Broadway-nassau Investments Ltd. v. Lai Kuen Lap and Another

HCA016443/1999

HCA 16443 of 1999

Directions for Acknowledgment of Service - Time for Service of Defence - Error in Subsidiary Legislation - Rules of the High Court, Cap. 4.

The Plaintiff served writ with Directions for Acknowledgment of Service. The Directions is exact reproduction of Form No. 14 of the List of Forms annexed to the Rules of the High Court, Cap. 4. The Directions says that the Defendants may serve defence until 14 days after service of Statement of Claim. The Defendants served their Defence a few days after 14 days after the Statement of Claim was served. Order 18 Rule 2 provides that Defence must be served within 14 days after service of the Statement of Claim.

Held : There is clear clerical error in the Form No. 14 which is part of subsidiary legislation. Such error is deemed corrected.

HCA 16443 of 1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 16443 OF 1999

____________

____________

Coram: Li DJ in Chambers

Date of Hearing: 23 December 1999

Date of Handing Down Reasons for Decision: 30 December 1999

___________________________________

REASONS FOR DECISION

___________________________________

In this case, the Plaintiff applied for Order 19 Rule 7 judgment in default of defence but the summons was withdrawn by my leave. At the same time, leave was given to the Defendants to file Defence (and Supplemental Defence) out of time. A decision of this kind is not normally even worth mentioning but for reasons that will became apparent and at the request of solicitor for the Plaintiff I feel obliged to published written reasons for decision.

2.This is the history of the matter:-

3.The Endorsement on the writ showing the nature of the claim is as follows:-

"INDORSEMENT OF CLAIM

The Plaintiff claims:-

1. As against the 1st Defendant, damages for slander and/or injurious or malicious falsehood published by the 1st Defendant to and/or in the presence of members of the press on or about 10, October 1999, the same having been reported, inter alia, in the 11 October 1999's issue of Sing Pao newspapers;

2. As against the 2nd Defendant, damages for slander and/or injurious or malicious falsehood published by the 2nd Defendant to and/or in the presence of members of the press on or about 10, October 1999, the same having been reported, inter alia, in the 11 October 1999's issue of Apple Daily newspapers;

3. An injunction to restrain the 1st and 2nd Defendants, and each of them, by himself his agents or servants or otherwise from further speaking or publishing the said or any similar words dafamatory of the Plaintiff.

4. Interest pursuant to section 48 and section 49 of the High Court Ordinance, Cap 4;

5. Costs; and

6. Further and/or other relief."

4.The court is not concerned with the substance of the Defence and Supplemental Defence because Miss Ng, quite properly, conceded that if the Defence is treated as having been filed and served in time the Order 19 summons should be withdrawn. The question, therefore, I had to decide was whether the Defendants filed and served the Defence in time or whether leave should be given to file and serve the Defence out of time.

5.Order 18 Rule 2 of the Rules of the High Court, Cap. 4 is quite clear:-

"2. Service of defence (O. 18, r. 2)

(1) Subject to paragraphs (2) and (3), a defendant who gives notice of intention to defend an action must, unless the Court gives leave to the contrary, serve a defence on every other party to the action who may be affected thereby before the expiration of 14 days after the time limited for acknowledging service of the writ or after the statement of claim is served on him, whichever is the later.

2. 抗辯書的送達（第18號命令第2條規則）

（1）除第（2）及（3）款另有規定外，就一宗訴訟發出擬抗辯通知書的被告人，除非法庭另作許可，否則必須在令狀的認收送達時限後14天屆滿前或在申索陳述書送達他後14天屆滿前（以較遲者為準），將抗辯書送達可能受其影響的訴訟其他每一方。"

Thus, following Order 18 Rule 2, the Defendants should have filed and served their Defence within 14 days from the date of service of the Statement of Claim which is 16th November 1999. The Defence, clearly, was filed and served without leave a few days after the statutory deadline. For this reason, Miss Ng for the Plaintiff contended that the Order 19 summons was justified.

6.Both Defendants, on the other hand, argued that they had followed the Directions attached to the writ served on them. The relevant parts of the Directions are:-

" Directions for Acknowledgement of Service

1. The accompanying form of ACKNOWLEDGEMENT OF SERVICE should be detached and completed by a Solicitor acting on behalf of the Defendant or by the Defendant if acting in person. After completion it must be delivered or sent by post to the Registry of the High Court at the following address:-

2. A Defendant who states in his Acknowledgement of Service that he intends to contest the proceedings MUST ALSO file a DEFENCE which must be written in either the Chinese or the English language with then registry and serve a copy thereof on the Solicitor for the Plaintiff (or on the Plaintiff if acting in person).

If a Statement of Claim is indorsed on the Writ (i.e. the words "Statement of Claim" appear at the top of the back), the Defence must be filed and served within 14 days after the time for acknowledging service of the Writ, unless in the meantime a summons for judgment is served on the Defendant.

If a Statement of Claim is not indorsed on the Writ, the Defence need not be filed and served until 14 days after a Statement of Claim has been served on the Defendant.

If the Defendant fails to file and serve his defence within the appropriate time, the Plaintiff may enter judgment against him without further notice.

關於送達認收書的指示

1． 隨附的送達認收書表格應由代表被告人行事的律師撕下及填寫，或如被告人是親自行事，則應由被告人撕下及填寫。表格填妥後必須交付或以郵遞方式送交高等法院登記處，登記處的地址是：-

2． 被告人如在其送達認收書中表示擬就法律程序提出爭議，則必須亦將一份抗辯書送交高等法院登記處存檔，該份抗辯書必須以中文或英文寫成，其文本並必須送達原告人的代表律師（或如原告人是親自行事，則送達原告人）。

如令狀註有申索陳述書（即在背頁上端出現“申索陳述書”等字），則除非在對令狀作認收送達的時限後14天內有要求作判決的傳票送達被告人，否則必須在該段時限內將抗辯書送交存檔及送達。

如令狀並無註有申索陳述書，則直至申索陳述書送達被告人後14天為止，沒有將抗辯書送交存檔及送達的必要。

如被告人沒有在適當時限內將其抗辯書送交存檔及送達，則原告人可不發出進一步通知而登錄判被告人敗訴的判決。"

It is immediately apparent from sub-paragraph 3 of Paragraph 2 of the Directions that the Defendants were directed to file and serve Defence until 14 days after the Statement of Claim had been served. The Defendants submitted that they followed the Directions. They filed and served their Defence a few days after 14 days after the Statement of Claim had been served.

7.As I was wondering whether solicitors for the Plaintiff adopted a wrong version of the Directions, Miss Ng drew my attention to the fact the Directions served with the writ was an exact reproduction of Form No. 14 in the List of Forms annexed to the Rules of the High Court, Cap. 4. In other words, the version used was mandated by subsidiary legislation and in conflict with Order 18 rule 2. As Miss Ng pointed out, if one were to follow the Directions, it is at least arguable that a defendant has unlimited time to file Defence 14 days after service of the Statement of Claim.

8.I do not know how the Directions came to be approved. Clearly, so far as the Defendants before me were concerned, the only proper thing for me to do was to give leave to the Defendants to file and serve their Defence out of time and order that service be dispensed with. This I did. As to costs of the Order 19 summons and the hearing therefore me, although Miss Ng said that the Plaintiff was entitled to take out the summons in accordance with Order 19 Rule 7 and the Plaintiff did nothing wrong by adopting Form No. 14, it would not be fair to make the Defendants bear costs. Accordingly, I made no order as to costs for the Order 19 summons and the hearing.

9.There is a clear clerical error in Form No. 14. Such error is deemed corrected. See Halsbury's Laws of England (4th Edition) Volume 32 Paragraph 33. Solicitors and Plaintiffs should with immediate effect alter Subparagraph 3 of Paragraph 2 therein by replacing the word "until" with the word "within" and do the same for the Chinese version.

Representation:

Miss Winnie Ng of Messrs Lo & Lo, for the Plaintiff

First and Second Defendant in person