Introduction
Background
Decision
Comment
In Wong v Cheung,(1) a first-instance court dismissed the plaintiff's action on the ground that it was an abuse of process for want of prosecution. The case is different to some others that have attracted recent attention for having been struck out where there had been a combination of egregious delay and disobedience with the court rules. In Wong v Cheung, the action had only been in existence for approximately three-and-a-half years at the time of the defendant's application to strike out for want of prosecution. However, during that time the plaintiff appears to have failed to take any effective step in the proceedings since the parties' pleadings closed in July 2019 and, importantly, failed to comply with three peremptory court orders requiring service of his list of documents, witness statement(s) and expert report. Against that background, the court described the prospect of trial as a "non-starter" and the plaintiff's claim as "bound to fail".(2) The court's decision is robust, and the lessons are clear for other plaintiffs.
The principles for striking out for want of prosecution in Hong Kong are set out in the landmark judgment of the Court of Final Appeal in Re Wing Fai Construction Co. Ltd (In Liquidation).(3) Striking out in such circumstances is a sanction of last resort and abuse of process is the foundation of the courts' power. Delay of itself does not constitute abuse of process but egregious delay can be indicative of it.
In Wong v Cheung, the plaintiff commenced court proceedings against the defendant in December 2018. The proceedings arose out of a neighbour dispute involving an alleged water leak from the defendant's upstairs apartment to the plaintiff's apartment immediately below.
After the exchange of the parties' formal pleadings in 2019, the plaintiff appears to have failed to take any effective substantive step in the proceedings. Most of the impetus for case management in the case came from the defendant and her legal representatives. For most of 2021, the plaintiff failed to comply properly with three peremptory "unless orders" regarding (for example) the exchange of lists of documents, witness statement(s) and expert's report(s). Indeed, his expert report appears to have been so deficient that it was not really anything of the sort and its deficiencies were the subject of no less than 11 letters written by the defendant's legal representatives to sort out (among other things) various procedural flaws. The plaintiff's legal representatives do not appear to have responded to any of these letters.
Despite all this, in November 2021 the case was set down for a three-day trial commencing in June 2023.
In June 2022 the defendant applied to strike out the plaintiff's action.
The court's decision to strike out does not appear to have been a difficult one and may be best summed up by that part of its decision introducing the application of the legal principles to the facts:
By taking a closer look at the procedural history, it is plain as day that the plaintiff commenced this action but without any intention to prosecute his claim in good faith and has been dragging his feet in every step along the way.(4)
The court went on to consider that the plaintiff had shown a wholesale and repeated disregard for the court rules, committed one of the worst cases of abuse of process and, apparently, acted in such a way that was tantamount to "stringing the defendant along".(5)
Given the plaintiff's disobedience with court orders, the court noted that he had been debarred from relying on just about any evidence at trial, such that:
Since he bears the burden of proof at trial, the coming trial would have been a non-starter so far as his claim is concerned. The plaintiff's action thus is bound to fail. There is no point in further allowing the plaintiff's claim to proceed to trial.(6)
Therefore, the court ordered that the plaintiff's action be struck out and that he pay costs to the defendant on an indemnity (higher) basis.
The court's decision is fully reasoned. It is difficult to recall such strong language from a first-instance court as regards a party's disobedience of their case management responsibilities. Importantly, the plaintiff had legal representation throughout – although the ability of his legal representatives to represent him appears to have been hampered by a lack of instructions at the hearing of the strike out application. Indeed, the plaintiff appears to have been the author of his own misfortune.
There is also a suggestion in the court's decision that an attempt at mediation between the parties had been unsuccessful – this is unfortunate because such disputes should normally lend themselves to some form of alternative dispute resolution (for further details, please see "Court of Appeal reviews summary judgment in 'water leakage' disputes").(7)
The outcome in the case is particularly understandable given the nature of the dispute between the parties – a neighbour dispute involving an alleged water leak. Such cases are common, given that many residents live in high rise blocks, and expert reports combined with (among other things) infrared thermographic imaging surveys and/or coloured water ("dye") tests are often important. The plaintiff's inability to present a credible expert report in this regard would likely have been fatal at trial.
For further information on this topic please contact Samuel Hung or James Lee at RPC by telephone (+852 2216 7000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
Endnotes
(1) [2022] HKDC 1010, 15 September 2022.
(5) Supra note 1, at paras 37, 38 and 41.
(7) Supra note 1, at para 12 and Corrigendum, 16 September 2022. Also see – Harvon Ltd & Anor v Days Properties Ltd, DCCJ 4720 of 2011, 5 October 2012 at para 83.