Formative Way Co. Ltd. and Another v. Lam Soon Warehouse Co. Ltd.

HCA005312/1991

HCA5312/1991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.5312 OF 1991

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Coram: Deputy High Court Judge Poon in Chambers

Date of Hearing: 5 September 2001

Date of Judgment: 22 October 2001

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J U D G M E N T

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1.This is an appeal against the order of the master dated 11 January 2001 dismissing the 2nd plaintiff's claim for want of prosecution.

PROCEEDINGS BEFORE 2 SEPTEMBER 1994

2.The 1st plaintiff was a seller and exporter of raw silk. The 2nd plaintiff is and was at all material times the majority shareholder and director of the 1st plaintiff. It is not in dispute that he runs and manages the 1st plaintiff.

3.The defendant operated a warehouse at 12 Cheung Yue Street, Cheung Shan Wan, Kowloon ("the Warehouse"). On 17 July 1991, the 1st plaintiff commenced the present action. It averred in the statement of claim that in the months of June and July 1989, it delivered a total of 128 bales of raw silk to the Warehouse for storage. Subsequently, the 1st plaintiff took delivery from the Warehouse 33 bales, leaving a balance of 93 [sic] bales, which the defendant had failed to return. The 1st plaintiff therefore claimed for the return of the 93 bales, or its value at $1,870,000 and damages. By a letter dated 30 July 1991, the defendant's solicitors pointed out the mistake in the number of one of the warehouse warrants and the miscalculation in the number of the undelivered bales. The writ with the statement of claim was amended on 13 September 1991. But only the mistake concerning the warrant number was rectified.

4.In its defence filed and served on 11 October 1991, the defendant averred that it was unable to return the 95 bales of silk because they had been unlawfully removed away in the early hours on 22 November 1989 when a robbery took place at the Warehouse. The loss occurred notwithstanding the exercise of all due and proper care by the defendant and its employees and without default or neglect on their part. The defendant further relied on an exemption clause of the contracts of bailment exempting its liability entirely and alternatively another clause that restricted its liability to $250 per bale.

5.No reply having been filed, pleadings were deemed to have been closed 14 days after the service of the defence. Under the rules, within a month after close of pleadings, a summons for directions should be taken out. But the 1stplaintiff did not do so until two and a half months later on 10 February 1992. In addition to directions on discovery, the 1st plaintiff sought a direction that the trial be set down before a judge within 42 days in the running list. On 27 February 1992, the master gave directions on discovery but adjourned the mode of trial sine die with liberty to restore before the listing judge.

6.The lists of documents were then exchanged in March the same year. On 11 July 1992, the defendant filed a supplemental list. On 9 February 1993, the defendant obtained leave from the master to file and serve on the 1st plaintiff a notice to admit facts. The 1st plaintiff then by letter indicated that it was not prepared to make the admissions.

7.Nothing happened until 20 months later when on 23 July 1993, the plaintiff filed a reply. As regards the defendant's plea that it had exercised due care, the 1st plaintiff averred that the loss of the goods was wholly or partly attributable to the gross negligence on the part of the defendant or its servants. Particulars were then given. The 1st plaintiff also contended that the exemption clauses were either not incorporated into the contracts of bailment or did not have the effect of limiting the plaintiff's liability as alleged. What followed is another period of inactivity for 10 months.

8.Then on 10 May 1994, the 1st plaintiff took out a summons ("the May 1994 summons") to re-amend the statement of claim, inter alia, to change the number of the bales of silk undelivered from 93 to 95, and to add a plea that the silk was purchased in the name of the 1st plaintiff with funds provided by the 2nd plaintiff and a third party. The mistake about the number of bales was obvious. It had already been pointed out by the defendant's solicitors as early as 30 July 1991. It should have been rectified back in September 1991. There is no explanation why it was not done so until May 1994.

9.By another summons dated 1 June 1994 ("the June 1994 summons"), the 1st plaintiff applied to withdraw the May 1994 summons and to re-amend the statement of claim by changing the 1st plaintiff to the 2nd plaintiff. The original proposed re-amendments were retained. There was no separate application to substitute the 2nd plaintiff for the 1st plaintiff. It should be noted that the documentary evidence then available at the commencement of these proceedings, namely the warehouse warrants and debit notes were all issued by the defendant to the 2nd plaintiff.

10.By a third summons dated 1 September 1994 ("the September 1994 summons"), the 1st plaintiff applied to withdraw the May 1994 summons returnable on 2 September 1994, to join the 2nd plaintiff, to re-amend the statement of claim along the lines as proposed in previous summons and to add a plea that the plaintiffs or either of them had the right to entrust the silk with the defendant for safe custody. This application was allowed on 2 September 1994.

PROCEEDINGS AFTER 2 SEPTEMBER 1994

11.The consequential amended defence was filed on 16 September 1994 and re-amended on 27 February 1995. There, the defendant averred that it believed that it entered into the contracts of bailment with the 2nd plaintiff.

12.By a consent order dated 9 March 1995 ("the March 1995 order"), leave was given to the 1st plaintiff to discontinue its claim against the defendant with costs. On 21 June 1995, the defendant filed a rejoinder with leave. On 14 July 1995, the 2nd plaintiff filed an answer to further and better particulars of the reply.

NO STEPS AFTER 15 JULY 1995

13.Since 15 July 1995, the 2ndplaintiff had simply failed to take any further steps in the proceedings for 51 months until 12 November 1999.

PROCEEDINGS AFTER 12 NOVEMBER 1999

14.On 12 November 1999, the 2nd plaintiff filed a notice of intention to proceed. But even then, he had taken no further step in the proceedings. Eventually on 4 October 2000, the defendant took out an application to dismiss the action for want of prosecution. On 20 October 2000, the 2nd plaintiff filed a list of documents which was identical to that filed by the 1st plaintiff back in March 1992. The substantive hearing for the defendant's application took place before the master on 11 January 2001. In the event, he allowed the application and dismissed the action for want of prosecution.

LEGAL PRINCIPLES

15.Before addressing the evidence and issues, I will first set out the relevant legal principles. They are well established but in light of counsel's elaborate submissions, it is, I believe, useful to give a summary.

(1) Basic rule

16.An action may be dismissed for want of prosecution where the court is satisfied either:

(1) that the default has been intentional and contumelious, e.g., disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or

(2) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and that such delay:

(a) will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action; or

(b) is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.

See Birkett v. James [1978] AC 297, at 318E-G. The present application concerns the second limb only.

(2) Relevant delay

17.Delay in the present context covers not only periods of passive inactivity, but is equally apt to describe periods where things are happening in desultory fashion or when the party in question has taken some steps in the proceedings, but only at lethargic pace with long intervals between them: Lev v. Fagan (unreported, English Court of Appeal, 15 March 1988); Benoit v. London Borough of Hackney (unreported, English Court of Appeal, 11 February 1991).

(3) Inordinate delay

18.Inordinate delay cannot be precisely defined. What is or is not inordinate delay must depend on the facts of each particular case: Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at 268F. It is clear, however, that for delay to be inordinate it must exceed, and probably by a substantial margin, the times prescribed by the rules of court for the taking of steps in the action (Trill v. Sacher [1993] 1 WLR 1379 at 1398C) or the time usually regarded by the profession and courts as an acceptable period (Hong Kong Civil Procedure 2001, para. 25/L/5 at 425).

19.Time elapsed before the issue of a writ within the limitation period cannot of itself constitute inordinate delay however much the defendant may already have been prejudiced. To justify dismissal of an action for want of prosecution delay relied upon must relate to time which the plaintiff allows to lapse unnecessarily after the writ has been issued. A late start makes it more incumbent upon the plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued: Birkett v. James, above at 322F - H.

20.After the expiry of the limitation period, the time elapsed after the issue of a writ but before the expiration of the limitation period can constitute inordinate delay: Rath v. CS Lawrence & Partners [1991] 1 WLR 399, per Slade LJ at 411A - F.

(4) Inexcusable delay

21.Delay which is inordinate is prima facie inexcusable: Allen v. Sir Alfred McAlpine & Sons Ltd, above at 268F - G, Trill v. Sacher, above at 1398D.

22.The burden is on the plaintiff to show that the delay is excusable by offering a credible excuse: Trill v. Sacher, above at 1398D. Whether or not there has been inexcusable delay should be examined primarily from the defendant's point of view or at least, objectively: Ho Hip Lik & another v. Kwan Man Ho & others [1996] 2 HKLR 184 at 186A.

23.When delay is caused by the lawyers responsible for the litigation, that is not an excuse and the plaintiff has vicariously to accept responsibility: Rosen v. Martson (unreported, English Court of Appeal, 15 March 1984). Cumming-Bruce LJ said:

"It seems to me that the learned judge was in error insofar as he took the view that the plaintiff had a good excuse because she confided the business to persons who claimed legal qualification, who had failed her, that for that reason their failure should be disregarded in considering the responsibility for the delay. The difficulties that such an approach would give rise to are manifest. I take the view that once it is established that the delay was excessive (which this certainly was) the next question, which is, was the delay inexcusable, has to be answered by reference to objective considerations, and though there may be some room for subjective consideration, primarily the question whether the delay is excusable or inexcusable falls to be determined by a consideration of objective factors. Here, insofar as the delay is explained by the failure of the successive lawyers who accepted instructions to assist the plaintiff, their failure to proceed with reasonable diligence in the action is a failure for which the plaintiff has vicariously to accept responsibility when the court is looking for the answer to that question, is there an objective excuse for the delay?"

24.The plaintiff's lack of finance is not a good ground of excuse. In Ngan Ching Pai, the trustee of the estate of Wong Siu Shan, deceased v. Dr Chan Wai Lam & others, unreported, HCA 10002 of 1991, 27 July 1999, Findlay J said:

"...although a court should feel some sympathy for an impecunious plaintiff and exercise a degree of indulgence, it should not, and cannot, accept lack of means as an acceptable excuse for inordinate delay where that inordinate delay is such that the prejudice suffered by the defendant is so serious that it dictates that the indulgence should be extended no further... Personal difficulties faced by a plaintiff, such as an ability through illness, absence or lack of money to give instructions to his solicitor to proceed in prosecuting an action, may be given some weight, but there some be some reasonable limits on the court's right to indulge the plaintiff at the expense of the defendant."

In Hymer v. MTRC [2000] 2 HKLRD 589, CA, Ribeiro JA (as he then was) distinguished the delays caused by difficulties in obtaining legal aid, which may in appropriate circumstances, constitute a valid excuse, from the delays caused by impecuniosity as such. His Lordship then went on to say at 607G - I:

"The hard fact of the matter is that where a plaintiff does not qualify for legal aid and is unable to advance this litigation because of a lack of funds, there is likely to come to a time when his action has to be struck out for want of prosecution. As Findlay J pointed out in Ngan Ching Pai, the trustee of the estate of Wong Siu Shan, deceased v. Dr Chan Wai Lam & others, (unreported, HCA 10002 of 1991), while a court may feel inclined to afford an impecunious plaintiff a certain indulgence while he is trying to raise funds or otherwise to progress the case, this must be balanced against the defendant's legitimate interest in being able to have a fair trial and in his not being prejudiced by having an action hang over his head for an inordinate and inexcusable period of time."

(5) Prejudice

25.The defendant essentially relies on the substantial risk that a fair trial of the issues in the action may not be possible as a form of serious prejudice it has suffered. In this connection, the following propositions are pertinent.

26.Prejudice is a matter of fact and degree depending on the circumstances of a particular case. In addition to any inference that may properly be drawn from the delay itself, prejudice can sometimes be directly proved. As a rule, the longer the delay, the greater the likelihood of serious prejudice at the trial: Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 229, per Salmon LJ at 268G - 269A.

27.The effects of the lapse of time on the memory of witnesses or, in the course of such time of their death or disappearance are the most usual factors. Their importance depends upon the circumstances, the issues and the other evidence that can be given. Thus the lapse of time may be very prejudicial if the circumstances of an accident or oral contracts or representations are in issue, but is of much less importance in a heavy, well-documented commercial action: see The Hong Kong Civil Procedure 2001, para. 25/L/7 at 425.

28.However, the mere fact that there is contemporaneous documentary evidence does not necessarily mean a fair trial of the issues may be possible despite the delay. There are cases where oral evidence on disputed facts is still required or where memory on witnesses on those available documentary evidence is dimmed by the passage of time: see, e.g., George v. Carmarthenshire County Council (1975) 119 Sol J 407 (a personal injury case), Joseph v. Dr Korn & Associates (unreported, English Court of Appeal, 31 July 1984) (a medical negligence case), Bansal v. David Picton Co (a firm) (unreported, English Court of Appeal, 17 December 1993) (a professional negligence case).

29.The prejudice must be caused by delay since the issue of the writ; the defendant cannot rely upon prejudice relating wholly from earlier delay. It is not enough to simply consider whether prejudice had been caused to the defendant by the total time that the plaintiff had allowed to lapse between the occurrence of his cause of action and the date of the summons to dismiss for want of prosecution. There must be some additional prejudice since the issue of the writ. As Lord Diplock said in Birkett v. James at 323G - H:

"To justify dismissal of an action for want of prosecution some prejudice to the defendant additional to that inevitably flowing from the plaintiff's tardiness in issuing his writ must be shown to have resulted from his subsequent delay (beyond the period allowed by the rules of court) in proceeding promptly with the successive steps in the action. The additional prejudice need not be great compared with that which may have been already caused by the time lapsed before the writ was issued; but it must be more than minimal; and the delay in taking a step in the action if it is to qualify as inordinate as well as prejudicial must exceed the period allowed by rules of court for taking that step."

30.Evaluation of the degree of prejudice caused by delay since issue of the writ, however, is likely to require consideration of the context of such delay, and therefore, of the effect of the total lapse of time since the events giving rise to the dispute: see The Hong Kong Civil Procedure 2001, para. 25/L/7 at 425.

(6) Causative link between delay and prejudice

31.A causal link must be proved between the delay and the inability to have a fair trial of other prejudice, as the case may be: Rath v. CS Lawrence & Partners [1991] 1 WLR 399 at 410.

32.However, it is not essential that there should be direct evidence of prejudice, the court is entitled to draw an inference by reason of the delay complained of, serious prejudice would be caused to the defendant as a result of the impairment of witnesses' recollections: see e.g. City of Westminster v. Clifford Culpin and Partner & another, 12 Con LP 118, per Megaw LJ at 138, Roebuck v. Mungovin [1994] 2 AC 224, per Lord Browne-Wilkinson at 234E - F, Rath v. CS Lawrence & Partners, above, per Farquharson LJ at 406-7, and Lev v. Fagan, above, per May LJ at 4.

(7) Abuse of process

33.Irrespective and independent of any question of delay, an action may also be dismissed where the court is satisfied that the plaintiff's conduct amounts to an abuse of the process: Grovit v. Doctor [1997] 1 WLR 640, HL, followed by the English Court of Appeal in Choraria v. Sethia [1998] CLC 625 and Stone J in Kingly Commodities Company Ltd v. Kang Chong Soo, unreported, HCCL 28 of 1988, 6 January 1999.

34.With these propositions in mind, I now turn to consider the evidence to see if the defendant's complaints are made out.

WHETHER THERE WAS INORDINATE AND INEXCUSABLE DELAY

35.Mr Yau for the 2nd plaintiff readily accepted that there was inordinate and inexcusable delay for 51 months from 14 July 1995 up to 12 November 1999. The 2nd plaintiff gave his explanation for the delay in paragraph 3 of his 2nd affirmation filed on 17 November 2000:

"The main and the only reason why there is such a delay is that I lost my entire fortune in consequence of certain importing transactions between my company [the 1st plaintiff] and the window company of the Municipal Government of Panyu during the period from October 1994 to May 1995. I subsequently got into serious financial difficulties. My wife and I devoted most of out time, money and attention to salvage out business in the years which followed, i.e., 1996 to 1999. This explains why I cannot afford, both financially and mentally, fighting another litigation at the same time. Accordingly there were no substantial steps taken towards setting the matter down for trial between 1995 and 1999."

He then went on to give further details of what transpired during those difficult years. Counsel fairly and, in my view, rightly on authorities conceded that the above explanation is not an excuse to justify the delay.

36.However, Mr Yau did not accept that there were other intermittent periods of inordinate and inexcusable delay prior to 14 July 1995.

37.Mr Ismail for the defendant contended that there was such delay prior to 14 July 1995. Counsel referred to the 1st plaintiff's delay in filing the summons for direction (2.5 months) and its list of documents (18 days), total inactivity on its part between 30 March 1992 and 23 July 1993 (15 months) save and except the response to the notice to admit facts, its delay in filing the reply (20 months after service of defence), total inactivity again from 23 July 1993 to 20 May 1994 (10 months), its delay to name the 2nd plaintiff as a proper plaintiff in September 1994 (38 months from date of writ) when the available evidence clearly suggested that he should have been a plaintiff at the very beginning of the proceedings, total inactivity on the part of both plaintiffs from September 1994 to March 1995 (6 months) except agreeing to the filing of the re-amended defence in February 1995, the delay in obtaining the March 1995 order from the June 1994 summons (9 months) to name finally who the proper plaintiff was, and the delay on the part of the 2nd plaintiff in filing the answer to the request for further and better particulars (14 days), albeit with the defendant's consent. Mr Ismail submitted that all along the plaintiffs were legally represented. The delays were inexcusable. He further submitted that the 2nd plaintiff who was effectively controlling the 1st plaintiff was responsible for its delay. Mr Yau did not seriously dispute the last proposition.

38.Having regard to the chronology as set out in paragraphs 2 to 12 above and the detailed analysis of Mr Ismail, I am firmly of the view that prior to 14 July 1995, there was inordinate and inexcusable delay. Although steps had been taken by the 1st plaintiff prior to 14 July 1995 since the issue of the writ, they were taken in an appallingly desultory fashion, at lethargic pace with long intervals between them. The delay of four years since the issue of writ is inordinate. By 15 July 1995, the resultant position of all the steps taken over the years amounted to this and this only. The preliminary matter concerning who was the proper plaintiff, which could have been easily ascertained before commencement of proceedings, was finally settled. Pleadings were closed. The defendant had filed its list of documents but the 2nd plaintiff had yet to file his. It exceeds hopelessly by a very substantial margin the time prescribed by the rules and any time the court and the profession would regard as acceptable. The delay is inexcusable. Indeed, no explanation had been given why the proceedings were conducted in such a manner.

39.In my view, had the matter been expedited reasonably, a trial could have and should have taken place within two years after the issue of the writ, that is, around July 1993. I therefore hold that prior to 14 July 1995, there was an inordinate delay of two years. The total length of inordinate delay up to 12 November 1999 is thus 6 years and 4 months.

40.I will further hold that there was inordinate and inexcusable delay between 12 November 1999 and 4 October 2000. As noted, there was a total lack of activity in the proceedings on the 2nd plaintiff's part during this period. The delay is clearly inordinate.

41.In paragraph 9 of his 2nd affirmation, the 2nd plaintiff had this to say:

"It is only towards the end of 1999 that I could turn my attention back to this action.... After securing funding for this litigation from my friends, I therefore instructed my solicitors to resume the preparation for the trial herein. That took us to the Notice of Intention to Proceed issued in last November. Because I had to travel outside Hong Kong from time to time for business, the witness statement was not finalized until May [2000]."

I find it highly unsatisfactory. It took him six months to finalise his witness statement, not because of any difficulty, say, in recollecting the events, or recent discovery of new evidence or other change of circumstances lately. The only reason was that he had to travel outside Hong Kong from time to time for business. Obviously, the 2nd plaintiff gave priority to his business. He might find it reasonable to do so especially in light of his financial difficulty. But that is not an excuse. The action is already plagued by inordinate and inexcusable delay. The limitation period of six years had already lapsed. It makes it the more incumbent upon the 2nd plaintiff to proceed with all due speed after reviving the action in November 1999. His dilatory behaviour thereafter is unacceptable and inexcusable.

42.Mr Ismail also complained that the 2nd plaintiff was guilty in handling this application before the master and this appeal. On the materials before me, I think any delay is minor and have been explained. Hence, I do not propose to address counsel's submissions in this respect any further.

ANY PREJUDICE SUFFERED BY THE DEFENDANT

43.I now turn to consider if the inordinate and inexcusable delay had caused the defendant any prejudice.

44.The central issues relate to what happened during the night when the robbery took place. The defendant's case is on that night, a security guard, Mr Lau King was on duty at the Warehouse. A number of armed men prised open a door leading to the office of the Warehouse and overcame Mr Lau. They then unlawfully removed the 95 bales of silk. The entry points to the Warehouse were of substantial construction. They were secured and locked. Mr Lau followed the normal procedure of checking and securing all the doors and windows of the Warehouse. He remained on duty throughout the night. He also followed the standard procedure of checking the windows and metal doors later during the night. In the premises, the defendant averred that it had exercised all due and proper care without any default or negligence. The 2nd plaintiff's case is that the defendant was guilty of gross negligence. (If established, the exemption clause, even if incorporated, will not apply.) The 2nd plaintiff alleged that the Warehouse was not adequately secured in that there was only one security guard who was 68 years old on duty that night. There was no or inadequate anti-burglar warning system securing all entrances or points through which the robbers might likely gain access. Further, the defendant should not have allowed Mr Lau to have possession of the keys that operated the lifts of the Warehouse and should have kept such keys either under lock or at a place within the Warehouse or in the joint custody of senior Warehouse staff who would be staying away from the Warehouse during the night. The robbers would not have been able to remove the 95 bales of silk which were bulky and weighty so easily if they could not have used the lifts.

45.Mr Ismail contended that a fair trial of the issues in the action is no longer possible. He first submitted that a fair trial can only take place after a site visit to the Warehouse for the purpose of (1) examining the entry points to see if they were of substantial construction, (2) examining the concrete walls, bolts and padlocks, (3) examining the layout of the floor where the raw silk was stored and (4) verifying the matters appearing in Mr Lau's statements. But the Warehouse was demolished in about December 1993. A site visit is no longer possible and there is no pictorial or photographic evidence in relation to the above matters.

46.Mr Ismail then argued that there is prejudice due to absence of material witnesses, including Mr Lau. All except one had already left the defendant's employment and could not be traced. Even if Mr Lau could be traced, he would be in his 80s and unlikely to be of much assistance. He is not able to respond to critical comments made about his statements and to explain the matters that the 2nd plaintiff may put to him. The only witness available is Mr Poon Kai Ming, the operation officer of the defendant. But his evidence is not relevant to the defence that the main defendant had exercised all due and proper care and was not guilty of gross negligence. In any event, his memory is bound to be impaired due to passage of time.

47.A number of persons had given statements to the police in November and December 1989 and to the defendant's solicitors from 1991 to 1994. (It should be noted that the rules regarding filing and service of witness statements were not in place at the material times.) Mr Ismail submitted that the statements given to the defendant's solicitors were just preliminary witness statements. If a trial were to take place, further instructions on them would need to be taken for the preparation of final witness statements. Further, he contended that the statements do not contain all the evidence necessary for determining whether the defendant had exercised all due and proper care. A site visit to the Warehouse is still essential.

48.Mr Yau submitted that the demolition of the Warehouse was unknown to the 2nd plaintiff. It was disclosed for the first time in the affidavit filed in support of the present application. A site visit will not be necessary because, according to counsel, the facts pertaining to the dispute appeared sufficiently on the pleadings and the witness statements, the admissibility of which will not be challenged. The primary facts that had already been disclosed are not likely to be in dispute. The court will have to decide how the robbers managed to break into or otherwise remain in the Warehouse after normal business hours when all the entry points were said to be secured and locked at the material times. Mr Yau said what he proposed to do in connection with the witness statements is to make comments on their weight only.

49.I have carefully considered the materials before me and counsel submissions. I do not propose to set out the evidence as disclosed in the various statements. In my view, Mr Yau's submission in essence is that a fair trial on the issues in the action on paper is possible. With respect, I disagree. If a trial were to take place around July 1993 (which I have already ruled to be a reasonable time had the action been prosecuted with due diligence), a site inspection to the Warehouse or alternatively pictorial evidence on the entry points, layout, etc. would be essential. That was no longer possible after the demolition of the Warehouse in December 1993. That impossibility and hence prejudice is caused by the inordinate and inexcusable delay of the 1st plaintiff for which the 2nd plaintiff is responsible. Further, oral evidence from the witnesses, including Mr Lau would be necessary for a fair disposal of the issues. Save and except Mr Poon, they are no longer available. If a trial were to take place say, within 6 months from now, it would be nearly 12 years after the robbery had taken place. Even assuming that the witnesses are still available, their memory must have been impaired significantly due to the long lapse of time.

50.For the above reasons, I have no doubt that the inordinate and inexcusable delay gives rise to a substantial risk that it is not possible to have a fair trial and the defendant has thereby suffered serious prejudice.

ABUSE OF PROCESS

51.I am also satisfied that when the entire history of the proceedings is examined, there is no serious intention on the part of the 1st plaintiff or the 2nd plaintiff to prosecute this claim expeditiously and to bring it to an end within a reasonable time. As such, it is an abuse of process in accordance with the Grovit v. Doctor principle.

CONCLUSION

52.For the foregoing reasons, the 2nd plaintiff's action must be dismissed for want of prosecution. This appeal fails and I dismiss it accordingly with costs.

Representation:

Mr Albert Yau, instructed by Messrs Hastings & Co., for the 2nd Plaintiff

Mr Anthony Ismail, instructed by Messrs Deacons, for the Defendant