Wheeler Enterprises & Engineering Ltd v. Hu Mei, Windy

DCCJ3210/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3210 OF 2002

(Transferred from High Court Action No. 1562 of 2001)

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BETWEEN

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Before: Her Honour Judge H C Wong in Chambers (Open to the public)

Date of Hearing: 13 October 2010

Date of Delivery of Decision: 13 October 2010

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D E C I S I O N

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1.The defendant applied to strike out the plaintiff’s claim under Order 18, rule 19 and Order 34, rule 2 of the Rules of District Court and the inherent jurisdiction of the court. The summons was taken out on 9 July 2010. There followed a series of correspondence between the parties on the plaintiff’s request(s) for time to file an affidavit in opposition. By consent, the plaintiff was given an extension of 28 days to file an affidavit on 15 July 2010. This was further extended by the master on 12 August 2010 for 21 days. To date, no affidavit or affirmation in opposition has been filed.

2.Solicitors who represented the plaintiff, Messrs Roland Chow, Chan & Co., applied to Master Pang, asking to be discharged from representing the plaintiff, the application was granted on 27 September 2010.  The plaintiff is now acting in person.

3.The defendant proceeded to fix a hearing for the summons.  The hearing bundle and covering letter was served on the plaintiff at its registered address, the plaintiff failed to appear at today’s hearing.

4.At today’s hearing, Miss Yiu representing the defendant referred me to various correspondences the defendant’s solicitors had exchanged with the plaintiff’s solicitors, namely, those in December 2009 and January 2010, reminding the plaintiff of its inaction in these proceedings since 23 December 2005, the date the plaintiff filed a witness statement.  In the same letter, the defendant’s solicitor asked the plaintiff to discontinue the action, in return, the defendant would discontinue her counterclaim against the plaintiff.  There was little response from the plaintiff’s solicitor except a letter to say they were waiting for their client’s instructions. 

5.On 18 March 2010, the defendant’s solicitors wrote again to the plaintiff’s solicitors, referring to their previous letters and the plaintiff’s failure to take any steps to proceed with the action with a further request to the plaintiff to set down the case for trial, failing which the defendant would take out an application to strike out the action; hence, the summons on 9 July 2010 because nothing further had been done by the plaintiff.  Due to the inaction, the defendant took out the present summons to strike out.

6.The main ground of the defendant’s application is the plaintiff’s want of prosecution, its failure to proceed with the action after four and a half years.  Miss Yiu referred me to a number of authorities, including the Hong Kong Court of Appeal case of New China Hong Kong Group Limited v AIG Asian Infrastructure Fund LP [2005] 1 HKLRD 383 where the Court of Appeal in Hong Kong examined the doctrine of abuse of process and referred to the English House of Lords’ case of Grovit v Doctor [1997] 1 WLR 640, paragraph 13 of Woo VP’s judgment, he held:

“While inordinate delay was to be viewed more seriously by the courts thenceforth, as is apparent from Lord Woolf’s warning, it does not mean that mere delay, without more, would amount to abuse of process. This was recognised by Lord Woolf, who referred to two decisions to that effect. See Arbuthnot Latham Bank Limited v Trafalgar Holdings Limited [1998] 1 WLR 1426 at pages 1432H to 1433E. In Barclays Bank Plc v Maling & Another [1997] EWCA Civ 1482 (28 April 1997), following Teale v McKay [1994] PIQR 508, Aldous LJ stated:

‘That case is a clear indication that mere delay, whether or not caused by incompetence, cannot amount to an abuse of process which will enable an action to be struck out. What is needed is disregard of the court’s orders. It may be that deliberate as opposed to negligent disregard may not be required (see Hytec Information System Ltd. v Coventry City Council [1997] 1 WLR 1666).’

14. The other case to which Lord Woolf referred to is Culbert v Stephen G Westwell & Company Limited & Another [1993] PIQR 54, where Parker LJ said at pages 65 to 66:

‘An action may also be struck out for contumelious conduct, or abuse of the process of the court or because a fair trial in action is no longer possible. Conduct is in the ordinary way only regarded as contumelious where there is a deliberate failure to comply with a specific order of the court. In my view, however, a series of separate, inordinate and inexcusable delays in the complete disregard of the rules of the court with full awareness of the consequences can also properly be regarded as contumelious conduct or, if not that, to an abuse of the process of the court.’

15. The passage of Parker LJ’s judgment was followed in Choraria Sethia [1998] CLC 625 where Nourse LJ, after referring to Birkett v James [1978] AC 297 and Grovit v Doctor [1997] 1 WLR 640, stated at page 630F:

‘The law may therefore be stated thus. Although inordinate and inexcusable delay alone, however great, does not amount to an abuse of process, delay which involves complete, total or wholesale disregard, put it how you will, of the rules of court with full awareness of the consequences is capable of amounting to such an abuse, so that, if it is fair to do so, the action will be struck out or dismissed on that ground.’

16. Again, as I see it, Parker LJ was identifying another way of constituting an abuse of process or contumelious conduct, which is a series of inordinate and inexcusable delays in complete disregard of the rules of the court and with full awareness of the consequences. Despite the court being satisfied that the plaintiff’s conduct amounts to an abuse in the manner described, as Nourse LJ observed, it is still necessary for the court to consider whether it is fair to strike out the action.

17. It is with the recently developed law in mind that I proceed with the examination of the judge’s decision.  In particular, it is necessary to examine the evidence of this case to see whether or not, apart from inordinate and inexcusable delay on the part of the plaintiffs in disregard of the rules of the court, there was full awareness on their part of the consequences, so that their conduct or inaction can properly be regarded as contumelious conduct or an abuse of the process of the court.”

7.Miss Yiu also referred me to the post-CJR position.  The spirit of CJR is clear, it is not necessary at this stage to cite any further authorities on the post-CJR position.  Needless to say, the conduct of the plaintiff and its former solicitors in failing to comply with the court’s order, namely, the order of Master K W Wong (as he then was) in 3 March 2004 is sufficient evidence of the plaintiff’s abuse of court process.

8.The want of prosecution for five years in spite of repeated warnings and urgings from the defendant is apparent.  The correspondences referred to by Miss Yiu between the parties showed clearly the plaintiff’s solicitors knew exactly what was at stake.  They knew and claimed that they were not able to take instructions from their lay clients.  That probably was the main reason for the solicitors of the plaintiff obtaining a discharge from representing the plaintiff in September this year.

9.Even though the plaintiff’s former solicitor did inform the defendant’s solicitor that they were able to reach their client but were unsuccessful in obtaining instructions on the application to strike out, this is simply not a good enough reason for the inaction.  In fact, there was a further delay after the defendant wrote in December 2009 and January 2010 to the plaintiff’s solicitor and the plaintiff’s solicitors still failed to take the proceedings seriously. In spite of warnings from the defendant, the plaintiff did nothing, I find it difficult to believe that for almost a whole year, 10 months to be exact, the plaintiff’s solicitor was unable to obtain any clear instructions from the plaintiff. I accept the hearsay evidence on the affidavit that the defendant’s solicitor was told the plaintiff told its then solicitor not to do anything further in the action.

10.The inordinate and inexcusable delay in spite of the warnings from the other side and in the face of an order from the court giving them a timetable to proceed with the proceedings is the type of conduct that the courts do not tolerate even in the pre-CJR era, not to mention the post-CJR era.

11.On the aforesaid basis, I am satisfied that the defendant has shown the plaintiff has abused the process of court with its failure to comply with the court order and for the long delay without good reasons.  It has been over nine years since the writ of summons was issued by the plaintiff, 10 years or more since the events the plaintiff complained of took place.  Clearly, it would not be fair and it would be prejudicial and embarrassing for a fair trial of the action to take place due to the excessive delay and inaction on the part of the plaintiff.  I therefore grant an order in terms of the defendant’s summons.

(Discussion re counterclaim, costs and certificate for counsel)

12.Leave to the defendant to withdraw the counterclaim with no order as to costs, costs of this application and today’s hearing against the plaintiff on an indemnity basis with certificate for counsel.  The defendant’s own costs to be taxed in accordance with Legal Aid Regulations.

Plaintiff, in person, absent

Ms Elsie Yiu, instructed by Messrs Boase, Cohen & Collins, assigned by Director of Legal Aid for the Defendant