DCPI209/2022

DCPI209/2022

A A B B DCPI 209/2022 C [2024] HKDC 111 C D D IN THE DISTRICT COURT OF THE E HONG KONG SPECIAL ADMINISTRATIVE REGION E PERSONAL INJURIES ACTION NO 209 OF 2022 F F G --------------------------- G BETWEEN H H LI JIE Plaintiff I I and J J K HONG KONG AIRPORT K SERVICES LIMITED Defendant L L M M --------------------------- N N O Before: His Honour Judge Andrew Li in Chambers O Date of Hearing: 20 November 2023 P P Date of handing down Decision: 19 January 2024 Q Q --------------------------------------------- R R DECISION S --------------------------------------------- S T T U U V V  -2- A A BACKGROUND B B C 1. This is the hearing of an appeal brought by the defendant by C way a notice of appeal dated 28 September 2023 against an Order made by D D a master (“the Master”) on 14 September 2023 (“the Order”). E E 2. For the background of this case, I would refer to the key F F events listed out in the following chronology agreed by the parties on 7 G November 2023:- G H H Date Event I 14.2.2019 Date of alleged accident I J 17.1.2022 Pre-action letter was sent to the defendant at J “33rd Floor, One Pacific Place...” (“Pre-action Letter”) K K 21.1.2022 The plaintiff’s generally endorsed Writ of L Summons (“the Writ”) was issued, with L defendant’s address stated as “33rd Floor, One M Pacific Place…” M 24.1.2022 Messrs Holman Fenwick Willan (“HFW”) N N wrote on behalf of the defendant to Messrs B Mak & Co (“BM”), the plaintiff’s solicitors, in O response to Pre-action Letter and requested O further particulars of allegations, disclosure of P relevant medical documents and a without P prejudice quantification. Q Q 14.2.2022 Expiry of the 3-year time limitation under common law in relation to the plaintiff’s claim R R 6.7.2022 According to the 3rd affirmation of Lee Chi S Tung Christina dated 14 July 2023, the S plaintiff’s related Employees’ Compensation T (“EC”) claim (DCEC 2038/2022) was settled T U U V V  -3- A A and discontinued B B 4.1.2023 According to the affirmation of Yip Tsz Wing C dated 14 July 2023, the secretary of the C plaintiff’s handling solicitor underwent a “lasik D surgery” D E 9.1.2023 According to the 2nd affirmation of Lee Chi E Tung Christina dated 3 March 2023, the Writ was served on the defendant directly by leaving F F at “35/F, One Pacific Place...” G 20.1.2023 Expiry of the 12-month validity of the Writ G H 17.2.2023 The plaintiff applied ex-parte for the validity of H the Writ to be retrospectively extended for 2 I months beginning with the day next following I that on which it expired J The affirmation of Lee Chi Tung Christina was J filed in support of the application K K 28.2.2023 The court raised requisitions with BM as to the L detailed reason(s) why the application to L extend the validity of the Writ had not been made before the Writ expired and as to the M M legal authorities that the court has power to so order, referring to “6/8/HKCP 2022” N N 2.3.2023 Checklist Review hearing date O O 3.3.2023 2nd affirmation of Lee Chi Tung Christina was filed in response to the court’s requisitions P P 22.3.2023 The Master granted an ex-parte order for a Q retrospective extension of the validity of the Q Writ for 2 months beginning with the day next R following that on which it expired (“the R Extension Order”) S S rd 28.3.2023 According to the 3 affirmation of Lee Chi T Tung Christina dated 14 July 2023, the Writ T was served on the defendant directly by leaving U U V V  -4- A A at “33rd Floor, One Pacific Place…” B B 11.4.2023 HFW wrote to BM to seek a copy of the C Extension Order C 20.4.2023 HFW wrote to BM requesting (again) a copy of D D the Extension Order and other documents E 12.5.2023 According to the 3rd affirmation of Lee Chi E Tung Christina dated 14 July 2023, the judicial F clerk returned the draft of the Extension Order F with amendments to the plaintiff G G 16.5.2023 The defendant took out a summons to set aside H the Writ and its service (“the Defendant’s H Summons”) I The affirmation of Tam Lee was filed in I support of the application J J 15.6.2023 According to the 3rd affirmation of Lee Chi K Tung Christina dated 14 July 2023, the judicial K clerk sealed the Extension Order L L 16.6.2023 Checklist Review hearing date M The Master directed that the hearing of the M Defendant’s Summons be determined by paper N disposal N 14.7.2023 3rd affirmation of Lee Chi Tung Christina and O O affirmation of Yip Tsz Wing were filed in opposition to the Defendant’s Summons P P 9.8.2023 2nd affirmation of Tam Lee was filed in reply Q Q 14.9.2023 The Master gave the decision and written R reasons in relation to the Defendant’s R Summons S S 28.9.2023 The defendant filed and served a notice of appeal to a judge in chambers against the T T decision U U V V  -5- A A 3. In essence, the Master made the Extension Order on 22 March B B 2022 to retrospectively extend the validity of the Writ for 2 months: See §1 C of the Extension Order. C D D 4. The Writ was served on the defendant by leaving a copy at the E defendant’s registered address at “33rd Floor, One Pacific Place”. E F F 5. The defendant’s main complaint is that the plaintiff served the G Writ that had already expired according to the Extension Order. G H H 6. By the Defendant’s Summons, it applied to: (i) set aside the I I Extension Order; (ii) set aside the Writ and its service; and (iii) dismiss the J entire action before the Master. J K K 7. The defendant relied on 4 grounds for its application under L the Defendant’s Summons before the Master, namely:- L M M (a) There was no “good reason” to extend the validity of the Writ; N N (b) There was material non-disclosure as the plaintiff did not O O inform the court that his claim had been time-barred by the time the application was made; P P Q (c) The Writ was not valid when it was served on 28 March Q 2023; and R R (d) The Writ was not marked with an official stamp showing S the period for which the validity was extended as required S under O 6 r 8(3) of the Rules of the District Court (“the T RDC”). T U U V V  -6- A A 8. The Master gave brief reasons for the decision when the B B defendant’s application was dismissed (“the Decision”). C C 9. In the Decision, the Master accepted that the plaintiff had D D taken active steps to serve the Writ within the validity period and the E non-service was due to an innocent clerical mistake instead of a deliberate E choice of the plaintiff. Further, upon discovering the defective service, the F F Master found that the plaintiff had taken immediate action to remedy the G situation without any undue delay. Thus, the Master was satisfied that G there were good reasons for the extension of the Writ. H H I I 10. Further, the Master did not accept there was any material J non-disclosure of information. If there was any, the Master found that the J omission was due to an innocent breach. In the Decision, the Master K K opined that while setting aside the Extension Order might satisfy the need L to uphold the public interest in requiring full and frank disclosure, to do so L without a regrant will deprive the plaintiff the only opportunity to seek M M common law damages as a result of the accident. Hence, it would cause N injustice in this case. Thus, the Master found the penal effect of setting N aside the Extension Order without a regrant is disproportionate to the O O breach committed by the plaintiff in this case. The Master also found the P hardship to be suffered by the plaintiff without a regrant outweighs the P prejudice allegedly to be suffered by the defendant. Q Q R 11. By a notice of appeal dated 28 September 2023, the defendant R appeals against the Decision. S S T DISCUSSION T U U V V  -7- A A Relevant legal principles B B C 12. It is trite that an appeal from a master to a judge in chambers is C dealt with by way of an actual rehearing of the application which led to the D D order under appeal and the judge is entitled to treat the matter as though it E came before him for the first time. Further, a judge hearing an appeal from E a master is entitled to, if he thinks fit, to adopt the master’s reasoning in his F F own judgment without setting out the reasoning himself: Hong Kong Civil G Procedure 2024 (“HKCP 2024”), §58/1/2. G H H 13. As for the general validity of a writ, O 6 r 8(1) of the RDC I provides that a writ is valid for 12 months. The 12 months validity period I of a writ is strictly construed, and even one day’s delay will result in a J J plaintiff not being able to proceed with the action: §6/8/1. K K 14. Service of a writ after the appropriate period or any later L L renewal is an irregularity: §6/8/2. M M 15. O 6 r 8(2) of the RDC provides that the court may extend the N N validity of the writ. The learned authors of the HKCP 2024 have made a O helpful summary of the relevant legal principles at §6/8/3. O P P 16. Mr Wong, the defendant’s counsel, highlighted the following Q Q principles in his submissions:- R R (1) It is the duty of the plaintiff to serve the writ promptly. S He should not dally for the period of its validity; if he S does so and gets into difficulties as a result, he will get T scant sympathy: §6/8/3(1). T U U V V  -8- A A (2) The power to grant extension of validity of a writ B B involves a two-stage process. In the first stage, the plaintiff must establish matters amounting to good C C reasons for extension or at least capable of so amounting. D In the second stage, the court will decide whether or not D to exercise its discretion by considering all circumstances E of the case, such as the balance of prejudice or hardship: E §6/8/3(11). F F (3) Carelessness, oversight, mistake, incompetence of the G G Plaintiff’s legal representatives, the knowledge of the H claim by the defendant, an absence of prejudice to the H defendant, are all not good reasons: §6/8/3(6). I I (4) A writ will not normally be renewed if the effect of which J J will deprive the defendant of the accrued benefit of a limitation period: §6/8/3(8). K K L (5) In exercising discretion the judge is entitled to have L regard to the balance of hardship, but only where there M are matters which, potentially at least, could constitute M good reasons for extension. The exercise of discretion, N however, follows upon the showing of good reason by the N applicant. Hardship to the applicant if the extension is O O disallowed is not a substitute for good reasons. §6/8/3(10). P P Q 17. Mr Smith SC for the plaintiff on the other hand has Q highlighted the following principles in his submissions:- R R S (1) The power to extend the validity of a writ is ultimately an S exercise of discretion by the court. The plaintiff accepts T T that this discretion does not arise unless there are matters U U V V  -9- A A capable of amounting to a good reason to renew the B B validity of a writ: Amadeaus Investment Ltd v Lin Kao C Kun [2019] 2 HKLRD 647 at §20 per DHCJ Keith C Yeung SC (as he then was). D D E (2) To determine what constitutes such “good reason”, as E held in Amadeaus (supra) at §22 per DHCJ Keith Yeung F F SC (as he then was):- G G (a) The court must look at all the circumstances of the H case. H I (b) There is not a “large degree of stringency”. ““Good I reason is not as high as “exceptional J J circumstances””. K K (c) A relevant consideration is “whether the L non-service was the result of the plaintiff’s L deliberate choice”. M M (d) A “perfect reason is not necessary”. N N (3) The plaintiff submits that useful guidance for what O O constitutes a good reason can further be found in the P Supreme Court’s decision of Barton v Wright Hassall P LLP [2018] 1 WLR 1119 at §10 per Lord Sumption:- Q Q R “In the generality of cases, the main relevant factors R are likely to be (i) whether the claimant has taken reasonable steps to effect service in accordance with S the rules and (ii) whether the defendant or his S solicitor was aware of the contents of the claim form at the time when it expired, and, I would add, (iii) T T what if any prejudice the defendant would suffer by the retrospective validation of a non-compliant U U V V  - 10 - A A service of the claim form, bearing in mind what he B knew about its contents. None of these factors can be B regarded as decisive in themselves. The weight to be attached to them will vary with all the C C circumstances.” D (4) In Hong Kong, it has been said that a failure to serve the D writ within time, despite reasonable efforts having been E E made, is “clearly a good reason for leave to renew a F writ”, and “[i]t matters not whether the inability to F G serve … was due to deliberate attempts … to evade G service or not”: Grand Pacific Equity Ltd v Rsh sports H H (HK) Ltd [2006] 4 HKLRD 617 at §29 per Yuen JA. I I 18. In this regard, Mr Smith SC submits that the authorities have J consistently held that a failure to properly serve a writ within time due to J an innocent mistake constitutes a good reason that justifies renewal:- K K L (1) In Holman v George Elliot and Company Limited [1944] L KB 591, the plaintiff had accidentally failed to serve a M M writ within 12 months because of the neglect of his N solicitors. The English Court of Appeal held at 594 per N MacKinnon LJ that the failure to serve the writ in time O O was “owing to the lamentable neglect on the part of the P P managing clerk of the solicitors then acting for the Q plaintiff”, and in these circumstances it was “perfectly Q right and proper” for the judge below to exercise his R R discretion to extend the validity of the writ. S S (2) In Jones v Jones [1970] 2 QB 576, the plaintiff had T mistakenly served the writ on the 2nd defendant when the T validity of the writ had already expired. The English U U V V  - 11 - A A Court of Appeal held at 584 per Salmon LJ:- B B “The writ was served on him – not validly, it is true, C C but it was served on him and he knew all about it, on July 3, 1969; so on that basis he is only a few weeks D worse off than he would have been if the writ had D been served on time. The renewed writ was served on August 19, validly, as it now turns out; so even E then he was only about nine weeks worse off than he E would have been on June 12 F F I think that, balancing the hardship to the plaintiff which would have followed had the appeal been G G dismissed against the hardship which the second defendant may now suffer, the judge was fully H entitled to come to the conclusion that it was just and H proper and that there was good and sufficient reason, to extend the time for service of the writ upon the I second defendant.” I J (3) In Tan Kah Eng v Tan Eng Khiam (unrep., HCA J 9640/1999, 14 March 2011), it was held that a mistaken K K belief that the writ had been properly served within time, L in circumstances where the validity of the writ had to be L renewed as leave to serve the writ out of jurisdiction had M M been set aside, constituted “a good reason”: §46 per N Bharwaney J. N O O (4) In Waan Chuen Ming v Lo Kin Nam (unrep., CACV P 112/2005, 18 January 2006), the Court of Appeal P affirmed the finding by DHCJ Carlson that there was Q Q good reason to extend the validity of the writ in that case, R where the plaintiff’s solicitors had mistakenly served the R writ one-week after its expiry as they were unaware of S S the deadline: §§4, 7, 14 per Rogers VP. T T U U V V  - 12 - A A 19. These principles apply where the limitation period has B B expired. As held in Tan Kah Eng at §§43-44 per Bharwaney J (approved C by the Court of Appeal on appeal: [2012] 1 HKLRD 329 at §41 per C Sakhrani J:- D D E (1) The limitation period is “not an absolute bar to the E exercise of the court’s discretion to renew the writ”. F F G (2) If the court is satisfied that a “good reason” or “good G cause” has been shown for the renewal, the court is H H required to “consider all the circumstances of the case, I including the balance of prejudice or hardship”, and I must “weigh the balance of hardship to the plaintiff if the J J extension is refused and the hardship to the defendant if K it is allowed”. K L L 20. In other words, the plaintiff submits the test “was the same M whether the limitation period expired or not”, but in fairness “the court M might apply the test with less rigour where the limitation period had not N N expired”: HKCP 2023 at p104. [emphasis supplied] O O 21. Mr Wong does not seriously dispute the principles set out in P P the authorities cited by the plaintiff’s counsel. It is in the application of Q those principles to the present case that the defendant takes issue with. Q R R Findings of the court S S T T U U V V  - 13 - A A 22. Having taken into account of the above principles and B B applying them to the facts of this case, I do not consider the Decision of the C Master can be faulted in any way for the following reasons. C D D (i) Good reason to extend the validity period and renew the Writ E E 23. First, in my view, the defendant has taken too strict and F F stringent an approach to the plaintiff’s claimed mistake which had G allegedly caused the Writ to be served outside the extended validity period. G The defendant has in my view unreasonably refused to accept the situation H H could have been caused by an innocent clerical mistake made by the I I secretary when typing out the address on the cover letter. J J 24. While the case might have become time-barred on 14 K K February 2022 and the plaintiff had only attempted to serve the Writ at the L defendant’s registered address (albeit wrongly at 35/F instead of 33/F of L One Pacific Place) on 9 January 2023, the plaintiff was still within time M M when he did so. In my view, it was not a case where the plaintiff had N chosen to wait and serve the Writ at the very last minute, like a day or two N before the expiry. O O P 25. The defendant has made a lot of criticism over the fact that the P plaintiff had waited until the “last minute” to serve the Writ. However, that Q Q was done 11 days before the expiry of the validity, ie on 9 January 2023. I R do not think there is anything wrong with that because: (i) I do not regard R serving the Writ 11 days before the expiry was “last minute”; and (ii) there S S may be a multitude of reasons why a plaintiff chooses not to or simply not T able to serve the writ until shortly before the expiry of the validity period. T Just because a plaintiff chooses to serve the writ close to the expiry of U U V V  - 14 - A A validity date does not, in my opinion, equal to a “deliberate choice” of B B non-service out of time as submitted by the defendant. C C 26. Second, I notice that there is one very significant factual D D matter which the defendant has failed to deal with in its written E submissions. This is in relation to the alleged clerical mistake made by the E secretary at the plaintiff’s solicitors firm when typing out the registered F F address of the defendant. G G 27. Ms Yip, the secretary who had prepared the cover letter to the H H defendant, in her affirmation filed on 14 July 2023, explained that she had I I undergone a Lasik surgery on 4 January 2023 with a follow-up J appointment scheduled on 12 January 2023. She claimed that after the J surgery she suffered from “dryness and pain in her eyes”. Due to the K K “discomfort, ongoing recovery from the surgery and busy workload on that L day”, she accidentally typed out the incorrect address of the defendant. L M M 28. As both the date of her eye surgery (4 January 2023) and the N date of her follow-up appointment (12 January 2023) are supported by N documentary evidence, it is in my view plausible that Ms Yip was still O O suffering from poor eyesight when typing out the cover letter on 9 January P 2023. It is also not difficult to imagine that she could easily misread (and P then typed out) 35/F instead of 33/F as the defendant’s registered address. Q Q I would accept this as a “good reason” why the Writ had been served on the R wrong address and therefore not served on the defendant within the R validity period. As the standard of showing “good reason” is not as high as S S of establishing “exceptional circumstances”, I do not think the plaintiff T should be judged too harshly under such circumstances: (cf Hashtroodi v T Hancock [2004] 3 All ER 530 and Collier v Williams [2007] 1 All ER 991). U U V V  - 15 - A A 29. Hence, I accept in this case that the failure to serve the Writ in B B time was due to an innocent clerical mistake rather than a deliberate choice C of the plaintiff or his solicitors. C D D 30. Third, Mr Wong for the defendant tries to argue that the E plaintiff had failed to act in between sending the Pre-action Letter to the E defendant on 17 January 2022 and the issuing of the Writ on 21 January F F 2022. In the Pre-action Letter, the plaintiff allegedly failed to send a single G document either on liability or quantum which was in clear breach of the G provisions of Practice Direction 18.1 (“PD 18.1”). On the other hand, the H H defendant’s solicitors did promptly reply to the Pre-action Letter on 24 I I January 2022, requesting for further documents and information including J medical reports. The defendant’s solicitors also requested the plaintiff’s J solicitors to direct all future correspondence in relation to the matter to K K them rather than the defendant. However, the plaintiff’s solicitors had L simply ignored such requests and therefore failed to engage in any L meaningful dialogue with the defendant during the pre-action protocol M M stage and before the issue of proceedings. N N 31. In my view, while the plaintiff’s solicitors had clearly been in O O breach of the pre-action protocol specified under §§14 to 19 of PD 18.1 P when they failed to provide the requested information and documents P specified under Schedule A thereof: See my recent decision in Mak Shiu Q Q Cheung v Luk Man Tai [2023] HKDC 1801, DCPI 2741/2023 (18 R December 2023) at §§33 to 47, this ultimately will be a question of wasted R costs or sanctions which the defendant may able to claim against the S S plaintiff as stated in §§9 and 147 of PD 18.1. With respect to Mr Wong, T this has nothing to do with the issues under appeal here. T U U V V  - 16 - A A 32. What is important to note in this case is the fact that the B B defendant has had notice of the accident / intended common law claim C through the Pre-action Letter issued by the plaintiff in January 2022 and C the EC action itself. Further, according to the affirmation of the D D defendant’s solicitor Tam Lee, she has learnt about the issuance of the Writ E in late January 2022, which was before the action became time-barred. E Hence, in my view, it has not been shown that the defendant has suffered F F from any real prejudice as a result of the Master’s decision to extend the G validity of the Writ. G H H 33. Fourth, I find nothing wrong for the plaintiff to attempt to I serve the Writ on the defendant’s registered address instead of through the I J defendant’s solicitors. This is despite the request from the defendant’s J solicitors to direct all “future correspondence” to them in their reply letter K K dated 24 January 2022. Serving a writ on a limited company’s registered L address is the normal and acceptable form of service. There is nothing L improper about that. Besides, in the defendant’s solicitors reply letter, they M M did not specifically mention that they have instructions to accept service. N N 34. In my view, what followed after the service of the Writ on the O O wrong address was unfortunate but perfectly plausible. The evidence P suggests that the plaintiff’s solicitors were unaware of the innocent mistake P made by Ms Yip and therefore did not apply to extend the validity of the Q Q Writ. Once the plaintiff discovered the defective service, they had taken R immediate action to rectify the situation without any undue delay. R S S 35. Hence, I do not accept the defendant’s submission that the T plaintiff had taken a “deliberate decision not to serve the Writ within its T U U V V  - 17 - A A initial validity” or attempted any “further delay” the matter after the B B plaintiff’s solicitors had found out the mistake. C C 36. In the aforesaid circumstances, I am satisfied that there D D existed good reason to renew the Writ. E E (ii) Balance of hardship F F G 37. In my judgment, the Master was correct in finding that the G balance of hardship lies in favour of renewing the validity of the Writ for H H the following reasons. I I J 38. There is no doubt in my mind that the plaintiff would suffer J from significant hardship if the appeal is allowed. I agree with the Master K K that the plaintiff would lose his only opportunity to seek common law L damages as a result of the accident if the court refused to extend the L validity of the Writ. He would be deprived of his chance to seek damages M M from the defendant. The injustice cause to him is therefore plain and N obvious. N O O 39. On the other hand, as mentioned above, the defendant has had P notice of the accident and/or intended common law action via the EC P Action as well as the Pre-action Letter. The defendant’s solicitors were Q Q also aware that a writ had been issued prior to the expiry of the limitation R period. Hence, there is in my view no real or forensic prejudice, like R difficulty in getting hold of witnesses or gathering documentary evidence, S S suffered by the defendant in this case: See Chu Gregory v Yick Ngai T Logistics (HK) Company Limited [2021] HKDC 463 at §36 per Master T Matthew Leung. U U V V  - 18 - A A 40. In this case, I entirely agree with the Master that the hardship B B to be suffered by the plaintiff without a regrant far outweighs the prejudice C allegedly to be suffered by the defendant. C D D (iii) Technical objection E E 41. Mr Wong for the defendant submits that the Writ was F F invalidly served on 28 March 2023, since it had already expired and lacked G the official stamp. G H H 42. I agree with Mr Smith SC that this is a poor technical I I objection which can be easily cured by this court. Should this court J dismiss the appeal, such technical “defects” can be cured by ordering the J validity of the Writ be extended retrospectively for 2 months from the date K K of the order to be made by this court. Whereupon the Writ can be validly L served again on the defendant without any issues of irregularity under O 2 r L 1 and O 3 r 5 of the RDC: See HKCP 2024 at §6/8/1. M M N (iv) Material non-disclosure N O O 43. The defendant had relied on this ground in its application P before the Master. However, Mr Wong no longer relies on this as a ground P in support of the appeal. Q Q R 44. Hence, strictly speaking, this court no longer needs to deal R with this issue. However, for the sake of completeness, I would like to say S S that had the defendant pursued this point in the appeal, I would have found T that the non-service during the validity of the Writ was clearly due to an T U U V V  - 19 - A A innocent clerical mistake rather than a deliberate material non-disclosure B B on the part of the plaintiff or his solicitors. C C CONCLUSION D D E 45. In conclusion, for the reasons stated above, I would dismiss E the defendant’s appeal with costs in favour of the plaintiff, such costs to be F F taxed if not agreed, with certificate for senior counsel only as I consider G this is a simple and straightforward appeal which does not require more G than one counsel to argue the case on behalf of the plaintiff. H H I I J J ( Andrew SY Li ) K K District Judge L L M M Mr Clifford Smith SC leading Mr Look-Chan Ho and Mr Joshua Yeung N instructed by Messrs B. Mak & Co., for the plaintiff N O O Mr Simon Wong instructed by Messrs Holman Fenwick Willan, for the P defendant P Q Q R R S S T T U U V V