Chan Wing Cheung Allan v. Ho Shu Yee Susana

HCA1941/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1941 OF 2000

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BETWEEN

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Before : Hon Waung J in Court

Dates of Hearing : 13 January 2005

Date of Judgment : 13 January 2005

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J U D G M E N T

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1.This is Day 2 of the trial.  At the tail end of the opening by counsel for the defendant, Mr Lam, he applied for leave to amend.

2.The Summons put before me has annexed to it the proposed amendments, both to the second set of Further and Better Particulars, as well as to the Amended Defence and Counterclaim.  There are in total three sets of substantial amendments sought by the defendant.  I can categorise them as follows.   The first set of amendment can be seen at page 6 of the proposed second set of Further and Better Particulars and consisted of amendment by addition of five alleged loans of different sums made in the course of 1998.  The second amendment sought to be made is also under the second set of Particulars at page 8 of the documents, from $30,000 to $300,000.  The third amendment sought to be made is to change the word “Company” to the name “Companies”. 

3.In the course of the hearing, the court, with the concurrence of the parties, has identified five substantial issues which the court has named : Issues A, B, C, D and E.  The proposed amendment affects Issues C, D and E. 

4.This is a case where the defendant is seeking to defend a claim of $3 million and, relies on various loans, of various dates, of various amounts over a period of time and, further, seeks to rely upon a large number of loans as part of its counterclaim.  The particularity of the exact loan of an exact date, of a precise manner, has always been critical to this case.  This court has been handling this matter for some time including the pre-trial review, including the application to vacate the Trial Dates and including at the pre-trial review the various directions given as well as the order of exclusion of the latest witness statements.  This matter has subsequently gone to the Court of Appeal and the Court of Appeal has confirmed the case management decision of this court.

5.Now at this late date, the defendant is seeking to yet make further substantial changes to her case which would of course have an impact on the trial that has been on-going — we are already running behind the time-table for the Trial I have directed last year.  Mr Lam, in his wholly inadequate opening, by reason of his wholly inadequate Scott Schedule, has tried to explain to the court what the case is all about.

6.But returning back to the proposed amendment, the five additional payments that are relied upon were not included in the second set of Particulars.  By the frank admission of Mr Lam, he says that they could have made the amendments certainly as long ago as late 2003 when discovery had all been made.  The witness statements of the plaintiff certainly did not deal with all these alleged loans.  There may have been reference to these cheques in the documents and in the Hearsay Notice but they are not substitutes for proper pleadings. 

7.At this late stage, the defendant seeks to rely on an unpleaded case and an amendment has to be sought in order for her to be able to rely on these unpleaded loans.

8.So far as the other two amendments are concerned, it is even worse because both of them relate to points which had come to the surface in the course of the opening, when the court was questioning the conflict of the case as pleaded and as sought to be opened by Mr Lam.

9.The modern approach to amendment is certainly no longer the traditional approach that a party is entitled, as of right practically, to have leave to amend so long as it can be shown that any prejudice can be cured by way of costs.  The modern approach is that the court must look at justice overall.  Justice firstly to the parties, in that, parties have gone to litigation with expectations and they expect to face the trial on the matter pleaded, and not last minute substantial changes.  Then there is the justice to the court.  The court is now running on a basis totally different from 25 years ago.  In my days, in the High Court, judges worked about half a morning and their workload was such that they could cope with changes to the case and perhaps allow greater flexibility to changes to the case.  These days, the court is run on the basis of back-to-back cases and the court cannot afford the luxury of giving to the parties the flexibility to run the case as they see fit.

10.Having regard to the tight time-table I have set out in my previous order and, having regard to the case that is presented to me now, it seems to me that it would be wholly wrong for me to allow the amendments to be made as proposed.  The court must ensure that justice be done to everyone including litigants waiting in the queue outside this case.  It seems to me that in the circumstances, having regard to all the considerations that the application of the defendant must be refused with costs.

Mr Francis Yip, instructed by Messrs Thomas Li & Yu, for the Plaintiff

Mr Simon Lam, instructed by Messrs Henry Lam & Associates, for the Defendant