So Yuet Ho v. Wong Hon Lung and Another

HCA001156/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Mayo in Chambers.

Date of Judgment: 4th day of September, 1973.

Mr. R. Tang, Counsel instructed by Messrs. H.H. Lau & W.S. Lo, Solicitors.

Mr. K.H. Woo, Counsel instructed by Messrs. K.Y. Woo & Co., Solicitors.

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DECISION

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1. This Application is an application by the 1st Defendant to have the Interlocutory Judgment dated the 28th July, 1973, set aside. In support of the Application is an Affirmation dated the 4th August which was affirmed by Mr. Hui Chon Hgam who is a Clerk with Messrs. H.H. Lau & W.S. Lo, the Defendants' Solicitors. Interlocutory Judgment was entered in default of the defendants entering a Defence to these proceedings which relate to a motor traffic accident in which damages are claimed for negligence. In his Affirmation, Mr. Hui states that the reason that no Defence was entered to the claim was that the Defendants failed to attend upon him to give him instructions to enable him to prepare a Defence. Exhibited to Mr. Hui's Affirmation are copies of letters he sent to both Defendants requesting them to attend upon him and a copy of a form of Defence which was drafted by Counsel which indicates that there is a defence to the Plaintiffs' claim. As to the letters, it is perhaps relevant to observe that there is nothing in the letters to indicate the urgency of the Defendants attending upon Messrs. H.H. Lau & W.S. Lo to enable them to obtain the necessary instructions, or the consequences of their failure to give such instructions. However, Mr. Tang submitted to me that there was adequate material before me to enable me to make the Order which was being sought. He further submitted that in exhibiting a draft Defence the Defendants had done everything which could reasonably be required of them to satisfy the Court that there were triable issues and that accordingly the Interlocutory Judgment should be set aside.

2. Mr. K.H. Woo on behalf of the Plaintiffs contended that this Application should fail as the Judgment which had been obtained was a regular Judgment and that there was no affidavit of the merits of the case. In support of this proposition he cited the cases of Farden v. Richter⁽¹⁾; Smith v. Doblins⁽²⁾; and Burns v. Kondel⁽³⁾. Mr. Woo argued that it was essential if such an application was to succeed that the Defendants should file an Affidavit which would contain a statement dealing with the facts of the case which would show that there was a defence on the merits of the case. He stated that in the absence of such an Affidavit it would not be possible for the Court to determine whether or not the Application was a genuine application or whether the Application was made simply for the purpose of delaying the proceedings.

3. I accept that it would certainly be of much greater assistance to the Court if an Affidavit had been filed which stated all of the facts upon which the Defendants would found their defence. There is an obvious distinction between such an Affidavit and the situation in the present case where a draft Defence prepared by Counsel is simply exhibited together with a statement to the effect that Counsel has advised the Defendants that there is a good defence to the action. Any advice which is tendered by Counsel is clearly dependent upon the instructions he has received from his instructing Solicitors. There is no certainty that such instructions accurately reflect the true situation. The question, however, which I have to decide is whether the absence of a full affidavit of merits is fatal to an application of this nature. I am satisfied that it would be unrealistic to hold that it is fatal. It is clear to me on considering this Application as a whole that the Defendants have established that there are triable issues in this case. I am also satisfied that it could reasonably be stated that by exhibiting the draft Defence the Defendants have, in effect, provided the Court with an affirmation of ...(illegible) even though there is no statement of the facts upon which the Defendants would found their defence. A further factor which has influenced me is that I think that the failure to supply a statement of facts on oath is in reality a technical failure. As the proceedings relate to a claim for negligence, it would seem to be unlikely that the 1st Defendant or his authorised representative would encounter any real difficulty in expressing an opinion that the facts of the case were such that he has a good defence. Whether or not such a defence exists would inevitably be largely a question of opinion. The 1st Defendant would not, therefore, find himself in the predicament where he would either have to perjure himself or allow the Judgment to stand.

4. Mr. Woo also contended that there had been unreasonable delay on the part of the Defendants. He drew my attention to the fact that the Writ of Summons was served on the 1st Defendant on the 2nd June, 1973. Accordingly, a Defence should have been filed by the 23rd June. The letters from Messrs. H.H. Lau & W.S. Lo to the Defendants requesting them to attend at their office were dated the 13th July, 1973, which was 20 days after the expiration of the period of time in which the Defence should have been filed. While I accept that there has undoubtedly been delay on the part of the 1st Defendant, I do not think that the delay is so excessive as to be fatal to this Application. For the reasons I have given, I propose making an Order in the terms of the Application. The only other matter I would refer to is the question of costs. I hold that the 1st Defendant must bear all of the costs which have been thrown away as a result of his failure to file a Defence within the prescribed time, including the costs of the adjourned hearing. There shall be a Certificate for Counsel.

5. Dated the 4th day of September, 1973.

Representation:

Mr. R. Tang, Counsel instructed by Messrs. H.H. Lau & W.S. Lo, Solicitors.

Mr. K.H. Woo, Counsel instructed by Messrs. K.Y. Woo & Co., Solicitors.

(1) (1889) 23 Q.B.D. page 124.

(2) The Law Times, Vol. 37, 1877, page 777.

(3) Lloyd's Law Reports, 1971, Vol. I, page 554.