Civil Procedure — Balancing Procedural Efficacy and Substantive Justice: Striking Out Application for Want of Prosecution
The case of Huang Kai Chiun Dorothy, the executrix of the estate of Huang Hing Yu Patrick v Ho Yin Man & Others [2024] HKCFI 3186 (HCA 92/2007, 8 November 2024) presents critical insight into the application of the legal principles surrounding delays in litigation and the threshold for a striking out application for want of prosecution.
Ross M Y Yuen, instructed by Messrs W K To & Co, acted for the Plaintiff (Appellant).
Chris Wong provides his analysis on the judgment below.
Facts
This case originated from a land redevelopment project initiated by Mr Yu back in the 1980s. He and the 1st Defendant reached an agreement with the knowledge of the 4th Defendant to share the consultancy fee to be paid by the developer 3rd Defendant, and the 2nd Defendant was designated by the Plaintiff and 1st Defendant as a nominee to receive the consultancy fee in the form of the units in the new development.
Mr Yu commenced these proceedings in 2007, alleging dishonest assistance against the 4th Defendant in respect of the 1st and 2nd Defendants’ breach of fiduciary duty. When he passed away in 2012, Madam Huang, being the executrix of his estate, carried on the claim as the Plaintiff in these proceedings.
Between 2018 and 2023, there was procedural inactivity attributed to the Plaintiff’s financial and personal circumstances. The 4th Defendant applied for striking out the Plaintiff’s claim, relying on the grounds of, inter alia, want of prosecution, which was allowed by the Master. The Plaintiff sought to appeal against the Master’s decision.
Striking Out for Want of Prosecution
The Court allowed the appeal and dismissed the striking out application. It underscored that striking out is a draconian remedy of last resort. Mere delay itself does not automatically justify striking out a claim, but it would require clear evidence of abuse of process or significant prejudice to the defendant. The Court must consider the overall justice of the case, including the conduct of both parties and any extenuating circumstances.
In this case, the Court acknowledged the inordinate delay from 2018 and 2023 on part of the Plaintiff, but found no abuse of process, emphasising that: –
• Conduct of the Plaintiff: The Plaintiff’s lack of awareness of procedural obligations and mitigating personal circumstances (e.g. her health condition, lack of communication with the former solicitor) were critical.
• Prejudice to the Defendants: The focus is on the prejudice, if any, caused by the inordinate delay. It was found that some of the alleged prejudice was not caused by the delay (including anxiety which is found to be caused by the litigation generally, and inability to cross-examine the Plaintiff which is simply a fact of life). The other alleged prejudices were found not substantiated.
• Overall Justice of the Case: The Court is entitled to take into account the 4th Defendant’s conduct, in particular his apparent failure to prosecute the proceedings during the same period of time.
Takeaways
This case underscores several key principles:
1. Delay and Abuse of Process: Procedural delay, while undesirable, does not automatically constitute abuse of process. The court must assess whether delays have demonstrably prejudiced the opposing party or undermined the administrative of justice.
2. Prejudice Threshold: Applicants for striking out for want of prosecution bear the burden of proving specific and significant prejudice caused by the delay. General assertions or speculative concern about witnesses’ availability or fondness of their memories are insufficient.
3. Judicial Restraint in Striking Out: The decision reaffirms the judiciary’s preference for adjudicating disputes on their merits over resorting to strike out claims prematurely.
Overall, this decision exemplifies the judicial balancing act between procedural efficiency and substantive justice. It reaffirmed the principle that striking out is a drastic measure reserved for clear cases of abuse or prejudice. This approach aligns with the broader judicial trend of favouring resolution on the merits rather than procedural dismissal. This case serves as a reminder of the importance of considering the broader context and the parties’ conduct when assessing delays in litigation.
Ross Yuen
Called to the Bar in 2008, Ross has practice focused on land and commercial law. He is recently appointed Chairman of the Appeal Tribunal Panel (Building). He has ample trial experience in adverse possession, compulsory sale and land resumption. He regularly advises on other land-related matters such as conveyancing, building management and tenancy. He acted for the land owners who succeeded in recovering their lands either wholly or partly in:
• Fulland International Ltd v Liu Kin Lam [2024] HKCFI 1209
• Monat Investment Ltd v. All Person(s) in Occupation of Part of the Remaining Portion of Lot No 591 in Mui Wo D.D. 4 No.16 Ma Po Tsuen, Mui Wo, Lantau Island and Another[2023] 2 HKLRD 1311; [2020] 4 HKLRD 330
• Tsang Kiu v Fulland International Ltd[2019] HKDC 676
• Chan Mei Lin & Ors v Lee Hong[2018] HKCFI 2441
• Yu King Chau v Personal Representatives of the estate of Fong Fu Foon, HCA 1438/2011, 21 November 2017
• Incorporated Owners of Fuk Wing Building v Ma Hing Ching, DCCJ 2356/2015, 17 July 2017
• Woo Hoi Lun v Lai Yung, DCCJ 2312/2012, 20 October 2014
• Cheng Wing Hei v Chan Yat Kwan, DCCJ 168/2010, 18 November 2013
• 譚海强對林樹福遺產管理人, HCA2462/2009, 15 May 2013
Visit Ross’s profile for more details.
Chris Wong
Before joining Chambers in 2024, Chris was a Judicial Assistant at the Hong Kong Court of Final Appeal, where he assisted judges in substantive appeals and leave applications.
Chris is developing a broad mixed practice and accepts instructions in all areas of Chambers’ work.
Visit Chris’s profile for more details.
This article was first published on 24 January 2025.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.