Ho Tze Bun v. The Incorporated Owners of 39-41 Tong Chong Street and 31/33 Hoi Wan Street

DCCJ003110/1983

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Headnote

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Practice - Dismissal of action for want of prosecution - Claim for damages for personal injuries - no appearance by Defendants - Interlocutory Judgment in default with damages to be assessed - Inordinate and inexcusable delay in setting down assessment - whether application to dismiss can only arise on Defence motion - whether onus on Defendants to show prejudice - whether Court can intervene to police its own procedures.

A postman was injured by a fall whilst delivering mail in December 1981. He issued a writ claiming damages for personal injury in April 1983. No appearance was entered to those proceedings by the Defendants. The plaintiff was granted leave to enter Interlocutory Judgment in default of defence by a Deputy Registrar in July 1983, damages to be assessed by a Judge separately. The plaintiff took no further steps to have his damages assessed until a Notice of Intention to proceed was served on the Defendants in August 1994. Again the Defendants failed to respond. The Plaintiff duly issued a Summons seeking his assessment and this was set down for hearing in January 1993. The Court directed that the Plaintiff should justify re-activating his claim after such a long delay. The Plaintiff submitted that the onus was on the Defendants to show that they had been prejudiced by the long delay and the Court cannot take action of its own motion. After the Plaintiff had given evidence on his reasons for delay and his counsel had made submissions it was

HELD:

Cases cited in the judgment:

Allen v. Sir Alfred McAlpine and Sons Ltd. C. A. (1968) 1 A.E.R.

Birkett v. James (1978) AC 297.

Barrand v. British Cellophane P.L.C. Times Law Reports 16/2/95

Kerr v. National Carriers Ltd. (1974) 1 Lloyds Reports 365.

Krapauer v. Katz (1954) 1 A.E.R. 244.

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[DISTRICT COURT CIVIL CASE NO. 3110 OF 1983]

Coram: JUDGE SWEENEY

Date of Judgment: 21st of February 1995

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RULING

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1. On the 5/12/83 the Plaintiff, whilst in the employ of the Hong Kong Government as a postman, was delivering registered mail to the 7th floor of a building situate at 31-33 Hoi Wan Street Hong Kong. Whilst walking down from the 7th floor at approximately 2.30 p.m. he slipped and fell on the staircase and thereby suffered an injury to his back. The Plaintiff says that this accident occurred because of the presence of water on the stairs which made them slippery. He decided to sue the Incorporated Owners for their alleged negligence and breach of statutory duty in maintaining this staircase.

2. Accordingly on the 13th of April 1983 a Writ was issued by the Attorney Generals Chambers (the legal representative of the Plaintiff's employers) claiming damages against these Defendants. The said Writ was apparently served by a Bailiffs Assistant on the Defendants at their registered office by ordinary post sent on the 22/4/83. So old is this Writ that it is issued from Victoria District Court which has been closed for many years.

3. There being no appearance or Defence entered to this Writ the Plaintiff moved for and obtained Judgment in Default of Defence on the 22/7/83 together with an Order that damages be assessed by a Judge.

4. No further steps were then by the Plaintiff to set down his case for assessment. The court file was closed and filed away to gather dust. Victoria District Court transferred to its present location in Wanchai many years ago.

5. Hong Kong itself has changed utterly since 1981. Many buildings have been torn down and replaced. The particular building where the Plaintiff had his fall 13 years ago may still be in existence but I am sure that membership of its Incorporated Ownership has changed many times over the years, as flats have inevitably changed hands.

6. Meanwhile, what has the Plaintiff been doing to secure his claim against these Defendants? Fortunately from their point of view as legal adviser to the Plaintiff the Attorney General's Chambers have kept their file on this case. Miss Daphne Yeung, who must have been a young schoolgirl when this accident occurred, has handed up copies of correspondence between the Plaintiff and her office. There is a typed memo from the Plaintiff dated 2/6/86 in which he states :-

"I confirm that I do not wish to proceed with the assessment of damages of the captioned action for the personal injuries I sustained in the accident on 5-12-1981".

7. Before signing this letter the Plaintiff added the important handwritten words "for the time being" in English.

8. This was presumably written after some form of reminder from the Attorney General's Chambers office. The reply from Miss Vivian Fung of Crown Counsel is dated 1/8/86 and it contains a useful and timely warning that future delay will prejudice the Plaintiff's claim and, notably, the words :-

"There is a risk that your claim may be time-barred because of the delay". The Plaintiff was thereby urged to reconsider his stance.

9. A reminder memo was sent to the Plaintiff on 27/8/86. Finally on 27/10/86 the Plaintiff responded with a handwritten memo stating he still maintained a desire not to proceed with this action "for the time being".

10. The Attorney General's Department must have some form of statutory limitation "warning device" flagged to their files because nothing happened for the next 7 years until the Plaintiff was sent a memo by Mrs. Selina Lam of Crown Solicitor on the 22/9/93 warning him that the 12 year limitation period since he had obtained his Judgment was due to expire and requesting urgent instructions.

11. Still the Plaintiff did not respond and further reminders were sent to him on 27/11/93 and 24/3/94. Finally, on 5/5/94 the Plaintiff gave the Attorney General's Department written instructions to proceed on foot of the Judgment he had obtained 11 years earlier. Accordingly, a Notice of Intention to Proceed dated 3/6/94 was issued and served on the Defendants by ordinary post on the 24/8/94 addressed to their last known address. Not surprisingly, the Defendants have ignored this notice.

12. Enquiries were made at the District Court and the Attorney General's Department were informed that the Court file herein had been destroyed on 14/11/91 as it had been deemed a "dead file". An application was made to the Acting Chief District Judge to re-construct the file, which was granted. On 29/12/94 the Summons or Notice to come to this Court to have damages assessed was served on the Defendants at "No. 31 Tong Chong Street, 2nd floor, Hong Kong, being its usual and last known address for service".

13. It seems that "last known" is of course last known on 22/4/83, the date the original Writ was served on them. We do not know if this is still their registered address or, indeed, the status of No. 31 Tong Chong Street.

14. Finally the Plaintiff appeared in this Court on the 26/1/95 seeking an assessment of the damages which had been ordered 11 1/2 years ago. There was no appearance by the Defendants.

15. When I asked Miss Yeung to explain the delay she was unable to do so. The Plaintiff himself volunteered:-

"Because my father told me to stop it for the time being. Then I considered that I had to go on".

16. Being dissatisfied with such an explanation I asked him to give evidence on oath. In evidence the Plaintiff could not elaborate on the above statement. He said his father had said "this kind of thing has to be in the future" but he could not offer any explanation for his father's attitude or why he felt bound to follow such advice. Although he described his father as an authoritative man whose advise he normally listened to, the Plaintiff did concede that he was a mature educated man with a responsible job who lived apart from his father during all of these years of inaction on his claim. Accordingly I found he was not acting under any form of disability such as would stop any limitation period from running against him. I can only surmise that he and his father must have shared the traditional Chinese view that coming to Court brings bad luck to the family.

17. Happily the Plaintiff also told the Court that although he had lost many days on sick leave over the years with this back injury he had retained his job as a postman and so has not lost any salary as a result of this accident.

How does the Plaintiff stand at this stage?

18. Miss Yeung has referred me to Section 4(4) of the Limitation Ordinance Cap.347.

"An action shall not be brought upon any judgment after the expiration of 12 years from the date on which the Judgment became enforceable, and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of 6 years from the date on which the interest became due".

19. She says that this validates her argument that the Plaintiff is still within time as only 11 1/2 years have elapsed since Judgment by default was entered. However this Judgment was not final it was still subject to assessment. It is but an Interlocutory Judgment and unenforceable so Section 4(4) does not apply.

20. Miss Yeung told me that she had considered this point and found it to be even more in favour of her client, to wit :-

"It means that the 12 years has never started running, he has never had a Judgment for a specific sum to enforce". In other words if I assess his damages today he still has another 12 years within which to bring action to enforce them, or up to 25 years since the accident in 1981.

21. If this is indeed the position, that there is no time limit to pursue an action once the Writ has been issued and served within time, then the law would be reduced to absurdity.

Are there any other Legislative provisions covering this situation?

22. It is anticipated by Section 31 of the District Court Rules (Cap. 336) that (1) "where no action is brought by a Plaintiff to seek Judgment in default of Defence within 3 months from the time he is entitled to under Section 22 the Registrar shall strike out the action from the Register of Civil Actions", and (2) "the Registrar shall also strike out an action if no hearing date has been applied for by the Plaintiff within 3 months of a Defence being filed under Section 24". In either event the Court has a discretion to extend the time on such terms as it thinks just.

23. Although there is a clear legislative intent that District Court proceedings shall be prosecuted with due dispatch, i.e. within months, not years, neither of the situations posited in Section 31 seems to apply to this case as the Plaintiff did take steps to mark an Interlocutory Judgment in default of Defence under Section 22(6) and Section 24 does not apply as (A) no defence was filed and (B) Judgment in default of defence has already been entered.

24. There is provision at Section 30 of the Limitation Ordinance for the Court to override time limits where it appears to be equitable to allow an action to proceed having regard to the relative merits of the Plaintiff and the Defendant. Certain criteria are to be considered by the Court in deciding whether or not to exercise its discretion to override time limits.

25. However this section is of no assistance in the present care as (A) the Plaintiff's action has commenced so he is within the three year limitation period provided by Section 27 and (B) he has not yet obtained Final Judgement so as to be within the twelve year limitation period provided by Section 4(4) of the same ordinance.

26. Insofar as there appears to be no statutory period of limitation within which a party who has marked Judgement must have his damages assessed before an enforceable or Final Judgement is available there appears to be a lacuna in the law.

27. Miss Yeung urged me to press on regardless as the Defendants never entered an Appearance and are not prejudiced by the long delay, at least there is no such evidence before this Court. We don't of course know for certain if they would be prejudiced now as they are not here to argue the point. This brings us to the strongest point made by Miss Yeung when she stated:-

"There is no provision in the Rules of the District Court for the Court to strike out a case for want of Prosecution off its own motion. There is an inherent power to strike out but it must only be made on application of the Defence, who must prove not only delay but that they have been prejudiced by it."

28. Miss Yeung submitted a number of authorities to support this contention, in particular the leading English case of Allen v. Sir Alfred McAlpine and Sons Ltd. C. A. (1968) 1 A.E.R. in which Diplock L.J. opens his Judgement with the following observations :

"The procedure of the English Courts is based upon the adversary system. The underlying principle of civil litigation is that the Court takes no action in it of its own motion but only on the application of one or other of the parties to the litigation, the assumption being that each will be regardful of his own interest and take whatever procedural steps are necessary to advance his cause." (Paragraph F at page 552)

29. On the issue of delay Lord Justice Diplock said :-

"Delay which justifies dismissal of an action for want of prosecution, as distinct from dismissal for disobedience to a peremptory order of the Court, is ex hypothesi so prolonged that it involves a serious risk that there will not be a fair trial of the issues" (paragraph A at page 554).

30. Lord Justice Diplock points out that it is not fatal to the Defendants case if he acquiesces in the Plaintiff's delay as:-

31. This emphasis on the adversarial system was re-iterated by Lord Justice Salmon in his Judgement at page 561 of the same report when he stated "the Courts cannot act of their own motion but only on the application of one or other of the parties". He pointed out that a Defendant may apply to have an action dismissed for want of prosecution either (A) because of the Plaintiff's failure to abide by the rules or (B) under the Courts inherent jurisdiction. The same principles apply, they are as follows, in order for such an application to succeed, the Defendant must show :(I paraphrase for the sake of brevity)

32. These principles were re-iterated in the more recent case of Barrand v. British Cellophane PLC (Court of Appeal) T.L.R. 16th of February 1995.

33. In the present case and having listened to the Plaintiff's reasons for delay I'm satisfied that were I entertaining a Defence motion to dismiss for want of prosecution I would probably have no hesitation in acceding to some. However, there is no such motion before me so am I precluded, as Miss Yeung and those authorities indicate, from making such an order of my own motion? In the absence of evidence from the Defence, am I entitled to presume that they would have succeeded in showing prejudice in the circumstances of the present case?

34. All of the textbooks on statutory limitation periods indicate that it is essential for a Defendant to plead that the statute of limitation applies. In other words a statutory limitation is a pleading point only.

35. Order 18 Rule 8 of the Rules of the Supreme Court provides (inter alia) that any relevant statute of limitation must be specifically pleaded. This rule is applied to the District Court by Rule 9 of the District Court Civil Procedure Rules Cap.336. As no Defence has been entered I have no power to invoke the Limitation Ordinance of my own motion. However, I have already found that the Limitation Ordinance does not apply to this case for reasons already stated.

36. Order 34 Rule 2 of R.S.C. provides :-

37. Its unfortunate that the Deputy Registrars Order herein dated 22/7/83 did not fix any time limit for assessing damages. I understand that the form of such an order is taken from the Rules of the Supreme Court which also contain no time limit within which damages should be assessed.

38. In addition to the powers to dismiss an action under R.S.C. for want of prosecution the Court has an inherent jurisdiction to so dismiss "where there has been prolonged or inordinate and inexcusable delay in the prosecution of the action causing or likely to cause serious prejudice to the Defendant or giving rise to a substantial risk that a fair trial would not be possible."

39. See Allen v. Alfred McAlipine & Sons Ltd. (1968) 2 Q.B.229 (1968) 1 A.E.R. 543 (already referred to above and approved in Birkett v. James (1978) AC 297).

40. The principle is that it is the Plaintiff's duty to "get on with" the case, since public policy demands that the business of the Courts should be conducted with expedition. This is a general principle and is not limited to actions for damages for personal injuries, although it applies with greater force to such action.

41. Although the case law on dismissal for want of prosecution indicates that the Court should only adjudicate on such an application upon the Defendant's motion I find that the lacuna in this case arising out of the omission of a time limit in the Deputy Registrars Order dated 22/7/83 requires Judicial intervention in order to prevent an obvious abuse of process. I find that the Court must have an inherent jurisdiction to police its own proceedings on grounds of public policy. To rule otherwise would allow this plaintiff a further 12 years to pursue his claim, such a result would be perverse, unconscionable, and absurd.

42. If the Limitations Ordinance, the R.S.C. and the District Court Rules are all silent on time limits in this instance (which. I find them to be) then I must look for an interpretation which is consistent with the spirit of that Ordinance and of those rules.

43. [See footnote 83 at page 267 of Prime and Scanlans "The modern Law of Limitation"].

"In exceptional cases, there may be no reasonable prospect of the action being resolved justly because of the inordinate delay in presenting an action. Here, the Court itself, as part of the exercise of its inherent jurisdiction, may dismiss an action for want of prosecution."

Kerr v. National Carriers Ltd. (1974) 1 Lloyds Rep.365.

44. However the Court should be able to resolve this issue by reference to widely accepted principles and must not dismiss an action on arbitrary time limits where none are to be found on the statue. In the English case of KraKauer v. Katz (1954) 1 A.E.R. at page 244 it was said by Lord Justice Denning per incuriam:-

"I am disposed to agree that, by analogy with the Limitation Act. 1939, if a Plaintiff allows an action to go to sleep for six years, the Court in its discretion will usually dismiss the case for want of prosecution, unless the Plaintiff can show some good reason why he should be allowed to go on with it."

45. Lord Denning was there dealing with a contract dispute where the limitation period is, of course, six years. In the present case if one draws an analogy with the Limitation Ordinance for personal injury actions the period of limitation should be three years from the last step in the proceedings, i.e. from 22/7/83. [There is in fact Hong Kong statutory authority for drawing an analogy in the Limitation Ordinance at Section 4(7) albeit in reference to equitable Relief.] Further I find that the Plaintiff has shown no good reason why he should be allowed to proceed with his action.

46. Accordingly I find that the Plaintiff having taken no steps to set down his assessment within three years of the Interlocutory Order being granted should now have his claim dismissed for want of prosecution, even in the absence of such an application by the Defendants.

47. In coming to this draconian conclusion I have assessed the relative hardships of a Plaintiff who (A) has suffered no financial loss as a result of this accident (B) who himself was entirely responsible for the unconsionable delay that occurred and (c) who was aware as long ago as August 1986 that he was at risk of being time barred, and Defendants who in all likelihood have no knowledge of this claim at this stage and who, if they had knowledge, might reasonably have assumed many years ago that the Plaintiff was never going to pursue his claim. I therefore dismiss this action for want of prosecution.

48. No order as to costs.

Representation:

Photocopying of this Headnote is not allowed

Ms. Daphne Yeung, Senior Crown Counsel, instructed by the Attorney General, for the Plaintiff.

Defendants absent.

Certified true copy

Representation:

Photocopying of this Headnote is not allowed

Ms. Daphne Yeung, Senior Crown Counsel, instructed by the Attorney General, for the Plaintiff.

Defendants absent.

Certified true copy