Cinerent Ltd v. Gan Assurances Iard Compagnie Francaise D' Assurances Et De Reassurances Incendie Accidents Et Risques Divers

HCA 593/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.  593 OF 2009

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BETWEEN

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Before: Mr Recorder Patrick Fung, SC in Chambers

Date of Hearing: 14 December 2009

Date of Ruling: 14 December 2009

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R U L I N G

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1.I will give brief reasons for my ruling. The writ in this action was issued on 3 March 2009. The writ has not been served on the Defendant. According to the Plaintiff, the writ was issued as a protective writ. The Plaintiff applies for an order to backdate the writ to 2 March 2009 because there may be a contractual limitation point involved in the case.

2.On the evidence, on 2 March 2009, the Plaintiff’s solicitor’s clerk went to the Registry of the High Court for the writ to be issued. It was already very late, I believe, some time shortly after 4:30 p.m.. The clerk at the counter of the Registry, having inspected the draft writ and saw that no amount of damages was specified in the draft writ, said to the solicitor’s clerk something to the effect that the claim should exceed HK$1 million in order for it to be issued in the High Court. She asked the solicitor’s clerk whether that was the position and the solicitor’s clerk rang back to his principal and ascertained that the claim was over HK$1 million.

3.The solicitor spoke to the clerk at the Registry by telephone and confirmed that that was so. The clerk at the Registry asked whether there was any letter accompanying the draft writ to show that the claim was over HK$1 million. Eventually, the fee for the issue of the writ was paid (according to what was printed on the issued writ) at 4:49 p.m. on 2 March 2009. That fee in the sum of HK$1,045 was not refundable.

4.Although the solicitor for the Plaintiff eventually decided and intended to fax a letter to the Registry to confirm that the claim would be over HK$1 million. By that time, the Registry had closed and nothing further could be done. Thus, the writ was only issued on the next day, that is, 3 March 2009.

5.Subsequent enquiries by the Plaintiff’s solicitors with the Registry of the High Court, resulted in the Registry confirming that there was actually no requirement for a letter to the effect that the claim was over HK$1 million to accompany the draft writ before the same could be issued. In fact, the Registry has no power to refuse to issue a writ unless it is a case where leave of the court is required for the issue of the writ or where the writ is illegible, meaningless or abusive.

6.Thus, it is clear that the writ in the present case should have been issued by the Registry on 2 March 2009. I have been referred to a number of authorities by Mr Sakhrani, Counsel acting for the Plaintiff. I have looked at the case of Riniker v University College of London [1999] All ER(D) 371. I am satisfied that in an appropriate case, the court can exercise its inherent jurisdiction in ordering the backdating of a writ of summons. In the present case, it is clear that it was no fault on the part of the Plaintiff that the writ was not issued on 2 March 2009, but instead it was issued on the next day. It is also clear that the Registry of the High Court should have allowed and arranged for the writ in the present case to be issued on 2 March 2009.

7.The Plaintiff gave notice of the present application to the Defendant about two weeks ago. Nothing was done by the Defendant until 11 December 2009 (last Friday) when a letter was sent by Messrs Cheng, Yeung & Co., acting on behalf of the Defendant. The letter sought to persuade the court that the Plaintiff’s application should not be dealt with as a pure administrative issue on an ex parte basis and in isolation from the substantive hearing of the limitation issue where both parties would have a fair chance to address the court on the background and all relevant facts of the matter fully.

8.As it turned out this morning, there was nobody appearing on behalf of the Defendant to make any application. The Defendant’s solicitors sent a trainee solicitor to attend court just for the purpose of taking notes. Thus there was no argument presented on behalf of the Defendant other than what is written in the said letter from Messrs Cheng, Yeung & Co..

9.Originally, I was minded not to grant the Plaintiff’s application, but to make an order that the Plaintiff should serve the writ on the Defendant and then take out an inter-partes application for the same relief as soon as possible. After hearing argument by Mr Sakhrani and upon further consideration, I have come to the view that I should grant the Plaintiff’s application. To adopt the course originally contemplated by me would in a way prejudice the Plaintiff, because the Plaintiff would then be obliged to serve the writ on the Defendant; the same would no longer serve the purpose of being just a protective writ.

10.Furthermore, as far as I can see, there does not seem to be any good reason which the Defendant will be able to advance to oppose the application. I do not think that any argument about the construction of the insurance policy in question and any limitation point can be of relevance to the present application.

11.I therefore exercise my discretion and grant the Plaintiff’s application. I order that the writ although issued and dated 3 March 2009 should be deemed for all purposes to have been issued on 2 March 2009.

12.I reserve the costs of this morning’s application.

Mr Ashok Sakhrani and Mr Donald Leo, instructed by Messrs Cheung & Liu, for the Plaintiff

The Defendant, in person, absent