Park Leung Tai Woon v. Leung Tai Sing

DCCJ 953/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 953 OF 2011

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D E C I S I O N

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1.This is the plaintiff’s application for leave to re-amend her Amended Statement of Claim. The summons was issued on 8 April 2013, being the date of the 2nd Pre-trial Review. That date is less than one month before the scheduled commencement of the trial (ie 6 May 2013).

2.The proposed amendments involve a wholesale abandonment of her original claim and the introduction of 2 completely new claims.  The plaintiff’s counsel, Mr Ross Yuen, admits in his skeleton that the 2 new claims are based on completely different causes of action from the original claims. 

3.As for the relevant legal principles, Deputy High Court Judge Lok in Li Shiu To v Li Shiu Tsang, HCA416/2003 (Reasons for Decision dated 14 August 2012) gave useful guidance on the impact of the Civil Justice Reform on the question of amendment of pleadings:

“16. I agree that the Ketteman principles remain good law after the CJR, but I must put a caveat here. First, the new Order 1A of the RHC makes it clear that the court shall give effect to the underlying objectives when it exercises its power or interprets the RHC, including increasing costs-effectiveness of litigation, ensuring that a case is dealt with as expeditiously as is reasonably practicable, promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings, facilitating the settlement of disputes and ensuring that the resources of the court are distributed fairly. If the amendment application is made in circumstances offending these underlying objectives, the court may have to balance all the factors in the case in determining whether to grant the application.

17.  Second, there is a heightened concern to guard against late applications after the implementation of the CJR.  For case management purposes, there are now certain milestone dates in the course of litigation, and one of which would be the trial date.  If a party makes a late application to amend the pleading with the effect that the trial date may have to be adjourned, the court would be very reluctant in allowing the application unless there are exceptional circumstances.  Indeed, adjournment of the trial is now considered as a serious prejudice to the parties involved in litigations.  Hence, one should not assume that once the Ketteman principles are satisfied, the court would automatically grant an application for amendment of pleading in particular at a very late stage of the proceedings.”

4.Mr Ross Yuen put forward the following in support of the application:

(1)     The claim for money had and received was only spotted in January 2013 after the plaintiff appointed her accountant to go through the court documents in about November 2012;

(2)     The claim for misrepresentation was only discovered from the defendant’s Supplemental Witness Statement filed on 31 October 2012;

(3)     The new claims are closely connected with, if not arising from, the subject matter of this action, that is the administration of the plaintiff’s finance by the defendant;

(4)     The misrepresentation claim goes directly to the same issue and it is by and large enough to set off the two heads of counterclaim; and

(5)     The claim for money had and received is also of the same nature as the counterclaim of the defendant.

5.In conclusion, Mr Yuen submitted that there is good reason for the delay of the application, no fault on the part of the plaintiff, a good prima facie case, and there is no significant prejudice caused to the defendant which can be in any event compensated by costs, and the plaintiff asks the court to allow the application.

6.Against the plaintiff’s position:

(1)     If the amendments were to be allowed, both parties agree that the trial will have to be adjourned, a milestone date has to be vacated;

(2)     Leaving aside the question of merits, the new claims can conveniently be the subject of a new action.  Indeed the defendant by his counsel has given an undertaking to the court not to raise the defence of res judicata should the plaintiff commence a fresh action in relation to the claims as set out in the proposed Re-amended Statement of Claim.  

7.In the circumstances, I am not satisfied that there are exceptional circumstances to permit the amendment of pleadings which will have the effect that the trial dates will have to be adjourned.

8.The defendant’s case is that the plaintiff should be aware of these new claims much earlier than admitted.  But even on the plaintiff’s case, the claim for “money had and received” was “spotted” in mid-January 2013, and the claim for “misrepresentation” was disclosed when the plaintiff saw the copy of the cheque stub in the defendant’s Supplemental Witness Statement filed on 31 October 2012.  Had the new claims been raised in January 2013, the trial dates could well have been salvaged.  I see no reason why these late amendments should be applied for only in April, which will undoubtedly hijack the imminent trial.  In the circumstances, the summons is dismissed.

(Discussions re costs)

9.I order that costs of the summons be paid by the plaintiff to the defendant in any event, to be taxed if not agreed, with certificate for counsel.

Mr Ross Yuen, instructed by Jackson Ho & Co, for the plaintiff

Mr Desmond Leung, instructed by Deacons, for the defendant