Li Chi Hung, Lawrance v. The Secretary for Justice and Another

HCPI 1036/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1036 OF 2004

____________

BETWEEN

____________

Before: Deputy High Court Judge Carlson in Chambers

Date of Hearing: 22 December 2005

Date of Judgment (Handed Down): 11 January 2006

_______________

J U D G M E N T

_______________

Introduction

1.On 12 September 2005 Master Au-Yeung dismissed an application by the Plaintiff to add the Hospital Authority (“HA”) as 2^nd Defendant notwithstanding the expiry of the limitation period.  This is an appeal from that decision.  The facts are perfectly straightforward.  The Plaintiff is an enrolled nurse who was employed in the psychiatric unit at Kwai Chung Hospital when on 6 December 2001, he was assaulted by a psychiatric patient.  There was also a further assault on him on Christmas Day 2001 by another patient.  As a result of both of these incidents, the Plaintiff sustained physical injuries and became psychiatrically unwell for which he now claims damages.

2.The history of the litigation needs to be examined, with some care, with particular reference to the conduct of the Plaintiff’s then solicitors.  The starting point to all of this is that the 1^st Defendant, being the Director of Health [represented by the Secretary for Justice] was the Plaintiff’s employer.  The Director of Health is sued in negligence and for breach of statutory duty under the Occupier’s Liability Ordinance.  The HA has the management and control of the Hospital and as such is an obvious party to join as a defendant in an action of this sort.  It is therefore highly relevant to see what steps were taken on the Plaintiff’s behalf.

Chronology

3.On 9 June 2003, the Plaintiff was given legal aid to prosecute a claim for employees’ compensation and to bring a common law action for damages.  On 3 July 2003, his solicitors wrote a letter before action to the HA so that it might investigate the proposed common law claim against it as contemplated by the Personal Injury Practice Direction.  On 22 July 2003, the solicitors issued an application for employee’s compensation against the Director of Health as employer.  On 21 August 2003, the solicitors for the HA wrote to the Plaintiff’s solicitors asking for further documents to enable them to consider the damages claim.  Those documents were supplied on 30 August 2003.  Between early September 2003 and 1 November 2003, 11 further letters were exchanged between the solicitors, mostly in relation to the appointment of joint medical experts to examine and prepare reports on the Plaintiff.  Between July and August 2004, there was further correspondence in relation to the exchange of an orthopaedic report.  On 16 November 2004, a writ was issued against the 1^st Defendant [the Director of Health] only.  On 19 November 2004, the Plaintiff’s solicitors wrote to the HA’s solicitors informing them that a writ had been issued against its client and that they were withholding service in order to save costs.

4.I pause here to consider the extraordinary oversight by the Plaintiff’s then solicitors, which in the event was causative of the limitation period against the HA being allowed to expire.  It now seems perfectly clear that they did not realize that they had not in fact issued the writ against the HA, but only against the Director of Health, although, given what had happened in correspondence beforehand, it must always have been their intention to sue the HA.  The letter [page 161] is in these terms:

“Common Law Claim HCPI 1036/2004
 Plaintiff: Li Chi Hung, Lawrance

We refer to the above action.  Please be informed that we have issued a holding writ in view of the time bar in respect of the accidents occurred on 6^th December 2001 and 25^th December 2001.  Since the employees’ compensation claim (DCEC 803/2003) is still proceeded and has not determined yet, we suggest to withhold service of the above action for the time being for the purpose to save costs on all parties.

Please let us have your confirmation to our suggestion….”

In this letter, they were addressing themselves to the HA’s solicitors who were not the Director of Health’s solicitors who were opposing them in the employees’ compensation proceedings which were still going on.  Mr Sakhrani, who appears for the HA, has commented that what had probably happened, for such a basic error to have been made, was that the Plaintiff’s solicitors had simply not taken the obvious precaution of reading their case file carefully, otherwise, they would have immediately observed that they had in fact not issued the writ against the HA.

5.In the event, the HA’s solicitors remained silent, as they were entitled to, on the matter.  On 6 December 2004, the Plaintiff’s solicitors asked the Director of Legal Aid to assign counsel to the case and on 17 December 2004 wrote again to the HA’s solicitors regarding the appointment with its psychiatric expert scheduled for February 2005.  Counsel for the Plaintiff was assigned by the Director of Legal Aid who was formally instructed by the solicitors on 1 February 2005.  By then, of course, the limitation period against the HA had expired in respect of both incidents.

6.Counsel advised, very promptly, on 4 February 2005, that the HA should also be sued.  He had obviously spotted the error that had been made.  On 7 February that advice was implemented by the solicitors, albeit procedurally incorrectly, by amending the writ to join the HA and serving it on the HA.  In the absence of the requisite leave having been obtained, the HA took out a summons on 24 March to strike out the joinder and on 11 April the Plaintiff’s summons was issued to dis-apply the limitation period which was dismissed by Master Au-Yeung on 12 September, hence this appeal.

The Issues

7.This matter raises two distinct issues.  Firstly, whether in the circumstances [the circumstances being the Plaintiff’s then solicitors, plain and glaring error in not spotting that they had not sued the HA when they issued the writ on 16 November 2004 until after they had received counsel’s advice on 4 February 2005 following the expiry of the limitation period] the Plaintiff is now able to invoke the court’s jurisdiction under Section 30 of the Limitation Ordinance which in the event of him not being able to do so his summons must fail in limine, leaving him with his recourse against his then solicitors for having allowed the limitation period to expire in the circumstances which I have just described. If he is able to engage Section 30, the next issue is whether, in all the circumstances, the court should exercise its discretion in his favour to dis-apply the limitation period and allow the amended writ to proceed.

Does Section 30 apply to circumstances such as these?

8.Of the two issues, this is the more difficult, raising as it does the interesting question of whether the principle in Walkley v Precision Forgings Ltd [1979] 1 WLR 606 H.L. is intended to extend to a case such as this, where a writ has been issued in timely fashion against one appropriate defendant but through a very obvious error on the part of the Plaintiff’s solicitors it has not included another obvious defendant who is now sought to be joined after the expiry of the limitation period.

9.For the purposes of this issue, the relevant part of Section 30 is in these terms:

“(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 27 [or 28] prejudices the plaintiff or any person whom he represents ….”

Section 27 being the section establishing the 3-year limitation period in personal injury cases.

10.It is convenient to take first the HA’s argument that Section 27 has not prejudiced the Plaintiff and that therefore Section 30 can have no applicability to his circumstances.  This submission comes from the House of Lords’ decision in Walkley v Precision Forgings supra.  The facts of that case can be shortly stated.  The plaintiff who had contracted an industrial disease in the course of his employment sued his employers.  Having served the writ, no statement of claim was served following the defendants’ appearance to the writ because the plaintiff’s solicitors had advised him that he did not have a good claim.  He then consulted other solicitors who informed the defendants that they intended to proceed with the claim.  The defendants’ insurers replied that if they intended to proceed, a summons would be issued to dismiss the action for want of prosecution.  No summons was in fact issued, but it was conceded on behalf of the plaintiff that had an application been made, the action was liable to have been dismissed.  Subsequently, the plaintiff consulted another firm of solicitors [his third] who issued a fresh writ starting a second action asserting the same cause of action as had been asserted in the original writ.  The defendants’ solicitors issued a summons to have the action struck out.  The Master made the order.  The Judge in Chambers allowed the plaintiff’s appeal and restored the action on the plaintiff’s solicitors undertaking to discontinue the first action.  The Court of Appeal dismissed the defendants’ appeal who then appealed to the House of Lords.  The House of Lords allowed the appeal and restored the Master’s order striking out the action.  Lord Wilberforce explained the matter in this way;

“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 this 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.” (page 609D-E)

Lord Diplock at page 618E expressed it in this way;

“... section 2D applies only to actions which it is sought to start after the relevant primary limitation period has expired.”

11.Mr Sakhrani submits that this is precisely the case here.  The Plaintiff has started his action timeously against the 1^st Defendant and his failure to join the HA has been caused by the conduct of his then solicitors in not amending the writ in time.  Therefore, it cannot be said that the Plaintiff has been prejudiced by Section 27, but only by his solicitors’ failure to join the HA in time.  Mr Sakhrani has also referred to other cases in England as well as one in Hong Kong where Walkley has been followed.  In Liff v Peasley & Anr. [1980] 1 WLR 781 C.A., a plaintiff who was injured when a motor car in which he was a passenger was involved with in a collision with another vehicle sued the driver of the other car as 1^st defendant, two independent witnesses saying that it was he who had been responsible for the collision.  That driver was subsequently convicted of careless driving.  The 1^st defendant’s solicitors repudiated liability and informed the Motor Insurers Bureau that they had done so.  The insurers instructed other insurers to act on their behalf and that company sought to bring in the 2^nd defendant into the action so that if a finding of negligence was made against him, the plaintiff could recover damages through the insurers indemnifying the 2^nd defendant.  After the expiry of the limitation period, the 1^st defendant delivered his defence claiming that the collision was caused wholly or partly by the 2^nd defendant’s negligence.  The plaintiff applied ex parte to the Master two years after the expiry of the limitation period for an order joining the 2^nd defendant to the action.  The 2^nd defendant then applied to have the claim against him struck out as being time-barred.  The judge refused to do so, but the Court of Appeal, allowing the 2^nd defendant’s appeal, held that as an established rule of practice, the court would not permit a person to be included as a defendant to an action at a time when he could rely on a period of limitation barring the plaintiff from bringing a fresh action against him.  In coming to its conclusion, the Court of Appeal did not discuss in any detail the effect of Walkley to the facts of the case before it.  It decided the appeal on the propriety of the purported joinder of the 2^nd defendant under RSC Ord. 15 r. 6(2) after the expiry of the limitation period.  For this reason, I find this case of only limited assistance.  I say this notwithstanding the reference at 788H-789A in the judgment of Stephenson L.J. when he said;

“I am first not satisfied that the provisions of section 2A [our Section 27] have prejudiced the plaintiff to any degree, so the condition required by section 2D(1)(a) for exercising the discretion is not fulfilled: compare Walkley v Precision Forgings Ltd.”

That is the only reference to the case in his judgment and it gets no mention at all in the judgment of Brandon L.J. (as he then was).  The result here really turned on whether the joinder post-expiry of the limitation period was valid.  The Walkley principle was not the issue that appears to have been at the forefront of the court’s consideration, hence what was only a passing reference to it.  Nevertheless, Mr Sakhrani places strong reliance on Liff v Peasley as a case where an application which was identical to the one before me failed.  A case concerning anextant original action validly brought where a 2^nd defendant was sought to be joined after the expiry of the limitation period against him.

12.A case in which Walkley was applied is Young decd v Western Power Distribution (SW) PLC (2003) 1 WLR 2868, where the claimant’s husband had begun, within the time-limit, an action for personal injury against the defendants but then discontinued the action.  Following his death, and outside the limitation period, his widow and executrix began another action against the defendants based on the same cause of action.  The trial judge dis-applied the time bar and allowed the second action to proceed.  He was reversed in the Court of Appeal on the basis that since the action had been started timeously by the deceased, his widow was therefore not prejudiced by the limitation period and Section 33 could not be used to dis-apply the limitation provisions.

13.A similar conclusion was arrived at by Master Jones in Hong Kong in Wong Hak Lai v Kwok Shun, HCA No. A.11302/93 in identical circumstances, where original proceedings had been started within the primary limitation period.  The learned Master held, following Walkley that no prejudice had been sustained by virtue of the limitation period and therefore there was no basis for bringing Section 30 into play.  A similar conclusion was also arrived at, on Walkley principles by Gray J. in a libel action, Wilkley & Anr. v BBC & Anr. unreported QBD CF 202327.  These cases show, says Mr Sakhrani, that the crucial feature is the start of the first action timeously which would have the effect of removing an application such as this from the ambit of Section 30.

14.Mr Dennis Law, for the Plaintiff, says that in Walkley is simply not available to the HA.  Walkley and the cases that follow it all related to the fate of a second time-barred action after the first one had been discontinued or dismissed.  Here, he says, is a perfectly good existing action in which the Plaintiff now seeks to bring in a second, now time-barred, defendant.  Reference has also been made to Shapland v Palmer (1999) 1 WLR 2068 C.A., where the Court of Appeal in England held that Walkley only caught cases where the second action involved the same defendant and the same cause of action.  In Shapland v Palmer, the plaintiff sued the employers of a driver in whose car she was travelling as a passenger when it was struck by another vehicle as a result of which she was injured.  The driver was driving in the course of her employment.  She sued the employer by issuing a writ on the last day before the expiry of the limitation period, but did not serve the proceedings with the result that in due course the action was struck out.  Subsequently, she started a time-barred action against the driver herself.  The judge refused to dis-apply the limitation period, but on appeal, the Court of Appeal held that Walkley only applied to a second action against the same defendant and the same cause of action.  This was not such a case because an action against a personal defendant was not the same cause of action as one alleging vicarious liability on the part of a principal or an employer and that in the circumstances, the court should exercise its discretion in the plaintiff’s favour and allow her action against the defendant to proceed.  Simon Brown L.J. (as he then was) at 2073C-D observed that a line of cases [the McEvoy line of authority] where the issue of the first writ had been held to be ineffective;

“… suggest a marked unwillingness on the court’s part to apply the Walkley case unless it is plainly indistinguishable.  Secondly, they appear to suggest that if the second action is brought against a different party then it is not caught by the Walkley principle.”

It had been submitted to him that the difference between this action and the one against the employer was a narrow one, the sole difference between the two being the identity of the defendant.  The tort in both cases was identical.  Both tortfeasors were covered by the same policy of insurance and there was never in fact any issue as to whether the company was vicariously liable.  Brown L.J. rejected this argument.  He said at 2073H-2074A:

“By the same token that the Walkley principle itself rests upon a narrow and somewhat technical construction of section 33, so too it is, in my judgment, possible to escape it on just such grounds.  That moreover is particularly appropriate given the undoubted anomalies that in any event arise from the application of the principle – most notably, as already pointed out, its failure to impact on cases of perhaps greater negligence where no writ was ever issued in the first place.  I would accordingly rule that the section 33 discretion arises in all cases save those which fall four square with the Walkley principle.”

15.This was further elaborated on by Clarke L.J. (as he then was) who was of the view that;

“… the decision in the Walkley case [1979] 1 W.L.R. 606 should be confined to its own facts and not extended in the manner suggested by Mr. James, especially having regard to the anomaly which derives from the Walkley case which Lord Diplock described as follows in Thompson v. Brown [1981] 1 W.L.R. 744, 752-753:

‘It may seem anomalous that a defendant should be better off where, unknown to him, a writ has been issued but not served than he would be if the writ had not been issued at all; but this is a consequence of the greater anomaly too well-established for this House to abolish that, for the purposes of a limitation period, an action is brought when a writ or other originating process is issued … and not when it is brought to the knowledge of the defendant by service upon him.’

It appears to me that another reason for the anomaly is the view of causation taken by the House in the Walkley case [1979] 1 W.L.R. 606, but whatever the reason for it, the anomaly should not be extended except for very good reason.  I agree with Simon Brown L.J. that there are a number of reasons (which he has set out) for not extending it to a second action brought against a different defendant.  There is no need to do so in order to ensure that justice is done between the parties because that can be achieved by the application of section 33(1), which gives the court power to disapply section 11 if it is equitable to do so, and the court is enjoined by section 33(3) to have regard o all the circumstances of the case.”

16.It may be said that Brown L.J. appears to have retreated somewhat from his judgment in Shapland v Palmer in the subsequent case of Young decd v Western Power Distribution (SW) PLC supra, but it seems perfectly clear as Brown L.J. has said in Young decd’s case that Shapland v Palmer turned on the fact that the second action had been brought against a different party and not against the same defendant. A similar conclusion to Shapland was arrived at by Arden L.J. in Piggott v Aulton decd (2003) RTR 540 where a second action was brought out of time against the estate of the deceased where for somewhat technical reasons, she held that the first timeous action, subsequently discontinued, had not been brought against the same defendant.

17.Unsurprisingly therefore, Mr Law has placed very strong reliance on this line of authority stemming from the McEvoy cases.  Here, he says, is a situation of a wholly different defendant which he seeks to join and this being so, I am able to distinguish or, at all events, not follow Walkley.

18.It seems to me that Mr Law is right here.  I propose to say that Walkley is to be construed as being limited to cases where the same defendant is sought to be sued following the expiry of the limitation period after the disposition of the original action by discontinuance or dismissal for want of prosecution.  In coming to this conclusion, I have been concerned by the fact that the case of Liff v Peasley & Anr., to which I have already made some reference, should persuade me otherwise, it being a case like this one where it had been sought to join a different defendant outside the limitation period to a valid and extant action.  But, having read the judgments, it is clear to me that the court was far more concerned with the technical argument under Ord. 15 r. 6 as to whether the joinder had been proper under that order and this is amply confirmed by the many cases referred to in the judgments which bore on that issue. I am content to say that the analysis in Shapland v Palmer is the one that I should follow.  Accordingly, I am satisfied that Section 30 applies to these circumstances and that I am therefore now able to proceed and decide whether it is equitable to allow the joinder of the HA having regard to all the factors referred to in Section 30(3).

The Section 30(3) discretion

19.In exercising what is an unfettered discretion, I am specifically required to have regard to all the circumstances of the case and in particular to the following:

“(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 27 or 28, as the case may be;

(c) the conduct of the defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

20.Mr Sakhrani submits that on a proper exercise of the discretion I should not dis-apply the limitation period.  The burden rests on the applicant to satisfy the court that it should show an exceptional indulgence.  The burden is a heavy one.  See KR & Others v Bryn Alyn Community (Holding) Ltd (2003) QB 1441. In this regard, the case of Long v Tolchard & Son Ltd (2001) PIQR P18 is of particular assistance. I should not reach a decision effectively concluding on the matter on the strength of any one of the circumstances specified in the sub-section, nor on one of any other circumstances relevant to my decision, without regard to all of the issues in the case.  I should conduct the balancing exercise at the end of my analysis of all the relevant circumstances and with regard to all the issues, taking them all into account.

21.It seems perfectly obvious that the delay [8 weeks and 6 weeks] which is not especially significant in this case will cause no forensic prejudice to the HA who have been ‘in the loop’ from the start.  This factor relates to items (a) and (b) in the list of considerations. It has been involved in this as if it had been the original defendant.  So much appears from the correspondence to which I have already made reference.  It is perfectly obvious that it expected to be a defendant from the outset and had been treated as such by the Plaintiff’s then solicitors.  The only reason that this is not so is the monumental oversight, to put it at its kindest, by the Plaintiff’s solicitors who issued a writ apparently not realising that they had not in fact sued the most obvious Defendant in this litigation, being the HA.  I will return to this feature as a ‘relevant circumstance’ presently.  The HA will have been in a position to investigate this claim from the beginning of July 2003 when it received the letter before action.  In this regard, the question of the length of delay and prejudice, or lack of it, heavily favours the Plaintiff in the balancing exercise.  As to the reasons for the delay also referred to as a particular matter to which regard should be had is the Plaintiff’s then solicitors’ inexcusable oversight, this factor must weigh in the HA’s favour which I will further consider when I deliberate on the effects of that oversight in the round as part of the balancing exercise.  The conduct of the HA after the cause of action arose has been exemplary in co-operating throughout in the expectation that a writ would be issued against it by dealing with correspondence promptly and being accommodating on the question of the instruction of the medical experts.  This is consideration (c) which weighs in the HA’s favour.  Item (d) is not applicable and items (e) and (f) favour the Plaintiff in the sense that but for allowing the limitation period to lapse in the way that they did, the Plaintiff’s then solicitors appear to have gone about the litigation against the Director of Health and the HA with reasonable competence.

22.Mr Sakhrani lays great stress on what he characterises as the Plaintiff’s then solicitors’ unmitigated negligence in overlooking the fact that they had not noticed that the writ had not been issued against the HA and says that this must be a particularly weighty factor in the exercise of the discretion.  If the Plaintiff fails in this application, he has a cast-iron negligence claim to fall back on against the solicitors.  Why, he asks rhetorically, should the solicitors enjoy a windfall at the expense of the HA for not doing their job properly?  Burrell J. in Wu Kwok Biu v Chan Ho Sun unreported 496/98 held that when faced with the issue of solicitors who are likely to be held to be negligent for causing a claim to become irremediably time-barred the court in weighing this factor should have regard to all other matters first.  He said;

“If having considered all other matters, the court decides that it would indeed be equitable for the litigation to proceed, then the vulnerable position in which the Plaintiff’s solicitors find themselves is of no concern.”

Mr Sakhrani says that this approach is no longer consonant with the tougher approach now exhibited by the courts.  Nevertheless, in saying what he did Burrell J. was applying what Lord Denning MR had said in Firman v Ellis (1978) 1QB 905:

“… there were negotiations for a settlement, but the plaintiff’s solicitors, by the merest slip, allowed time to run out.  They failed to renew the writ in time.  This slip did not prejudice the defendant or his insurers in the least.  Yet as soon as the defendant’s insurers discovered it, they cried ‘snap’ and broke off the negotiations.  They said to the plaintiff: ‘You are statute-barred.  We are not liable.  You sue your own solicitors for negligence.  Make their insurers pay.  And not us. …  As a matter of simple justice, it is the defendant’s insurers who should pay the plaintiff’s claim.  They have received the premiums to cover the risk to these accidents.  They should not be allowed to foist their liability on to the plaintiff’s solicitors or their insurers by calling ‘snap’ as if it were a game of cards.”

Burrell J. recognised that the alternative remedy against the solicitors can be a relevant consideration.  In weighing this factor less heavily than Mr Sakhrani says that he ought to have done he followed Denning MR’s further observation in Firman v Ellis  which was that:

“In case under the Limitation Act 1975, I think that the negligence of the plaintiff’s solicitor – and a remedy against him – is an admissible consideration.  It is one of ‘the circumstances of the case’ and one of ‘the reasons for the delay.’  It may tip the scale where the defendant has been substantially prejudiced by the delay.”

For my part, I propose to adopt, as Burrell J. had done, the Master of the Rolls approach to this feature and assess it the way that Burrell J. had done in the passage from his judgment, which I have just cited.  And in the weighing exercise, I propose to have regard to the fact that the delay caused by any negligence on the part of the solicitors has been short and has not caused any real prejudice to the HA, let alone substantial prejudice, which Denning MR referred to.

23.Another factor that Mr Sakhrani has drawn attention to is what he says is the Plaintiff’s weak case against the HA.  He has referred to decided cases which he says bears this out.  It is impossible for the court at this very preliminary stage to form anything beyond a highly provisional view of the merits.  In my judgment, the Plaintiff must on these facts have at least a reasonably arguable case that the HA has been negligent.  Had Mr Sakhrani been able to point to a fairly obvious “loser” then I might have been able to give this significant weight.  Where I am unable to accept this part of his submission I am not prepared to put this part of his argument into the scales in the HA’s favour.  This is an authentic claim which, other things being equal, ought to be allowed to be investigated by the court.

The result

24.I have sought to demonstrate how the various factors come into play in this matter and the respective weight that each must attract in the balancing exercise.  I am convinced that where this is not an unexpected claim by the Plaintiff against the HA, on the contrary it was expecting to be sued and that it has suffered no prejudice by the delay, it would be equitable for the limitation period to be dis-applied in these circumstances.  I will do so with the result that the appeal must be allowed and the Plaintiff can now have his order joining the 2^nd Defendant.  I would expect that his present solicitors would now wish to bring this matter forward to trial as soon as they reasonably can.

Costs

25.Notwithstanding the outcome, I would have thought that the appropriate order should be HA’s costs in any event.  The Plaintiff has had to make this application.  The HA has defended it on perfectly respectable grounds.  The usual rule is “he who is late pays” and I would have thought that the Plaintiff will have no difficulty whatsoever in getting a reimbursement of the costs that he must pay to the HA on this occasion from his then solicitors who after all have put him into the position of having to make this application.  I would have thought that those solicitors can have no answer to such a claim.

26.There will also be Legal Aid Taxation of the Plaintiff’s costs.  The order for costs will be an order nisi.

Mr Dennis Law, instructed by Messrs Adrian Yeung & Cheng, for the Plaintiff

Mr Ashok Sakhrani, instructed by Messrs Cheng, Yeung & Company, for the 2^nd Defendant