Lam Heung Mui and Others v. Tai Chi Chuen and Others
Read the full judgment text of HCA 346/1971 on BabelCite. This High Court CFI judgment.
1. I would preface this decision by tendering my apologies to both the parties and their representatives for the inordinate delay, generally my own fault, in giving it.
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HCA000346/1971
IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
----------------- Coram: Mr. Registrar Silke in Chambers Date of Judgment: 8th March 1974 ----------------- DECISION ----------------- 1. I would preface this decision by tendering my apologies to both the parties and their representatives for the inordinate delay, generally my own fault, in giving it. 2. There are for consideration two summonses before me: First an application, in the proceedings, on behalf of Messrs. Brutton and Stewart, Solicitors for the 1st and 2nd defendants, for an order declaring them to have ceased to be the Solicitors for those defendants. Second an application on the part of Ocean Accident and Guarantee Corporation Limited for (1) an order that they be joined as defendant in the action (2) an order that the sum of $140,000 paid into court on the 20th October, 1972 be paid and to Messrs. Brutton and Stewart, Solicitors, for the Company; (3) an order for the provision of costs and for further or other orders as may be necessary. 3. As the background of both summonses is intarmingled, I heard, and will deal with, both together. 4. Charles Ching, Esq., instructed by Brutton & Stewart appeared for the applicant in both summonses. Bonjamin Liu, Esq., Q.C. appeared for the plaintiffs. Kemal Bokhary, Esq., for the 1st defendant instructed by W.K. Poon & Co. - but only for the purpose of these proceedings - and Robert Tang, Esq., appeared for the 2nd defendant instructed by H.H. Lau and W.S. Lo. 5. The steps in the proceedings up to the date of the issue of the above summonses are relevant and I set them out here.
6. The grounds for that last application were that the sum was "paid in error on behalf of the defendants by their insurers the Ocean Accident & Guarantee Corporation, Limited in the mistaken belief that they were liable to indemnify the defendants under a private actor insurance policy No. 1121360 covering a period from the 15th day of March, 1969 to the 14th March, 1970 and that accordingly neither the defendants nor the plaintiff is entitled to the same." 7. The summons was also adjourned sine die with liberty to restore and to apply on the 1st June, 1973. The grounds in the second summons before me is "that the same (the $140,000) was paid into Court in error by the said Ocean Accident and Guarantee Corporation Ltd. in the mistaken belief that it was liable to indemnify the defendants under a private motor insurance policy No. 1121360 and on the grounds that neither the plaintiffs nor the defendants are entitled to the same." 8. I might say now that there is no real objection to rutton & Stewart ceasing to act for the defendants and the main summons for consideration is the second. 9. The whole matter arose when an accident took place on the 7th March, 1970 wherein Leung Ping Tim, who was a passenger in a private car AK6825, driven by the 1st defendant and owned by the 2nd defendant, was killed. 10. The policy of insurance has been exhibited as "PJFWI" in Mr. Whyte's affidavit of the 23rd February, 1973 and is the standard form - not the actual policy as that cannot now be traced. 11. Mr. Ching says that the insurers and their advisers overlooked two matters (1) that the deceased was a passenger and (2) that the vehicle had bald tyres. Doing the best they could to estimate damages they paid in $140,000. Brutton & Stewart of course represent, until off the record, the defendants and not the insurers, though condition 2 of the standard policy entitles the company to "take over and conduct in the name of the insured the defence or settlement of any claim ..... and shall have full discretion in the conduct of the proceedings .....". This was in fact what was done though Brutton & Stewart, very properly, obtained explicit instructions from both defendants to conduct their defence. 12. Mr. Ching argues that there was a failure to maintain - the bald tyres - which breached condition 5 of the Conditions and therefore the Company is not liable to indemnify the insured and secondly that in the light of the provisions of section 10(1) and section 6 of the Motor Vehicles (3rd Party Insurance) Ordinance, Cap. 272, they are liable to indemnify the insured and not a 3rd party - the insured could ask for an indemnity if he so wished but the 3rd party is outside the ambit of the policy. 13. All this may be correct - but the fact remains that it was the defendants who paid $140,000 into Court and not the Insurance Company who are as yet not parties. It would be the extreme of blindness to ignore that the actual money came from the Company in the first place. It was the defendants who consented to judgment and this in the light of the pleadings which stated (para. 3 of the Statement of Claim) that the deceased was a passenger and in the light of a letter of the 3rd November, 1970 from the Insurers referred to in PJFW2 - a letter to the 2nd defendant from Brutton & Stewart - exhibited to the affidavit of 31st May, 1973 of Mr. Whyte which clearly shows that the company were, as early as 30th November, 1970, aware of the possible breach of condition 5 in that the tyres were alleged to be bald. 14. I am not to be taken as making any finding that the tyres were bald - I note the Vehicle Examination Report - or what effect in law this might have upon the policy. These are matters which are for a trial court which this is not. The jurisdiction of the Registrar is a summary one and any appeal is by way of hearing de novo. If I do not advert to each and every argument advanced lucidly and helpfully be Counsel in this matter it is not through any lack of courtesy for or consideration of those views. But it seems to me that having consented to judgment, not being in ignorance of the law, and having permitted the defendants to pay in the money while having seizin of the proceedings on their behalf the Company cannot now be heard to say it was all one great mistake, and to be added as defendants solely for the purpose of taking that sum paid in out of Court. 15. Mr. Ching has referred me to a number of authorities. I accept that it would be artificial to refrain from mentioning the fact of an insurer being behind the defendants initially. He has referred to 0.22 R.5 of the Supreme Court Rules and the authorities thereon in particular Cumper v. Pothecary [1941] 2 ALL.E.2 516 and that which was held therein. I do not think that I have been shown here such "change of circumstances as would put a wholly different complexion on the case". 16. S. Kaprow & Co., Ltd. v. Maclelland & Co., Ltd. (1948) 1.K.B. 618 is authority for the proposition that the Court has jurisdiction to remedy the results of an election where such election is due to a bona fide mistake in making use of the legal machinery of the Court. I do not think that situation to exist here - not that I am suggesting mala fides in any of the parties. The information was there and known and the defendants, by which is in reality is meant the insurers, elected to make payment in and not to take any other courses open to them. 17. What the eventual outcome of these proceedings will be is not for me to forecast. Mr. Ching raised the question would a court say "you have judgment, the interlocutory judgment of the 28th May, 1973, therefore you may have the insurer's money even if the insurer is not liable and he answered it in the negative. But the insurers paid through and by the defendants, they may or may not have a course open to them as against the defendants. It would be clearly wrong that the defendants themselves should have the money. 18. In the event I shall make an order in terms of the first summons declaring that Brutton & Stewart, whose position is clearly invidious, have ceased to be the solicitors acting for the defendants. In all the circumstances I think a proper order to be no order as to costs on this summons. 19. I shall dismiss the second summons - the application by the Ocean Accident and Guarantee Corporation Limited. It was necessary for the plaintiffs and the 1st and 2nd defendants to be separately represented and costs should follow the event. There will be costs to the plaintiffs and to the 1st and 2nd defendants with certificate for Counsel. To be taxed. 20. I end as I began with apologies and regrets for the delay in making this decision known. 21. Dated this 8th day of March 1974.
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