Read the full judgment text of HCA 3541/1993 on BabelCite. This Court of First Instance judgment was delivered on 8 February 2011 before Fok JA (sitting as an additional Judge of the Court of First Instance).
Civil procedure – dismissal for want of prosecution – inherent jurisdiction of court – inordinate and inexcusable delay – substantial risk of unfair trial – serious prejudice – abuse of process – Civil Justice Reform – underlying objectives under O.1A – active case management – costs – land trespass action – registered owner claiming vacant possession, injunction and damages – defendants asserting adverse possession under s.17 of the Limitation Ordinance (Cap. 347) – whether plaintiff guilty of inordinate and inexcusable delay from October 1996 to February 2009 (12-year period) – held yes but the earlier period was waived or acquiesced in by the 4th and 5th defendants through their amendment application and consolidation proposal – whether inordinate and inexcusable delay from February 2009 to July 2010 (17-month period) – held yes and no good excuse shown – whether the delay gives rise to a substantial risk that a fair trial is not possible or causes serious prejudice – held no given the exceptional circumstance that the same adverse possession issues will be tried in any event in the 5th defendant's counterclaim (and plaintiff's counterclaim to counterclaim) and in the related HCA 2160/2007, with the benefit of s.35(1) of the Limitation Ordinance – whether the plaintiff's conduct constitutes an abuse of process under Grovit v Doctor – held no because the plaintiff was waiting for the defendants' decision on consolidation and was not merely warehousing the action – appeal allowed – Master's order dismissing the action set aside – application to dismiss for want of prosecution dismissed – costs of the appeal and of the application to be the plaintiff's costs in the cause reflecting the court's strong disapproval of the delay – certificate for two counsel granted – parties to attend before the listing clerk within 14 days for a Case Management Summons in this action and in HCA 2160/2007 – active case management to follow
Legal issues: Whether the plaintiff was guilty of inordinate and inexcusable delay · Whether delay gives rise to substantial risk of unfair trial or serious prejudice · Whether the plaintiff's conduct constituted an abuse of process
Outcome: Plaintiff's appeal allowed; the Master's order dismissing the plaintiff's claim against the 4th and 5th defendants for want of prosecution and as an abuse of process was set aside; the 4th and 5th defendants' application to dismiss the action for want of prosecution was dismissed