May Macintosh Campbell v. Discovery Bay Marina Club Ltd and Others

HCPI 796/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. HCPI 796 OF 2002

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BETWEEN

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Coram : Before Mr. Registrar C. Chan in Chambers

Date of Hearing : 23 November 2006

Date of Decision : 30 November 2006

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D E C I S I O N

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1.This action was instituted in 2002, more than 4 years ago and is still pending.

2.I am horrified by the lack of progress.  The issue that has hindered its progress is the status of the Plaintiff.

3.The Plaintiff is “MAY, MACINTOSH CAMPBELL dependant of, and/or the Personal Representative of LORNE DAVID CAMPBELL (DECEASED), and/or Executor and Trustee of the deceased’s estate”.  Obviously, the legal advisors for the Plaintiff are not aware of Order 15 rule 6A.

4.The Defendants rightly challenged the Plaintiff to carry on the proceeding in its present form.  They had been kind enough not to apply to strike out the claim right away but requested for an unless order in the following form:

“unless the Plaintiff do, by 4:00 p.m. on 27 March 2006, file with the Court and do serve upon the 1st, 2nd and 3rd Defendants sufficient legal entitlement, by letters of administration or grant of probate issued by the Probate Registry of this Honourable Court, to have commenced and to continue prosecution of these proceedings purportedly brought on behalf of the estate of the Deceased against the 1st, 2nd and 3rd Defendants, then, the claims made herein on behalf of the estate of the Deceased pursuant to the provisions of the Law Reform (Miscellaneous Amendments) Ordinance (Cap. 350) be stuck out;”

I note that the Law Reform (Miscellaneous Amendments) Ordinance (Cap. 350) was repealed in 1997.  The mistake is immaterial.  On 16 January 2006 the unless order was granted.

5.The Plaintiff’s solicitors failed to meet the deadline imposed and came before me on 24 March 2006 for extension of time which I allowed until 27 May 2006.

6.On 24 May 2006 the solicitors came before me again for further extension.  I was very surprised why it took him so much time to apply for grant.  In response to my enquiry, I found that Mr. Laracy was not familiar with the probate procedure and I hinted whether he should seek assistance from a colleague who professed such knowledge.

7.Mr. Laracy came before me again on 23 November 2006 and asked for further extension until 27 January 2007.  I note the contents of the message from Ms. Polly Cheung of Messrs. Barlow Lyde & Gilbert who undertake to make the probate application: there is a misspelling of the name of the deceased in the Scottish Confirmation; otherwise, the probate can be resealed in Hong Kong.

8.Mr. Giblin opposed the application for extension of time.  I understand his feeling: the case has been dragged on for almost a year because of the lack of knowledge of certain legal advisors.  It is most frustrating.

9.But, I must say it is not a deliberate act of Mr. Laracy to delay the matter.  It is unfair not to grant any extension of time and to strike out certain part of the claim just simply because the ineffectiveness of the Plaintiff’s solicitors.

10.I make order in term of paragraphs 1 and 2 of the Summons and I order that the Plaintiff has to pay the Defendant’s costs in respect of the application, if not agreed, to be assessed by me.

Mr. Laracy of Messrs. Laracy Gall for Plaintiff.

Mr. Giblin of Messrs. Munros for Defendants.