Read the full judgment text of HCCT 9/2005 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 5 March 2012 before Hon Au J.
Procedure — striking out for want of prosecution — inordinate and inexcusable delay — prejudice to fair trial — abuse of process — Birkett v James principles applied. Plaintiff claimed approximately $3 million for alleged late completion of works, defendant counterclaimed over $1 million for unpaid approved variations. Master Ho directed exchange of witness statements by January 2005 but no statements were filed; a delay of over six years ensued with no activity from both parties. Plaintiff alleged serious prejudice due to inability to locate three key witnesses who left employment around 2004–2005. Court accepted the delay was inordinate and inexcusable but found no sufficient evidence showing that defendant’s delay caused prejudice; plaintiff failed to preserve contact with key witnesses and did not demonstrate prejudice attributable to defendant’s conduct. Plaintiff’s own delay in prosecuting its claim also inferred acquiescence of defendant's inactivity. Applying Wing Fai and Johnson Controls decisions, court exercised discretion not to strike out the counterclaim. Application denied.
Legal issues: Strike out for want of prosecution
Outcome: Application to strike out the defendant’s counterclaim for want of prosecution refused
Cited by 2 cases · Cites 1 case