Pretty Polly Ltd v. Helios & Co Ltd
Read the full judgment text of HCA 3150/1975 on BabelCite. This High Court CFI judgment.
1. This is indeed an unhappy case, unhappy in the sense that time has been unnecessarily wasted at the expense of both parties without any determination on the merits or demerits of these proceedings. The pleadings were originally closed on, I believe, the 4th of February 1976 at which time the defendant filed its original Defence. Subsequent to the close of pleadings, the plaintiff sought and obtained an Order for evidence to be taken de bene esse of a witness in London. That was done before a
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HCA003150/1975
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Mr. commissioner Liu. Q.C. in Court. Date of Judgment: 15th September 1977 ----------------- RULING ----------------- 1. This is indeed an unhappy case, unhappy in the sense that time has been unnecessarily wasted at the expense of both parties without any determination on the merits or demerits of these proceedings. The pleadings were originally closed on, I believe, the 4th of February 1976 at which time the defendant filed its original Defence. Subsequent to the close of pleadings, the plaintiff sought and obtained an Order for evidence to be taken de bene esse of a witness in London. That was done before a mutually appointed examiner on the 4th of January 1977 about a year after pleadings had been closed, and subsequent to the evidence de bene esse the plaintiff saw fit to apply to the Registrar for certain amendments to be effected to the Statement of Claim. The application was heard and granted by an Order of the Registrar on the 27th of July 1977 whereby leave was granted to the plaintiff to amend the Statement of Claim as per the proposed amendments in red in a copy Statement of Claim attached to the Inter Parte Summons. Leave was also granted to the defendant to amend the Defence with costs of and incidental to the application awarded to the defendant in any event. The plaintiff had the carriage of the order, but no formal order has been filed. The amended Statement of Claim was duly filed, and the long vacation commenced on the 1st of August and ended on the 11th of September. There was no time limit laid down for the defendant to amend its Defence. By virtue of the usual provision in the Rules of the Supreme Court, a period of 14 days was allowed to the defendant, and with the intervention of the long vacation the defendant finally filed an Amended Defence two days after the long vacation on the 13th of September 1977. 2. I will deal with the amended Statement of Claim first. As a technical objection, Mr. Woo on bcshalf of the defendant contended that the Statement of Claim as amended and filed needed to be further amended in order to revive the "Particulars of Damage" which appeared in the original version but was inadvertently omitted from the amended Statement of Claim last filed in the Registry. Mr. Rodway submitted that the original Statement of Claim was amended only to the extent of the proposed amendments in red in a copy Statement of Claim attached to the Inter Parte Summons which I have referred to and that consequently the "Particulars of Damage" pleaded in the original Statement of Claim should be taken cognizanoe of by this Court for the purpose of these proceedings. Mr. Woo relied heavily on the passage which appears in the current edition of the White Book 1976, marginal reference 20/5-8/2, which reads as follows:
That statement has never been impugned, but I cannot see for myself how that statement could give any comfort to the defendant. The application to amend the Statement of Claim was, to all intents and purposes, to effect the proposed amendments in red. The "Particulars of Damage" included in the original Statement of Claim was not touched upon, and which pleading, in my view, still stands to-day. Mr. Woo fairly informed the Court that his objection to the Statement of Claim was being nothing more than technical and that he relied on it only in opposition to the present application made by counsel for the plaintiff. 3. I turn to deal with the complaints of counsel for the plaintiff. Firstly counsel argued that the amended Defence ought to be expunged from the record of this Court by reason of the fact that a certain Practice Direction issued on the 5th of February 1977 by the Chief Justice has not been complied with. He elaborated his submission under this limb as follows: The copy amended Defence purportedly served on the solicitors for the plaintiff some time on the 13th of September bears a Court seal, and according to counsel that copy Defence was flatly rejected; thus, so runs counsel's argument, no valid service of that amended Defence was effected on the plaintiff by the defendant. From the enquiries I have made of the Registry and on the face of documents, nothing appears to be out of order. Counsel of the plaintiff complained rigorously of an alleged non-compliance with the said Practice Direction, and Mr. Woo sought to offer some explanations. In the course of giving those explanations. Mr. Woo disclosed on instructions that the original copy amended Defence was left with a clerk of the Registry and that the serving clerk of the defendant's solioitors returned to complete the blank endorsement of service typed on the back of the original copy amended Defence after service of the sealed copy thereof on the plaintiff's solicitors on the same day. Of this, Mr. Rodway sought to make capital. 4. The course of events is certainly far from being unambiguous, but it is for the plaintiff to establish a breach of that Practice Direction. The amended Defence has been accepted for filing and has been filed. No part of that document, on the face of it conclusively suggests any departure from that strict but very sensible Practice Direction issued by the Chief Justice. I need not stress on the well-known principle of "Presumption of Regularity" by officials. As I have said before, it is incumbent upon the plaintiff to satisfy me that the Practice Direction has not been wholly complied with. In any event, non-compliance with that Practice Direction would, in my view, be no more than an irregularity which this Court may, at its discretion, disregard. For all these reasons, I find no favour with the submission of Mr. Rodway on the procedural matter. In my view, the amended Defence has been properly filed and can be taken notice of for the purpose of this action. 5. It was further urged upon the Court that the plaintiff could easily have been given much earlier notice of the Estoppel issue for the first time raised in the amended Defence. Counsel for the plaintiff informed the Court that some time before the date fixed for the hearing of this action the solicitors of the parties had occasion to confer, but no disclosure was made at that meeting or on any other occasion of the new point of "Estoppel". Counsel for the plaintiff states that the new allegation of "Estoppel" raised virtually on the 11th hour necessitates an amendment to the Reply, an introduction of further expert evidence and a supplement to the evidence taken de bene esse. This statement of counsel for the plaintiff has been accepted by counsel for the defendant. It is common ground that substantial ground work will have to be undertaken both in pleadings and evidence before the plaintiff is ready for the adjudication of the matters in issue in this action. Counsel for the defendant contended that it was only as a result of the amendments to the Statement of Claim pursuant to an Order of the Registrar dated the 27th of July 1977 that the Defence required to be reinforced, and counsel emphasized that the amendments in the ameuled Defence were no more than mere consequential amendments to the amendments made to the Statement of Claim. I have heard legal arguments on this matter for a considerably long time. In fact, a whole day has been taken up by arguments advanced by counsel, one or the other, and I have also been referred to certain undisputed communication between the parties to this action. Suffice it for me to say that although the plaintiff's claim in this action was generally pleaded in the original Statement of Claim, the amendments sought on the 27th of July can in no way be described as a material departure from those issues; they are no more than elaboration and clarification for the benefit of the trial judge and perhaps for the benefit of the defendant who by virtue of the conduct of the party and the communication ought to have been aware of the precise nature of the plaintiff's claim from beginning to end. 6. Mr. Rodway further offered, by way of illustration rather than an actual confrontation, to have both sets of amendments struck out and the case determined on the original pleadings, which offer was not accepted by counsel for the defendant who was content to take shelter behind the bald assertion that he came unprepared to meet that sudden invitation. As I have said before, one being briefed of the undisputed circumstances in this case would know where justice lies in so far as the present application is concerned. Suffice it for me to say that the conduct of these proceedings by the defendant leaves much to be desired, but I should hasten to add that my observation should not be construed as casting any reflection on the legal advisers representing the defendant. 7. For reasons best known to the defendant, no notice of the substantial new allegation was given until the 13th of September i.e. two days ago. Understandably, legal advisers for the plaintiff were, to say the least, indignant and have through their counsel made their indignation felt. 8. The defendant contended that the situation had been caused by the unfortunate and unusual circumstances, and their counsel supplemented his submission by a mild criticism of the conduct, if I may describe it as criticism, of legal advisers for the plaintiff as an absence of foresight. Counsel for the defendant attempted to distinguish it from a failure to foresee. That was perhaps the last straw in the submissions of counsel for the defendant. I do not pretend or attempt to understand it. 9. In the result, obviously the plaintiff must be given a fair opportunity to sort out its evidence and put its house in order so as to meet the allegations raised in the amended Defence. 10. It is trite law that the party not at fault must be adequately compensated for in an unnecessary adjournment. In this case, I feel a strong compulsion to put the plaintiff in a position as if none of these events had occurred, but I can devise no better formula to implement full compensation than that in a usual order for costs, I grant costs on a common fund basis of today's gearing and of, incidental to and thrown away by the adjournment to the plaintiff. Mr. Rodway submitted that it is highly desirable for the director of the plaintiff to be present at the adjourned hearing so as to be close at hand to brief solicitors on matters which arise in the course of the proceedings. I take the view that the plaintiff should be fully compensated. The director, Mr. Davies, will return to Hong Kong at the adjourned hearing, and the plaintiff will have to renew its application for costs in connection with the unnecessary, unnecessary in the sense of it being caused by this adjournment, journey of its director. 11. Counsel for the plaintiff also submitted that further evidence would have to be given by or taken de bene esse of the witness now in the United Kingdom, and as regards to that, in so far as the evidence is necessitated by the new allegation and by the late filing of the amended Defence and the late disclosure of the new issue of Estoppel, an application for such extra costs will also have to be made by the plaintiff on a subsequent occasion. 12. I would mention in passing that it has been disclosed that "Further and Better Particulars" have been sought and supplied. Such "Further and Better Particulars" have not been filed, nor has the request therefor. The plaintiff should in due course take steps to bring the Court file up-to-date by the inclusion of the request for and the supply of such "Further and Better Particulars". 13. Both parties have indicated that they prefer to have evidence in one stretch, as it were, and at the request of both parties I adjourn this to a further date to be fixed by the clerk in charge of the lists in consultation with counsel; estimated time three days. I further order that the plaintiff do have 21 days from today to amend the Reply. I also order all the costs I have awarded on this application and in this action to be taxed forthwith and to be paid by the defendant to the plaintiff immediately upon taxation.
Representation: Mr. Rodway instructed by Hampton, Winter & Glynn for plaintiff. Mr. K.H. Woo instructed by Messrs. Yu Tsang & Loong for Defendant. |