Liu Chen v. Chan Poon Wing and Another
Read the full judgment text of HCPI 779/2006 on BabelCite. This High Court CFI judgment was delivered on 2 October 2009.
1. On 18 September 2003, the Plaintiff was crossing the road when he was struck down by a taxi owned by the 1 st Defendant and driven by the 2 nd Defendant.
Cited by 4 cases · Cites 9 cases
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HCPI 779/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 779 OF 2006 _________________________ BETWEEN
_________________________ Coram : Before Master Marlene Ng in Court Date of Hearing : 2 October 2009 Date of Directions : 2 October 2009 Date of Handing Down Reasons for Directions: 7 October 2009 _____________________________________ REASONS FOR DIRECTIONS _____________________________________ I. Background 1.On 18 September 2003, the Plaintiff was crossing the road when he was struck down by a taxi owned by the 1st Defendant and driven by the 2nd Defendant. 2.By a Consent Order dated 2 November 2006, judgment on liability was entered for the Plaintiff against the 2nd Defendant for damages to be assessed. On 13 December 2007, the Plaintiff discontinued his claim against the 1st Defendant. 3.The Plaintiff was all along legally represented by the same firm of solicitors. 4.According to the Checklist dated 26 January 2007 and personally signed by the Plaintiff’s solicitor, the Plaintiff would call 1 witness on factual issues.Consequently, by an order on Check List Review (“CLR Order”) dated 1 February 2007, Master B Kwan granted inter alia the following directions:
5.Pursuant to the CLR Orders dated 14 December 2007 and 7 May 2008, the Plaintiff was respectively directed to give further discovery and to confirm the status of various documents. 6.Consequently, the Plaintiff filed his List of Documents, Supplemental List of Documents and 2nd Supplemental List of Documents on 21 April 2007, 3 January 2009 and 23 February 2009 respectively. 7.The Checklist dated 7 May 2007 and personally signed by the Plaintiff’s solicitor stated that the Plaintiff would call 4 witnesses on factual issues.Such witnesses were not identified. 8.But notwithstanding the direction in paragraph 4(b) above, the 2nd Defendant did not have any witness statement on quantum, and the Plaintiff did not serve on the 2nd Defendant his own witness statement as to quantum.According to the Checklists dated 13 December 2007, 5 May 2008, 24 May 2008, 7 August 2008, 17 February 2009 and 25 March 2009 all personally signed by the Plaintiff’s solicitor, it was expressly stated that the Plaintiff had “NIL” witness on factual issues. 9.By the CLR Order dated 11 August 2008, the parties were directed to ensure that counsel’s advice on evidence and quantum were obtained and all outstanding interlocutory applications as advised by counsel were sought by 3 November 2008. 10.By the CLR Order dated 23 February 2009, Master B Kwan granted inter alia the following directions:
11.By the CLR Order dated 3 April 2009, Master B Kwan directed inter alia that the initialled copy of the index to the Bundle (“Index”) agreed by the parties pursuant to the direction in paragraph 10(a) above be kept by the PI Master for record purposes. 12.The agreed Index initialled by Master B Kwan did not contain any item for witness statement(s). 13.By the CLR Order dated 3 April 2009, the Plaintiff was directed to set down the present action for assessment of damages before a Master within 7 days (i.e. on or before 14 April 2009) with 1 day reserved “using the Bundle approved by the PI Master today”. The matter came before Master de Souza for assessment of damages on 14 July 2009, but the assessment hearing was adjourned to 2 October 2009 (“Hearing”) when the matter came before me. II. Plaintiff’s application 14.There was quietude since April 2009 when this action was set down for assessment of damages except for the adjournment in July 2009. Such quietude was broken by a flurry of activity on the eve of the Hearing (i.e. 30 September 2009) that began with my enquiry directed to the Plaintiff’s solicitors via my clerk on that very day. 15.To backtrack a little, the Plaintiff’s solicitors wrote to my clerk on 22 September 2009 to request arrangement for a court interpreter for translation from English to Putonghua at the Hearing “because the Plaintiff speaks Putonghua only”. I found such request strange in the absence of any witness statement in the Index or the Bundle, so I directed my clerk to confirm with the Plaintiff’s solicitors that there would be no witness as to quantum for the purpose of the assessment of damages. 16.However, it transpired that at about 3:30 pm that day (i.e. 30 September 2009) the Plaintiff’s solicitors served on the Defendant’s solicitors a copy of a witness statement of the Plaintiff (“Statement”) made/signed on the very same day. I further note that the Statement was not verified by Statement of Truth pursuant to Order 41A of the Rules of the High Court (“RHC”) and Practice Direction (“PD”) 19.3. 17.In the same afternoon, the Plaintiff’s solicitors delivered to my clerk the original copy of such Statement purportedly for filing, and arranged for insertion of a copy of such Statement in the agreed section of the Bundle together with a revised Index. 18.In my view and as acknowledged by counsel for the Plaintiff, Mr Cheuk, the approach adopted by the Plaintiff’s solicitors was irregular. They should have been well aware (a) there was no prior leave of the court for filing and/or serving the Statement about 2½ years out of time, (b) my clerk was not the proper recipient for any document to be filed, and (c) there was no agreement between the parties for inclusion of the Statement in the agreed section of the Index and/or the Bundle. Hence, I returned the original copy of the Statement to the Plaintiff’s solicitors through Mr Cheuk at the Hearing. 19.More importantly, despite the lateness of the Statement, the Plaintiff’s solicitors did not take out any summons to apply for leave of the court to serve the Statement and to rely on the same for the assessment of damages. Instead, Mr Cheuk handed up to the court at the Hearing an inter partes summons (“Summons”) that had not even been filed. The reliefs sought in the Summons were as follows:
I was informed that a copy of the Summons was given to counsel for the 2nd Defendant, Ms Lau, just before the Hearing. 20.Ms Lau objected to the Plaintiff’s application. Not only was such application patently and obviously late, she was perturbed by what she perceived as an attempt by the Plaintiff to shift the goalposts set out in the Revised Statement of Damages (“RSOD”) by seeking leave to rely on the Statement without either applying for leave of the court to further revise the RSOD or giving the 2nd Defendant appropriate opportunity to seek clarification from the Plaintiff in respect of the shifted goalposts or to plead to the same in his Answer. 21.Ms Lau also complained that the Plaintiff did not even seek leave of the court to adduce the 2 documents annexed to the Statement (“Documents”) that were not part of the discovered documents already disclosed by the Plaintiff. But had the Plaintiff applied for such leave, Ms Lau submitted that the 2nd Defendant would still be prejudiced by the lateness of the application that prevented him from seeking appropriate clarifications on queries arising from the Documents. 22.At first, Mr Cheuk resisted any suggestion that the Plaintiff had to seek leave of the court in order to adduce the Documents at the assessment of damages on the basis that they were voluntary discovery on the part of the Plaintiff disclosed by way of annexure to the Statement. 23.In the present case, directions for discovery were given as early as on 1 February 2007 (see paragraph 4(a) above).It is also trite that litigants have an on-going obligation for continued mutual discovery. But the reality is that even though the Documents were created in 2007, they were not disclosed in the Plaintiff’s Supplemental and 2nd Supplemental Lists of Documents filed in January and February 2009 (see paragraph 6 above). No reason was offered for the non-disclosure in the relevant lists of documents. Instead, the so-called voluntary discovery by the Plaintiff in respect of the Documents was only made on the eve of the Hearing. 24.In my view, where discovery is given at the eleventh hour, it is quite impermissible for the litigant giving such discovery to do so under the guise of voluntary discovery or as annexure to a further or supplemental witness statement without seeking leave of the court to give further discovery out of time. Given the lateness of the further discovery, it should be anticipated (especially after the Civil Justice Reform (“CJR”)) that the opposing party may complain of such lateness. 25.Mr Cheuk eventually conceded that the Plaintiff should have applied for leave for discovery of the Documents, and he proceeded to amend the Summons to such effect accordingly. 26.In respect of the RSOD, Mr Cheuk at first also disputed any need to amend such pleading. He submitted that the Statement merely confirmed the contents of the RSOD with slight adjustments, most of which he claimed were downward revisions of the amounts claimed under various heads of claim (see, for example, paragraphs 2(2) and (8) of the Statement) and were supported by discovered documents, so there would be no surprise or prejudice to the 2nd Defendant. 27.However, paragraphs 2(3)-(7) of the Statement in fact dealt with upward revisions of the amounts claimed under various heads of claim for special damages in the RSOD. Secondly, in respect of paragraph 2(10) of the Statement, the Plaintiff purported to give the factual basis for arriving at the multiplicand of RMB4,544.00 per month for certain past loss of earnings as pleaded in the RSOD. Thirdly, as Mr Cheuk conceded, the factual matters in relation to the Plaintiff’s pension terms and the impact of his post-Accident demotion in employment on his pension and future loss of earnings set out in paragraph 2(12) of the Statement were completely new and unsupported by any discovered documents. 28.It is trite that all pleas in relation to special damages and all material facts in respect of the Plaintiff’s case on quantum ought to be properly pleaded (see Order 18 rule 7(1) of the RHC, Hong Kong Civil Procedure 2009 Vol.1 paras. 18/7/7 and 18/12/10 at pp. 321 and 331-332 and paras.18/12/41 and 18/12/52 at pp. 337-340). Also, there cannot be any doubt that the matters set out in paragraphs 2(10) and (12) of the Statement were material facts that ought to be pleaded in order to show the nature and extent of general damages claimed and so as to fairly inform the 2nd Defendant of the case he had to meet. Mr Cheuk did not seek to contest the above propositions, which meant (and which he eventually acknowledged) that the RSOD would have to be further revised. 29.Regrettably, no draft Further Revised Statement of Damages was available for the court’s consideration at the Hearing. In this respect, the wise guidance by Nazareth VP in his judgment in Wellfit Investment Ltd v Poly Commerce Ltd [1995] 3 HKC 56, 61-62 remains applicable even after the implementation of the CJR save that late applications for amendment of pleadings as envisaged by the learned judge should now be few and far between (if at all):
(see also Lam Wai Hung v Lam Chun Hung & ors HCA 2038/2004, Mr Recorder Kwok SC (unreported, 22 June 2006)). 30.Mr Cheuk therefore sought time indulgence from the court to further amend the Summons to seek leave to further revise the RSOD in light of the Statement and to set out the intended revisions with particularity. 31.It is evident from the above that the Plaintiff’s application by way of the Summons metamorphosed in the course of Mr Cheuk’s oral submissions at the Hearing from an initial application to seek leave to file and serve the Statement out of time to a composite application that included not only the initial application but also applications for the following reliefs:
III. Lateness of the Plaintiff’s application 32.There can be no doubt that the Statement, the Documents and the Summons were very late, and Mr Cheuk did not shy away from such fact. Given such lateness, it behoved the Plaintiff to provide the court and the 2nd Defendant with full information as to the reasons for the lateness. 33.Even before the CJR, the need for an affidavit to account for such lateness for similar applications was accepted in Hong Lok School Limited & anor v Chow Sai Yiu & anor HCA 17139/1999 and HCA 19001/1999, Deputy High Court Judge Lam (as he then was) (unreported, 7 July 2003) and Guangzhou Green-Enhan Bio-Engineering Co Ltd & anor v Green Power Health Products International Co Limited & ors HCA 4651/2002, HCA 2802/2003 and HCMP 54/2004, Lam J (unreported, 21 August 2004). 34.In Hong Lok School Limited, in dealing with a litigant giving discovery at the eleventh hour, the learned judge held that such litigant should provide the court and the other side with full and accurate information at least as to the following to enable the court to exercise its discretion properly in dealing with possible objections from the opposing party:
In that case, counsel was unable to deal with the above matters fully, and the court directed the plaintiffs produce an affidavit to account for the late discovery. 35.In Guangzhou Green-Enhan Bio-Engineering Co Ltd & anor, in the wake of objection by the defendants, the case was stood down for the plaintiffs to file affirmations to account for the lateness of the application to adduce further witness statements and documents in the course of trial. 36.Let me say as a general observation that the court is generally unhappy with last minute applications at the commencement of assessment hearing for further evidence to be filed or for further discovery to be made. After the CJR, the court is even more jealous to ensure that the assessment of damages will proceed as scheduled, and that the hearing will not be burdened with last-minute applications that take up valuable time thereby prolonging the assessment hearing, causing an adjournment and/or increasing costs for the party(ies). To say the least, last minute applications fly in the face of the underlying objectives of reasonable expedition, procedural economy, cost-effectiveness and fairness between parties enshrined in Order 1A of the RHC. 37.In the circumstances, after the implementation of the CJR, if there is any last minute application (which necessarily must be a rare occurrence), the court will not expect anything less than what was required even prior to the CJR, namely, a full account for the lateness of the application.In addition, it is further expected that the applicant will place before the court full justification as to why the application should be entertained at all at such late stage notwithstanding the underlying objectives. Failure to do so may result in the court rejecting the application without further ado, especially if there is a history of breach of court timetables or if there is something in the conduct of the applicant that gives rise to suspicion of conscious manoeuvring. 38.Practitioners should bear in mind that it is the duty of the handling solicitor to ensure that his client’s case is properly prepared for assessment of damages. The court expects that careful and conscientious consideration and attention be given to the completion of the Checklists (or timetabling and/or listing questionnaires) before the case is set down for assessment hearing. As Lam J said in paragraph 19 of Wong Siu Yeung v Chu Kwong Wing & ors HCA 5249/1999 (unreported, 20 May 2005), “[the] court should be able to rely on the diligent conduct of solicitors in the preparation of his client’s case for trial otherwise it will make a mockery of our case management system”.Such observation is even more compelling after the implementation of the CJR. 39.Plainly, the prodigious lateness of the Statement, the Documents and the Summons cried out for an explanation especially in view of the fact that (a) 6 Checklists prepared between 2007 and 2009 and personally signed by the Plaintiff’s solicitor confirmed that the Plaintiff would have “NIL” witness on factual issues (see paragraph 8 above), and (b) the court had already directed the parties (i.e. including the Plaintiff) to seek counsel’s advice and to ensure that all outstanding interlocutory applications as advised by counsel be sought by 3rd November 2008 (see paragraph 9 above). 40.Unless a full account was placed by the Plaintiff before the court, the matters in paragraphs 8-9 above (see also (a) and (b) in the above paragraph) prima facie suggested it was all along the Plaintiff’s considered choice under legal advice not to adduce viva voce evidence from witness(es) as to quantum and to only rely on documentary evidence for the purpose of the assessment of damages. 41.Nevertheless, no affidavit on any of the above matters was placed before this court, and Mr Cheuk had to ask for the court’s indulgence to take instructions. After taking instructions, Mr Cheuk submitted that preparation of the Statement was deferred until the eve of the Hearing due to difficulty in taking instructions from the Plaintiff as a result of (a) the Plaintiff’s medical condition, (b) his residence in Mainland China, and (c) the need to translate the contents of many English documents to the Plaintiff. 42.But in personal injuries litigation, as in any other civil litigation, the case is set down for assessment of damages upon assurances by the party(ies) and/or by his(their) legal representatives that the action is ready for assessment of damages or that any outstanding matter will be attended to forthwith or within a specified deadline so that it will not upset the scheduled assessment hearing. Thus, at the latest by April 2009 when the initial assessment hearing was fixed, the Plaintiff and/or his legal representatives should have ensured that the Plaintiff’s case was ready for assessment of damages or that there would not be any outstanding matter that would upset such assessment hearing. If it were not so, it was incumbent on the Plaintiff and/or his legal representatives to deal with the outstanding matter as soon as possible and to alert the court of the same so that the court could have made informed and appropriate case management directions. But the Plaintiff and/or his legal representatives did not adopt such course of action.I am therefore unable to accept the explanation in the above paragraph as any legitimate excuse for the lateness of the Plaintiff’s present application. 43.Further, the Plaintiff claimed that he returned to work (albeit on half-day instead of full-day basis) about half a year after the Accident, and that he actually visited Hong Kong 3 times in 2003, 2005 and 2007 respectively.In this age of modern communications by telephone, fax and email or indeed even by old-fashioned post, I cannot envisage any communication difficulty between the Plaintiff and his solicitors that would have spanned a period of about 2½ years. Still further, translation of the contents of the key English documents in this case or the gist thereof into Chinese would be required in any event for proper instructions to be taken from the Plaintiff. The suggestion that such exercise could be deferred until the eve of the Hearing notwithstanding the court-imposed case management directions/timetable for proper preparation of the case for assessment of damages is nothing but a lamentably lame and patently unacceptable excuse. 44.In the circumstances, I am not persuaded that the reason offered for the lateness of the Statement, the Documents and the Summons was at all satisfactory. IV. Discussion 45.Unfortunately, the evolution of the Summons (see paragraphs 14-31 above) took up quite some time at the Hearing. The upside of such time-consuming exercise is that the Summons in its final form took away some of Ms Lau’s objections. 46.In exemplary fairness, Ms Lau informed me that the 2nd Defendant would not oppose the Plaintiff’s application to further revise the RSOD and to file and serve the Statement out of time subject to the following:
47.Ms Lau submitted that the Documents which included an invoice dated 5 July 2007 and issued by A-Sun Leader Travel Co., Ltd were only disclosed for the first time as annexure to the Statement, and that they were the only documents in support of the Plaintiff’s claim for reimbursement of his travelling expenses from Mainland China to Hong Kong for medical treatment. Ms Lau pointed out that the information in the said invoice did not conform to the facts asserted in paragraph 2(6) of the Statement in relation to such travelling expenses, and hence further clarification would be required. 48.Paragraph 2(10) of the Statement stated that the multiplicand of RMB4,544.00 per month for past loss of earnings from 1 October 2004 to 31 May 2009 was calculated on the basis of the difference between the Plaintiff’s “unit-based salaries” before and after the Accident without taking into account any increase of “financial salaries” which was applicable to civil servants across the whole Mainland China. Ms Lau submitted that since this was the first time the Plaintiff explained his calculation of past loss of earnings, and there was no prior intimation to the 2nd Defendant of such basis of calculation, the 2nd Defendant should be allowed to seek clarification of such assertions. 49.Paragraph 2(12) of the Statement asserted to the effect that the Plaintiff’s demotion in his employment after the Accident would impact on his retirement pension because as a civil servant he was entitled to receive 95% of his monthly salary at the time of his retirement for each month until death. Ms Lau submitted that such assertion gave rise to even greater concern in that not only was it newly made it was also wholly unsupported by documents. She argued that the 2nd Defendant must be entitled to seek clarification and/or specific discovery in respect of such assertion otherwise he would not be able to properly plead his answer to the same. 50.By reason of the above, Ms Lau argued that the assessment of damages would have to be adjourned to enable the 2nd Defendant to take out the relevant applications alluded to above. 51.Having sprung the Statement, the Documents and the Summons on the 2nd Defendant on the eve of the Hearing and/or just before the Hearing itself, Mr Cheuk was constrained to accept that in all fairness the 2nd Defendant should not be called upon to meet those matters under the shotgun. He had no ready answer to Ms Lau’s contentions save to say that the Plaintiff had travelled all the way from Mainland China to Hong Kong for the Hearing and the assessment of damages should therefore proceed. However, given my rejection of the Plaintiff’s explanation for lateness, the Plaintiff’s predicament was certainly not of the 2nd Defendant’s making, and any fault in relation thereto lies squarely with the Plaintiff and/or his legal representatives. 52.Mr Cheuk then asked for further indulgence from the court to take instructions. After taking instructions, Mr Cheuk informed the court that the Plaintiff was prepared to redact paragraphs 2(5)-(7), (10) and (12) of the Statement and to withdraw his application to further revise the corresponding parts of the RSOD. Ms Lau had no objection, and indicated she would be able to provide written revisions to the 2nd Defendant’s Answer in the afternoon of the Hearing. 53.It appears from the above that having strived for a better part of the morning at the Hearing the parties reached eventual consensus on the way forward. But I cannot leave this without observing that much hearing time (which should have been spent on the assessment of damages) was wasted as a result of the lateness of the Plaintiff’s application and his failure to promptly and comprehensively address the fullness of such late application. 54.The Plaintiff was fortunate in this instance due to the commendable fairness and generosity of the 2nd Defendant. But under the CJR, litigants in future should not expect the court to smile with similar kindness on applications of such extraordinary lateness. 55.Whether the court should allow a late application for amendment of pleadings, for further discovery or for further witness evidence is a balancing exercise, and the court must exercise its discretion in a fair manner having regard to all the circumstances and the explanation given. Whilst each case must be determined in the context of its own factual and legal matrix, the considerations of the court are largely three-fold:
56.In carrying out the balancing exercise, there is a need to strike a balance between timely progress of cases and adherence to procedural timetables on the one hand and proper adjudication of cases on the merits on the other hand to enable the real question or controversy to be determined and to achieve fairness and justice for the parties before the court and also for other litigants who have use of the court’s resources. On this I respectfully adopt the following observations by A Cheung J in VSC Building Products Company Limited v Kono Insurance Limited HCA947/2005 (unreported, 9 September 2009):
(see also Liu Wai Kwok, the administrator of the estate of Lau Kit Ling, deceased v Lui Wai Chi CACV 10/2009 (unreported, 5 August 2009)). 57.But at the same time, case management under the CJR clearly recognises that the later the applicant makes the application to amend pleadings or to adduce further witness evidence or further discovery or, to put it in any way, the closer to the assessment hearing he makes such application, the more likely it is to cause real prejudice to the opposing party, especially when a milestone date is likely to be compromised either by (a) there being insufficient remaining time until the commencement of the assessment hearing (which is an immovable milestone date) to accommodate the other party’s response to the application if granted or (b) significant time at the assessment hearing will be taken up by dealing with such application.I note that in both VSC Building Products Company Limited and Liu Wai Kwok, the administrator of the estate of Lau Kit Ling, deceased there was no suggestion that late application would have affected the trial dates. 58.Likewise the court is unlikely to be sympathetic to any late application that has the effect of raising any new dimension or focus, especially when opportunity has been given to the applicant under previous case management directions/timetables to put forward the fullness of his case. After all, such application when made close to or at the assessment hearing is more than likely to cause real prejudice because the other party will have to suffer shifting of the goalposts with little or no time before or at the milestone event to react or alternatively to suffer unwarranted delay and costs. 59.As I have said, late applications should be rare occurrences after the CJR as a result of proactive case management and short-scheduling techniques adopted by the court prior to the assessment of damages. But should such rare event happen (as in the present case) and should the court even more rarely favour the applicant with the indulgence sought, the court will be astute to draw on the full armoury of powers in the RHC under the CJR to ensure that the respondent will not be prejudiced and that the applicant is kept on the straight and narrow with a tight timetable of confined steps to be taken. An example of the exercise of such powers can be seen in paragraphs 63-68 below. Further, in appropriate cases, the court may impose wasted costs order. V. Directions 60.Consequently, I granted the following directions at the Hearing:
61.Pursuant to the above directions, Ms Lau handed to the court and gave to Mr Cheuk written revisions to the 2nd Defendant’s Answer in response to the Further Revised Statement of Damages. In the written revisions, the 2nd Defendant made a number of concessions and spelled out his objections to various newly revised pleas in the Further Revised Statement of Damages. Mr Cheuk had no objections to such written revisions to the 2nd Defendant’s Answer. 62.I pause here to note that although the English Statement of Truth in the redacted Statement conforms to the statutory form in Order 41A rule 5(2) of the RHC, the translation clause for such Statement of Truth does not conform to the form in paragraph 5 of PD19.3. In this case, there was less concern because the Plaintiff verified the contents of the redacted Statement on affirmation when he gave evidence. However, practitioners and litigants should take note that non-compliance with the requirements as to statement of truth under Order 41A of the RHC may render the witness statement inadmissible in evidence unless otherwise ordered by the court (see Order 41A rule 7 of the RHC). 63.It should be further noted that in granting leave to the Plaintiff to file and serve the redacted Statement for use at the assessment of damages, I have imposed 2 conditions, namely, (a) there being no further leave for the Plaintiff to amplify the redacted Statement pursuant to Order 38 rule 2A(7)(b)(i) of the RHC and (b) time for examining the Plaintiff in chief when he is called to give evidence be limited to 20 minutes. 64.At issue here is the quantum of damages to which the Plaintiff is entitled. As evident from the concessions made in Ms Lau’s written revisions to the 2nd Defendant’s Answer, the Plaintiff is clearly entitled to some damages. It is perhaps recognition of the Plaintiff’s entitlement to prove his claim for damages that the 2nd Defendant very fairly did not resist the redacted Statement. But notwithstanding such laudable approach, it remains the duty of the court to be fair not only to the Plaintiff but also to the 2nd Defendant. 65.The primary function of the justice system is the fair adjudication of cases. In the administration of justice, apart from substantive fairness, fairness and justice of the litigation procedure is also a necessary component, and hence the court must be vigilant to ensure procedural fairness. 66.Since the redacted Statement was to be filed/served so late in the day, there should not be any further shifting of goalposts and the Plaintiff should commit himself to the case he now sought to present to the court. Any further laxity if permitted would be unfair to the 2nd Defendant. To ensure procedural fairness, the leave granted to the Plaintiff to rely on the redacted Statement should therefore be subjected to appropriate procedural constraints. 67.Order 38 rule 2A(7) of the RHC provides as follows:
Since the Statement was prepared and served on the eve of the Hearing, there would hardly have been any new matters that have arisen since then. Further, such Statement was plainly prepared upon consideration not only of all documents discovered by both the Plaintiff and the 2nd Defendant, but also after taking into account the RSOD and the 2nd Defendant’s Answer thereto. In the circumstances, I see no basis for the Plaintiff to further amplify the redacted Statement when called to give evidence. 68.To further bolster such limitation, the court also exercised its new post-CJR power under Order 35A rule 3A(1)(a) of the RHC to direct that the time to be taken in examining the Plaintiff in chief be limited to 20 minutes. In doing so, I took into account the factors in Order 35A rule 3A(2) of the RHC, and came to the view that given the lateness of the redacted Statement (which should already have taken into account all facts and developments up to the eve of the Hearing) such direction would not detract from the principle that each party was entitled to a fair trial. VI. Costs 69.The Summons asked for costs in the cause. Such stance was plainly not maintainable, and Mr Cheuk conceded as much. The Statement, the Documents and the Summons were very late, and as I have found there was no good reason for the lateness. The Plaintiff came to the court for indulgence, and must bear the price. I therefore ordered the Plaintiff to pay the 2nd Defendant costs of and occasioned by the Summons with certificate for counsel. For the avoidance of doubt and to assist the taxing master, I apportioned 2 hours 40 minutes of the Hearing time for such application. 70.Upon enquiry by the court as to whether the parties were prepared to proceed with gross sum assessment of costs of and occasioned by the Summons, both Mr Cheuk and Ms Lau jointly proposed that such issue be left over until the end of the hearing for the assessment of damages for further consideration. VII. Medical records in Chinese manuscript 71.By the CLR Order dated 1 February 2007, Master B Kwan directed that a composite bundle of medical records was to be agreed between the parties, fully paginated and indexed, with any original illegible entries in typed transcribed form in addition to the original entries and lodged with the court with the Bundle and separate therefrom. 72.On 30 September 2009, I raised inter alia the following written requisitions with both parties:
73.Mr Cheuk agreed that some of the medical records in Chinese manuscript were legible and some were not. However, he did not offer any explanation for the Plaintiff’s failure to prepare typed transcribed form in respect of the illegible parts of such medical records in breach of the CLR Order dated 1st February 2007. I expressed concern over the evidential value of such medical records in Chinese manuscript when there would be a real risk that ignorance of the illegible portions of any such medical record might lead to interpretation of the legible portions out of context. 74.Mr Cheuk then submitted that if leave were granted for the Plaintiff to file and serve and to rely on at least paragraphs 2(1)-(9) and (11) of the Statement, the Plaintiff would not rely on the medical records in Chinese manuscript in the Bundle for the purpose of the assessment of damages. He maintained such stance notwithstanding that paragraphs 2(5)-(7) of the Statement were redacted. Ms Lau also agreed that the relevant medical records be expunged from the Bundle. 75.In the circumstances, the parties by consent agreed (and I therefore directed) that pages 94-110, 120-126, 223, 235, 240 and 244 of the Bundle (being medical records in Chinese manuscript) be expunged from the Bundle, and such documents shall not constitute evidence before the court for the purpose of assessment of damages. VIII. Disputed items of the Bundle 76.There is a section in the Bundle containing disputed items. Upon my enquiry with Mr Cheuk as to why the documents under items 96-105 and 109 of the Index, which included the Defence of the 1st Defendant and various documents/photographs from the police and others concerning the issue of liability, were in the Bundle at all for the purpose of assessment of damages, Mr Cheuk confirmed that the Plaintiff would not rely on those documents. 77.In the circumstances, I directed that the documents in items 96-105 and 109 of the Index (i.e. pages 259-281 and 291-308 of the Bundle) be expunged, and such documents shall not constitute evidence before the court for the purpose of assessment of damages. Various CLR Orders suggested there was collaboration between the parties over the preparation of the Index and the Bundle, so I further directed that costs of the preparation of items 96-105 and 109 of the Index (i.e. pages 259-281 and 291-308 of the Bundle) and pages 94-110, 120-126, 223, 235, 240 and 244 of the Bundle, and costs of and occasioned by inter partes communications and correspondence in relation to the inclusion/ exclusion of such items/pages in the Index and/or the Bundle be to the 2nd Defendant in any event to be taxed if not agreed. IX. Postscript 78.With the above matters cleared up, the hearing proper for the assessment of damages commenced in the afternoon of the Hearing. Only 1 day was reserved for the assessment of damages, but due to the time spent on the Summons, Ms Lau was still cross-examining the Plaintiff by the end of the Hearing. The assessment hearing was adjourned part-heard to 1 December 2009 at 10:00 am with 1 day reserved.
Mr Calvin Cheuk instructed by Messrs. Edwin Yun & Co for the Plaintiff. Ms Julia Lau instructed by Messrs Deacons for the 2nd Defendant. |
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