John M. Russell v. Robert a. Marques

DCCJ001916/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1916 OF 1980

-----------------

-----------------

Coram: H.H. Judge Cruden

Date of Judgment: 21st October, 1980.

-----------------

RULING

-----------------

1. This summons applies for an order that the plaintiff be at liberty to file an amended particulars of claim without leave pursuant to Order 20 Rule 3 of the Rules of the Supreme Court.

2. Order 20 Rule 3 of the Rules of the Supreme Court provides that a party may, without leave of the Court, amend any pleading of his once, at any time before the pleadings are deemed to be closed.

3. The following are the relevant dates of the pleadings in this action:-

4. So the plaintiff has only once attempted to file an amendment to the particulars of claim.

5. If Order 20 Rule 3 does apply in the District Court pleadings would not close pursuant to Order 18 Rule 20, until 14 days after service of the reply. As the plaintiff attempted to file his amended particulars only 6 days after the filing of the reply he would have been in time.

6. The crucial question is does Order 20 Rule 3 apply in the District Court? It is not expressly excluded pursuant to Rule 9 of the District Court Civil Procedure (General) Rules, Cap. 336, for it is not one of the Rules of the Supreme Court included in the Schedule to the District Court Rules. However, Rule 9 also provides that the application of remaining Rules of the Supreme Court to the District Court is subject to the provisions the District Court Ordinance and the District Court Civil Procedure (General) Rules. So it is necessary to next consider whether Order 20 Rule 3 is excluded by implication.

7. I have recently held in Yu Poon Yin v. Winner Motor Co. V.C.J. Action No. 5326, that pleadings close in the District Court upon a defence to a claim or counterclaim being filed. I further ruled that Order 18 Rule 3 of the Rules of the Supreme Court, which enables a reply to be filed without leave, does not apply in the District Court. Therefore replies may only be filed with leave. I remain of that opinion. I observe that the reply in this action has been filed without leave but that occurred before my judgment.

8. For the reasons given in that judgment I am satisfied that Order 18 Rule 20 of the Rules of the Supreme Court, which prescribes when pleadings are deemed to be closed in the Supreme Court, does not apply in the District Court. It is excluded by implication.

9. Is Order 20 Rule 3 similarly excluded? Rule 3 is the very useful and practical Supreme Court Rule which allows a party to amend once without leave before the close of pleadings. Rule 3 merely refers to the right to so amend "at any time before the pleadings are deemed to be closed." As to when that time is reached in the Supreme Court reference must be made to Order 18 Rule 20 which I have already held does not apply in the District Court. However, Order 20 Rule 3 taken by itself and without reference to Order 18 Rule 20 does not appear to be inconsistent with the District Court Civil Procedure (General) Rules. The only difference in application is that in the District Court pleadings close at an earlier stage. In the instant case the defendant on 28.4.80 filed a defence and counterclaim. Because of the counterclaim the plaintiff had the right to file a defence to counterclaim within 8 days of the service of the counterclaim upon him. In the District Court at the expiration of that time or the further 21 days provided under Rule 21(2) of the District Court Civil Procedure (General) Rules, pleadings close.

10. In this case I observe that even beyond that further period of 21 days the plaintiff, by consent, filed the defence to counterclaim on the 12th day of August 1980. Whether or not that defence was properly filed at least upon the date of filing the defence pleadings closed. Applying Order 20 Rule 3 of the Rules of the Supreme Court, subject to the provisions of District Court Civil Procedure (General) Rules as to the close of the pleadings, the plaintiff could in my view have amended the particulars of claim once without leave down to the date of filing of the defence, namely the 12th day of August 1980. For I am satisfied that the right to amend once without leave under Order 20 Rule 3 applies in the District Court subject to that right being exercised before the earlier time when District Court pleadings close. When the plaintiff attended to file the amended particulars on the 18th day of August 1980 pleadings had however clearly closed. The Deputy-Registrar therefore properly declined to accept the amended particulars of claim without leave. Leave was therefore necessary and I confirm that for these reasons it was granted when the plaintiff appeared before me on the 18th day of September 1980.

11. Dated 21st October, 1980.

Representation: