NG CHO SHING (the Administrator of the estate of WU HEUNG LIN, the deceased) v. CHAN YUNG CHI &others DCPI1323/2006

S’s words:

In the past, I did have an opportunity to take over a PI case that was previously handled as a mess . At the time when I have got the opportunity to reach this judgment, not even read it completely, I felt very surprised of the progress of the claim and those issues having been commented by the learned PI Judge.

However, as the judgment contains a very lengthy part III Progress of the claim, I have not quoted those paragraphs here but would intend to leave all those interested readers to find the original judgment from the internet or otherwise. The Practice Direction has been mentioned to express the concern of the Honourable Court for the compliance thereof.

It is not impossible that an accident occurred 4 years ago and trial not yet commenced. But when we get a closer look, the action was commenced in 2006. The Writ was not served immediately and even in certain time the Court was asked to give indulgence to the Plaintiff’s solicitors to extend the validity of the Writ to be served.

We may say one of the main reason behind is that two of the defendants were acting in person all the time and the 3rd defendant could not be located until quite a late stage.
For such, the learned PI Judge correctly pointed out that the failure on the part of the Plaintiff’s solicitors to comply with their own undertaking to the Court for Chinese court documents to be made.

The non-compliance would in no doubt give the learned PI Judge the sufficient justification to set aside the default judgment (due to the non-compliance of an Unless Order on the part of the 1st and 2nd Defendants), but more important, the Unless Order Summons failed to strike out the handmade Defence of the 1st and 2nd Defendants.

My view is that, with the comments made by the learned PI Judge, the Plaintiff’s solicitors should not wait until the 1st and 2nd Defendants to make their application to set aside the default judgment by themselves. Certainly, one again may say that the Plaintiff’s solicitors chose to withhold making such application at that moment as there was a legal aid stay of the proceedings and they had in mind to do so after the expiry of legal aid stay. God knows.

But why the Honourable Court was not informed of the Plaintiff’s legal aid application in the previous hearings. That gives the learned PI Judge further opportunity to explain when it would be appropriate to uplift the legal aid stay of a proceedings.

Now, the default judgment against the 1st and 2nd Defendants were set aside. We may require to wait further to see the final outcome of the action.

However, in this case, as I have mentioned earlier before, at least the following areas:-
1. Not to delay the service of the Writ;
2. Service to a defendant of his whereabouts unknown;
3. Renew the validity of a Writ;
4. Strict compliance to the undertakings given to the Court;
5. Unless Order;
6. Setting Aside Regular/Irregular Judgment; and
7. Uplifting legal aid stay

--- quote from judgment ---

Date of Handing Down Reasons for Decision: 3rd November, 2008

The Plaintiff is the son and administrator of Madam Wu Heung Lin (“Deceased”) who died on 18th August 2004. However, this is not a fatal accident but a personal injuries case. At the time of the alleged accident referred to below and shortly thereafter at the time of her death, she was about 86 years old.

All along the Plaintiff was represented by the same firm of solicitors, and the 1st, 2nd and 3rd Defendants acted in person.

III. Progress of the claim

IV. Plaintiff’s summons to enter final judgment against the 1st 2nd and 3rd Defendants

On 29th September 2008, notwithstanding the Court Undertaking, the Plaintiff issued a summons in the English language (“Final Judgment Summons”) returnable at the same time as the PTR for the following reliefs with margin note “O.32, r.7 and O.42, r.2 of the RDC, Cap.336H and inherent jurisdiction of the District Court” :

(a) “[unless] the 1st, 2nd and 3rd Defendants do serve an Answer to the Plaintiff’s Statement of Damages within 7 days, the 1st, 2nd and 3rd Defendants be precluded from filing and serving the said Answer in the proceedings and judgment on liability be entered for the Plaintiff against the 3rd Defendant and the damages to be assessed at HK$455,000 as per the Statement of Damages”; and
(b) “costs of and occasioned by this Summons be paid by the 1st, 2nd and 3rd Defendants to the Plaintiff in any event”.

However, notwithstanding the Final Judgment Summons, the Plaintiff’s solicitors filed the PTR Notice on 8th October 2008 confirming the estimated length of trial was 2-3 days and annexing a draft order to the effect that the assessment of damages against the 1st and 2nd Defendants and the trial against the 3rd Defendant be set down to be heard before a bilingual judge.

At the PTR, Mr Raymond Wong, solicitor for the Plaintiff, and the 1st, 2nd and 3rd Defendants appeared before me. I expressed grave concern over the breach of the Court Undertaking in preparing the Final Judgment Summons (which by its terms sought final judgment against the 1st, 2nd and 3rd Defendants whom the Plaintiff’s solicitors well knew were not legally presented and prepared their Defence and other documents in the Chinese language) in the English language. The 1st, 2nd and 3rd Defendants informed me they received but did not understand the Final Judgment Summons.

Mr Wong admitted it was due to oversight by the Plaintiff’s solicitors, and I particularly reminded that there must be strict compliance of an undertaking to the court, particularly by a solicitor who is an officer of the court, and application must be made to the court for release from such undertaking on good grounds shown if it cannot be complied with. Breach of an undertaking to the court by its officer is a serious matter, which the court views with consternation and regret, and which may be visited with sanctions where appropriate.

In the end, Mr Wong sought leave to withdraw the Final Judgment Summons, and undertook not to charge the Plaintiff in respect of costs of and occasioned by the Final Judgment Summons. I therefore granted leave to the Plaintiff to withdraw the Final Judgment Summons with costs in favour of the 1st, 2nd and 3rd Defendants in any event to be taxed if not agreed.

V. Judgment : regular or irregular?
At the PTR, the 1st and 2nd Defendants informed me they still maintained the defence on liability as pleaded in the Defence. They have not applied to set aside the Judgment as they claimed to have been unaware of the effect of the Judgment, which regrettably was drawn up in the English language in breach of the Court Undertaking.

But quite apart from such consideration, there is a more fundamental problem with the Unless Order and hence the Judgment. The Unless Order provides that unless the 1st and 2nd Defendants file/serve copies of documents and file/exchange witness statements as to fact by a specified deadline, judgment on liability would be entered against them for damages to be assessed. There is no mention in the Unless Order that the Defence filed respectively by the 1st and 2nd Defendants would be struck out before judgment was entered. So when the 1st and 2nd Defendants failed to file and serve/exchange copies of documents and witness statements by the specified deadline, the Plaintiff entered judgment against them but did not strike out their Defence.

However, since the respective Defence of the 1st and 2nd Defendants that raised disputes on both liability and quantum (ie denying the Accident and/or averring that the damages claimed were incorrect, excessive and/or unreasonable) still stands, their very existence ought to preclude judgment on liability from being entered without trial.

I see no difference between judgment on liability entered by default and judgment on liability entered pursuant to an “unless” order. In either case, there is no trial on the merits. Thus, judgment on liability entered pursuant to an “unless” order for default in compliance with interlocutory directions is also necessarily based on implied admission of the plaintiff’s pleaded claim. Such rationale logically requires the defence (which disputes the plaintiff’s claim) to be struck out before entering judgment on liability otherwise such judgment will be irregular and embarrassing. That is why Order 24 rule 16(1) of the RDC provides for striking out the defence and entering judgment on liability and in Kai Yip Air-Condition Engineering Comapny Chung J granted an “unless” order to the effect that unless the defendant complied with his directions the defence be struck out and the counterclaim be dismissed before entering judgment. So long as the Defence filed by the 1st and 2nd Defendants stand (and there is no question that they still stand), the Judgment appears to be irregular.

IX. Lifting legal aid stay
As an initial observation, this was the first application for legal aid by the Plaintiff. According to the relevant Memorandum, such application appears to have been made a few days after the PTR on 15th October 2008. But notwithstanding such application, the Plaintiff is still represented by his solicitors. Further, there was no intimation by the Plaintiff’s solicitors to the court in the CLR Notice of 29th August 2008 or the PTR Notice of 8th October 2008 or by Mr Wong who appeared at the PTR on 15th October 2008 that there was already an application or there would be an intended application for legal aid by the Plaintiff. The silence is loud as the Plaintiff’s solicitors by both notices sought to set the case down for trial/assessment of damages with an estimated length of 2-3 days. No explanation is forthcoming for the lateness or suddenness of the application in light of the above.

Ms Gigi Mak, solicitor for the Plaintiff who appeared at the hearing of the 1st and 2nd Defendants’ summonses before me, accepted that if there were an extant application for legal aid, the Plaintiff’s solicitors should have informed the court about such application at the last CLR on 8th September 2008 or at the PTR on 15th October 2008 (as was appropriate) since it would have impact on the timeline for fixing the date for trial/assessment for damages or other case management directions.

Consequently, the court was surprised by Ms Mak’s submissions that in fact the Plaintiff approached the DLA prior to the PTR on 15th October 2008, but the DLA only issued the Memorandum subsequently on 20th October 2008. However, she was unable to tell the court the date when the Plaintiff approached the DLA or produce the acknowledgment card of the processing unit of the Legal Aid Department confirming receipt of the application for legal aid. Time was given to Ms Mak to take instructions and/or produce the acknowledgment card, but she was unable to bring the matter further except to say the Plaintiff told her by telephone he applied to the DLA by letter and it was on 20th October 2008.

I therefore ordered that the legal aid automatic stay be lifted in relation to the hearing and determination of the 1st and 2nd Defendants’ summonses dated 22nd October 2008.

In the circumstances, I made an order at the hearing that the Unless Order (which is the genesis of the Judgment) and the Judgment be set aside.