The Hong Kong and Shanghai Banking Corporation v. Joseph J. Bittker and Others

HCCL000083/1985

High Court Commercial List 83 of 1985

HEADNOTE

Practice & Procedure - Service of writ - Extension of validity of writ - Official stamp missing from writ - effect - Ord. 6 rule 8, Ord. 2 rule 1(2), Ord. 12 rule 8.

1985, No. C.L.83

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: The Hon. Mr. Justice Sears in Chambers

Date of Hearing: 24 March 1988

Date of Delivery of Judgment: 24 March 1988

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JUDGMENT

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1. This is a summons taken out by the 4th Defendant dated 15th February 1988 to set aside service of a writ allegedly served in America, to discharge an order made ex-parte by me extending the validity of the Writ and also for a declaration that the Writ has not been duly served. Some of those matters involve issues of fact which, it is right, in my judgment, should be tried on evidence, and I follow the decision of Mr. Justice Godfrey given last week in this action in so far as the other Defendants were concerned. Those matters should all be heard at the same time, by the same Judge.

2. Mr. Westbrook however takes two points which are criticised as being technical points. The eagle eye of some lawyer has spotted that the Writ purportedly served in January 1988 on the Defendant has been extended twice, but there only appears one official stamp extending the Writ pursuant to the Order I made. I consider it praiseworthy that lawyers do take the time and trouble to examine with care documents and to spot these points. Under Order 6 rule 8(2), a Court has power to extend the validity of a Writ for a period of time not exceeding 12 months beginning with the day next following that on which it would otherwise expire. The facts of this case are that the Writ was issued on the 10th July 1985 and expired on the 9th July 1986. There was an order made by Mr. Justice Jackson Lipkin extending the Writ for a period of 12 calendar months from the 10th July 1986 which would then expire on the 9th July 1987. I made an order, ex-parte, on the 12th November 1987 extending the Writ for a period of 12 months from the 10th July 1987. On the Writ which has been exhibited and which I have had now a chance to see was served on the Defendant, the Court's stamp extending the validity between 1986 and 1987 is absent.

3. By virtue of Order 6 rule 8(3) before a Writ, the validity of which has been extended under this rule, is served it must be marked with an official stamp showing the period for which the validity of the Writ has been so extended.

4. It is important to note that the rule uses the word "must" rather than "shall". This rule therefore is of importance to the recipient of the Writ into whose hand it comes, because he is then informed that it has been properly extended.

5. The recipient of this Writ would know that it was extended to July 1988 because that was the order stamped on it and inferentially as is pointed to me, he ought to have known, that it had been extended between 1986 and 1987. In my judgment, this is an important rule, and I have no doubt that this Writ was not marked with the official stamp extending the validity for the period between 1986 and 1987, and despite the fact there is another stamp showing from 1987 to 1988, this in no way cures that absence of the earlier stamp.

6. It does not matter that there has been an order to extend because the requirements of Ord. 6 r 8(3) do not come into being unless there is such an order. The rule states clearly that after the order then there must be affixed to the writ the official stamp. I have no doubt that the writ as served was in clear breach of this rule. If this matter had been brought to my attention when I made my ex parte order, particularly as I was extending a writ in November which had expired in July 1987, I would not have exercised my discretion so to extend it.

7. Rules of the Supreme Court should be obeyed and although I have not examined every rule, the use of the word "must" is rare. The clear intention therefore is that the stamp must be affixed.

8. Mr. Aiken submits that even if there is an irregularity in the failure to stamp, nevertheless by virtue of Ord. 2 r 1(2) I have power to cure the irregularity, and he has cited authorities with regard to the Court's power so to do.

9. With respect, the summons before me is under Ord. 12 r 8 - the application is to discharge the ex-parte order I made, and make an appropriate declaration.

10. The Court's power therefore as far as Order 12 is concerned is self-contained. Although Ord. 2 r 1(2) also deals with irregularities, it is important to recognise that these can range from the wholly insubstantial - such as minor errors of form - to the substantial.

11. In an Order 12 situation, I can examine not only an irregularity but also "any other ground". In Metroinvist Ansalt v. Commercial Union (1985) 1WLR 513, Cumming-Bruce L.J. at p.521 deals with the general discretion under Ord. 2 r 1(2) and says that that rule is ... "framed as to give the Court the widest possible power in order to do justice." I bear that in mind, but I also consider that matters relating to the extension and service of writs are not, as Mr. Aikens submits mere matters of form.

12. I have no doubt that I would not, have granted an extension had the failure to stamp been brought to my attention and it would be unjust therefore to allow my ex-parte order to validate something which is wrong.

13. I have examined the facts and history of this matter, the nature of the breach of the rules, the power given to me in Order 12, and the conclusion I reach is:

14. I therefore, in the exercise of my discretion, under Ord. 12 r 8(1)(b) make a declaration and if it is necessary, also discharge my ex-parte order under Ord. 12 r 8(1)(d). I only add that in the balance of my judicial discretion, the weight is substantially in favour of making such an order.

15. Mr. Westbrook takes a second point; he submits the acknowledgement of service was not served - the Plaintiff says it was. The application is made by the 4th Defendant in due time and I confess I find it difficult on the bare material to come to a conclusion. This is a minor matter and at any rate can be simply cured by new service. I have been told that a new acknowledgement of service has been served, and it is unnecessary to say anything else other than this ground of the application fails.

16. Grounds 1 and 2 of the Summons are made out, and I make the appropriate order.

Representation:

Mr. Nigel Aiken instructed by M/S J.S.M. for the Plaintiff.

Mr. Simon Westbrook instructed by M/S Robert W.H. WANG & Co. for the 4th Defendant.