Tulsiani Ramesh Jhamandas v. Lalwani Prem Khemchand

HCA 261/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 261 OF 2012

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R U L I N G

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1.This is another late application for putting in amendments to pleadings and further witness evidence, which is something which I would have expected to be a rare occurrence after the CJR. Reasons have been put forward for the delay, but in my view none of them are good reasons.

2.The defendant was and is legally represented by solicitors, and Mr Chain himself has appeared for him in a previous hearing.  The defendant has the benefit of legal advice and, therefore, must understand he should put forward his case at an earlier stage than after setting down for trial.

3.Leave for setting down was given in March last year.  The case was set down in June.  No attempt was made to alert the other party of the need for the present application until January this year, and no drafts were provided until yesterday. 

4.The plaintiff could hardly take instructions on mere intimation by the defendant of his intention to adduce further evidence to be provided at some further time.  This is not how litigation should be conducted, and there is simply no good reason for the delay. 

5.But that said, the court must exercise its discretion bearing in mind the just determination of the dispute between the parties. 

6.The defendant will not adduce further documents.  Some explanations and an expanded version of his case – or as Mr D’Souza puts it, a “new version” – have been put forward, but they all relate to the core issues in dispute.  This is a case which turns quite substantially on oral communications, discussions and agreements, even though documentary evidence largely by emails are provided for reference.

7.In the circumstances, I am persuaded that in the three months until trial there will be time enough for the plaintiff to answer those matters, and he will not be forensically prejudiced.  He is, of course, free to adduce further witness evidence from existing and/or other witnesses in reply if so advised. 

8.If there are new allegations in the defendant’s supplemental witness statement, as Mr D’Souza suggests, which are different from his earlier witness statement, that may well be fodder for cross-examination and submissions. 

9.Again, having looked at the totality of the supplemental witness statement, I do not see that the plaintiff will be substantially prejudiced if opportunity is given for him to answer the same. 

10.In the circumstances, I will allow the supplemental witness statement by the defendant and the proposed amendments to his pleading, but caveats will have to be put in place to ensure protection for the plaintiff and that there will be finality in this matter.

11.In respect of the defendant’s summons dated 11 February 2014, I make the following order:

(1) leave to the defendant to amend the Defence and Counterclaim in the manner marked in red as per the draft annexed to the summons as Annexure 1; 

(2) the defendant shall file and serve Amended Defence and Counterclaim within seven days from today; 

(3) leave to the plaintiff to file and serve Amended Reply and Defence to the Counterclaim within 14 days thereafter; 

(4) leave to the defendant to serve supplemental witness statement of Prem Khemchand Lalwani as per the draft attached to the summons as Annexure 2 within seven days from today; 

(5) leave to the plaintiff to serve supplemental and/or further witness statement(s) as to fact in reply to the Defendant’s supplemental witness statement within 28 days thereafter; 

(6) no further witness statements as to fact shall be filed and/or served in this action;

(7) order in terms of paragraph (4) of the summons;

(Discussion re costs)

(8) costs of and occasioned by the summons be to the plaintiff, to be taxed if not agreed.

12.In respect of the plaintiff’s summons dated 24 January 2014, I grant the following order:

(1) the defendant shall, within seven days from today, file and serve his answers by affidavit/affirmation to the plaintiff’s interrogatories filed and served on 15 November 2013; 

(2) costs of and incidental to this application be to the plaintiff to be taxed if not agreed. 

(Housekeeping matters not required)

13.As for the pre-trial review, I grant the following order:

(1) no later than seven days before the adjourned pre-trial review, the parties shall submit joint time estimate for trial for all steps at the trial, including opening submissions, witness evidence and closing submissions by both parties and signed by trial counsel; 

(2)   no later than seven days before the adjourned pre-trial review, the plaintiff shall lodge with the court and serve draft trial bundle and core bundle of email documents; 

(3) case be adjourned for a further pre-trial review on 11 April 2013 at 9.30 am with half-hour reserved. 

(4) costs of the pre-trial review hearing today be costs in the cause. 

Mr Robin D’Souza, instructed by Boase, Cohen & Collins, for the plaintiff

Mr Christopher Chain, instructed by Tanner De Witt, for the defendant