Ho Chi Hang William v. Cheung Kin and Another

HCPI001526B/2000

HCPI 1526/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1526 OF 2000

Coram: Hon Sakhrani J in Court

Date of Hearing: 24 October 2002

Date of Decision: 24 October 2002

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D E C I S I O N

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1.The defendants apply to have the trial of this action adjourned pending the hearing of an appeal from the decision of Seagroatt J., the judge in charge of the personal injuries list, made on 4 June 2002 with full reasons given on 11 June 2002. The appeal is due to be heard on 30 October 2002 but the date for the hearing of the appeal was fixed some time ago.

2.By his decision of 4 June 2002 Seagroatt J. refused the defendants' application to amend the defence and the third party notice and he refused the defendants' application for leave to adduce expert evidence as well. These were all for the purpose of including an allegation of contributory negligence on the part of the plaintiff on the basis that the plaintiff failed to wear a seat-belt whilst a passenger in the vehicle that he was travelling in and thereby contributed to his injuries.

3.The judge gave detailed reasons for his decision and dealt with the defendants' merits and prejudice to the plaintiff which could not be compensated by any order as to costs. As the judge observed the application before him to amend was an attempt to revive an earlier application made to amend which was abandoned.

4.The judge dismissed the defendants' application and he said this at para. 19 of his Reasons for Decision :

“ If the defendants' application were to be allowed, it would make a nonsense of case management."

I respectfully agree. The authorities show that the Court of Appeal will rarely interfere with the case management by a judge.

5.The notice of appeal dated 2 July 2002 from that decision of Seagroatt J. was lodged. After that the defendants applied to Seagroatt J. for an order that the action be removed from the Warned List alternatively, not to be warned until after the determination of the defendants' notice of appeal from the said order of Seagroatt J. This was in effect an application seeking an adjournment of the trial until after the appeal was heard.

6.The application came before Seagroatt J. on 19 July 2002 and he refused the application. He gave reasons in his written ruling of the same date. He did not think that it was appropriate to delay the resolution of the plaintiff's claim and refused the application. He said this at para. 9 :

“ For the reasons indicated I refuse this application and leave the defendants to make such further application to the Court of Appeal as they think necessary. The current indication I have is that this case for trial is not likely to be listed for about 90 days."

The judge's estimate of the indication he was given is pretty accurate because it has been more than 90 days when this action was listed for trial two days ago. It has been on the Warned List for some time.

7.There has been no appeal from the ruling of Seagroatt J. of 19 July 2002. Instead I am told that the defendants' solicitors have tried to persuade the Court of Appeal to expedite the appeal but that their attempts have failed. I am also told that after the action was listed for trial two days ago the defendants' solicitors tried again to expedite the appeal but failed. Hence the application for the adjournment today.

8.I have been informed by Ms Lee, counsel for the plaintiff, that notwithstanding the judge's order of 19 July 2002, which was perfectly clear, the solicitors for the defendants wrote in August to the Listing Clerk asking him not to warn the action for trial until after the appeal was heard. This was to completely ignore the judge's ruling. This letter was brought to the attention of Seagroatt J. and a letter dated 5 September 2002 was sent to the defendants' solicitors making clear his ruling on the matter and informing them that they must apply to the Court of Appeal.

9.I have considered the matters submitted to me by counsel. I see no reason why I should allow the adjournment now. Any further delay in the trial of the plaintiff's claim by putting the case back into the running list is prejudicial to the plaintiff. I am not prepared to accede to the defendants' application which is refused.

Representation:

Ms Christina Lee instructed by Messrs Gallant Y.T. Ho & Co. for the plaintiff

Mr. Jonathan Wong instructed by Messrs Barlow Lyde & Gilbert for the 1st and 2nd defendants

Mr. Simon Leung instructed by Messrs Hastings & Co. for the third party