Chow Chiu Cheung v. Hans Joachim Bernick and Another
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 371 OF 1969 ----------------- BETWEEN
----------------- Coram : Leonard J. Date : 6 January 1972 ------------------------ J U D G M E N T ------------------------ 1. This is an appeal against a decision of Mr. Assistant Registrar B.L. Jones given on the 4th of November 1971 ordering that the judgment therein against the 1st defendant dated the 16th July 1969 and the assessment of damages of the 18th January 1971 be set aside, and granting leave to the American Home Assurance Company by their agent the American International Underwriters Ltd. (“the company”) to enter an appearance in the name of the 1st defendant or in their own name and to defend the action. At the outset the solicitors for the plaintiff applied for leave to adduce fresh evidence at the hearing of the appeal. The application for leave to adduce fresh evidence was resisted. As an appeal from the Registrar to a Judge in Chambers is dealt with as an actual rehearing of the application which led to the order on appeal and as it is common practice for the Judge in Chambers (subject, of course, to the question of costs) to admit further or additional evidence by affidavit to that which was before the Registrar, I allowed the application and read the new affidavits. 2. The history of this matter is shortly as follows: the plaintiff, a spinster aged 23, was on the 5th May 1968 knocked down by a motor vehicle driven by the 2nd defendant and owned by the 1st defendant while crossing Wong Chuk Hang Road, Aberdeen and she suffered personal injuries. She was in hospital for one month and suffered ill effects for a period thereafter. On recovery she sought to enforce a claim in negligence against the driver of the car the 2nd defendant and was referred by the 2nd defendant to the company. The writ was issued on the 28th March, 1969 and on the same day a notice of proceedings was given to the company pursuant to section 10 of the Motor Vehicle Insurance (Third Party Risks) Ordinance No. 39 of 1951. Efforts to serve the writ proved unavailing. The plaintiff’s solicitors then wrote to the company asking for the address of the defendants and the company replied: “For your information private motor car No. HK 254 is no longer insuredwith theAmerican Home Assurance Company and it is regretted therefore that we are unable to advise you of the present address of either of the defendants in the said action.” Thereupon the plaintiff sought an order for substituted service and an order for substituted service on the 1st defendant was duly made. Interlocutory judgment in default of appearance was entered against the 1st defendant on the 16th July 1969. On the 20th of September 1969 an order was made to serve a concurrent summons on the 2nd defendant in Germany. This service proved impossible to effect. The solicitors for the plaintiff then sought to have damages assessed against the 1st defendant. Substituted service of the notice of assessment of damages was duly effected and on the 25th January 1971 the company was informed that damages had been assessed at the figure of $14,810 comprising $7,310 as special damages and $7,500 as general damages with interest at 8% per annum from the 5th of May 1968 to the 18th January 1971. The attitude of the plaintiff solicitors in entering judgment and having damages assessed without reference to the company was almost certainly prompted by the fact that as early as the 11th April 1969 the company had indicated to the plaintiffsolicitors that they would look into the matter only when the writ has been served on their insured. They were, to say the least, unhelpful to the solicitors for the plaintiff when the latter sought to effect service. 3. In the letter of 21st January 1971 to the company the solicitors for the plaintiff inquired whether the company was prepared to satisfy the judgment which had been obtained, failing which, they stated, their client would have no alternative but to commence separate legal proceedings on the judgment against the company. They received no reply to this letter and sent a reminder on the 9th of February 1971. On the 10th March 1971 the solicitors for the insurance company wrote to the solicitors for the plaintiff in the following terms;
The solicitors for the insurance company did not write to the solicitorsfor the plaintiff as impliedly promised and the matter rested. In May 1971the plaintiff left the colony to further her studies in the United Statesof America where she now is. She intends to remain there for a period ofthree years. On the 16th September 1971 without any prior notification the solicitors for the plaintiff were served with an application in the name of the defendants inter alia for the interlocutory judgment dated the 16th July 1969 and the assessment made on the 18th January 1971 to be set aside. This application was heard on the 18th of October 1971 and on the 4th November 1971 the Assistant Registrar gave the decision the subjectof this appeal. 4. The plaintiff is a legally aided person and is now in the United States and is not in aposition to bear the expenses or inconvenience of returning to Hong Kong to contest the action at a new hearing nor can she bear the expense of arranging to have her evidence taken before a special examiner in the United States of America. Indeed she is fully dependent on her parents. It will also be noted that the company took no step to set aside the judgment for a period of over seven months namelyfrom the 25th January 1971 to the 16th September 1971. 5. There is no doubt that the company has a direct interest in setting aside the judgment and before the Registrar reliance was placed by counsel for the insurance company on Windsor v. Chalcraft ([1939] 1 K.B. 279). Thefacts there were similar to those in this case. However a comparison ofthe dates on which steps were taken is illuminating. In Windsor v. Chalcraft (supra) the accident occurred on the 5th December 1936. The writ was issued on the 22nd October 1937. Notice was given to the insurance onthe 26th October 1937. The writ was served on the 23rd November 1937. Judgment in default of appearance was entered on the 8th December 1937.Damages were certified on the 12th January 1938 and notice to the insurers was given on the 1st February 1938. The insurers brought their application to set aside the judgment on the 3rd March 1938. In the instant case the accident occurred on the 5th May 1968. The writ was issued on the 28th March 1969. Notice was given to the insurers on the same day. Judgmentin default was entered on the 16th July 1969 but damages were not assessed immediately because the solicitors for the plaintiff wished to serve the2nd defendant but found it impossible to do so. The Underwriters were notifiedon the 25th January 1971, the Registrar having given his decision as to damages on the 18th January 1971 but not having issued his certificate until the 24th February 1971. It will be noted that the plaintiff was still in this jurisdiction up to the 25th May 1971 that is a period of4 months after the insurance company had received notice of the assessment. The learned Registrar may have been misled by the headnote to Windsor v. Chalcraft (supra) which reads in part:
Lord Justice McKinnon states at page 293:
The rule itself is permissive only. Order 13 rule 9 reads:
The same expression revealed in Order 15 rule 6(2) which empowers the courts to order persons to be joined as parties “whose presence beforethe court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and judicated upon.” Having regard to the use of these words I have no hesitation in deciding that I have a discretion and that Windsor v. Chalcraft is notintended to decide otherwise. My attention was also drawn to Gurtner v. Circuit ([1968] 2 Q.B. 587) a case in which the Motor Insurance Bureau immediatelyon receipt of the statutory notice of the commencement of proceedings successfully applied to be joined as a party. That course was opento the company in this case. They failed to follow it. They alsofailed for a period of 7 months after receiving notice of final judgment to apply to set aside or to be joined. In view of the delay of thecompany in bringing this application and in view of the manifest prejudice …(illegible) which will be suffered by the plaintiff which would not have been presenthad the company acted in good time I have no doubt that I should …(illegible) that discretion in favour of the plaintiff. Admittedly the …(illegible) prejudiced by my action but to a large extent it is the author …(illegible) own prejudice. It could have taken steps to have itself joined …(illegible) party as soon as it obtained information that a writ has been issued, as the motor insurance bureau did in the case of Gurtner v. Circuit (supra). Alternatively it could have taken steps to have the judgment set aside and to have itself joined as a party immediately it was informed of the assessment of damages. It failed to do so for a period ofeight months. Diring that eight months the plaintiff, a legally aided person, went abroad relying on the fact that she had her judgment andthat no steps had been taken to set it aside so that it could be executed on or further proceedings taken against the insurance company to enforce it. In these circumstances I consider it would be a manifest injusticeto deprive the plaintiff of her judgment, 6. The plaintiff failed to indicate to the Registrar the nature of the prejudice which she would suffer if the judgment was satisfied. Heradvisers also failed to bring to the Registrar’s attention the fact that she had left the jurisdiction and could only return at very considerable expense and inconvenience. Having regard to this and to the fact that I permitted fresh evidence to be given before me I consider that the plaintiff although successful should not be allowed the costs of the appeal. Accordingly I order that the plaintiff be given the costs before the Registrar but that each party should pay their own costs of the appeal. 7. As the plaintiff was legally aided I further order that the plaintiff’s costs of the proceedings will be taxed for the purposes of the appeal on such taxation.
S. V. Gittins, Q.C. & P. Lee (Woo & Kwan) for the plaintiff. …(illegible) (H. H. Lau & W. S. Lo) for the defendants. …(illegible) reduced into writing. |