Ghulam Murtaza v. Mohammad Amin

CACV 352 and 353/2007

CACV 352/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 352 OF 2007

(ON APPEAL FROM HCPI NO. 352 OF 2005)

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AND

CACV 353/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 353 OF 2007

(ON APPEAL FROM HCPI NO. 382 OF 2005)

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Before: Hon Rogers VP, Le Pichon JA and Barma J in Court

Date of Hearing: 26 September 2008

Date of Judgment: 26 September 2008

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J U D G M E N T

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Hon Rogers VP:

1.This is an appeal from a judgment of Yam J given on 3 September of last year.  The point of this appeal turns on the exercise of the judge’s discretion when the matter came to be heard before him.

2.The case involves a car accident in which the two Plaintiffs were badly injured; one of them suffered an amputation of his leg as a result of injuries suffered in the accident.  The accident occurred on 24 April 2004, proceedings were started within a year and a defence was filed in 2005.  That defence was not a particularly viable defence and it appears to have largely turned on the suggestion that some taxi was supposed to have caused the Defendant to swerve and ultimately caused the accident.

3.When the matter went to counsel for the Defendant who ultimately appeared at the trial, shortly before the trial, he looked at the papers and decided that a new defence had to be raised.  That defence was that the Defendant had been so intoxicated that the Plaintiffs should have been aware of it and should not have got into the vehicle which the Defendant was driving because they would have realised that he was drunk.  That is a very different story from that which the Defendant was previously saying in his witness statements and in his defence; there was not a word of the fact that he was drunk.  In fact, he was denying that he was drunk.  He admitted having had a beer or two but that was it.  Now he was saying, no, he had had four or five beers.

4.The matter came before the judge on 3 September and the application was made then and there to amend the defence.  The judge listened to the argument and he gave a fairly detailed extempore judgment, declining to allow the amendment.

5.In my view, this court has considered that judgment in detail.  In the course of that judgment, the judge referred to the case of Ketteman & Others v Hansel Properties Limited [1987] 1 AC 189.  The judge appears to have read a substantial portion of the speech of Lord Griffiths at page 220D to G, in which Lord Griffiths sets out a number of factors which are relevant for the court to take into account when considering whether to allow an adjournment, particularly at the last minute.  Those factors included the fact that justice cannot always be measured in terms of money.  The judge went on:

“… in my view, a judge is entitled to weigh in the balance the strain the litigation imposes on the litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes and the legitimate expectation that the trial will determine the issues one way or the other.  Furthermore, to allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence. 

Another factor that a judge must weigh in the balance is the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently.”

6.In that respect, I would draw attention to the fact that, particularly as regards personal injury litigation, there has been quite a sea-change in Hong Kong in the way the courts have insisted that that litigation be conducted - efficiently and quickly and disposed of as soon as possible.  Parties are not allowed to let the litigation linger and they are urged, so far as is possible, to apply their minds properly to the situation as early as possible.  I can say, further, that under the Civil Justice Reform which is to come into force next year, it is most unlikely that any such application to amend a defence such as this would be allowed to even see the light of day.

7.In my view, the judge exercised his discretion.  Mr Chain, who has appeared this morning, on behalf of the Defendant, has said all he could and has said that the judge placed, in effect, too much emphasis on the fact that there had been no explanation given as to the delay in bringing this.  Our attention has been drawn to passages in the transcript before the judge below, where counsel who made that application for an amendment was quite frank that he had refrained from finding out why there had been no previous raising of this particular line of defence.

8.In my view, the judge was quite right in refusing the amendment.  Had he allowed the amendment, he would, in my view, have almost certainly had to allow the Plaintiffs an adjournment, and possibly quite a lengthy one, because they would have been quite entitled to try and find as many people as they could who had seen the Defendant on the night in question.  Another matter which has to be taken into account is that, by the time the application to amend the defence was made, it was more than three years after the accident had occurred.  So the Plaintiffs were put into a considerable difficulty in that respect.

9.I regret I see absolutely no merit in this appeal whatever.

Hon Le Pichon JA:

10.I agree.

Hon Barma J:

11.I agree.

Mr Kumar Ramanathan, instructed by Messrs Burke & Company, for the Plaintiffs/Respondents

Mr Benjamin Chain, instructed by Messrs So, Lung & Associates, for the Defendant/Appellant