Lau Shee Leong t/a Fitting Construction Co v. Shaw Brothers (Hong Kong) Ltd

HCA000308/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 308 OF 1972

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Coram: Li, J.

Date of Judgment : 14th November, 1974 at 12.10 p.m.

Present: Martin C.M. Lee (W.I. Cheung & Co.) for plaintiff William Wang (Deacons) for Defendant

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JUDGMENT

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1. This is an appeal from the Registrar's decision to dismiss the Plaintiff's action for want of prosecution. Perhaps from the outset, I should observe that this is a very drastic power and to be exercised in a proper case only. The facts of the case are fairly brief and simple. In 1972 the Plaintiff issued a Writ claiming various sums of money from the Defendant company on contracts. It is alleged in the Statement of Claim that between the years of 1963 and 1965. there were no less than four oral agreements between the Plaintiff and the Defendant for work and materials supplied. Again, on a written contract concluded in the year 1967, there was similar work done and money owed to the Plaintiff. The Defence was filed some time in June, 1972, admitting that there had been oral agreements, but disputing the terms of the agreement - at least the first agreement. As to the main defence, the Defendant relies on a settlement which took place in 1968 in the course of which the Plaintiff signed a Form of Release settling all claims relating to these five contracts.

2. No action was taken until 1972 when the Writ was issued and the Statement of Claim was delivered and the Defence filed. There was a further lull for over two years because it was not until September, 1974, that the Plaintiff wrote to the Defendant's solicitors asking for a copy of the Form of Release. On this note, the Defendant applied to the Registrar to have the case struck out for want of prosecution. Right from the beginning, it is conceded that this Court, and indeed the Registrar, has an inherent power to strike the case out for want of prosecution if there is inordinate delay and such delay being inexcusable and that such delay would be likely to cause serious prejudice to the Defendant's case. Having regard to the circumstances and the Affidavits filed, I say that there has been inordinate delay. I do not think learned counsel for the Plaintiff on this appeal can deny that there has been inordinate delay.

3. The excuse that is given by the Plaintiff for the delay is that it took him more than two years to locate four of the vital witnesses who orally agreed the agreement on behalf of the Defendant that the Form of Release would not include those five contracts. From the Affidavit or Affirmation filed by the Plaintiff, I can only say that that excuse is no excuse at all. First of all, if the Plaintiff had to rely on the evidence of these four gentlemen who, in 1968, were working for the Defendant company and came to settlement with the Plaintiff in terms of the terms of the Form of Release, they could easily be contacted by the Plaintiff's own solicitors by letters or by other means. The only problem for me to decide is whether such a delay would seriously prejudice the Defendant or is likely to cause prejudice to the Defendant. In this respect, learned counsel for both parties invite my attention to the case of Sweeney v. Sir Robert McAlpine reported in 1974, Lloyd's Law Reports, P.128.

4. Mr. Lee's argument is that I should only look at the facts as from the date of the Writ and I should not consider what happened prior to the issue of the Writ. Mr. Wang, on the other hand, contends that in cases of this nature, I should, when considering inordinate delay, also consider all prejudice and also consider events that happened since the date of the cause of action. I think at least one passage of Lord Denning's Judgment is relevant. He said:

"The reason why the Judge concentrated on those six months was because of William C. Parker Ltd. v. F.J. Ham & Son Limited, (1972) 3 All E.R. 1051. He read that case as deciding that the delay that really mattered was the delay since the issue of the writ; and that the previous delay was not to be taken directly into consideration. That case has, however, been considered by this Court in Mason v. F.A. Ashcroft (Cornmillers) Ltd., unreported on Mar. 8, 1973. We have obtained a transcript from the Bar Library. This Court explained that William C. Parker Ltd. v. F.J. Ham & Son Ltd., was a case dependant on its own special facts, saying:

It was very different from the personal injuries cases such as we have usually to consider. In that case there was a clear breach of contract in failing to deliver some steel rods. The only question was as to damages. It involved an inquiry whether the rods could have been obtained in the market, what was the trade price at the time and the like. All these matters could be investigated as well years after as near the time. Such a case does not depend on the infirmities of recollection, as such a case as the present does.

I hope, therefore, that William C. Parker Ltd. v. F.J. Ham & Son Ltd. will not be cited any more for the proposition that you only look at the delay since the writ, or the prejudice since the writ. The case has no application whatever to the great majority of such cases, such as the present, of personal injuries. In such cases, as we have often said, the Court does not look merely at the delay since the writ. It looks at the delay throughout from the date of the accident, going on to the date of the writ, and then the delay in failing to comply with the times prescribed by the rules of Court. The Court enquires whether the total delay has been such that a fair trial between these parties cannot now be had. The Court will in a proper case dismiss the case for want of prosecution, if the total delay of the plaintiff was inexcusable and inordinate and such as to be likely seriously to prejudice the defendant."

5. The ratio decidendi of this judgment appears to be that in commercial cases which depend on records and documents, then it is quite proper for the judge to say that there is no serious prejudice to the defence or to any party as it doesn't require human recollection. But, in the present case, apart from the written Form of Release, there is the dispute on the terms of the contract, and four of these contracts are oral contracts. Again on the document of release, although the Plaintiff admits that such a document was signed, he relies on oral agreements to exclude those oral contracts from the Form of Release. These clearly require memory rather than record of document and are more similar to personal injuries cases rather than some other commercial cases where market records can be traced. Adopting and adapting the principle that is laid down by Lord Denning to this case, I say that the contracts were concluded some 8 or 9 years before any action was brought and then there had been further inordinate delay in filing summons for direction.

6. In the circumstances, I find in fact and in law that there is a serious likelihood of the defence case being prejudiced. I am of the opinion that the Registrar has come to the right conclusion that action should be dismissed for want of prosecution. Accordingly, I will dismiss this appeal and costs. Certificate for counsel.

Representation:

Martin C.M. Lee (W.I. Cheung & Co.) for plaintiff

William Wang (Deacons) for Defendant