Jose Francisco Hall v. Cheung Fuk Kwan and Another

HCA001613/1975

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

CASE NO. 1613 of 1975

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Coram: Huggins, J.

Date of Judgment: 27th October 1975.

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JUDGMENT

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1. This is an application to set aside a writ of summons on the ground that the proceedings are a nullity because of a failure to comply with a statutory provision. The Plaintiff sues as administrator of the estate of YU Wai-yung, who died on 8th July 1972. The action is for damages in favour of the estate and under the Fatal Accidents Ordinance. The writ was issued, just within the limitation period, on 4th July 1975 and was served on 18th August. Up to that date the Plaintiffs had not given the particular required by s.6 of the Fatal Accidents Ordinance, which reads:

"In every such action the plaintiff on the record shall be required, on taking out the writ of summons in such action, to deliver to the defendant or his solicitor a full particular of the person or persons for whom and on whose behalf such action is brought ......".

The Plaintiff sought on 13th September to file a Statement of Claim, which, it is accepted, contained the particular required, though there is some dispute, which need not concern me, whether or not that document was properly filed. In the mean time, on 21st August, this summons was issued. It is manifest that a great deal hangs upon the decision of this short point, for, unless the Plaintiff can amend his writ of summons to include the particular, then if the particular ought to have been served earlier than 13th September the action must inevitably fail.

2. The complication in the case, as I see it, arises from the fact that the present provision is not the original provision dealing with this particular matter. If it were, I would have no difficulty at all: it seems to me that the words "on taking out the writ of summons" would indicate that a particular had to be served within a reasonable time after the writ was taken out. The purpose of this document is to give information to the defendant of, inter alia, the names of the persons on whose behalf the action is brought. The nature of the claim, namely that it was a claim for damages under the Fatal Accidents Ordinance, was here clearly indicated by the writ of summons and, disregarding the amendment, it seems to me that the only reasonable interpretation of those words is that the particulars should be given within a reasonable time. Authorities have been cited to me and it is enough merely to cite from the fons et origo of all of them, which is Reg. v. Humphrey 1839 10 A. & E. 335, 370:

"And we hold it therefore to be unnecessary to refer to instances of the legal meaning of the word 'upon' which in different cases may undoubtedly either mean before the act done to which it relates or simultaneously with the act done or after the act done according as reason and good sense require the interpretation with reference to the context and the subject matter of the enactment".

It is a matter of the interpretation of the particular statute and not a great deal of help is to be obtained by looking at the facts of other cases.

3. The difficulty, as I say, arises from the fact that this is not the original form of the provision. It appears that the Hong Kong statute was based upon the Fatal Accidents Act, 1846 of England. Originally in Hong Kong we had a statute (Ordinance No. 10 of 1870) which followed precisely the words of the English Act and required that the particular be delivered "together with the declaration". The declaration, of course, has been replaced in our procedure by a statement of claim. In 1888 an amending Bill was put before the Legislature to consolidate and amend this branch of the law and in Clause 7 for the words "together with the declaration" were substituted the words "on filing his petition". Whatever the draftsman's reason for so drafting the Bill, the Legislature did not adopt his wording and substituted in s.6 of the resulting Ordinance (the Compensation to Families Ordinance, 1889) the present words - "on taking out the writ of summons": obviously somebody noticed that the word "petition" was likely to cause difficulty because this type of proceeding was not commenced by petition. It is strongly argued on behalf of the Defendant in the present case that the use of the present participle ("on taking out") suggests an intention that the particular should be delivered not simultaneously with, but very shortly after, the taking out of the writ of summons and what is suggested is that it should be as soon as possible after the taking out of the writ. It is recognized that one does not expect the defendant or his solicitor to be waiting in the Registry when the writ is taken out, but it is suggested that it was intended that without waiting for the service of the writ. the Plaintiff should deliver the particular: and it is further argued, in the alternative, that even if that be wrong then at any rate the particular should not be delivered after the time of the service of the writ. The service of the writ, of course, can be delayed for a considerable period of time - under our present procedure it can be at any time within twelve months of its issue and is even then subject to renewal by leave of the court.

4. As it seems to me, even having regard to the fact that there was an amendment, the intention was that the particular should be delivered within a reasonable time. I do not accept that the object of the amendment was to give early notice of the amount of the claim. I think the Legislature changed the wording to avoid the necessity of the simultaneous service of particular and statement of claim which was formerly required (and still is required in England) by reason of the words "together with". Under the old wording it was not open to a plaintiff to deliver the particular before service of the statement of claim. If he did what it is suggested in the present case should have been done - that the particular should have been delivered immediately after the issue of the writ of summons - that would have been bad. Equally if it was delivered with the writ of summons it would have been bad unless the statement of claim also accompanied it. What I think was intended to be avoided was the tying of the delivery to a moment of time - when the statement of claim was served. What is a reasonable time, of course, may be open to argument, but in my view - and here I think I am not entirely accepting the argument of either side - it would be reasonable to serve the particular at any time up to the time of delivery of the statement of claim, the object being to give the defendant a reasonable opportunity of defendant the action. The defendant is in a proper position to defend the action if at the time of the statement of claim he is told who is to be benefited by the action.

5. The result is that in my view this application to strike out must be dismissed.

27th October 1975.

Representation: