Wong Wai Fong and Another v. Leung Cho Sze

HCAJ000249/1980

Admiralty practice and procedure - collision between two small fishing vessels - application by defendant under 0.75 r. 19(1) to dismiss action for failure by plaintiff to file preliminary act within prescribed time - discretion - prejudice to defendant not irreparable - instead of dismissing action Court would order preliminary act to be filed within 7 days - in default action would stand dismissed.

ADMIRALTY JURISDICTION

Admiralty Action in Personam

BETWEEN

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Coram: Fuad, J.

Date: 14 May 1982

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ORDER

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1. The principal matter before me is an application by a defendant under O.75 r. 19(1) to dismiss these Admiralty proceedings for the failure on the part of the plaintiff to lodge a preliminary act within the time prescribed by O.75 r. 18(1). The plaintiff is the administratrix of the estate of the late Wong Fok who died on the 11th October 1978 as the result of the injuries he sustained on the 25th September 1978 when a collision occurred between his and the defendant's fishing vessels in Aberdeen harbour. Claims for damages are made under the Law Amendment and Reform (Consolidation) Ordinance for the benefit of the estate of the deceased, and for damages under the Fatal Accidents Ordinance for the benefit of the deceased's dependants, his maternal and paternal grandmothers.

2. The plaintiff was granted letters of administration on the 18th April 1980 and issued a generally endorsed writ on the 10th October. Both the writ and a Statement of Claim were served on the defendant on the 15th October 1980, and he entered appearance on the 20th October. The defendant filed his preliminary act on the 5th December 1980 and his defence on the following day and the defence was served on, the plaintiff on the 6th December. There was then an exchange of correspondence regarding requests by the plaintiff for further and better particulars of the defence, and on the 29th January this year the solicitors for the defendant informed those of the plaintiff that they would take steps to have the action struck out under O.75 r 19(1).

3. Mr. Edward Chan for the defendant pointed to the provisions of O 75 r. 18(1) which require the plaintiff to lodge her preliminary act within two months after issue of the writ and before any pleading is served. While acknowledging that the Court had a wide discretion under O.75 r.19(1), he submitted that in the circumstances of this case the Court should exercise its discretion in Favour of the defendant. He contended that since the clock could not now be turned back, bearing in mind the main purpose of requiring preliminary acts to be lodged, the defendant had been placed in a disadvantaged position which could only be put right by the dismissal of the action. He dyer: my attention to the decision of Karminski J. in British Oil and Cake Mills Ltd. v. John H. Whitaker (Tankers) Ltd.(The Grainger's No.4) [1964] L W. L. R. 1472. which high - lighted: he importance attached by Courts exercising admiralty jurisdiction to the dodging of preliminary acts.

4. For the plaintiff Mr. William Waung emphasised that these proceedings did not relate to a collision between two large vessels with sophisticated equipment but to one that occurred between two small fishing boats. While fully accepting that, due to inadvertence, the rules had not been complied with, he submitted that the Court should not adopt the drastic course for which application had been made. He took me through the particulars that are required to be contained in a preliminary act by O.75 r. 18(1) and reading them against the Statement of Claim he pointed out that, in fact, all the necessary information had thereby been supplied except perhaps a matter referred to in part of article (ix)(b) of the rule. He referred me to two of the leading text books on Admiralty practice which recorded the established practice that on filing a preliminary act a party gives notice of filing to his opponent so that he can search to see that the filing is in order. He suggested that had the defendant's solicitors followed this practice the plaintiff's advisers would have realized their mistake much earlier, that is to say in early December 1980 and sought to repair the omission.

5. Mr. Waung contended that there were a number of courses open to the Court that would do justice to both the parties. He said he would be happy to be bound by the facts set out in his Statement of Claim so that the Court could treat the Statement of Claim, in effect, as if it were the plaintiff's preliminary act. He suggested that it was significant that the defendant had not set out in his affidavit why he contended that he had been prejudiced in any way. This was because no prejudice whatsoever had been occasioned. He submitted in the alternative that the Court should give leave to the plaintiff to file her preliminary act out of time even at this late stage.

6. I must begin by stating the obvious - the terms of O.19 r. 18(1) are clear and should have been obeyed. However the penalty for a default in these particular circumstances is a Draconian one and the Court will be reluctant to impose it unless the justice of the matter so dictates. The discretion given to the Court by O.75 r. 19(1), on an application to dismiss the action is in these terms, : "and the Court may by order dismiss the action or make such other order on such terms as it thinks just." Of course, this discretion must be exercised judicially and it seems to me that the proper approach is to consider whether the prejudice suffered by the defendant is irreparable far if it is not, then the action should be allowed to go forward so that it can be determined on its merits. Dr. Lushington explained the reasons why preliminary acts were instituted in The Vortigern (1859), Sw. 518 in language which has consistently been approved by the Courts (and which was cited in the British Oil & Cake Mills Ltd at p.1476) as follows: -

"………to get a statement from the parties of the circumstances recenti facto, and to prevent the defendant from shaping his case to meet the case put forward by the plaintiff."

The first reason loses something of its force where, as happened here, and as permitted by the rules, the writ was issued right at the end of the limitation period. But it is clear that the object of the provisions must also be to prevent the plaintiff from adjusting his case to meet facts advanced by the defendant.

7. While in no way wishing to minimize the importance of preliminary acts, in my approach to the matter I conclude that I am entitled to bear in mind that this was a collision between two small vessels and the facts in dispute are not complicated. I am bound to say at once that I do not think it would be right to dispense with the need to file a preliminary act by the plaintiff, by treating the Statement of Claim as a preliminary act even if the plaintiff agrees to be bound by the facts in the Statement of Claim. I think that this would be to drive a coach and horses through the rules and might lead to confusion and difficulty at the trial. In my judgment the proper order to make is to give leave to the plaintiff to file a preliminary act within 7 days of tire date of this Order and to further direct that the action shall stand dismissed if it is not filed in time. I appreciate that a preliminary act filed at this stage of the proceedings cannot have the weight and usefulness that one filed within the time limited by the rules would have had, but the trial judge, no doubt, will be able to bear this in mind when assessing the accuracy and trustworthiness of the evidence led at the trial by the plaintiff.

8. The other matter before me can be dealt with quite shortly. On the 10th March 1982 the learned Registrar dealt with a summons by the plaintiff for leave to amend the Statement of Claim. An order in terms was made by consent and the Registrar added "Leave to defendant to amend defence." The amendment sought to be made (and which was made) was to include a claim for damages for the deceased's "lost years" and this was done simply by inserting at the beginning of para. 8 of the Statement of Claim, immediately before the words "AND THE PLAINTIFF CLAIMS", "Further, the plaintiff claims damages for the lost years of the deceased."

9. Mr. Chan submitted that this gave him general leave to amend his defence and that therefore he was perfectly entitled to add two paragraphs to his defence (parts. 10 and 11) pleading that the plaintiff's claim was barred by S.8 of the Maritime Conventions Act, 1911 and that the claim was in any event subject to the limitation of liability for which provision is made in the Merchant Shipping Acts and the Merchant Shipping (Liability of Ship Owners and Others) Act 1958. Although the Courts are very ready to grant leave for pleadings to be amended at any stage, I do not consider it would be right to countenance what occurred here. Indeed, the amendment made by the plaintiff did not seem to necessitate any amendment to the defence at all and in my judgment the defendant had no right to do what he did. I need only quote the following passage from paragraph 20/3-4/5 of the Supreme Court Practice (1982) -

"Amendment Consequential on Amended Pleading - Where the plaintiff is given leave to amend his statement of claim, the defendant is not entitled, in the absence of express leave to do so to introduce any amendments that he chooses, but his implied right to amend his defence is limited to making only such amendments as are consequential upon the amendments made in the statement of claim, i.e. it extends to amending only those parts of the defence which relate to the amended allegations made in the statement of claim and does not extend to the parts which relate to allegations in the statement of claim not affected by the amendments made therein (Squire v. Squire [1971] 2 W .L .R. 363; [1971] 1 All E. R. 891, C. A. ).

10. In all the circumstances I think the appropriate Order to make on the plaintiff's summons is to direct that parts 10 and 11 of the amended defence served on the plaintiff on the 11th March 1982 be struck out.

11. Under O.42 r.5A I make the following orders nisi as to costs -

Representation:

Mr. William Waung instructed by the Director of Legal aid for plaintiff.

Mr. Edward Chan instructed by John Ku & Co. for the defendant.