CHAN WAI HAN v. LO YUK LEUNG AND ANOTHER

HCA000992/1970

1970 No. 992

IN THE SURPEME COURT OF HONG KONG

ORIGINAL JURISDICTION

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BETWEEN
CHAN WAI HAN Plaintiff
and
LO YUK LEUNG 1st Defendant
LO YUK CHUEN 2nd Defendant

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Coram: Mr. Registrar Oliver in Chambers

Date of Judgment: 20th November, 1975.

Mr. Robert Wei instructed by Messrs.P.H. Sin & Co. for the defendants.

Mr. Van Buuren instructed by Messrs.C. Griffiths & Co. for the plaintiff.

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DECISION

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1. An order to dismiss an action for delay should not be made unless the court is satisfied:-

(1) that there has been inordinate and inexcusable delay on the part of the plaintiff or her lawyers-
(2) that the delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action.

2. The interests of third parties are involved here – Au Wang now deceased and LEE MAN WAH.

3. Page 415 25/1/3C of 1973 Annual Practice lays down that it is for the defendant to satisfy the Court that conditions (1) and (2) above arepresent.

4. This is a bad case of delay and no explanation has been given to me why Messrs. Johnson, Stokes & Master took no action in thismatter after the defence was filed.

5. The issues as pleaded reveal two completely different stories and it must have been apparent to the plaintiff’s legal adviser thatif ever a case called for a speedy trial this was it.

6. The vital issues are oral agreements entered into during the latter part of 1958. That is to say some 12 years before the Writ wasissued.

7. It is quite apparent from the many cases that have been cited to me that I have a discretion in this matter. There has clearly beena very long delay. The delay stretches from 18th September 1970 when the Defence was filed until 18th July 1975 when the Summonsfor Direction was taken out (4 years and 9 months) later. This delay is both inordinate and inexcusable.

8. Furthermore it follows on a previous delay of just short of 12 years before the Writ was issued. The position is now such that itwill not be possible to have a fair trial upon the issues in the action.

9. No reasons have been given to me why the plaintiff’s former solicitors did not proceed with the action once the Defence was in theirhands.

10. The Defendants’ Summons of the 24th July 1975 is therefore allowed and I accordingly make an order that: this action be dismissedfor want of prosecution with costs to be taxed and paid by the plaintiff.

11. There will be a certificate for Counsel.

12. Dated this the 20th day of November, 1975.

(J.R. Oliver)
Registrar

Representation:

Mr. Robert Wei instructed by Messrs. P.H. Sin & Co. for the defendants.

Mr. Van Buuren instructed by Messrs. C. Griffiths & Co. for the plaintiff.