2008 Edition (Up to date to 30 July 2007)

ORDER 25 Summons for Directions

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Contentspara.

25/0/1

1.Summons for directions (O.25, r.1) 25/1

2.Duty to consider all matters (O.25, r.2) 25/2

3.Particular matters for consideration (O.25, r.3) 25/3

4.Admissions and agreements to be made (O.25, r.4) 25/4

5.Limitation of right of appeal (O.25, r.5) 25/5

6.Duty to give all information at hearing (O.25, r.6) 25/6

7.Duty to make all interlocutory applications on summons for directions (O.25, r.7) 25/7

8.Automatic directions in personal injury actions (O.25, r.8) 25/8

9.Standard direction by consent (O.25, r.9) 25/9

10.Litigation Topics 25/L/1

Editorial Introduction

25/0/2

This Order contains nine rules dealing with the summons for directions. As r.1(1) states, "with a
view to providing ... an occasion for the consideration by the Court of the preparations for the trial
of the action" the plaintiff must in not less than one month after the pleadings in the action are
deemed to be closed, take out a summons for directions returnable within 14 days.

A summons should be taken out in all actions begun by writ with the exception of those listed in
r.1(2). Included in the exceptions (since 1980) are actions for personal injuries for which "automatic
directions" are provided by r.8.

At the hearing of the summons the court is under a duty to consider (if necessary on its own motion)
particular matters (rr.2 & 3) and shall endeavour to secure that the parties make all admissions and
agreements which ought reasonably to be made (r.4). The parties are required to give all such
information and produce all such documents as the court may reasonably require for the purpose of
enabling it to deal with the summons (r.6). A party to whom a summons is addressed must apply at
the hearing for any order or directions which he may desire as to any matter capable of being dealt
 with on an interlocutory application (r.7).

The court will, indeed, make sure that the pleadings are in order and that the case is fit for trial; and
is likely to be more proactively involved in the management of cases.

Rule 1(4) states that if the plaintiff does not take out a summons for directions the defendant may
apply for an order to dismiss the action. On such application the court may either dismiss the action
on such terms as may be just or deal with the application as if it were the summons for directions.
There are similar express provisions elsewhere in the RHC; for example, in O.19, r.1 (default in
service of statement of claim), O.24, r.16(1) (default in discovery) and O.34, r.2 (default in setting
down). In addition the court has inherent jurisdiction to dismiss if there has been default in
complying with the rules or excessive delay in the prosecution of the action.

25/0/2A

Note--costs consequences if no attempt to agree directions

On April 15, 2003, the Registrar of the High Court issued a letter to the Law Society concerning
summons for directions hearings before masters; see Law Society Circular 03-141 (PA), April 28,
2003. The general gist of the Registrar's letter is that practitioners (not litigants in person) are asked
to try and agree by way of consent summons the directions they require at the summons for
directions stage. The Registrar's letter cautions that a failure to do so (when a consent order was
possible) may lead to the court making no order as to costs or asking solicitors to bear their own
costs.

Related Sources

25/0/3

•Practice Direction 5.1 (Listing and refixing of dates)

•Practice Direction 5.2 (Setting down for trial in the Court of First Instance)

•RHC, O.72, r.8 (Directions in commercial list actions)

•RHC, O.75, r.25 (Summons for directions in Admiralty proceedings)

•RHC, O.78, r.5 (Summons for directions where proceedings transferred from the District Court to the High
Court)

The following Practice Direction is relevant to this Order:

•Practice Direction 5.4 (Part C)--Contested interlocutory summonses listed for directions before a master

Forms

25/0/4

Standard type directions are routinely ordered in most High Court actions; see example High Court Forms
"Summons for Directions" on the Judiciary's website. Such directions may vary according to the circumstances
of the case.
Summons for directions (O.25, r.1)

25/1
1.--(1) With a view to providing, in every action to which this rule applies, an occasion for the consideration by
the Court of the preparation for the trial of the action, so that--

(a)all matters which must or can be dealt with on interlocutory applications and have not already been dealt with
may so far as possible be dealt with, and

(b)such directions may be given as to the future course of the action as appear best adapted to secure the just,
expeditious and economical disposal thereof,

the plaintiff must, within one month after the pleadings in the action are deemed to be closed, take out a
summons (in these rules referred to as a summons for directions) returnable in not less than 14 days.

(2) This rule applies to all actions begun by writ except--

(a)actions in which the plaintiff or defendant has applied for judgment under Order 14, or in which the plaintiff
has applied for judgment under Order 86, and directions have been given under the relevant Order;

(b)actions in which the plaintiff or defendant has applied under Order 18, rule 21, for trial without pleadings or
further pleadings and directions have been given under that rule;

(c)actions in which an order has been made under Order 24, rule 4, for the trial of an issue or question before
discovery;

(d)actions in which directions have been given under Order 29, rule 7;

(e)actions in which an order for the taking of an account has been made under Order 43, rule 1;

(f)actions in which an application for transfer to the commercial list is pending;

(h)actions for the infringement of a patent;

(j)actions for personal injuries for which automatic directions are provided by rule 8; and

(k)actions in which the parties agree under rule 9 that the only matters to be determined are the mode of trial and
time for setting down.

(3) Where, in the case of any action in which discovery of documents is required to be made by any party under
Order 24, rule 2, the period of 14 days referred to in paragraph (1) of that rule is extended, whether by consent or
by order of the Court or both by consent and by order, paragraph (1) of this rule shall have effect in relation to
that action as if for the reference therein to one month after the pleadings in the action are deemed to be closed
there were substituted a reference to 14 days after the expiration of the period referred to in paragraph (1) of the
said rule 2 as so extended.

(4) If the plaintiff does not take out a summons for directions in accordance with the foregoing provisions of this
rule, the defendant or any defendant may do so or apply for an order to dismiss the action.

(5) On an application by a defendant to dismiss the action under paragraph (4) the Court may either dismiss the
action on such terms as may be just or deal with the application as if it were a summons for directions.

(6) In the case of an action which is proceeding only as respects a counterclaim, references in this rule to the
plaintiff and defendant shall be construed respectively as references to the party making the counterclaim and
the defendant to the counterclaim.

(7) Notwithstanding anything in paragraph (1), any party to an action to which this rule applies may take out a
summons for directions at any time after the defendant has given notice of intention to defend, or, if there are
two or more defendants, at least one of them has given such notice.

"plaintiff must ... take out ... a summons for directions"

25/1/1

As a general reminder, practitioners are reminded that where actions are assigned to specialised lists,
practice directions may have been issued by court governing the procedure on certain or all aspects
of the proceedings leading to trial. A clear example is the Personal Injuries List--see Practice
Direction 18.1and the Guidance Note for Practitioners on Practice Direction 18.1, effective on
February 19, 2001 ("the Directions"). Order 25 has to be read in conjunction with the Directions.
Certain stipulations in the Directions concern matters relevant to this Order and references to them
will be made below.

The standard form of the summons includes an application for directions to set the action down for
trial. The Master hearing the summons will not adjourn the application sine die with liberty to
restore but will make an order that the application for leave to set the case down be adjourned to a
specified date at 10 am before the Listing Clerk for fixing an appointment before the Listing Master.
The specified date will be fixed by the Master hearing the summons. See the Registrar's Notice
dated March 15, 2002 (as referred to in Law Society Circular 06-79 (PA)). For hearings before
masters, if it is possible to agree all directions needed at the summons for directions and the parties
can agree upon a date to appear before the listing clerk to fix an appointment before the listing
master to hear the application to set the matter down for trial, then practitioners should proceed by
way of consent summons rather than attending a hearing (per Law Society Circular 06-79 (PA)).
Each of the parties to the action is required to file and serve a check list no later than 4.00pm on the
preceding Friday immediately before the hearing which currently takes place every Wednesday.
The parties are required to give confirmation and state their position on the matters set out in the
check list including the parties' estimated length of trial. The parties (and if legally represented,
their solicitors) are required to complete and sign the checklist confirming that the information
stated on the check list is accurate. Costs wasted through inaccurate information are likely to fall on
professional advisers personally. The parties are required to notify the court of any revision of the
estimated length of trial. If practitioners fail to file their checklists in time, the listing master will
consider imposing personal costs sanctions on the solicitor and/or reporting the solicitor the Law
Society for professional misconduct (per Law Society Circular 06-79 (PA)).

Normally the listing Master will grant leave to set down only when he is satisfied that the matter is
ready or is largely ready for trial. The purpose of this exercise is a further step towards ensuring that
by the time of the trial, the matter should be ready for trial thereby reducing the chance of wasting
resources on the part of the court and the parties as may be occasioned by any adjournment of the
trial.

See Practice Direction 5.1 (listing and refixing of dates) and Practice Direction 5.2 (setting down
for trial in the Court of First Instance).
25/1/2

Service of summons and return day

The summons for directions should be served promptly after issue. Rule 1(1) provides that the
summons shall not be returnable in less than 14 days after issue, it is important that the defendant
should be served promptly in order that he may have the 14 days provided in which to give notice of
his requirements and prepare for the hearing. The words "not less than 14 days" means the same as
"14 clear days" (see R. v. Turner [1910] 1 K.B. 346, CA). Upon good cause being shown, the master
may abridge the time and make the summons returnable in less than 14 days (see O.3, r.5).

25/1/3

Before whom returnable

The summons is returnable before a master.

25/1/4

Time for issue

If a party wishes the court to impose a timetable for the interlocutory steps in an action he may issue
a summons for directions as soon as notice of intention to defend has been given (r.1(7)). Otherwise
the plaintiff must issue his summons for directions within one month after the close of pleadings. As
to when pleadings are deemed to be closed, see O.18, r.20. Any request for or service of further and
better particulars does not affect the time when the pleadings are closed. Moreover, the mere fact
that discovery of documents has not taken place or has been completed without order pursuant to
O.24, r.2, is no reason for not issuing the summons for directions within one month after the close of
pleadings; the time for the issue of the summons for directions is tied to the close of pleadings, and
not to the completion of discovery. On the other hand, if the time for discovery of documents under
O.24, r.2, has been extended by consent or by order or by both, the summons for directions must be
issued within 14 days after such extended time (para. (3)). In either case, the duty lies upon the
plaintiff to issue his summons within the proper time; otherwise the defendant may himself issue
the summons for directions, or apply to dismiss the action for want of prosecution (para. (4)) and the
court may treat such application as if it were a summons for directions (para. (5)).

If a summons for directions is issued before the close of pleadings, and there is no special reason for
an early issue, the hearing will probably be adjourned until after the pleadings are closed.

The discretion conferred on the judge by O.25, r.1 was expressed in the widest possible terms and
was designed to enable the judge to ensure that the action was brought on for trial as soon as fairly
possible. This was part of case management, a skill which judges were increasingly expected to
exercise, of their own motion when necessary. Any attempts by the Court of Appeal to inferfere
with the decisions of judges on matters of case management should be strongly deprecated: Korea
Building Materials Trading Corp. v. Hong Kong Dongil Trading Co. Ltd, unreported, Civ. App. No.
198 of 1993, February 24, 1994, [1994] H.K.L.Y. 946, CA.

25/1/5

Application to dismiss action under r.1(4)

 In practice, where there is a substantial period of inactivity in the proceedings, and where no
summons for directions has been taken out, the application to dismiss the action can be made both
under O.25, r.1(4) and under the court's inherent jurisdiction to dismiss for want of prosecution.
Essentially, the application will be argued and decided upon the principles governing dismissal for
want of prosecution under the court's inherent jurisdiction. See Bouygues SA & Others v. Red Sea
Insurance Co. Ltd [1997] 4 H.K.C. 149 and Can-Asia Capital Co. Ltd v. Kwok Yee William &
Others [1995] 1 H.K.C. 521.

25/1/6

Service of order for directions

When an order for directions is made in the absence of a defendant who has not attended, the
plaintiff is bound promptly to draw up and serve the order, inasmuch as it may contain directions as
to discovery, place and mode of trial, and the mode by which particular facts are to be proved at the
trial.

Duty to consider all matters (O.25, r.2)

25/2
2.--(1) When the summons for directions first comes to be heard, the Court shall consider whether--

(a)it is possible to deal then with all the matters which, by the subsequent rules of this Order, are required to be
considered on the hearing of the summons for directions, or

(b)it is expedient to adjourn the consideration of all or any of those matters until a later stage.

(2) If when the summons for directions first comes to be heard the Court considers that it is possible to deal then
with all the said matters, it shall deal with them forthwith and shall endeavour to secure that all other matters
which must or can be dealt with on interlocutory applications and have not already been dealt with are also then
dealt with.

(3) If, when the summons for directions first comes to be heard, the Court considers that it is expedient to
adjourn the consideration of all or any of the matters which, by the subsequent rules of this Order, are required to
be considered on the hearing of the summons, the Court shall deal forthwith with such of those matters as it
considers can conveniently be dealt with forthwith and adjourn the consideration of the remaining matters and
shall endeavour to secure that all other matters which must or can be dealt with on interlocutory applications and
have not already been dealt with are dealt with either then or at a resumed hearing of the summons for directions.

(4) Subject to paragraph (5), and except where the parties agree to the making of an order under Order 33 as to
the place or mode of trial before all the matters which, by the subsequent rules of this Order, are required to be
considered on the hearing of the summons for directions have been dealt with, no such order shall be made until
all those matters have been dealt with.

(5) If, on the summons for directions, an action is ordered to be transferred to the District Court or some other
court, paragraph (4) shall not apply and nothing in this Order shall be construed as requiring the Court to make
any further order on the summons.

(7) If the hearing of the summons for directions is adjourned without a day being fixed for the resumed hearing
thereof, any party may restore it to the list on 2 days' notice to the other parties.
Particular matters for consideration (O.25, r.3)

25/3
3. On the hearing of the summons for directions the Court shall in particular consider, if necessary of its own
motion, whether any order should be made or direction given in the exercise of the powers conferred by any of
the following provisions, that is to say--

(a)any provision of Part IV and Part V of the Evidence Ordinance (Cap. 8) (hearsay evidence of facts or opinion
in civil proceedings) or of Part III and Part IV of Order 38;

(b)Order 20, rule 5 and Order 38, rules 2 to 7;

(c)section 43 of the District Court Ordinance (Cap. 336).

25/3/1

"On the hearing of the summons for directions"

Obiter comment by Yam. J. in Hang Seng Credit Card Ltd & Others v. Tsang Nga Lee & Others
[2000] 3 H.K.L.R.D. 33; [2000] 3 H.K.C. 269, CFI highlights the accepted practice that the court is
not prohibited from considering the listed matters (a)-(c) on occasions other than on the summons
for directions.

Admissions and agreements to be made (O.25, r.4)

25/4
4. At the hearing of the summons for directions, the Court shall endeavour to secure that the parties make all
admissions and all agreements as to the conduct of the proceedings which ought reasonably to be made by them
and may cause the order on the summons to record any admissions or agreements so made, and (with a view to
such special order, if any, as to costs as may be just being made at the trial) any refusal to make any admission or
agreement.

25/4/1

Effect of rr.2, 3 & 4

These rules should be read together.

25/4/2

Duty to consider all matters

When the summons for directions first comes to be heard "the Court shall consider" certain matters
(r.2(1)) and on the hearing of the summons "the Court shall in particular consider" certain further
matters (r.3(1)) and "shall endeavour to secure" that the parties make all admissions and agreements
which ought reasonably to be made by them (r.4). These words impose an independent duty upon
the court itself to consider all the matters required to be dealt with on the summons for directions,
and at what stage to deal with such matters. For this purpose, the court is entitled to and ought to
receive the fullest assistance and co-operation of the parties (see r.6). The court is bound itself to
consider and deal with all such matters, even though the parties may have agreed the terms of a
 proposed order on the summons for directions, although due weight will be given to such agreement.
In addition to the particular matters referred to in the rules orders may be made to stay proceedings
or to strike out a statement of claim with dismissal (Pepperell v. Hird [1902] 1 Ch. 477).

It is the duty of the parties and their advisers to give all such information and produce all such
documents on any hearing of the summons as the court may reasonably require for the purpose of
enabling it properly to deal with the summons (r.6(1)).

When the summons first comes to be heard the court is to consider at the hearing of the summons as
many interlocutory matters as possible and to complete the hearing if possible (r.2(2)). If, however,
there is good reason to adjourn as to some matters, the court will make an order on the directions
already given (which will be drawn up) and adjourn as to the remainder (r.2(3)).

25/4/3

Adjournment of summons to commercial judge

Where the parties or one of them indicates an intention to apply to transfer to the commercial list,
the master will adjourn the summons to enable such application to be made to the judge in charge of
that list, who may then treat the summons as a summons for transfer. See O.72, r.5(3). If the judge
does not then order a transfer he will refer the summons back to the master.

The movement towards greater "case management" by the court has meant that orders traditionally
made by the court under O.25 on the summons for directions do not exhaust the matters that the
parties must deal with in the run up to trial and which, therefore, may fall to be decided on the
hearing of such summons. A number of Practice Directions impose important responsibilities on
the parties and in some respects these, in turn, have influenced the orders that are made at the
hearing of the summons for directions (see para. 25/1/1 (above)).

25/4/5

Particular matters for consideration (r.3)

Particular matters for consideration are listed in r.3(1) and are as follows.

25/4/6

Evidence at trial (O.38, rr.2 to 7)

The court is required to consider O.38, rr.2 to 7 (r.3). Under these rules the court may order that the
affidavit of a witness may be read at trial if in the circumstances of the case it thinks it reasonable so
to order (r.2), order that evidence of any particular fact shall be given at trial in such manner as may
be specified in the order (r.3), order that the number of expert witnesses be limited (r.4), make
orders as to the admissibility of evidence of plans, etc. (r.5), and specify the period within which a
party proposing to adduce evidence of foreign law should give notice of this to the other parties (r.7).
Further, the court may direct, and in certain circumstances, shall direct that the parties should
exchange witness statements (r.2A). On the summons for directions the court is required to consider
whether any order should be made in exercise of these powers (r.3).

On the matter of exchange of witness statements, see further paras 38/2A/1 et seq.
25/4/7

Evidence Ordinance and Ord. 38, Pts III & IV

The court is required to consider the Evidence Ordinance (Cap. 8) and Pts III and IV of O.38
(r.3(1)(a)). Part III contains rules dealing with hearsay evidence. The law concerning the
admissibility of hearsay evidence: see Evidence Ordinance (Cap. 8). Part IV contains rules dealing
with expert evidence: see ibid.

25/4/8

Amendment of writ or pleading with leave

Under O.20, r.5 the court may allow a plaintiff to amend his writ or any party to amend his pleading.
On the summons for directions the court is required to consider whether any order should be made
in exercise of this power.

25/4/9

Transfer to the District Court

On the hearing of the summons for directions the court is required to consider whether the
proceedings should be transferred to the District Court. The court can of its own motion or on the
application of a party, order the transfer of an action or proceeding, in whole or in part, at any stage
of the proceedings: District Court Ordinance, s.43. Pursuant to s.43 the court is required to transfer
proceedings when it appears to the court that the claim is likely to be within the jurisdiction of the
District Court, unless it is of the opinion that by reason of the importance or complexity of any issue,
or for any other reason, the proceedings ought to remain in the High Court.

25/4/10

Separate trial of separate issues

The court is required to consider O.33, r.4(2) (r.3(1)(d)) (see further "Trial directions", para.
25/4/12 (below)).

25/4/11

Parties to make all admissions and agreements which ought reasonably to be made (r.4)

Rule 4 provides that, on the hearing of the summons for directions, the master should endeavour to
secure that the parties make all admissions and agreements as to the conduct of the proceedings
which ought reasonably to be made. If he is successful in this endeavour the result should be the
saving of costs of calling witnesses and a shortening in the length of the trial. Obviously, a party
cannot be expected to admit a fact or document except when the fact or document is brought to his
notice before or at the hearing. For the purpose of assisting in the obtaining of admissions, r.6
provides that the parties and their advisers shall at the hearing of the summons give all information
and produce all the necessary documents.

The master may record on the order made on the summons any refusal to make any admission or
agreement. The judge at the trial will then be in a position to penalise in costs any such refusal.
25/4/12

Trial directions

Order 33, r.4(1) states that in every action began by writ, an order made on the summons for
directions shall determine the place and mode of trial. Rule 4(2) states that different questions or
issues may be ordered to be tried at different places or by different modes of trial and one or more
questions or issues may be ordered to be tried before the others. (In O.25, r.3(1)(d), r.4(2) is listed as
one of the particular matters which the court should consider on the hearing of the summons for
directions.)

The decision as to the place and mode of trial and the fixing of any date for trial will be made only
when the order is being finally completed, unless the parties agree to the making of an order as to
the place or mode of trial while some matters still remain outstanding (r.2(4)). See para. 25/1/2 as to
the consideration of these trial directions by the listing judge in check-list hearings of applications
for leave to set down for trial. The directions as to trial include directions as to whether trial should
be by judge alone or judge and jury, and as to the time within which the action is to be set down.

25/4/13

Compliance with orders made on summons for directions

The purpose of the summons for directions is to provide a mechanism for ensuring that cases are
properly prepared for trial. It is important, therefore, that parties comply with the directions given.
Essentially, the duty of the parties to comply with the orders and directions with a view to ensuring
that the matter is ready for trial extends to the directions and orders made at the check-list hearings
before the listing judge.

Limitation of right of appeal (O.25, r.5)

25/5
5. Nothing in rule 4 shall be construed as requiring the Court to endeavour to secure that the parties shall agree to
exclude or limit any right of appeal, but the order made on the summons for direction may record any such
agreement.

25/5/1

Effect of rule

The court has no duty to persuade the parties to limit their right of appeal, but only to record any
actual agreement made. An undertaking not to appeal must be a formal one, e.g. contained or
recorded in an order (Re Hall & County Bank (1880) 13 Ch.D. 261).

Duty to give all information at hearing (O.25, r.6)

25/6
6.--(1) Subject to paragraph (2), no affidavit shall be used on the hearing of the summons for directions except
by the leave or directions of the Court, but, subject to paragraph (4), it shall be the duty of the parties to the
action and their advisers to give all such information and produce all such documents on any hearing of the
summons as the Court may reasonably require for the purpose of enabling it properly to deal with the summons.
The Court may, if it appears proper so to do in the circumstances, authorize any such information or documents
to be given or produced to the Court without being disclosed to the other parties but, in the absence of such
authority, any information or document given or produced under this paragraph shall be given or produced to all
the parties present or represented on the hearing of the summons as well as to the Court.

(2) No leave shall be required by virtue of paragraph (1) for the use of an affidavit by any party on the hearing of
the summons for directions in connection with any application thereat for any order if, under any of these rules,
an application for such an order is required to be supported by an affidavit.

(3) If the Court on any hearing of the summons for directions requires a party to the action or his solicitor or
counsel to give any information or produce any document and that information or document is not given or
produced, then, subject to paragraph (4), the Court may--

(a)cause the facts to be recorded in the order with a view to such special order, if any, as to costs as may be just
being made at the trial, or

(b)if it appears to the Court to be just so to do, order the whole or any part of the pleadings of the party concerned
to be struck out, or if the party is plaintiff or the claimant under a counterclaim, order the action or counterclaim
to be dismissed on such terms as may be just.

(4) Notwithstanding anything in the foregoing provisions of this rule, no information or documents which are
privileged from disclosure shall be required to be given or produced under this rule by or by the advisers of any
party otherwise than with the consent of that party.

25/6/1

Note

For decisions on the court exercising power to strike out under O.25, r.6(1) and (3), see
Aqua-Leisure Industries Inc. & Another v. Aqua Splash Ltd (No. 2) [1999] 3 H.K.C. 343. In this
case, less than one month before the trial, the defendant's solicitors obtained an order to cease to act
for the defendant. The plaintiffs applied under O.25, r.6(1) for an order that the defendant provided
information as to whether the defendant was still proposing to defend the action and if so, further
information. The application came before the court twice on notice to the defendant. On both
occasions, the defendant was absent. The court struck out the defence, the effect of which is that the
plaintiffs would be entitled to the relief as claimed in the action.

See also Luigi Benetton s.r.l. v. Face Time International Ltd, unreported, HCA No. 4135 of 1993,
November 24, 1995, [1995] H.K.L.Y. 990 and Fila Marketing (Hong Kong) Ltd v. Faithful
Properties Ltd & Others, unreported, HCCL No. 66 of 1997, July 9, 1999, [1999] H.K.E.C. 967. In
the latter judgment, in granting the application for supply of information, Findlay J. expressed his
views that in both Aqua-Leisure and the case before him, the information sought by the applicants
(the plaintiff) does not enable the plaintiff to know what to do to meet the case of its opponent, but
to know whether devoting any significant resources to its case is worth powder and shot, and "that
purpose is, in the new atmosphere of case management", to be considered as part of directing "the
future course of action as appear best adapted to secure the just, expeditious and economical
disposal" of it.

25/6/2
 Medical reports

Under the provisions of Pt IV of O.38 the parties are normally required to disclose the substance of
any medical or other expert evidence as a condition of being allowed to call such evidence. The
usual practice is to exchange reports.

Where serious damages are in issue or where medical reports are incomplete or where so-called
"agreed" medical reports do not in fact agree, other medical evidence should be adduced before the
court (Jones v. Griffith [1969] 1 W.L.R. 795; [1969] 2 All E.R. 1015, CA); Mullard v. Ben Line
Steamers Ltd [1970] 1 W.L.R. 1414; [1971] 2 All E.R. 424, CA).

25/6/3

Medical examination of plaintiff

It is incumbent on a plaintiff, who claims damages for personal injuries, to afford the defendant a
reasonable opportunity to have him medically examined, and if he should decline to submit himself
to a medical examination of a reasonable character which is reasonably required, the court has
power, under its inherent jurisdiction, to stay the action unless and until he does so (Edmeades v.
Thames Board Mills Ltd [1969] 2 Q.B. 67; [1969] 2 All E.R. 127, CA). Such an order ought only to
be made when it is reasonable in the interests of justice, and the onus lies on the party applying for
such a stay to show that he cannot properly prepare his case without the medical examination he is
seeking (Lane v. Willis [1972] 1 W.L.R. 326; [1972] 1 All E.R. 430, CA (examination of plaintiff
by named psychiatrist)).

On the other hand, an action by a widow for damages under the Fatal Accidents Ordinance is
unlikely to be stayed because of her refusal to submit to a medical examination, at any rate in the
absence of any concrete basis for requiring such an examination, such as knowledge that she has a
grave disease (Baugh v. Delta Water Fittings Ltd [1971] 1 W.L.R. 1295; [1971] 3 All E.R. 258. See
English decisions on claims brought under the Fatal Accidents Act 1976).

If the defendant asks for the plaintiff to be examined by a particular consultant doctor the court has
jurisdiction to stay the action if the plaintiff refuses unreasonably to submit to such examination,
unless he can show some substantial ground for refusal, such as the particular doctor is likely to
conduct his examination or make his report unkindly or unfavourably (Starr v. National Coal Board
[1977] 1 W.L.R. 63; [1977] 1 All E.R. 243, CA). It is safer to offer the plaintiff a choice of doctors.

Generally speaking, the court will not impose conditions on a medical examination which is
considered necessary. But if the proposed examination is unpleasant, painful or risky the court will
be reluctant to make an order unless the interests of justice imperatively require; see Aspinall v.
Sterling Mansell [1981] 3 All E.R. 866 and Prescott v. Bulldog Tools [1981] 3 All E.R. 869 for
differing approaches to the problem. Although the plaintiff can seldom insist on having his own
doctor present (which may be difficult to arrange and invidious) it is a sensible practice for the
medical men on both sides to arrange a joint examination; if this is not possible, the plaintiff's
solicitor may reasonably stipulate that the plaintiff be accompanied during the examination by a
friend or other third party if the plaintiff is nervous or the defendant's doctor has a reputation for
roughness or hostility (Hall v. Avon Area Health Authority (Teaching) [1980] 1 W.L.R. 481; [1980]
1 All E.R. 516, CA).

Duty to make all interlocutory applications on summons for directions (O.25, r.7)
25/7
7.--(1) Any party to whom the summons for directions is addressed must so far as practicable apply at the
hearing of the summons for any order or directions which he may desire as to any matter capable of being dealt
with on an interlocutory application in the action and must, not less than 7 days before the hearing of the
summons, serve on the other parties a notice specifying those orders and directions in so far as they differ from
the orders and directions asked for by the summons.

(2) If the hearing of the summons for directions is adjourned and any party to the proceedings desires to apply at
the resumed hearing for any order or directions not asked for by the summons or in any notice given under
paragraph (1), he must, not less than 7 days before the resumed hearing of the summons, serve on the other
parties a notice specifying those orders and directions in so far as they differ from the orders and directions
asked for by the summons or in any such notice as aforesaid.

(3) Any application subsequent to the summons for directions and before judgment as to any matter capable of
being dealt with on an interlocutory application in the action must be made under the summons by 2 clear days'
notice to the other party stating the grounds of the application.

25/7/1

Effect of rule

The plaintiff, on issuing the summons under r.1, indicates his requirements. This rule provides a
means for a defendant to indicate what will be his requirements at the hearing of the summons and
for any party, in the event of an adjournment, to indicate to all other parties what further direction he
may desire to be given at the resumed hearing.

25/7/2

Para. (3)

It is incumbent upon the parties to consider and apply for, at the stage of issuing and hearing the
summons for directions, such directions which the parties can and/or ought reasonably to have
contemplated at the time, by reference to the parties' pleaded case or otherwise. If due to the
subsequent development of the proceedings or any other reason, further directions are required, the
parties are obliged to take immediate steps to take out a summons to seek the directions.
Application is required to be by way of summons on two days' notice.

Automatic directions in personal injury actions (O.25, r.8)

25/8
8.--(1) When the pleadings in any action to which this rule applies are deemed to be closed the following
directions shall take effect automatically--

(a)there shall be discovery of documents within 14 days in accordance with Order 24, rule 2, and inspection
within 7 days thereafter, save that where liability is admitted, or where the action arises out of a road accident,
discovery shall be limited to disclosure by the plaintiff of any documents relating to special damages;

(b)subject to paragraph (2), where any party intends to place reliance at the trial on expert evidence, he shall,
within 6 weeks, disclose the substance of that evidence to the other parties in the form of a written report, which
shall be agreed if possible; and
(c)unless such reports are agreed, the parties shall be at liberty to call as expert witnesses those witnesses the
substance of whose evidence has been disclosed in accordance with the preceding sub-paragraph, except that the
number of expert witnesses shall be limited in any case to two medical experts and one expert of any other kind;

(d)photographs, a sketch plan and the contents of any police accident report book shall be receivable in evidence
at the trial and shall be agreed if possible;

(HK)(dd)the record of any proceedings in any court of tribunal shall be receivable in evidence upon production
of a copy thereof certified as a true copy by the clerk or other appropriate officer of the court or tribunal;

(f)-(g)(Repealed L.N. 99 of 1993)

(2) Where paragraph (1)(b) applies to more than one party the reports shall be disclosed by mutual exchange,
medical for medical and non-medical for non-medical, within the time provided or as soon thereafter as the
reports on each side are available.

(3) Nothing in paragraph (1) shall prevent any party to an action to which this rule applies from applying to the
Court for such further or different directions or orders as may, in the circumstances, be appropriate or prevent
the making of an order for the transfer of the proceedings to a district court.

(4) For the purpose of this rule--

"a road accident" ([Chinese Characters]) means an accident on land due to a collision or apprehended collision
involving a vehicle; and

"documents relating to special damages" ([Chinese Characters]) include--

(a)documents relating to any industrial injury, industrial disablement or sickness benefit rights, and

(b)where the claim is made under the Fatal Accidents Ordinance (Cap. 22), documents relating to any claim for
dependency on the deceased.

(5) This rule applies to any action for personal injuries except--

(a)any Admiralty action; and

(b)any action where the pleadings contain an allegation of a negligent act or omission in the course of medical
treatment.

25/8/1

Automatic directions

The system of automatic directions applies only to actions for personal injuries (see O.1, r.4(1) for
the definition of actions for personal injuries) and it does not apply to any Admiralty action (see
r.8(5)(a)) nor to any action where the pleadings contain an allegation of a negligent act or omission
in the course of medical treatment (see r.8(5)(b)). See para. 25/1/1. Paragraph 7 of Practice
Direction 18.1 stipulates that O.25, r.8, if applicable, shall be strictly complied with to the extent
that disclosure of documents provided for under paras 5.1 (Documents to be served with the
Statement of Claim) and 6.1 (Documents to be served with the Defence) of Practice Direction 18.1
has not been complied with. Order 25, r.8, Practice Direction 18.1 and O.18, r.12(1A) complement
 one another (I v. L & Another [2005] 4 H.K.L.R.D. 301).

25/8/2

Medical reports

In the light of Practice Direction 18.1, para. 5 which provides that a medical report (or reports)
within the meaning of O.18, r.12(1C) (including, in an action brought on behalf of the estate of a
deceased person, a post-mortem report if available), must be served with the statement of claim, the
general position appears to be that a plaintiff in a personal injuries case is required to obtain and
serve a medical report. The effect of O.25, rr.8(1)(b) and (2) is not to impose an obligation on a
defendant to obtain a medical report. If, for example, a defendant takes no steps to obtain a medical
report on the plaintiff and does not seek to adduce medical evidence, r.8(2) does not apply, and the
plaintiff must comply with r.8(1)(b) notwithstanding that there is no mutual exchange of reports
(Turner v. Carlisle City Council (1989) 8 C.L. 259). With respect to the interaction between O.25,
r.8(1)(b) (exchange of medical reports in a personal injuries action) and Practice Direction 18.1,
para. 5.2(v) (exchange of medical reports in a medical negligence case), see Ip Ming Yeung v. Dr.
Lo Ni Boon, unreported, HCPI No. 1093 of 2004, May 24, 2005, [2005] H.K.E.C. 950.

25/8/3

Disclosure of expert evidence

There is an obligation to disclose the substance of an expert's evidence which includes matters
which may arise in evidence-in-chief and matters which may arise in cross-examination. Thus
where a defendant obtained an expert's report favourable to his case, but with it was a covering
letter from the expert suggesting possible causes of the plaintiff's accident involving negligence by
the defendant, the defendant was obliged to disclose the covering letter as well as the report if it was
intended to call the expert (Kenning v. Eve Construction [1989] 1 W.L.R. 1189). There is also an
obligation to disclose in a timely fashion any material which may cause prejudice to the case of any
other party. Thus, on an assessment of damages hearing for a personal injuries action where a
defendant, without explanation, failed to disclose until two days before the hearing a videotape
showing the plaintiff walking normally, the defendant was penalised heavily on costs (see Ho Moh
v. Tam Yiu Keung & Another, unreported, HCPI 1251 of 1998, January 18, 2001, [2001] H.K.E.C.
68).

25/8/4

"Further or different directions"

Para. (3) of this rule entitles any party to an action to which the rule applies to apply to the court for
such further or different directions or orders as may, in the circumstances, be appropriate. Any party
making any such application will of course have to justify his application upon proper grounds, or
otherwise he may be mulcted in costs, for para. (3) is not intended to provide an escape route out of
the operation of r.8 whether to delay the progress of the action or otherwise.

Standard direction by consent (O.25, r.9)

25/9
9.--(1) (Repealed L.N. 99 of 1993)
(3) The Court may give such further directions or orders, whether on application by a party or its own motion, as
may, in the circumstances, be appropriate.

25/9/1

Effect of rule

The court is empowered generally to give further directions or orders, whether on application by a
party or of its own motion, as may be appropriate in the circumstances. The power conferred upon
the court under this rule is clearly wider than what the caption words "Standard direction by
consent" suggests.

In any event, the court is empowered generally to give such further directions or orders, whether on
application by a party or of its own motion, as may be appropriate in the circumstances.

LITIGATION TOPICS

25/L/1

Dismissal for want of prosecution--general

Para. (4) of O.25, r.1 expressly empowers the court to dismiss any action for want of prosecution if
the plaintiff does not issue the summons for directions within the proper time. There are similar
express provisions elsewhere in the RHC, e.g. in O.19, r.1 (default in service of the statement of
claim); O.24, r.16(1) (default in discovery); O.34, r.2 (default in setting down). But in addition to
these express provisions the court has inherent jurisdiction to dismiss an action for want of
prosecution if there has been default in complying with the rules or excessive delay in the
prosecution of the action. Generally speaking the same principles are applied whether the court is
acting under its express power or under its inherent jurisdiction. For the approach of the courts
when faced at the same time by a defendant's application to dismiss for want of prosecution and a
plaintiff's application for an extension of time under the rules, see para. 3/5/9 above, "Dismissal for
want of prosecution".

In essence, the Hong Kong courts apply the principles set out in Birkett v. James [1978] A.C. 297,
although these have been developed in various Hong Kong decisions decided subsequently.

25/L/2

Main principles

There are two distinct, though related, circumstances in which an action may be dismissed for want
of prosecution, namely, (a) when a party has been guilty of intentional and contumelious default,
and (b), where there has been inordinate and inexcusable delay in the prosecution of the action.
(Allen v. McAlpine [1968] 2 Q.B. 229, approved in Birkett v. James (above)).

25/L/3

Contumelious default

By this is meant deliberate default in compliance with a peremptory order of the court or conduct
amounting to an abuse of the process of the court, Wallersteiner v. Moir [1974] 1 W.L.R. 991;
[1974] 3 All E.R. 217, CA, Grovil v. Doctor [1997] 1 W.L.R. 640; [1997] 2 All E.R. 417, HL;
Arbuthnot Latham Bank v. Trafalgar Holding, The Times, December 29, 1997, CA and Choraria v.
Sethia, The Times, January 29, 1998, CA. See too Re Jokai Tea Holdings Ltd (Note) [1992] 1
W.L.R. 1196; [1993] 1 All E.R. 630, CA and Grand Metropolitan Nominee (No. 2) Co. Ltd v. Evans
[1992] 1 W.L.R. 1191; [1993] 1 All E.R. 642, CA, for meaning of contumelious default.

A peremptory order is one which makes clear to the other party, either from its terms or from the
circumstances in which it was made, that exact compliance with no further argument, is required by
the court within a stated time, and indicating expressly or by implication, that default will incur
serious consequences.

Set out below are the recent decisions of the Hong Kong courts on striking out for failure to comply
with peremptory orders:

In PT Bank Pembangunan Indonesia (Persero) v. Tan Eddy Tansil & Others [1997] H.K.L.R.D. 57;
[1996] 1 H.K.C. 231, the Court of Appeal adopted the test on whether the failure is intentional and
contumelious as laid down by Sir Nicolas Browne-Wilkinson V.-C. giving the leading judgment in
the case of Re Jokai Tea Holdings Limited [1992] 1 W.L.R. 1196 namely "the Court should not be
astute to find excuses for such failure since obedience to orders of the court is the foundation on
which its authority is founded. But if a party can clearly demonstrate that there was no intention to
ignore or flout the order and that the failure to obey was due to extraneous circumstances, such
failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to
rights which he would otherwise have enjoyed".

See subsequent cases following the same principles in Jokai: Chow Kai Sang v. Toi Samuel [1996]
4 H.K.C. 330, Ming Pao Enterprise Corp. Ltd v. CIM Co. Ltd [1999] 1 H.K.C. 497 and Dongguan
Dongxiang Decoration Co. Ltd v. Universal Right Ltd [1999] 1 H.K.C. 790, Chan Chun Lung &
Others v. Ryland Ltd & Others, unreported, CACV No. 284 of 1999, March 22, 2000, [2000]
H.K.E.C. 296, CTB Australia Ltd v. Kuo Kin Ling, unreported, HCA No. 5435 of 2000, May 20,
2004, [2005] H.K.E.C. 580. The best practical form of peremptory order is the "unless order". This
is in the following, or similar effect: "that unless the plaintiff by [4 pm on February 28, 1997] has set
the action down for trial the action be dismissed with costs". See Practice Direction 16.5
Peremptory Orders.

The justification for this apparently draconian jurisdiction is the principle that "orders are made to
be complied with and not ignored" (per Roskill L.J. in Samuels v. Linzi Dresses Ltd [1981] Q.B.
115 at 126-127, CA; Janov v. Morris [1981] 1 W.L.R. 1389; [1981] 3 All E.R. 780, CA). It is not as
harsh as might be thought since:

(a)mere failure to comply with a rule is not regarded as sufficient for its exercise; there must be
disobedience of an express, peremptory order;

(b)it is unusual to make a peremptory order on the first occasion that the matter is before the court;

(c)if the defaulter has any reasonable explanation, he may obtain an extension of time, even (though
rarely) after the time has expired (ibid.).

(d)generally speaking, a defaulter can cure his default at any time before the order for dismissal is
made (or, if postponed) takes effect.

In these circumstances, it is usually fair to conclude that a party who persists in default has no
 confidence in the merits of his case or has lost the desire to pursue it.

It is to be noted that:

(a)the same principles apply to a defaulting defendant; his defence may be struck out and judgment
entered for the plaintiff;

(b)if the default relates only to a severable part of the statement of claim or defence, it is usual to
strike out that part, rather than the whole pleading.

To commence and continue litigation with no intention to bring the same to a conclusion could
amount to an abuse of process. An abuse of process if established was a ground for striking out
under the court's inherent jurisdiction irrespective and independent of any question of delay (Grovit
v. Doctor [1997] 1 W.L.R. 640; [1997] 2 All E.R. 417, HL). The court's power to strike out on the
basis that there is no intention to prosecute proceedings to trial, and even in the absence of prejudice
to the defendant, is likely to be restricted to cases of an exceptional nature (The New China Hong
Kong Group Ltd (in liquidation) & Another v. AIG Asia Infrastructure Fund L.P. & Others, CACV
No. 108 of 2004, January 25, 2005, [2005] 1 H.K.L.R.D. 383; Hoi Sing Construction Co. Ltd (in
liquidation) v. ITC Corporation Ltd, unreported, HCA No. 11433 of 1998, April 22, 2005, [2005]
H.K.E.C. 790). Such a case, involving "special evidence" of an abuse of process, was held to exist
in Chevalier (E&M Contracting) Ltd v. Rotegear Development Ltd & Others, unreported, HCA No.
1717 of 1990, [2005] H.K.E.C. 1055; [2005] 4 H.K.L.R.D. 30 (a case in which the plaintiff's claim
was struck as an abuse of process, following ten years of inactivity and approximately two and a
half years after the defendant's solicitors had written to the plaintiff's solicitors inviting them to
discontinue, failing which it was stated that a strike out application based on abuse of process and/or
want of prosecution would follow).

Plaintiff's failure to give coherent instructions to its solicitors amounted to an affront to the court;
plaintiffs held to have acted in wholesale disregard of norms of conducting litigation, proceedings
were struck out for abuse of process. See Habib Bank Ltd v. Jaffer & Another [2000] C.P.L.R. 438,
CA.

25/L/4

Inordinate and inexcusable delay

The requirements are: (a) that there has been inordinate and inexcusable delay on the part of the
plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not
possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused
serious prejudice to the defendants either as between themselves and the plaintiff or between each
other or between them and a third party: Birkett v. James [1978] A.C. 297 at 318; [1977] 3 W.L.R
38; [1977] 2 All E.R. 801, HL.

But what is "serious prejudice" depends on the facts; if the plaintiff has already added to the
defendant's difficulties by taking full advantage of the delay permitted by the Limitation Ordinance,
any further prejudice beyond the minimal may be "serious" (ibid., at 323).

It should be noted that requirement (b) set out above envisages two distinct situations and that the
establishment of either suffices, see Pursey v. British Aerospace P.L.C., unreported, May 2, 1984,
CA. It is, however, essential that the inordinate and inexcusable delay established must be causative
of either situation before the jurisdiction to strike out hereunder can arise, see Purcell Meats
(Scotland) Ltd v. Intervention Board for Agricultural Produce, The Times, June 5, 1997.

There have been a considerable number of decisions of the Hong Kong courts on applications to
strike out for inordinate and inexcusable delay; for example, see The New China Hong Kong Group
Ltd (in liquidation) & Another v. AIG Asian Infrastructure Fund L.P. & Others, CACV No. 108 of
2004, January 25, 2005, [2005] 1 H.K.L.R.D. 383 (applied in Wing Ming Garment Factory Ltd v.
The Incorporated Owners of Wing Ming Industrial Centre & Another, unreported, HCA No. 8805
of 1993, April 22, 2005, [2005] H.K.E.C. 722; Hoi Sing Construction Co. Ltd v. ITC Corporation
Ltd, unreported, HCA No. 11433 of 1998, April 22, 2005, [2005] H.K.E.C. 790; Core
Pacific-Yamaichi Finance Co. Ltd v. Leung Siu Wai & Others, unreported, HCCL No. 224 of 1998,
May 30, 2005, [2005] H.K.E.C. 901). In all cases, since Birkett v. James (above) was decided, the
Hong Kong courts have cited and followed Birkett v. James. The following decisions demonstrate
the courts' approach towards the applications in specific circumstances:

(1)Where a plaintiff has obtained an interlocutory injunction, it is incumbent upon the plaintiff to
proceed with the action with due diligence--Sanwa Development Ltd (in liq.) v. Chan Kar Keung &
Another [1999] 1 H.K.C. 847, applied in Yung Yuen Ling v. Wong Ming Kan (unrep., HCA 231 of
2004) [2007] H.K.E.C. 767.

(2)Although the plaintiff's delay was inordinate, the court refused to exercise the discretion to strike
out as there was condonation and acquiescence by the defendant as the defendant has agreed to all
10 consent applications the plaintiff proposed for extension of time to take steps in the proceedings;
delay was held not to be inexcusable. Kerry Foodstuffs Co. Limited v. Phulsawat Navy Co. Ltd
[1999] 3 H.K.C. 523.

(3)The plaintiff's delay was held to be plainly inordinate and inexcusable but the defendants were
estopped from relying on the delay as their conduct had induced the plaintiff to incur further costs in
the belief that the defendant would pursue the action notwithstanding the plaintiff's delay.
Hongkong and Shanghai Banking Corp. Ltd v. Kuan Tao Sheng & Others [1998] 2 H.K.L.R.D. 585;
[1998] 1 H.K.C. 438. See also Computronics International (a firm) v. Piff Shipping Ltd [1997] 2
H.K.C. 53 where it was held that there was acquiescence on the part of the respondent (defendant)
when he did not apply to dismiss the action at earlier stage of the proceedings when the appellant
(plaintiff) had taken active steps in preparation for trial.

(4)The principle of striking out for inordinate and inexcusable delay applies when the plaintiff, who
has obtained a default judgment for damages to be assessed for his personal injuries claim, did not
proceed with the assessment of damages until 11 years later, despite his legal adviser's reminders. It
was held that where there is no Ordinance to set the time limit, the issue is to be resolved by
reference to widely accepted principles. The court drew analogy to the limitation period for
personal injuries i.e. three years from taking the last step. Re Ho Tze Bun [1995] H.K.D.C.L.R. 79;
Ho Tze Bun v. Incorporated Owners of 39-41 Tong Chong Street & 31-33 Hoi Wan Street [1996] 1
H.K.C. 95.

(5)For examples of inordinate and inexcusable delay and the defendant suffering prejudice as a
result of the delay: see Can-Asia Capital Co. Ltd v. Kwok Yee William & Others [1995] 1 H.K.C.
521, Lui Chun Kwong v. Kier Hong Kong Ltd & Others [1995] 1 H.K.C. 695, Advaita Enterprises
& Another v. Seafast Marine Transport Inc. & Others, unreported, HCCL No. 241 of 1995 and 158
of 1996, November 16, 2001, [2001] H.K.E.C. 1526, Cheung Sau Chu Rosanna v. Li Kwok Keung
& Others [1994] 2 H.K.C. 592, Lee Shing Lai v. Lou Tong Chiu Kee Construction Co. Ltd,
unreported, HCCT No. 46 of 2005, [2005] H.K.E.C. 1632.
 For a summary of the principles and guidelines for use on an application to strike out for want of
prosecution where it is not suggested that the plaintiff has been guilty of intentional and
contumelious default and subject to the ruling in Roebuck v. Mungovin [1994] 2 W.L.R. 290 at para.
25/L/21, see Trill v. Sacher [1993] 1 W.L.R. 1379; [1993] 1 All E.R. 961, CA, particularly at
1379-1400 and 978-980 respectively.

25/L/5

(1) "Inordinate delay"

Time which has elapsed before the issue of the writ within the limitation period cannot of itself
come within these words. Only delay after the issue of the writ is relevant. But the later the plaintiff
starts his action the higher his duty to prosecute it with diligence (Birkett v. James [1978] A.C. 297;
[1977] 2 All E.R. 801, HL; Tabata v. Hetherington (1983) The Times, December 15, CA; Bank of
China (Hong Kong) Ltd v. Simon Siu, Wong, Lam & Chan (A Firm) (unrep., HCA 1905 of 2002)
[2006] H.K.E.C. 1832, CFI; Tung Pui Ling v. Midland Insurance Co. Ltd (unrep., HCA 2102 of
2006) [2007] H.K.E.C. 822 confirmed that a statement of claim should not be struck out because of
inexcusable or inordinate pre-writ delay). Thus although time elapsed before the issue of the writ
within the limitation period cannot of itself constitute inordinate delay such as to justify dismissal of
the action, once a writ has been issued the plaintiff is bound to observe the RHC and to proceed with
reasonable diligence; accordingly inordinate delay by a plaintiff within the limitation period can be
relied upon to support a defendant's application to strike out after the expiry of the limitation period
(Rath v. C.S. Lawrence & Partners [1991] 1 W.L.R. 399; [1991] 3 All E.R. 679 CA). But delay (in
the particular case of some 28 years) in commencing an action for personal injury on the part of a
plaintiff under a disability was irrelevant when the action was begun within the limitation period
and called for no explanation no matter what prejudice may have been caused to the defendant,
Headford v. Bristol and District Health Authority [1995] P.I.Q.R. P 180 CA. See further
"Subsidiary points--Limitation Ordinance", para. 25/L/8 (below).

Where a long delay before the issue of the writ causes the defendant prejudice, he has to show only
something more than minimal additional prejudice as the result of any post-writ delay to justify the
action being struck out (Department of Transport v. Chris Smaller (Transport) Ltd [1989] A.C.
1197; [1989] 1 All E.R. 897, HL).

"Inordinate" means "materially longer than the time usually regarded by the profession and Courts
as an acceptable period" (Birkett v. James (above)). It is easier to recognise than to define.

Recent cases in Hong Kong have held that a delay of two years is inordinate, albeit in these
particular cases there was no prejudice to the defendant. See AA Trafo GmBH v. Combi Ocean Line,
unreported, HCCL No. 43 of 1997, November 9, 2001, [2001] H.K.E.C. 1516; and Secan Ltd v.
Hsin Yieh Architects & Associates Ltd, unreported, HCCT No. 69 of 2001, November 24, 2001,
[2001] H.K.E.C. 1506.

25/L/6

(2) "Inexcusable delay"

This ought to be looked at primarily from the defendant's point of view or, at least, objectively;
some reasonable allowance, for illness and accidents may, be made. But the best excuse is usually
the agreement of the defendant or difficulties created by him.
 The absence of legal aid in libel proceedings should be treated sympathetically where it is asserted
by the plaintiff that the delay was caused by lack of finance (Gilberthorpe v. Hawkins, The Times,
April 3, 1995, CA).

The fact that an action has been stayed by order of the court pending the giving by the plaintiff of
security for the defendant's costs does not excuse delay if the plaintiff could, at any time during the
relevant period, have caused the stay to be lifted by giving the security or by making an appropriate
application to the court (Thomas Storey Engineers Ltd v. Wailes Dove Bitumastic Ltd, The Times,
January 21, 1998, CA).

25/L/7

(3) Prejudice to the defendant

This is a matter of fact and degree and has been discussed in Allen v. McAlpine [1968] 2 Q.B. 229;
[1968] 1 All E.R. 543, CA, and in a large number of reported cases. The effect of the lapse of time
on the memory of witnesses or, in the course of such time of their death or disappearance are the
most usual factors. Their importance depends upon the circumstances, the issues and the other
evidence that can be given. Thus the lapse of time may be very prejudicial if the circumstances of an
accident or oral contracts or representations are in issue, but is of much less importance in a heavy,
well-documented commercial action (National Insurance Guarantee Corp. Ltd v. Robert Bradford
& Co. Ltd (1970) 114 S.J. 436, CA). In a case of prolonged culpable delay following long delays in
serving of proceedings, the court may readily infer that memories and reliability of witnesses has
further deteriorated in the period of culpable delay (Benoit v. Hackney LBC, unreported, February
11, 1991, CA Transcript No. 91/0116). Bald assertion of prejudice or of a substantial risk that a fair
trial was not possible are insufficient. There has to be some indication of prejudice, e.g. that no
witness statement was taken at the time so that a particular witness who would have been called on
a particular issue had no means of refreshing his memory or that a particular witness was of
advanced age and no longer wished to give evidence or had become infirm or unavailable in the
period of inordinate and unexcusable delay (Hornagold v. Fairclough Building Ltd [1993] P.I.Q.R.
400; The Times, June 3, 1993, CA). See further Rowe v. Glenister, The Times, August 7, 1995, and
Slade v. Adco, The Times, December 7, 1995 (both CA) reiterating the requirement of some
evidence to support the inference of prejudice in the form of lost or less cogent recollection. See too
Shtun v. Zalejska [1996] 1 W.L.R. 1270; [1996] 3 All E.R. 411, CA.

The prejudice to the defendant must be caused by delay since the issue of the writ; the defendant
cannot rely upon prejudice relating wholly from earlier delay. Evaluation of the degree of prejudice
caused by delay since issue of the writ, however, is likely to require consideration of the context of
such delay and, therefore, of the effect of the total lapse of time since the events giving rise to the
dispute (James Investments (I.O.M.) Ltd v. Phillips Cutler Phillips Troy, The Times, September 16,
1987, CA). See also Donovan v. Gwentoys Ltd [1990] 1 W.L.R. 472; [1990] 1 All E.R. 1018, HL,
where the House of Lords, in exercising a different jurisdiction (namely under s.33 of the English
Limitation Act 1980) took a similar view of how prejudice should be evaluated.

Prejudice entitling a defendant to strike out an action is not confined to prejudice affecting the
actual conduct of the trial, but includes, inter alia, prejudice to the defendant's business interests
(Department of Transport v. Chris Smaller (Transport) Ltd [1989] A.C. 1197; [1989] 1 All E.R.
897, HL). The court, however, should be cautious about allowing the anxiety that accompanies any
litigation to be regarded by itself as a sufficient ground of prejudice to justify the striking out of the
action; as a general rule it will be an exceptional case where that sort of anxiety alone founds
sufficient ground for striking out. Biss v. Lambeth, Southwark and Lewisham Health Authority
 (Teaching) [1978] 1 W.L.R. 382; [1978] 2 All E.R. 125, CA where the action hung over the
defendants for 111/2 years, with professional reputations at stake, was such an exceptional case
(Eagil Trust Co. Ltd v. Pigott-Brown [1985] 3 All E.R. 119, CA. Inordinate and inexcusable delay
by the plaintiff in prosecuting an action after the limitation period has expired is not a ground for
striking out the action for want of prosecution unless the defendant has suffered prejudice from the
delay or a fair trial of the issues is impossible (Department of Transport v. Chris Smaller (Transport)
Ltd (above)).

If "prejudice" is given its ordinary meaning of detriment, delay which increases the amount of a
claim (e.g. delay resulting in a larger multiplicand, and thereby the amount of the award in a
personal injuries case) may prejudice the defendant, but whether such prejudice will justify the
striking out of the action will vary from case to case; the defendant should produce compelling
evidence of substantial prejudice to justify dismissal of the proceedings (Hayes v. Bowman [1989] 1
W.L.R. 456; [1989] 2 All E.R. 293, CA).

Where in a medical negligence claim inordinate and inexcusable delay by the plaintiff resulted in
prejudice to the defendant in that, had the action proceeded expeditiously any damages awarded
would have been paid by the Medical Defence Union, but if the action was tried now the defendant
itself would have to pay such damages, then such prejudice was held to be sufficient to justify
dismissing the action (Antcliffe v. Gloucester Health Authority [1992] 1 W.L.R. 1004, CA). See too
Gascoigne v. Haringey Health Authority [1992] 3 Med.L.R. 291; The Times, July 30, 1992, CA
where changes in the health authority's insurance arrangements placing greater financial burden on
the authority than previously was found to constitute prejudice but held such prejudice should not
be regarded as a determinative factor to justify striking out. Further, the value of having in hand
money which but for the delay the defendant would have had to pay the plaintiff if successful
should be brought into account (Gahan v. Szerelmey (U.K.) Ltd [1996] 1 W.L.R. 439; [1996] 2 All
E.R. 291, CA).

In an application to dismiss an inquiry as to damages under a cross-undertaking for want of

prosecution there is no need to show prejudice in order to succeed, see Barratt Manchester Ltd v.
Bolton MBC [1998] 1 All E.R. 1, CA. A plaintiff's confirmation in foreign proceedings that it did
not intend to proceed with proceedings in Hong Kong between the same parties could constitute an
example of prejudice (Eastgate Partners Ltd v. Suthi Tejavibulya & Others, unreported, CACV No.
289 of 2005, [2006] H.K.E.C. 598), as could the unavailability of vital documentary evidence and
direct testimony from persons who had personal knowledge of the issues in dispute (Leecom
Holdings Ltd & Another v. David Tsui Po Wing, unreported, HCA No. 2294 of 1997, [2006]
H.K.E.C. 381); in both cases there had also been inordinate and inexcusable delay on the part of the
plaintiffs.

Subsidiary points

25/L/8

(1) Limitation Ordinance

The fact that a limitation period has not yet expired must always be a matter of great weight in
determining whether the court should exercise discretion to dismiss an action where no question of
contumelious default on the part of the plaintiff is involved; in cases where it is likely, if the action
is dismissed, that the plaintiff will avail himself of his legal right to issue a fresh writ, the
non-expiry of the limitation period is generally a conclusive reason for not dismissing an action
which is already pending (Birkett v. James [1978] A.C. 297; [1977] 2 All E.R. 801, HL). This was
 illustrated by Goldwan Consultants Ltd v. South-East Asia Investment and Agency Co. Ltd,
unreported, HCA 17783/1999, April 29, 2003, [2003] H.K.E.C. 1020; in this case, the court
observed that unless the relevant limitation period had expired there was relatively little point in
dismissing an action (save in exceptional circumstances). In exceptional cases, however, the court
may properly depart from this general principle; thus in a case where the relief sought is the
regulation of the parties' future conduct rather than damages for past injuries, and where events
have effectively overtaken the legal proceedings, it may be appropriate to dismiss the action for
want of prosecution notwithstanding that the relevant period of limitation remains unexpired
(Wright v. Morris, The Times, October 31, 1988). In South-East Asia Finance Co. Ltd v. Tsui Luen
On, unreported, HCA No. 1997 of 2000, December 16, 2002, [2003] H.K.E.C. 85, an exceptional
case was found to exist because if the action was struck out, the defendant would become entitled to
a sum of money representing an award in favour of the defendant in the Labour Tribunal. However,
the court took the view that as the limitation period had not expired, more harm than good would be
done by dismissing the action. Moreover the principle does not apply to dismissal on the grounds of
contumely or abuse of process of the court.

Where it is open to argument whether or not a cause of action will be time-barred if a fresh writ is
issued, the interests of justice are best served by dismissing the action for want of prosecution,
leaving the plaintiff to test the matter by starting a new action (Barclays Bank plc v. Miller [1990] 1
W.L.R. 343; [1990] 1 All E.R. 1040, CA).

25/L/9

(2) Issue of a second writ

If the limitation period has expired it is normally useless to issue a second writ, since the court has
no power under s.30 of the Limitation Ordinance to override the time limits imposed by that
Ordinance if the plaintiff's difficulty arises from the dismissal for want of prosecution of an earlier
action brought within the limitation period (Walkley v. Precision Forgings Ltd [1979] 1 W.L.R. 606;
[1979] 2 All E.R. 548, HL decided on the same issue under an equivalent English provision of s.33
of the Limitation Act 1980). (The position might be different if the plaintiff had been tricked by the
defendant into discontinuing the first action, ibid.)

If the limitation period has not expired, the need to issue a second writ would only arise if the action
had been dismissed for contumelious conduct or as an abuse of the process of the court. If the
plaintiff then issues a second writ for the same cause, the question arises whether the second action
can be stopped as an abuse of the process of the court. There has been some difference of opinion on
the point; the best view is that the second action can be stopped unless the plaintiff gives a
satisfactory explanation for his contumely (Janov v. Morris [1981] 1 W.L.R. 1389; [1981] 3 All
E.R. 780, CA, approved in Palmer v. Birks (1986) 83 L.S.Gaz. 125, CA).

25/L/10

(3) Several defendants

It may be that one defendant has agreed with the plaintiff to hold up proceedings but that another
defendant wishes them to proceed with expedition. This poses a problem which the court tries to
solve on broad considerations of justice (Hatter v. Port of London Authority (1971) 115 S.J. 950,
CA; Kelly v. Marley Tile Co. Ltd (1978) 122 S.J. 17, CA).

Material considerations in cases of delay affecting several defendants were stated in Kincardine
 Fisheries Ltd v. Sunderland Marine Mutual Insurance, The Times, February 12, 1997, to be:

1. Each defendant was entitled to rely as inordinate delay on any period of time during which, so far
as that defendant was concerned, the plaintiff had failed to prosecute the proceedings with that
degree of despatch which could normally be expected in relation to the particular claim.

2. In determining whether a particular period of inordinate delay was inexcusable in relation to that
defendant, the court had to look at the proceedings as a whole, as distinct from isolating the claim
against that defendant from the claims against the other defendants. Accordingly, a period of
inordinate delay in relation to one defendant might be excusable having regard not only to the
plaintiff's relations with that defendant, but also having regard to the plaintiff's relations with
another defendant. The court should look at all the facts of the plaintiff's conduct of the proceedings
as a whole and, if during a period of inordinate delay common to more than one defendant it was
found that the whole or part of that period was excusable, it would generally, but not inevitably,
follow that the same period would also be held to be excusable vis-C -other defendants.

3. However, as to the incidence of prejudice the position was different, for each defendant was
entitled to rely on prejudice to him and to the fair trial of the issues in the action which involved the
defendant. The court had therefore to proceed to examine the position of each defendant separately
to ascertain whether inordinate and inexcusable delay had prejudiced him or rendered impossible
the fair trial of the issues between that defendant and any other party to the proceedings.

4. Having regard to the conduct of each of the defendants, the overriding discretion of the court to
strike out in response to inordinate and inexcusable delay might be differently exercised in respect
of different defendants.

See too Hunter v. Skingley [1997] 1 W.L.R. 1466; [1997] 3 All E.R. 568, CA.

25/L/11

(4) Third party

A third party cannot apply to dismiss the plaintiff's action; but he can ordinarily require the
defendant to prosecute the third party proceedings with diligence, whatever the position between
plaintiff and defendant; if the defendant does not do so, then the third party proceedings may be
dismissed even though the main action proceeds (Enoch v. National Coal Board (1978) 122 S.J.
401; Slade & Kempton (Jewellery) Ltd v. Kayman Ltd [1969] 1 W.L.R. 1285; [1969] 3 All E.R.
786). But different considerations might arise if the third party had assented to, or encouraged, the
indulgence to the plaintiff.

It must also be remembered that the date of accrual of the defendant's cause of action against the
third party, and the length of the appropriate limitation period and the date of its expiry, may often
be different from the date of accrual of the plaintiff's cause of action against the defendant, and the
length and date of expiry of the limitation period appropriate to that cause of action. In some cases
where contribution is claimed against a third party the cause of action may not accrue until the
plaintiff has obtained judgment against a defendant. In such cases the rule in Birkett v. James (see
para. (1) above) may serve to prevent third party proceedings from being dismissed for want of
prosecution even although the rule would have no application to the main proceedings.

25/L/12
 (5) Counterclaims

If the defendant has a counterclaim arising out of the same facts and both plaintiff and defendant are
equally guilty of inordinate delay, the court will dismiss both claim and counterclaim (Zimmer
Orthopaedic Ltd v. Zimmer Manufacturing Co. [1968] 1 W.L.R. 1349; [1968] 3 All E.R. 449, CA).

There is no general rule, however, that a claim and counterclaim arising out of the same matters
must necessarily stand or fall together on a striking out application. Where a defendant is prejudiced
by a plaintiff's inordinate and inexcusable delay, but is not himself guilty of such delay, the claim
may be struck out while the counterclaim is allowed to proceed (Westminster City Council v.
Clifford Culpin and Partners (1987) 137 New L.J. 736, CA). See too Owen (trading as Max Owen
Associates) v. Pugh [1995] 3 All E.R. 345.

25/L/13

(6) Liability admitted

The court is reluctant to dismiss an action on the ground of prejudice to the defendant if liability is
not substantially in issue, particularly if there has been a payment into court. But in some cases it is
necessary to do so because the delay has made it impossible, or very difficult, to evaluate the
damages (Gloria v. Sokoloff [1969] 1 All E.R. 204, CA; Martin v. Turner [1970] 1 W.L.R. 82;
[1970] 1 All E.R. 256) or if the delay has been very long indeed, e.g. 10 years (Paxton v. Alsopp
[1971] 1 W.L.R. 1310; [1971] 3 All E.R. 370). Sometimes justice can best be done by giving the
plaintiff a last chance to accept the money in court.

25/L/14

(7) Both to blame

The court will look at the conduct of both parties. If the defendant has considerably contributed to
the delay or, a fortiori, has actually agreed to it, he will seldom obtain the dismissal of the action
(Austin Securities v. Northgate and English Stores Ltd [1969] 1 W.L.R. 529; [1969] 2 All E.R. 753,
CA; Banca Popolare di Novara v. John Livanos & Sons Ltd (1973) 117 S.J. 509).

See too Hunter v. Skingley [1997] 1 W.L.R. 1466; [1997] 3 All E.R. 568, CA, held that where both
parties had substantially contributed to the delay, the court would consider the conduct of each
party, the various periods of delay and the various items of prejudice and decide, where possible, to
whose fault they were attributable.

25/L/15

(8) "Sleeping dogs"

It has been said that a defendant may properly take no action at all to stimulate the plaintiff but may
"let sleeping dogs lie" in the hope that the action may die a natural death (see Lord Salmon's speech
in Birkett v. James [1978] A.C. 297; [1977] 2 All E.R. 801, HL and his judgment in Allen v.
McAlpine [1968] 2 Q.B. 229; [1968] 1 All E.R. 543, CA). But it is not always easy to draw the line
between proper inactivity and actual encouragement of, or contribution to, delay (see "Both to
blame" (above)). In many cases the prospects of a successful application are much improved by one
or two reminders to the plaintiff that he should either proceed with the action or abandon it.
25/L/16

(9) Remedy against the plaintiff's solicitor

It has now been decided that it is irrelevant to consider whether the plaintiff has an alternative
remedy against his solicitor for inefficiency (Birkett v. James, above).

25/L/17

(10) Alternative remedies

If the court is unwilling to dismiss the action outright it may protect the defendant by prescribing a
strict timetable, with dismissal as the consequence of default (Pryer v. Smith [1977] 1 W.L.R. 425,
CA). It may also order that the plaintiff pay the costs occasioned by the application forthwith; if the
fault is that of the plaintiff's solicitor he may properly be invited, and, if necessary, ordered, to bear
those costs.

25/L/18

(11) Appeals

Appeals against the refusal to strike out an action for want of prosecution are to be discouraged
(Tsangaris v. Tsortzis, The Times, December 17, 1976, CA).

25/L/19

(12) Drawing attention to possible claim against solicitors

When an order is made dismissing an action for want of prosecution on the ground of inexcusable
delay, the court may in its discretion draw attention to the fact that, in the circumstances of the case,
it is possible that the plaintiff may have a claim against his solicitors who would no doubt realise
that it was their duty to advise him to seek advice about his possible rights, but it was right to remind
them of such duty.

25/L/20

(13) Effect of step taken by defendant

If after a period of delay by the plaintiff, but before the expiry of the relevant limitation period, a
defendant takes an active step in the action, for example by applying for a fixed date for trial, which
indicates an apparent willingness for the action to continue, and if in consequence the plaintiff seeks
to continue with the action, rather than to discontinue and start a fresh action before the expiry of
the limitation period, the action should not be struck out (Simpson v. Smith, The Times, January 19,
1989, CA).

25/L/21

(14) Defendant's conduct inducing plaintiff to believe action will proceed to trial

Where a plaintiff has been guilty of inordinate and inexcusable delay which has prejudiced the
defendant, subsequent conduct by the defendant which induces the plaintiff to incur further expense
 in pursuing the action does not in law constitute an absolute bar preventing the defendant from
obtaining a striking out order. Such conduct of the defendant is, of course, a relevant factor to be
taken into account by the judge in exercising his discretion whether or not to strike out the claim,
the weight to be attached to such conduct depending on all the circumstances of the particular case
(Roebuck v. Mungovin [1994] 2 A.C. 224; [1994] 2 W.L.R. 290; [1994] 1 All E.R. 568, HL,
overruling County and District Properties Ltd v. Lyell [1991] 1 W.L.R. 683 and Reynolds v. British
Leyland Ltd [1991] 1 W.L.R. 675; [1991] 2 All E.R. 243). The House of Lords also stated that the
introduction into the law of striking out of concepts of waiver, acquiescence or estoppel is merely
confusing. And where there has been inordinate and inexcusable delay giving rise to prejudice with
subsequent conduct as aforesaid on the part of the defendant but followed by further unreasonable
delay, it is not necessary to establish further prejudice from such further period but the court is
entitled to look at the whole history of the case in deciding whether or not the action ought to be
dismissed.

See too Ortansk SA v. Spencer Associates, The Times, February 19, 1998, CA--an application by
the defendants for security for costs did not preclude them from applying to strike out in a case
involving a failure over a long period of time to serve a statement of claim.

25/L/22

(15) Originating summons

The same principles apply to the dismissal for want of prosecution of proceedings initiated by
originating summons under O.28, r.10 as apply in every other case where the court has power,
whether under the Rules or under its inherent jurisdiction to dismiss proceedings for want of
prosecution; thus the court's power to dismiss will not be exercised even where inordinate and
inexcusable delay has been established unless (a) the delay gives rise to a substantial risk of
unfairness or prejudice to the defendant, and (b) the relevant period of limitation has expired (Halls
v. O'Dell [1992] 1 Q.B. 393, CA). Merit or lack of merit is not a relevant consideration in an
application to strike out or want of prosecution under O.28, r.10. A meritorious action may be
struck out because of intentional and contumelious default of the plaintiff in prosecuting the claim
(Au Yeung On & Another v. Che Shing Cheong Wilfred & Others (unrep., HCMP 4745 of 1999)
[2006] H.K.E.C. 1102, CFI.

HKCP RHC O. 25

20XX WL 1346290

END OF DOCUMENT