he allowed almost a year to pass before he gave instructions to proceed.

64. The defendants find themselves in a well nigh impossible position to defend this action. Granted they are in no worse position than they would have been had the Statement of Claim been served within time as the original defendant was than dead, but had the plaintiff done what he should have done and instituted proceedings against the deceased within a reasonable time of Shun Fung being put in liquidation the deceased would have been in a position to meet the allegation made against him, and Mr. Lai, who has left the firm since 1967 would also have been available. Accusation are now made against the deceased which attack his integrity and his behaviour in a professional capacity which only he could repudiate. If there was any justification for the attack it should have been made at the earliest moment to enable him to defend his reputation and not leave the matter until it became stale. To delay in presenting charges in a case such as this for a number of years would, even if the person attacked were alive, be open to criticism; but to leave it in abeyance so long as in this case, and then when proceedings are commenced and the person attacked has died further to delay, irrespective of the person responsible for the delay, is in my opinion fatal. As Mr. Swaine said after the death even short delays attained on importance and relevance that longer delays in other cases might not attain.

65. It was my opinion that the original delay of the plaintiff in instructing his solicitors to proceed and delays subsequent to that which were unnecessary have produced circumstances so prejudicial to the defendant that it would be unfair and improper to allow this action to proceed.

Representation:

A.R. Taylor of Johnson, Stokes & Master, for Plaintiff

J. Swaine (Woo & Woo) for 1st Defendant.

J. Swaine (W.Y. Ng) for 2nd & 3rd Defendant.