Kan Wyman v. Ng Chan Chuen

HCA000092/1999

HCA 92/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 92 OF 1999

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Coram: Deputy High Court Judge A Cheung in Chambers

Date of Hearing: 17 February 2003

Date of Judgment: 17 February 2003

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J U D G M E N T

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1.The trial of this action is fixed to take place on 10 March 2003 before me with 3 days reserved. Today I have an application by the Plaintiff to file two further factual witness statements as well as a supplemental expert report. The statements but not the expert report are now ready, I am told that the supplemental expert report will be ready very soon for filing and service.

2.The Defendant strenuously opposes the application. He has made a 2nd affirmation setting out the history of the matter that is pertinent to the application today; in particular, in his 2nd affirmation, he sets out the history in the past relating to the Plaintiff's repeated failures to file and exchange witness statements. At one stage, an unless order was made by a master relating to the Plaintiff's failure to file witness statements. I have no doubt that I must bear this history in mind in considering the Plaintiff's application today.

3.On the other hand, I tend to agree with Ms Ching, appearing for the Plaintiff today, that at least the two intended factual witness statements deal with matters of importance to the Plaintiff's claim in this action as well as the Plaintiff's defence to the Defendant's counterclaim. If the Plaintiff is denied the opportunity to file the two factual witness statements, the practical effect will be that the Plaintiff will be substantially weakened in his case. I bear in mind that ultimately the Court is charged with the duty to decide the case on the merits. All relevant evidence should, so far as is possible, be adduced before the Court so as to enable it to come to a fair and just conclusion on the dispute between the parties.

4.As to the supplemental expert report, from what I have been told by Ms Ching, I can also see the importance or the relevance of the intended supplemental expert evidence.

5.I bear in mind the importance of the case to the Plaintiff as well as the importance of the case to the Defendant. In particular, I note the amount of the counterclaim. I bear in mind the chronology of events and the history of the litigation in question. Bearing all this as well as the general circumstances of the case in mind, I am of the view that on balance I should allow the Plaintiff's application, although this would entail, as Ms Wong for the Defendant submits, an adjournment of the trial. I should specifically say that in reaching my above conclusion, I have already taken into account the possible adjournment of the trial and the resulting prejudice and implications to the parties as well as the prompt resolution of this action and counterclaim.

6.As I said, I have come down in favour of allowing the application. That would also mean that I am prepared to grant an adjournment of the trial as is asked for (in the alternative) by Ms Wong in the event that this Court should accede to today's application, which is what I am doing.

7.All this would have been unnecessary had the Plaintiff prepared her case earlier and with diligence - which was not the case. The Defendant should be fully compensated for the costs of and those thrown away by the adjournment.

8.Therefore as a condition to my allowing today's application which entails, as I said, the adjournment of the trial, I require the Plaintiff to pay the costs of and those thrown away by the adjournment of the trial on a full indemnity basis.

9.I will now give directions for the filing of the witness statements and supplemental expert report, as well as the refixing of the trial dates. It goes without saying that subject to anything that Ms Ching might like to submit, I am giving the costs of today's application to the Defendant as well, also on a full indemnity basis.

Representation:

Ms K M Ching, of Messrs Chan, Wong & Lam, for the Plaintiff

Ms Catherine K K Wong, instructed by Messrs Cheng & Pan, for the Defendant