Farman Khan v. Shun Sum Engineering Co (A Firm) and Another

DCEC 89/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 89 OF 2008

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BETWEEN

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Coram: HH Judge Lok in Chambers

Dates of hearing: 5 June & 12 September 2008

Date of handing down of Decision: 19 December 2008

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D E C I S I O N

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1.This is an application by the Applicant, who is a worker allegedly injured in an industrial accident, to join the insurer of the employees’ compensation policy taken out by his employer as an additional respondent in these proceedings.  This appears to be a simple application, but as I will demonstrate below, there are quite a number of complicated legal issues involved in such kind of application.

2.The present case concerns a claim for employees’ compensation, and it is the Applicant’s case that he was injured in an accident on 10 October 2006 whilst in the course of employment with the Respondent.

3.The claim was commenced on 21 January 2008.  The Respondent, who represented by himself, filed an Answer in May 2008 disputing liability.

4.According to the Applicant, it was only on or about 14 March 2008 that he first knew about the identity of the insurer (“the Insurer”) of the employees’ compensation policy taken out by the Respondent (“the Policy”).  On 19 March 2008, the Applicant’s solicitors served the “Notice to Insurer” on the Insurer.  Subsequently on 27 March 2008, the Applicant’s solicitors received a letter from the Insurer’s solicitors, enclosing a letter from the Insurer to the Respondent disclaiming liability in respect of the Applicant’s accident.  According to the Insurer, the Policy only covered “2 site supervisors (non-manual work)”.  As the Applicant did not fall within the category of “site supervisor”, the Insurer was not liable under the Policy.

5.The Applicant disagrees and contends that the Insurer is liable to pay him employees’ compensation under the provisions in Part IV of the Employees’ Compensation Ordinance, Cap. 282 (“the ECO”).  The Applicant therefore applies to join the Insurer as an additional respondent in these proceedings, and he also seeks to amend the Application to include a claim for declaration that the Insurer is liable pay such compensation to the Applicant.

6.The application for joinder first came before me on 5 June 2008, which was opposed by the Insurer.  By that time, the parties’ arguments were rather simple.  Mr. Massie, solicitor for the Applicant, submitted that as the Insurer disputes liability under Part IV of the ECO, it is desirable for convenience, expedition and efficiency for such dispute to be resolved in the existing employees’ compensation claim.  On the other hand, Mr. Kwok, counsel for the Insurer, submitted that as Part IV claim is very different in nature from a simple claim for employees’ compensation, it would not be desirable for these 2 different claims to be determined in the present proceedings.  Further, as the Policy did not cover the Applicant, there was no “policy in force” for the purpose of Part IV claim.

7.In that hearing, I was not satisfied with the legal research done by the parties, and to me, there were some relevant legal issues which had not been canvassed by the parties.  I therefore adjourned the application for the parties to conduct further research.  During the adjournment, I had also invited the parties to make further submissions in light of the cases supplied by the court.  The hearing later resumed before myself on 12 September 2008.

The joinder application

8.In considering the joinder application, one has to examine the tri-partes relationship between the injured employee, the employer and the insurer under Part IV of the ECO.  Part IV is mainly about compulsory insurance.  It requires employers to take out employees’ compensation policies to cover their employees.  In the case of an accident to an employee which occurred in the course of his employment, Part IV imposes an obligation on the insurer to pay employees’ compensation to the injured employee provided that certain conditions are met.

9.Regarding the application for joinder of an insurer in a claim for employees’ compensation, there are 3 possible scenarios depending on who is the party making the application.  The first one is that the application is made by the insurer himself.  If the insurer does not dispute liability under the policy, he can take over the defence on behalf of the employer in a claim for employees’ compensation without applying to be joined as a party.  However if the insurer disputes liability under the policy, taking over the conduct of the defence may prejudice his right.  As there is a potential liability to pay employees’ compensation under Part IV of the ECO, the insurer, in order to protect his interest, may apply to be joined in the employees’ compensation proceedings.  This is the most common kind of joinder application.  As the insurer has an interest in the outcome of the proceedings and that s. 43(3) expressly provides for such kind of application, the court would generally allow such application for joinder (see: Sami’an Sutinah v Katrina Leung Wai Kuen, unreported, DCPI Nos. 22 & 23 of 2003, decision of HH Judge Carlson on 20 March 2002).

10.The second scenario is that the joinder application is taken out by the employer.  As the insurer disputes liability under the employees’ compensation policy, the employer may apply for the insurer to be joined so that the dispute over the insurance policy can be resolved at the same time.  In Wong Shu Kuen v Bachy Soletanche Group Ltd., unreported, DCEC Nos. 545 & 546 of 2000 (decision of HH Judge Carlson on 15 March 2001), such kind of application taken out by the employer was refused on the ground that the private contractual dispute over the insurance policy had nothing to do with the relevant issues in the employees’ compensation proceedings brought by the employee.  As I see it, this is the general approach of the court and such kind of application will normally be refused.

11.The third scenario is that the application is taken out by the employee himself which was actually what happened in the present case.  For such kind of application, the law is no means clear.  In the course of the legal argument, I find that the following 3 issues are relevant for the purpose of considering such kind of application:

(i)  whether the right of the employee against the insurer under Part IV of the ECO has accrued before the quantification of the claim against the employer so as to enable the Applicant to sue or join in the Insurer at this stage?

(ii)  assuming that the Applicant does have the locus to sue the Insurer at this stage, whether it is appropriate for the employees’ compensation claim and the Part IV claim to be determined in one single action?

(iii)  whether the District Court has exclusive jurisdiction over Part IV claims?

12.I will deal with these issues in turn.

Time for the accrual of the right under Part IV claim

13.In the course of legal research, I find that there are some authorities which suggest that the right of an employee to bring a Part IV claim will only accrue at the time of the quantification of the claim against the employer.  The implication of such proposition is that an employee may not be able to commence a Part IV claim until the conclusion of the relevant employees’ compensation proceedings involving the employee and the employer.  Unfortunately, this issue has never been raised or argued in the previous joinder applications, and so I propose to deal with such issue here.

14.To answer the question, one has to examine the nature of Part IV claim under the ECO.  The relevantprovisions in Part IV are as follows:

43.  

(1)  Subject to this section, where in relation to an employee there is in force a policy of insurance issued for the purposes of this Part and the employer of the employee becomes liable to pay any sum under this Ordinance or independently of this Ordinance in respect of an injury to the employee arising out of and in the course of his employment, such sum shall forthwith become due and payable by the insurer, including any sum payable in respect of interest and costs, notwithstanding anything to the contrary in the policy of insurance.

(2)  No sum shall be payable by an insurer under this section –

(a)  unless, in the case of compensation agreed upon between the employer and an employee under section 16CA, such insurer has consented to pay the sum agreed upon as compensation to the employee;

(b)  unless, in the case of compensation or damages determined or adjudged by a court or tribunal to be payable to the employee or any other person, the insurer had sufficient notice of the institution in the court or tribunal of proceedings for compensation or damages, as the case may be, to enable such insurer to be added as a party to the proceedings;

(c)  in respect of any judgment to pay compensation or damages, while execution thereon is stayed by the court or pending appeal;

(d)  if before the happening of the accident which was the cause of the injury giving rise to the liability, the policy of insurance was cancelled by mutual consent or by virtue of any provision contained therein; or

(e)  in respect of the sum liable to be paid under subsection (1) in excess of the available amount covered by the policy of insurance.

(3)  If sufficient notice of the institution of proceedings for the recovery of compensation or damages is given to an insurer to enable such insurer to apply to be added as a party to the proceedings, the court or tribunal, as the case may be, shall, on such application being made, add the insurer as a party and the insurer shall have the same right to defend the proceedings as if such insurer were the employer.

(4)  Where under this Part an amount is paid by the insurer which, would, but for this section, not be payable under the policy of insurance, the employer is liable to pay that amount to the insurer.

44.  

(1)  Every policy of insurance issued for the purposes of this Part shall be deemed to provide that any employee or other person having a claim against the person insured in respect of the liability in regard to which such policy was issued shall, subject to section 42, be entitled to recover in his own name, as though he were a party to the policy, directly from the insurer any amount which he would have been entitled to recover from the person insured.

(2)  An employee or other person having a claim against the person insured under a policy of insurance issued for the purposes of this Part shall not commence proceedings against the insurer unless he also commences or has commenced proceedings against the person insured.

(3)  Notwithstanding subsection (2), where an employee or other person having a claim against the person insured has reasonable grounds to be satisfied that –

(a)  the person insured cannot be readily located in Hong Kong;

(b)  the person insured is insolvent; or

(c)  the insurer has disclaimed liability under the policy of insurance,

he may take proceedings against the insurer without taking or having taken proceedings against the person insured.”

15.The time for the accrual of the right under Part IV claim was first considered by the Court of Appeal in the decision of Wong Po Wah v Pacific Insurance Co. Ltd. [1988] 2 HKLR 417.  In that case, the Court of Appeal held that s. 43 of the ECO creates a right in the employee to recover in his own name directly from the insurer the amount he would have been entitled to recover from the person insured only after quantification of his claim.  Fraud V-P said:

“Sections 43 and 44 do not, as I read them, come into play unless and until the amount due to an employee have been quantified in one of the ways provided for in the Ordinance.” (at p. 420H)

On the same issue, Hunter JA made the following observation:

“…… Secondly, s. 43 which creates a brand new right in the employee.  This arises, as my Lord has pointed out, only after quantification because it arises when the employer ‘becomes liable to pay any sum under this Ordinance’ and then it goes on ‘such term shall forthwith become due and payable’ by the insurer; as I read that section plainly by the insurers to the employee.  That it arises only after quantification is made clear by sub-s. (2) [of s. 43].”  (at. p. 423C)

16.In effect, Wong Po Wah, which was approved by the Privy Council, was regarded as the authority for the proposition that quantification is a condition precedent to the employee being able to sue the insurer.  After this decision, s. 44 of the ECO was amended in 1993 with the addition of 2 new subsections, ie. the existing sub-sections (2) and (3), which seem to suggest that an employee can directly sue the insurer without bringing a claim against the employer. The former subsection specifies that the employee shall not commence Part IV claim against the insurer unless he also commences or has commenced proceedings against the person insured, whilst subsection (3) provides the exceptions, including the case that the insurer has disclaimed liability under the policy.  Apparently, the employee can, in those exception cases, claim against the insurer directly without suing the employer, does it then mean that Part IV claim can now be brought before quantification of the compensation?  This issue came before the Court of Appeal in Pang Wai Chung v The Tai Ping Insurance Co. Ltd. [1999] 2 HKLRD 354, which had to consider whether Wong Po Wah was still good law after the amendment of s. 44 in 1993.

17.The main issue in Pang Wai Chung was whether a Part IV claim was statute-barred.  In upholding the decision in the lower court, the Court of Appeal held that the time for a Part IV claim only begins to run from the quantification of the compensation against the employer and so the claim was not statute-barred in that particular case.

18.In reaching the decision, the Court of Appeal first started with an analysis of the employee’s right under Part IV of the ECO.  According to the learned justices of appeal, although there are a few provisions dealing with the right of the employee under Part IV, the employee has only one right against the insurer.  In this regard, Leong JA, as he then was, said the following in the judgment:

“The employee has only one right against his employer’s insurer and that is to recover from him the sum the employer is liable to the employee and ‘due and payable’ by him under s. 43.  To recover that sum directly from the insurer, he has to rely on s. 44(1). ‘The effect of s. 44 (now s.44(1)) of the Ordinance is to give the employee a statutory right to enforce the policy directly against the insurer as if he were a party to it’ (per Fuad JA at. p. 421 in Wong Po Wah v Pacific Insurance Co. Ltd.). ‘The effect of s. 43 is to duplicate the insurer’s obligation. He has the contractual obligation to pay the employer under the policy.  He then has the additional statutory obligation to the employee under s. 43.  Teeth are given to the enforcement of that obligation by s. 44 which enables the employee to sue direct’ (per Hunter JA at p. 423, Wong Po Wah v Pacific Insurance Co. Ltd).” (at pp. 373J to 374B)

19.The Court of Appeal further held that according to such single right, the sum is only due and payable by the insurer to the employee upon the quantification of the claim, as Liu JA said the following in the judgment:

“This deeming provision for a statutory entitlement to recover in s. 44(1) clearly creates a substantive right.  Due date for the recoverable amount comes from s. 43(1).  S. 43(1) provides that when an employer ‘becomes liable to pay’ his employee for injury sustained in the course of his employment, a sum quantified independently of the Ordinance such as that adjudged in this case by Cheung, J. ‘shall forthwith become due and payable by the insurer’.  This sum payable by the insurer under s. 43(1) is therefore due from the date of its quantification. ………

To sum up: s. 44(1) confers on an employee a statutory entitlement to recover directly from the insurer a sum payable by his employer upon quantification.  It is a right given by a clause interpolated in the insurance policy by the deeming provision in s. 44(1), and it is exercisable by the employee as if her were a party to the insurance policy.  S. 42(1) limits this liability of the insurer and s. 43(1) sets a time for the sum to fall due and payable by the insurer to the employee, that is to say, when the employer himself becomes liable to pay upon the quantification of the employee’s claim.

………

The accrual time of a cause of action dictates when an employee’s claim could be instituted, but s. 44(1) and s. 43(1) are not strictly of a procedural nature.  They are provisions affecting primarily right and liability, and time would run from the accrual of that statutory right.  But for the accrual of his statutory right, an employee cannot institute a direct claim against the insurer.  The statutory right accrues when the employee’s claim is quantified, and therefore an employee may not commence proceedings before quantification.” (emphasis added) (at pp. 365F to 367A)

20.In this application, the Applicant is applying to join in the Insurer with a view to enforce his Part IV right under the Policy.  Applying the ratio in the said 2 Court of Appeal’s decisions, the Applicant simply has no basis for doing so at this stage as the claim against the Respondent has yet been quantified.  However, how can this be reconciled with the provision in s. 44(3) which enables the employee to bring a Part IV claim without first commencing an action against the employer?  In this regard, I do not think that the judgment in Pang Wai Chung did provide a complete answer.

21.In Pang Wai Chung, it was actually argued that ss. 44(2) and 44(3) provide a new right to the employee to commence a Part IV claim before quantification of the compensation.  However, the Court of Appeal rejected such argument.  According to all the 3 justices of appeal, the substantive right of the employee in bringing a Part IV claim derives from ss. 43(1) and 44(1) of the ECO.  Ss. 44(2) and 44(3), on the other hand, deal with procedures only, and so these two sub-sections do not affect the substantive right of the employee under s. 44(1).  The Court of Appeal therefore held that the proposition in Wong Po Wah is still good law.  In particular, Nazareth V-P said the following in the judgment:

“The foregoing [analysis], in my view, clearly require s. 44(2) and (3) to be construed as not [affecting] the decision of this court in Wong Po Wah v Pacific Insurance Co. Ltd., that the employee’s right arises only after quantification.” (at p. 362E)

22.If quantification of the claim is a condition precedent, how do ss. 44(2) and 44(3) work in practice?  Liu JA fully recognised the conceptual difficulty involved and said that “consideration of the full impact of sub-sections (2) and (3) will have to be stood over to another day” (at p. 369I).  On the other hand, Leong JA, as he then was, sought to provide an answer to this difficult question.

23.According to Leong JA, s. 43(2) contemplates that the sum for employees’ compensation can be quantified without a determination by the court.  S. 43(2)(a) provides that the sum can be quantified by way of mutual agreement between the employer and employee.  Provided that the insurer agrees to pay such amount, then, according to Leong JA, the employee can bring a Part IV claim against the insurer without suing the employer first.  In fact, s. 16A of the ECO also provides for another method of quantification.  The Commissioner for Labour may issue a certificate certifying the amount of employees’ compensation payable by the employer, and the employer then has a legal obligation to pay the amount stated in the certificate under s. 16(9).  As the ECO provides for other methods of quantification without a determination by the court, the employee can rely on s. 44(3) to claim for employees’ compensation against the insurer without first bringing a legal action against the employer.  Nevertheless, quantification of the compensation is still a prerequisite.

24.Adopting the reasoning of Leong JA, the application of ss. 44(2) and 44(3) is rather limited, restricting to those cases where the amount of compensation is quantified without a determination by the court.  However, this may be rather unrealistic, as I cannot imagine how an insurer who has disclaimed liability under the employees’ compensation policy, would nevertheless have agreed to pay compensation under the other method of quantification provided in s. 43(2)(a).  I am not sure whether this truly reflects the intention of the legislature.  Undoubtedly, the ECO is a piece of social legislation which aims to provide speedy compensation to a worker who injured himself in the course of his work, and apparently ss. 44(2) and 44(3) were drafted with such intention in mind.  However, the draftsman had not fully considered all the implications involved when drafting these 2 new subsections, and I cannot agree more with the observation made by Liu JA in Pang Wai Chung:

“However, far be it for me to take any conclusive view on s. 44(2) and (3) of the Ordinance; it is quite unnecessary for me to do so in this appeal.  The language of sub-ss. (2) and (3) is neither clear nor unambiguous to support the purposes for which these sub-sections are respectively said to have been enacted.” (at p. 369H)

25.If the effect of ss. 44(2) and 44(3) were to allow the injured worker to sue the insurer before the quantification of compensation, it would mean that the time for such action begins to run at an earlier time, possibly from the date of the accident instead of the later date of the quantification of compensation.  Ultimately, it may hurt the interest of the injured employee if there is any delay in the prosecution of the Part IV claim against the insurer.

26.It may be argued that the injured worker’s right to bring a Part IV claim accrues at the time of the quantification of the compensation, though procedurally, the injured worker can sue the insurer before the accrual of such right.  Conceptually, it is very difficult for me to accept such proposition.  However, whether this is possible should be a matter to be decided by the higher courts in the future.   At this stage, I am bound by the very strong dicta of the Court of Appeal in Pang Wai Chung that the substantive right of the employee in bringing a Part IV claim only accrues after the quantification of the compensation.  Applying such dicta, the Applicant cannot benefit from s. 44(3) and he has no locus to sue the Insurer at this particular moment.  This conclusion would have been sufficient for me to dismiss the joinder application.

Whether it is appropriate to join the Insurer in the present employees’ compensation proceedings?

27.Assuming that I am wrong on the aforesaid analysis and that the Applicant has the locus to join in the Insurer as an additional respondent at this stage, I still do not think that such joinder is appropriate.

28.In the present employees’ compensation proceedings, the issues are: (i) whether the Applicant injured himself in the course of employment with the Respondent; and (ii) assuming that liability is established, what is the appropriate quantum of employees’ compensation.  On the other hand, the issues in the Part IV claim are: (i) whether the Applicant was a “supervisor” within the meaning of the Policy taken out by the Respondent so that there was a “valid policy in force” for the purpose of the Part IV claim; and (ii) whether the other conditions of a Part IV claim are met in the present case.  Obviously, there is no common issue in these 2 claims.  Neither is the presence of the Insurer necessary for the court to make a determination of the issues relevant in the employees’ compensation proceedings.  Hence in my judgment, joinder is not appropriate in the present case.

29.Mr. Massie, on the other hand, argued that joinder of the Insurer is necessary so that the Insurer would be bound by the findings made in the employees’ compensation proceedings.  However, it was held in authorities such as Wong Kam Fai v Yu Sai Wan trading as Wong Fai Construction Material Co., unreported, DCEC 91 of 1992 (decision of HH Judge P. Cheung, as he then was, on 13 January 1993) that, once liability is established to pay employees’ compensation on the part of the employer, the insurer would be precluded, in the subsequent Part IV claim, from reopening any issues that had already been determined in the employees’ compensation proceedings earlier.  Obviously, the insurer, in order to protect his interest, has the right to apply to be joined in the employees’ compensation proceedings under s. 43(3).  However if the insurer waives such right, it cannot later challenge the factual findings made in the employees’ compensation proceedings.  Hence, joinder of the Insurer is not necessary in the present case.

30.Further, in most of the cases in which the insurer disputes liability under the policy, it is usual for the employer, without the benefit of legal representation provided by the insurer, to engage his own lawyers to defend the claim by the employee.  In such case, one can easily see the disadvantages of complicating the employees’ compensation proceedings with the quite unrelated Part IV claim.  As I see it, the same consideration applies even if the employer is unrepresented or even absent in the proceedings.  Hence, I would exercise my discretion refusing the joinder in the present case.

Whether the District Court has exclusive jurisdiction over Part IV claims?

31.With the aforesaid rulings, it is not necessary for me to consider the last issue.  However, it seems that the courts and the practitioners have always overlooked the jurisdictional issue relating to Part IV claims, and so it would be desirable for me to address this issue briefly here.

32.In the course of the argument, I had raised the question as to the proper forum for the determination of Part IV claims.  If the District Court has exclusive jurisdiction over such claims, the Applicant may have a stronger case for the joinder application.

33.So far as I know, there were quite a number of cases in which the injured employee, after obtaining judgment for employees’ compensation or common law damages against his employer, then commenced an action in the Court of the First Instance under Part IV of the ECO against the insurer, seeking a declaration that the latter was liable to satisfy the judgment.  One of the examples was the case of Lam Chi Fat v Liberty International Insurance [2002] 3 HKLRD 480.  However, I wonder whether such practice is proper in the light of the dicta of Clough JA in King Tak On v Lau Chun Yip & ors., unreported, CACV No. 106 of 1986 (decision of the Court of Appeal on 13 November 1986).

34.In King Tak On, the injured worker brought a claim for employees’ compensation against his employer.  After receiving notice of the claim, the insurer of the employees’ compensation policy applied successfully to be added as a party.  Subsequently, the worker applied to re-amend the application to include a Part IV claim against the insurer.  In dealing with such application, HH Judge Roy held that the District Court had no jurisdiction to determine a Part IV claim, as it was not a claim for compensation under the ECO and could only be prosecuted in civil proceedings outside the jurisdiction conferred by the ECO.  The employee challenged such decision in the appeal.

35.As one would notice, the worker in that case commenced the Part IV claim against the insurer before the quantification of the compensation.  In view of the subsequent Court of Appeal’s decisions in Wong Po Wah and Pang Wai Chung, this practice may no longer be permissible.  However on the question of jurisdiction, the Court of Appeal held that the District Court has jurisdiction to entertain a Part IV claim on ground that this is a claim for compensation within the meaning of the ECO.

36.Clough JA said the following at pp. 15 to 16 of the judgment:

“In my judgment, apart from any claim for injury arising independently of the Ordinance, the words emphasised above give the employee a direct right under the deemed provision in the policy to recover the compensation and interest and costs which he would have been entitled to recover from the employer under sections 9, 10 and 21 of the Ordinance.  It is a right which is separate and distinct from, and not subject to the defeasibility of, the employer’s right of indemnity as the insured under the policy of insurance.  The policy undoubtedly gives the employer a right of indemnity upon which the provisions of sections 42 and 43 impinge but, in my judgment, the right of recovery deemed to be interpolated into the policy by section 44 for the benefit of the employee is identifiable as a different right.  This is clearly demonstrated by the provisio to section 42 and by section 43(4) which affect the employer’s claim under the policy but not the employee’s claim under section 44.

As to the jurisdictional difficulty felt by the judge, sections 40, 43(1) and 44 are all concerned, apart from any claim for injury arising independently of the Ordinance, with the compensation payable by the employer to the employee under the Ordinance.  Thus section 40 requires insurance to be effected by the employer ‘for the full amount of the liability of the employer’ under the Ordinance.  Section 43(1) provides that where ‘ …the employer becomes liable to pay any sum’ under the Ordinance … such sum ‘together with interest and costs’ … shall forthwith become due and payable by the insurer …’.  Section 44 gives the employee a right of recovery from the insurer of ‘any amount which he would have been entitled to recover from the person insured’.

All these amounts fall squarely within the definition of compensation in section 3 of the Ordinance and, in the case of interest and costs, within the jurisdiction conferred on the District Court by section 21.

Accordingly the applicant’s claim against the second respondent under section 44, being a claim for compensation under the Ordinance which the combined effect of sections 42, 43 and 44 of the Ordinance has made directly payable by the second respondent, falls to be determined by the District Court under sections 18A and 21. ………”

37.The implication of such dicta is that once a Part IV claim is regarded as a claim for compensation under the ECO, the District Court will have exclusive jurisdiction over such claim by virtue of the provisions in ss. 18A and 21.  Apparently, the practice of commencing Part IV claims in other courts may not be correct, though such jurisdictional issue had never been raised or argued in the previous cases.  However, I must emphasis that my observation in this regard is strictly obiter dictum.  Nevertheless, practitioners should pay attention to this jurisdictional issue in commencing Part IV claims in the future, and I expect them to bring the attention of the court to the dicta of Clough JA so that a properly considered judicial decision can be made on such uncertain issue.

Concluding remarks

38.I hope I can be forgiven of bringing up all these issues in this simple application.  In the past, the courts had been asked to consider various aspects of Part IV claims, with some focusing on issue such as limitation whilst others concentrating on issue such as joinder or jurisdiction.  However, these issues may well be interrelated, and decision on one particular issue may have some unexpected consequences on other aspects of Part IV claims.  Unfortunately, the meanings of certain statutory provisions in Part IV such as ss. 44(2) and 44(3) are far from clear, which add further uncertainty to the law and procedure in this area.  I am not seeking to provide answers to all the issues raised in this Decision, and I can only hope that the higher courts would have the opportunities to consider them in more details in the future.

39.Based on the aforesaid, apart from granting leave to the Applicant to add the Chinese name of the Respondent in the Application, I dismiss the Applicant’s summons for joinder dated 20 May 2008.  I also make an order nisi that the costs of the summons be paid by the Applicant to the Insurer with certificate for counsel, which shall be made absolute 14 days after the date of the handing down of this Decision.

Mr. Richard M. Clement, of Messrs. Massie & Clement, for the Applicant

The Respondent, absent

Mr. Tim Kwok, instructed by Messrs. Day & Chan, for the Intended 2^nd Respondent