Chan Kin Shing v. K. Wah Asphalt Ltd

DCEC639/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 639 OF 2009

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BETWEEN

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Coram: H H District Judge Marlene Ng in Chambers (open to the public)

Date of Hearing: 31^st July, 2009

Date of Directions: 31^st July, 2009

Date of Handing Down Reasons for Directions: 4^th August, 2009

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REASONS FOR DIRECTIONS

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I. Introduction

1.The Applicant claims that on 4^th September 2008 he suffered a work accident arising out of and in the course of his employment with the Respondent.

2.On 15^th June 2009, the Applicant commenced the present proceedings by his next friend Madam Lee Mei Lin Peggy (“Madam Lee”) to claim employees’ compensation against the Respondent. According the Application, the Applicant suffered severe head injury and has been in a vegetative state since the date of the Accident.

3.On the same day, the Applicant’s solicitors also filed (a) the Consent of Next Friend signed by Madam Lee and (b) the Certificate as to Next Friend signed by Mr Ko Kok Fai (“Mr Ko”), solicitor for the Applicant (“Certificate”).

4.In the Certificate, Mr Ko certifies that he is well acquainted with Madam Lee who is the wife of the Applicant, a mentally incapacitated person (“MIP”), and verily believes she is a fit and proper person to be the next friend of the Applicant in these proceedings. Mr Ko goes on to confirm that Madam Lee has no interest in the cause or matter in question adverse to that of the Applicant.

5.On 28^th July 2009, the Respondent’s solicitors filed Notice to Act.

6.On 29^th July 2009, a Consent Summons was filed to propose directions for filing and serving the Answer, List of Earnings and Lists of Documents and to vacate the First Hearing scheduled on 31^st July 2009.

7.On 30^th July 2009, this court raised written requisitions in respect of the Certificate and directed the Applicant to clarify whether the Certificate satisfy the requirements in Order 80 rule 3(8) of the Rules of the District Court (“RDC”), and if so to identify the contents thereof that satisfy such requirements, and if not to state whether application will be made to amend the Certificate and to produce draft amendments. It is hoped that if the Certificate is to be amended to meet the requirements under the RDC, it will be dealt with at the First Hearing on 31^st July 2009 so that the case can proceed.

II. Requirements under Order 80

8.It is trite that if a claimant is sui juris with full mental capacity, it falls on him to take his application to the court and there is no role for any next friend in the proceedings. But a person under disability (including a MIP) can only sue by his next friend (see Order 80 rule 2(1) of the RDC) who is given wide-ranging powers under Order 80 rule 2(2) of the RDC.

9.It is an important function of the court to protect persons under disability from any disadvantage they may suffer as a result of the disability and to look after those who because of their disability cannot look after themselves. In the case of MIPs, the court acts as a court of protection to ensure that (a) there is reasonably sufficient basis to demonstrate that the claimant is a MIP who has to bring or make his claim by a next friend, (b) the next friend is properly appointed in the sense of having satisfied the requirements in Order 80 of the RDC, and (c) the next friend does not take steps or authorise steps to be taken in the proceedings unless and until his appointment is regular.

10.Order 80 of the RDC contains detailed provisions for the appointment of next friend whether with or without court order.

11.Appointment of a next friend to bring or make a claim for a MIP by way of court order is necessary in 2 situations :

(a) where the claimant already acts by a next friend in any proceedings, a court order is required for appointing another next friend in substitution of the existing next friend (see Order 80 rule3(4) of the RDC);

(b) where the claimant only becomes a MIP in the course of the proceedings, an application has to be made for the appointment of a next friend for the claimant (see Order 80 rule 3(5) of the RDC).

12.There are provisions in Order 80 rule 3(4)-(5) and rule 6 of the RDC that deal with appointment of guardian ad litem by court order, but that is irrelevant to the present case. The Applicant is a claimant and at best only a next friend and not a guardian ad litem is relevant.

13.There is no doubt that the situations in paragraph 11 above do not apply to the present case. So according to Order 80 rule 3(2) of the RDC, a court order for appointing a person as a next friend of the person under disability is not necessary.

14.Even so, appointment of a next friend without court order is governed by Order 80 rule 3(6) and (8) of the RDC. Order 80 rule 3(6) of the RDC makes clear that the name of any person shall not be used in a cause or matter as a next friend of a person under disability unless and until the documents specified in Order 80 rule 3(8) of the RDC have been filed with the court registry.

15.The documents specified in Order 80 rule 3(8) of the RDC include a certificate made by the solicitor for the person under disability certifying inter alia :

(a) that he knows or believes, as the case may be, that the person to whom the certificate relates is a MIP, giving (in the case of a MIP) the grounds of his knowledge or belief;

(b) where the person under disability is a MIP, that there is no person authorised as provided under Order 80 rule 3(3) of the RDC.

16.In respect of (a) above, this requirement serves an important purpose. The relevant solicitor must have a basis for knowing or believing that the claimant is a MIP otherwise any appointment of a next friend is not only redundant but improper. After all, a sui juris claimant has the right to take charge and run his own case as he likes without intervention by a third party.

17.In respect of (b) above, Order 80 rule 3(3) of the RDC provides inter alia that where a person is authorised under Part II of the Mental Health Ordinance Cap.136 (“MHO”) to conduct legal proceedings on behalf of a MIP, that person shall be entitled to be next friend of the MIP in any proceedings to which his authority extends unless some other person is appointed by the court to be the next friend of the MIP in those proceedings. So if a person is so authorised under the MHO, such person rather than any other person shall be the next friend.

III. Certificate

18.Mr Luk does not dispute that the Certificate is deficient in that it fails to state (a) the grounds of Mr Ko’s knowledge or belief that the Applicant is a MIP and (b) no person has been authorised under the MHO.

19.In such circumstances, the court does not know and cannot be satisfied that (a) there is sufficient basis for suggesting that the Applicant is a MIP who needs a next friend to conduct the present proceedings and/or (b) there is no other person (such as a person authorised under the MHO) who should be the next friend of the Applicant instead of Madam Lee.

20.Since the Certificate is deficient in the above respects, it does not satisfy the requirements under Order 80 rule 3(8) of the RDC. Further, since the proper documents specified under Order 80 rule 3(8) of the RDC have not been filed, the name of Madam Lee shall not be used in the present proceedings as next friend of the Applicant (see Order 80 rule 3(6) of the RDC). Without using Madam Lee’s name as next friend, the Applicant cannot bring or make the claim herein.

21.To facilitate the Applicant to progress the case, I have by written requisitions invited the Applicant’s solicitors to seek amendment of the Certificate in order to regularise the deficiencies and to produce a draft of the proposed amendments at the First Hearing on 31^st July 2009. However, Mr Luk informed the court at the First Hearing that the application for amendment would be made within 14 days, and he did not submit any draft proposed amendments. Indeed, it might have helped if a medical report were produced at the First Hearing to show the condition and/or mental state of the Applicant. If it were plainly obvious from such report that the Applicant is a MIP, the court might have seen its way to a practical resolution. However, no such report was produced at the First Hearing. In the circumstances, the court was constrained to adjourn the First Hearing and the Consent Summons.

22.I should mention that at the First Hearing Mr Luk submitted that notwithstanding the deficiencies of the Certificate this court should proceed to consider the Consent Summons and grant case management directions accordingly. However, I am unable to accept such arguments.

23.First, Mr Luk argues that a court order is unnecessary for the appointment of Madam Lee as the Applicant’s next friend. I have no doubt that he is correct, but such argument is misconceived in the present context. The heart of the issue here is not whether a court order is necessary or not, but whether the Certificate satisfies the requirements under Order 80 rule 3(8) of the RDC to enable Madam Lee’s name to be used in the present proceedings as next friend of the Applicant without court order.

24.Secondly, Mr Luk submits that no court order is necessary for the appointment of a guardian ad litem since this is not a situation where there is default on the part of the MIP in acknowledging service. I am not with Mr Luk in his argument. As mentioned above, the issue is not whether a court order is necessary for the appointment of Madam Lee as the Applicant’s next friend. The issue is whether, in the context of her appointment as next friend of the Applicant without court order, the statutory requirements have been satisfied, and if not, her name cannot be used in the present proceedings as next friend of the Applicant until the deficiencies are regularised. Further, I do not see the relevancy of the reference to guardian ad litem and acknowledgment of service. After all, we are dealing with the Applicant as claimant and not as defendant/respondent.

IV. Directions

25.In the circumstances, I granted the following case management directions at the First Hearing on 31^st July 2009 :

(a) the Applicant do within 14 days from the date thereof take out an ex parte summons for leave to amend the Certificate to comply with Order 80 rule 3(8)(c) of the RDC;

(b) the hearing of such summons be returnable before the EC Judge in chambers (open to the public) at 11:30am on 21^st August 2009;

(c) the First Hearing be adjourned to 11:30am on 21^st August 2009 before the EC Judge in chambers (open to the public);

(d) save and except that the parties do lodge and serve all updated Appendix D information since 31^st July 2009, compliance with paragraph 75 of Practice Direction 18.2 be dispensed with in respect of the aforesaid hearing at 11:30am on 21^st August 2009;

(e) the Consent Summons dated 29^th July 2009 be adjourned for consideration at the aforesaid hearing at 11:30am on 21^st August 2009;

(f) order to be drawn up.

26.On the question of costs, Mr Lam asks for costs of the First Hearing. Mr Luk objects, and points out that the deficiencies in relation to the Certificate were raised by the court and not by the Respondent’s solicitors. He also says that he has been unable to take timely remedial action in respect of the Certificate because he only received the court’s written requisitions on 30^th July 2009, ie the eve of the First Hearing.

27.In my view, the Applicant has carriage of his claim, and is therefore responsible for ensuring that the relevant rules of court have been satisfied. The reality is that the adjournment is caused by the Applicant’s deficient Certificate and not by the so-called late notification by the court that highlights such problem. The court cannot be said to be late in raising requisitions on 30^th July 2009 when the Consent Summons was filed only the day before. Indeed, the court has no duty to render advice to any litigant, but in the hope of facilitating the Applicant to resolve the deficiencies and to progress the case at the First Hearing, the court has taken the liberty to raise written requisitions and to invite application to amend the Certificate. The failure to fulfil such hope rests squarely on the Applicant. The Respondent cannot be faulted for the wasted First Hearing. In the circumstances, I ordered that costs of the First Hearing assessed at HK$600.00 be paid by the Applicant to the Respondent.

Representation:

Mr Tony Luk of Messrs Ko & Chow for the Applicant.

Mr Lam Wing Hon of Messrs Tsang, Chan & Wong for the Respondent.