Chu Gregory v Yick Ngai Logistics (HK) Company Limited  HKDC 463
DCPI 110/2020, Master Matthew Leung in Chambers, 30 April 2021
The present case concerns the Plaintiff’s application for leave to join River Trade Terminal Co Ltd (“River Trade”) and Bentat Logistics (Shipping) Ltd (“Bentat”) as the 2nd and 3rd Defendants (“Intended Defendants”).
The Plaintiff, who claimed to be employed by the Defendant as a container truck driver, was instructed to work at the Defendant’s designated parking area (“the Area”) in the River Trade Terminal (“the Terminal”). An accident occurred on 24 March 2017 when the Plaintiff was working at the Area (“the Accident”). Believing that the Area was exclusively used by the Defendant, the Plaintiff commenced proceeding against the Defendant on 13 January 2020. In the Defence filed on 27 March 2020 and a subsequent letter dated 24 June 2020, the Defendant claimed that River Trade provided the Area for it to store containers and cargoes, and that Bentat was a contractor engaged by River Trade to manage the Area.
In opposing the Plaintiff’s application, River Trade’s main argument was that the Plaintiff’s application was out of time pursuant to section 27 (3) and (4) of the Limitation Ordinance (“the Ordinance”). Given that the names and logos of River Trade were all over the Terminal, the Plaintiff ought to take steps to investigate his claim against River Trade, such as conducting a land search. In the circumstances, River Trade argued that the Plaintiff should have constructive knowledge of River Trade’s identity and involvement in the Area pursuant to section 27 (8) of the Ordinance. The Defendant raised no objection to the Plaintiff’s application but argued that the costs should be borne by the Plaintiff.
The Court held that the mere fact that the names and the logos of River Trade appeared in the Building, the entrance gate, the crane and the vehicles patrolling at the Terminal would not put the workers of the Defendant, including the Plaintiff on constructive notice that the Area was occupied by someone other than the Defendant. Even if the Plaintiff had conducted a land search, the Plaintiff would not have sufficient information in concluding that the Area was occupied by River Trade.
As the Plaintiff had only been working in the Area for a short period of time (i.e. since 1 March 2017) and no evidence showing that the Plaintiff had any previous communication or any dealing with the employees of River Trade, the Plaintiff could not be expected to acquire knowledge of River Trade’s identity and involvement prior to the expiry of the 3 years’ limitation under section 27 (4)(a) of the Ordinance. In the premises, the Court held that the Plaintiff’s claim was made within time under section 27 (4)(b) of the Ordinance.
Alternatively, the Court was minded to exercise discretion under section 30 of the Ordinance in allowing the Plaintiff to claim relief against the Intended Defendants out of time. In exercising such discretion, the Court noted that (i) the period of delay was short, (ii) the Plaintiff acted promptly and reasonably in the circumstances and that (iii) River Trade would not suffer from any forensic prejudice should the time bar be uplifted.
In determining the costs of the Plaintiff’s application, the Court noted that the Plaintiff requested the Defendant to identify other parties at fault in its Pre-action Letter dated 12 March 2019, specifying that failing to do so the Plaintiff would claim costs occasioned from a joinder application against the Defendant. Notwithstanding the Plaintiff’s request, the Defendant had failed to inform the Plaintiff as to the identity of the Intended Defendants until the filing of its Defence. Having considered the Defendant’s conduct and that River Trade was unsuccessful in contesting the Plaintiff’s application, the Court ordered that 1/3 of the costs of the Plaintiff’s application be borne by the Defendant and the remaining 2/3 be borne by River Trade.
This case demonstrates that in opposing a joinder application, the opponent’s burden of proving “constructive knowledge” under section 27(8) of the Ordinance is a high one and the Court would not discharge the burden lightly. First of all, such facts must be observable or ascertainable within the specific area of the Accident. Secondly, it must be shown that the Plaintiff is expected to acquire the relevant knowledge (i.e. the identity of the wrongdoer) from such facts before the Court can fix constructive knowledge onto the Plaintiff.
While the Plaintiff’s claim is held to be made within time, this case reaffirms that the Court is willing to override time limit when the Plaintiff establishes that it would be equitable to do so. It is also noted that in considering whether the Defendant would suffer any prejudice in overriding time limit, the Defendant must demonstrate a certain degree of forensic disadvantage. Mere loss of the limitation defence would not be sufficient to constitute prejudice.
Finally, this case reminds the Court’s emphasis on the objectives of the Civil Justice Reform (“CJR”). In the post-CJR era, parties should cooperate with one another in the conduct of the proceedings. Even if the Plaintiff did not request the Defendant to identify potential co-defendants in its Pre-action Letter, it is probable that the Defendant should assist the Plaintiff in doing so. There is no reason why a defendant does not identify potential co-defendants or third parties to avoid or minimize its loss.
As demonstrate by this case, a defendant would be penalized in costs if the joinder application is contributed to the defendant’s unsupportive conduct. This is so even if the defendant has raised no objection to the plaintiff’s application.