Read the full judgment text of HCA 008306/1995 on BabelCite. This High Court CFI judgment was delivered on 24 October 1996 before The Hon. Mr. Justice Keith.
Civil procedure – 'unless' order – striking out for non-compliance – application to extend time – whether solicitor's default in complying with 'unless' order can be visited on blameless client – whether view of Bokhary JA in Tan Eddy Tansil v. P.T. Bank Pembangunan (Indonesia) Persero [1996] 1 HKC 231 (that a solicitor's failure to comply with an 'unless' order should not adversely affect his client's interests if that can be avoided without injustice to the other party) forms part of the ratio decidendi – application of test from Re Jokai Tea Holdings Ltd. [1992] 1 WLR 1196 (Sir Nicholas Browne-Wilkinson V-C) – whether failure to comply was intentional and contumelious – whether merits of underlying claim are relevant to extension application – whether default-judgment 'real prospect of success' test applies to judgments entered in favour of defendants for plaintiff's non-compliance – sufficiency of further and better particulars – director's liability for copyright infringement instigated by company – Copyright – 'unless' order – particulars of pleading – striking out – application to set aside default judgment – costs of application for indulgence – appeal from Master upheld in part – order that plaintiff pays costs of defendants on common fund basis – service of particulars two days late due to solicitor's relaxed attitude and optimism about obtaining extension – not intentional or contumelious – plaintiff permitted to proceed with copyright claim for injunction and damages – costs below to be paid by plaintiff on common fund basis.
Legal issues: Whether Bokhary JA's view in Tan Eddy Tansil on solicitor's default and 'unless' orders is binding ratio decidendi · Whether default-judgment merits test applies to judgments entered in favour of defendants for plaintiff's non-compliance with 'unless' order · Whether merits of underlying claim are relevant on application to extend time for compliance with 'unless' order · Whether the solicitor's failure to comply with the 'unless' order was intentional and contumelious
Outcome: Appeal of the 2nd, 3rd and 4th Defendants from Master Jennings's order of 15 May 1996 was dismissed in part: Master Jennings's order setting aside the striking-out judgment was upheld, but his order requiring the 2nd, 3rd and 4th Defendants to pay the Plaintiff's costs of the hearing on 15 May was set aside and replaced with an order that the Plaintiff pays those costs on a common fund basis.
Cited by 13 cases