Read the full judgment text of CACV 000148/1996 on BabelCite. This Court of Appeal judgment was delivered on 22 January 1997 before Litton V-P, Godfrey JA, Liu JA.
Civil procedure – Limitation of actions – Personal injury/fatal accident claims – Limitation Ordinance (Cap 347) sections 27, 28 and 30 – Deceased sailor drowned when dumb barge 'Shui Nam No. 1' sank under tow on voyage from Hong Kong to Macau in November 1987 – Plaintiffs issued writ in November 1990 against barge owners (1st defendants) – Barge owners filed Third Party Notice in February 1991 against charterer Eastern Worldwide Co. Ltd. (2nd defendant) and tug owner Cheng Sau Mui (3rd defendant) – Plaintiffs only learned of the charter from the Third Party statement of claim – In 1996 plaintiffs applied to add 2nd and 3rd defendants, more than three years out of time – Application to override limitation periods under s.30(1) granted by Cheung J – Whether judge erred in exercise of discretion – Held: appeal dismissed – Section 30(1) requires court to balance degree of prejudice to plaintiff and defendant – Judge's failure to expressly address s.30(1)(a) not fatal in light of obvious prejudice to plaintiffs and absence of real prejudice to defendants – In Liff v. Peasley [1980] 1 WLR 781, plaintiff had a cast-iron case against 1st defendant and was held not prejudiced by being unable to pursue 2nd defendant, but present case wholly different – Plaintiffs unaware of charter when writ issued, and Third Party pleadings placed responsibility on 2nd defendant – Issues between 1st defendant and 2nd and 3rd defendants had been litigated in the same action since June 1991, so adding them as defendants would cause no real prejudice – Whether equitable to override limitation is matter for trial judge, and discretion was properly exercised – Appeal by Eastern Worldwide Co. Ltd. dismissed.
Legal issues: Exercise of discretion to override limitation periods under s.30 Limitation Ordinance
Outcome: Appeal dismissed; the judge's order allowing the plaintiffs to add the 2nd and 3rd defendants out of time was upheld.