Kwok Cheung and Others v. The Kowloon Motor Bus Co (1933) Ltd and Another

HCA002057/1980

No. 2057 of 1980

Where a plaintiff is pursuing a LARCO claim and has failed to take out a grant of letters of administration his Statement of Claim relating to the LARCO claim is a nullity. He cannot place reliance upon Order 20(5)(4) as this sub-rule is ultra vires. Also he cannot call in aid the provisions contained in section 30 of the Limitation Ordinance Cap. 347 as this only relates to new actions. The subsequent grant of letters of administration to a plaintiff does not have a retrospective effect to cure the nullity. Leave to amend refused in the present application.

No. 2057 of 1980

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

______

BETWEEN

_____

Coram: The Hon. Mr. Justice Mayo.

Date of Hearing: 9th February 1984.

Date of Delivery: 15th February 1984.

__________

DECISION

__________

1. The plaintiffs are seeking leave to re-amend the Statement of Claim in this action. The action relates to a traffic accident. This occurred on the 27th May 1978. The 1st plaintiff's wife was run down by a motor bus belonging to the 1st defendant and driven by the 2nd defendant. The other plaintiffs are her children.

2. The main amendment which is sought by the plaintiffs is to delete paragraph 1 of the re re-amended Statement of Claim and to substitute for it another paragraph. The paragraph to be deleted reads:

The paragraph which it is proposed should be substituted for this paragraph reads as follows:

"1. The Plaintiffs are administrators of the estate of Wong Hee Ching, the deceased, and they bring this action for the benefit of the dependents of the deceased under the Fatal Accident Ordinance and for the benefit of the deceased estate under the Law Amendment and Reform (Consolidation) Ordinance. Letters of Administration were granted to the Plaintiffs by the Probate Registry on the 11th January 1982."

3. When commenting upon the re-amended Statement of Claim it is also relevant to observe that notwithstanding the absence of a claim by the plaintiffs as personal representatives for damages under the Law Amendment and Reform (Consolidation) Ordinance Cap. 23 (LARCO) a prayer is included in the Statement of Claim for such relief.

4. It will be appreciated that by virtue of the passage of time which has elapsed since this unhappy accident the plaintiffs are faced with possible difficulties by virtue of the operation of the Limitation Ordinance Cap. 347. No problems arise concerning the claim which is made by the plaintiffs in the re-amended writ for damages under the Fatal Accident Ordinance Cap. 22 (FAO). The writ was first issued on the 29th April 1980 which was well within the time limit prescribed under the Ordinance. The question which I have to determine is whether leave should be granted to the plaintiffs to enable them to re re-amend the Statement of Claim to include a LARCO claim. It will be noted from the contents of the amendment sought that letters of administration to the estate of the deceased were not granted until the 11th January 1982 which is more than 3 years from the occurrence of the accident.

5. Mr. Eddis who was representing the plaintiffs submitted that I should grant the leave which he was seeking. Initially he argued that there was no question of the plaintiffs introducing a fresh cause of action as they had included a prayer for relief under LARCO. I think, however, that as the application proceeded he accepted that it would be difficult for him to maintain this position. In any event he argued that I was empowered to grant leave to amend as a result of the provisions contained in Order 20(5)(4) of the Rules of the Supreme Court. This sub-rule reads as follows:

"(4) An amendment to alter the capacity in which a party sues may be allowed under paragraph (2) if the new capacity is one which the party had at the date of the commencement of the proceedings or has since required."

This sub-rule is not in the same form as its English equivalent. It was introduced into our rules by L.N. 126/1983 in March 1983.

6. Mr. Pirie who is acting for the defendants did not accept that Order 20(5)(4) had any application. He differentiated between claims made under LARCO and claims made under FAO. LARCO claims are made for the beneficiaries of estates who may have a claim against a defendant. It is a fundamental requirement for such claims that a grant of representation must have been obtained. Authority for this proposition can be found in a passage appearing at page 17 in the judgment of Denning L.J. in Burns v. Campbell⁽¹⁾:

"The result is that on 19th January 1951, when the writ was issued, the widow had not a grant of administration to the English assets. So far as the English courts were concerned, she was not the administratrix. The action was therefore not properly constituted. It purported to be an action by her as administratrix, but she was not an administratrix. The action was therefore a nullity: see Hilton v. Sutton Steam Laundry⁽²⁾. She did later obtain a grant of administration to the English assets, namely, on the re-sealing on March 20, 1951, but that does not cure the matter. It does not revive the nullity. This means that she has lost her claim under the Fatal Accidents Act altogether, because more than twelve months have expired from her husband's death."

It can be seen from Lord Denning's judgment that the subsequent issue of a grant of letters of administration does not have a retrospective effect. I accept that this passage correctly states the law. However I do not think that this necessarily disposes of this matter. It will be seen from Order 20(5)(4) that amendments can be made to alter the capacity in which a party sues if the new capacity is one which the party has acquired since the date of the commencement of the proceedings. Letters of administration have now been obtained by the plaintiffs and it is accordingly necessary to decide whether the plaintiffs can succeed notwithstanding this serious flaw in their title.

7. Mr. Pirie submitted that Order 20(5)(4) was ultra vires. Although this rule is not identical to its English equivalent it is clearly of a similar nature. The English rule follows the provisions contained in section 35(5) of the Limitation Act 1980 Chapter 58. Section 35 of the Act was introduced as a result of recommendations made in the Law Reform (Orr) Committee's final report on Limitation of Actions (1977) Command 6923. The report contained recommendations to change the effect of the decision in Burns v. Campbell and Hilton v. Sutton Steam Laundry. It was also intended to negative the distinction which had hitherto prevailed between executors and administrators by virtue of the title of an executor relating back to the death of the deceased whereas an administrator who had obtained a grant of letters of administration was not in a similar position.

8. I am satisfied that there must be some substantive authority to empower the Supreme Court Rules Committee to make a particular rule. This problem was considered at some length by the Court of Appeal in Civil Appeal No. 51 of 1983 in Mohan v. B.S. McElney and Others. Cons J.A. considered in that case whether Order 20(5)(5) was ultra vires. With respect he dealt with the whole matter in detail and his judgment is of the greatest assistance. In particular he considered the powers given to the Supreme Court Rules Committee by section 54 of the Supreme Court ordinance Cap. 4. He went on to express the view that there was nothing in section 54 which appeared to effect the limitation of actions. I have no doubt that the capacity of a party to sue or be sued is not simply a procedural matter and it is necessary to have substantive legislation in support of any rule which is made which goes beyond purely procedural matters. The surrounding case law would also appear to support such a view. In particular I would refer to part of the judgment of Widgery L.J. which appears on page 1541 of Braniff v. Holland & Hannen and Cubits⁽³⁾:

"Again, I think that it would only complicate matters if I attempted to deal with the facts, but one thing is perfectly clear, namely, that in the view of Megaw J. the fact that in certain cases under Order 20 rule 5, amendments were to be permitted although the statutory period had run did not mean that in general there was any relaxation of the principle formerly applying under Weldon v. Neal⁽⁴⁾; I respectfully agree with that approach. I find it very difficult to think that, when specific exemption is made in paragraphs (3),(4) and (5) of Order 20 rule 5 in cases where the statute has run, it is then legitimate to interpret the rule as making similar provision available and similar excuses available in cases which are not within the precise terms of those three paragraphs."

I would also refer to Yew Bon Tew v. Kenderaan Bas Mara⁽⁵⁾ which established that where a defendant had acquired an entitlement to plead a time bar that entitlement constitutes an accrued right of which he cannot be deprived by subsequent legislation providing for a longer limitation period, whether or not such legislation is to be classified as procedural, since such legislation will not be construed retrospectively unless such construction is unavoidable on the language used. Leonard V.P. and Fuad J.A. both agreed with the judgment of Cons J.A. in Mohan v. B.S. McElney and Others. I accept that they were considering the position which arose in relation to Order 20(5)(5). Having regard to the provisions contained in section 35 of the Limitation Act 1980 and the absence of similar provisions in the Hong Kong legislature I have no doubt that similar considerations apply to Order 20(5)(4). I am satisfied that this sub-rule was, like sub-rule (5) ultra vires and Mr. Eddis is unable to derive any support from it.

9. In the realisation that he might encounter difficulties with Order 20(5)(4) Mr. Eddis also submitted that he could call in aid the provisions contained in section 30 of the Limitation Ordinance Cap. 347. This section provides that in certain circumstances the court has an unfettered discretion to override time limits which are imposed by the Ordinance. This section is taken from section 1 of the Limitation Act 1975 Chapter 54. The circumstances surrounding the exercise of this discretion were considered by the English Court of Appeal in Conry v. Simpson⁽⁶⁾. At page 370 Stephenson L.J. laid down the seven factors which would normally be weighed by the court in determining whether or not to exercise its discretion to override a time bar. Mr. Eddis submitted that on the facts of the present case it was clear that it was appropriate that the discretion should be exercised in his client's favour. Mr. Pirie was unable to agree. He argued that section 30 only related to a situation where a party was seeking to issue a new writ. In support of this he referred to passages in the speeches of Lord Wilberforce and Lord Diplock in Walkley v. Precision Forgings⁽⁷⁾. At page 609 Lord Wilberforce said:

"My Lords, as a matter of principle I have very great difficulty in understanding how in this case or indeed in any case that I can imagine where an action has been started within the normal limitation period, section 2D can be invoked at all. The section opens with the words:

'(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which - (a) the provisions of section 2A or 2B of this Act prejudice the plaintiff ...'

The provisions of section 2A are those which require an action for personal injuries to be brought within three years. So subsection (1)(a) must be contemplating a case in which, because the three years have expired without an action being brought, section 2A applies to the prejudice of the plaintiff. But if the plaintiff has brought his action within the three years, how has he been prejudiced by section 2A? This I fail to understand. If this argument is sound, the respondent's case fails in limine. He brought his first action within the normal limitation period, and if he has suffered any prejudice, it is by his own inaction and not by the operation of the Act."

At page 618 Lord Diplock says:

Section 2D is similar to our section 30. I have no doubt that Mr. Pirie is right in his contention.

10. There are also good practical reasons why section 30 should not be invoked in the present application. If the court is to exercise its discretion to extend time which is available to a plaintiff it will need to have placed before it affidavit evidence to enable it to consider whether or not to exercise the discretion. The factors which it will need to weigh are not necessarily the same as the matters which it would need to consider in deciding whether or not it was appropriate to grant leave to amend a pleading. In addition to this Mr. Eddis did not at any time make a formal concession that the plaintiffs are at the present time barred in pursuing their LARCO claim. In the absence of any such concession being made I do not see how I can be asked to exercise such a discretion in their favour. For the reasons I have given this application is dismissed. The defendants will be entitled to their costs.

(1) (1952) 1 K.B. 15.

(2) (1946) K.B. 65.

(3) (1969) 1 W.L.R. 1533.

(4) 19 Q.B.D. 394.

(5) (1982) 3 W.L.R. 1026.

(6) (1983) 3 A.E.R. 369.

(7) (1979) 1 W.L.R. 606.

Representation:

Mr. Francis Eddis (Chan & Chuk) for Plaintiffs.

Mr. Nicholas Pirie (Deacons) for Defendants.