Chung Yi Yuen v. Lau Koon Shing and Another

CACV 46/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 46 OF 1999

(ON APPEAL FROM HCPI 516/1997)

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J U D G M E N T

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Godfrey, J.A. :

1. The proceedings in the court below were instituted by one Chung Yi Yuen, as "intended administrator"; he was intending to apply for a grant of letters of administration to the estate of Zhong Yizhou, deceased, the victim of a fatal accident. The proceedings were held to have been improperly constituted. On appeal to this court, we upheld the judgment below and we dismissed the appeal with costs.

2. The case does raise a point, of great general and public importance, concerning the right of a person claiming to be an "intended administrator" of the estate of a deceased person to institute proceedings after a fatal accident involving the deceased. (For details of our reasoning, reference may be made to the judgment we delivered on 27 May 1999.)

3. Plainly, the outcome has caused concern to the legal aid authorities, who are in many cases responsible for prosecuting the claim of the widow, and other dependants, of the victim of a fatal accident. Questions arise as to the vires of the Rules Committee in relation to Order 15 rule 6A of the Rules of the High Court, which appears on the face of it to allow an "intended administrator" to institute such proceedings as were under consideration.

4. But when the question of leave to appeal to the Court of Final Appeal was last before this court, on 5 October 1999, letters of administration to the deceased's estate had in fact been issued (though this court was not informed of that fact). So the point was no longer a live one.

5. It is a great pity that no one saw fit to inquire, just before the last hearing before this court on 5 October 1999, what the position actually was. This court was alive to the possibility that letters of administration might have been issued, or might be issued in the near future. In these circumstances, we exacted an undertaking from the plaintiffs' solicitors to notify the defendants' solicitors of a grant of administration within 24 hours of being notified of such a grant themselves. On that footing, we pronounced an order giving the plaintiffs leave to appeal to the Court of Final Appeal, leaving it to the defendants on being so notified to take such steps as they might be advised to take in relation to the appeal to that Court. However, before our order was perfected, we were ourselves apprised of the grant and directed that the matter be restored to the list for further argument.

6. It is now obvious that the point has become academic. Since a grant has been issued, there is nothing to impede the proceedings, and the widow and dependants; and the estate, of the deceased will be able to recover the damages (if any) found due to them. The only impediment is the desire of the legal aid authorities to sort out the procedural problem to which the case has given rise. This is the reason why we are now asked to give leave for the case to proceed to the Court of Final Appeal.

7. For my part, I do not think there is sufficient ground to warrant us in this court giving leave, in effect, to the legal aid authorities, to take this point, in the present case an academic one, to the Court of Final Appeal. I appreciate that there are, of course, consequential results of our order, as to costs and otherwise, but that is not in itself, as it seems to me, sufficient to warrant our sending the case for the consideration of the Court of Final Appeal. If the Court of Final Appeal is of the view that the point is one of great general and public importance and is, moreover, one which ought to be dealt with in this case, notwithstanding that it has become academic, it can say so. It is of course open to the plaintiff to make the necessary application for leave to appeal to the Court of Final Appeal to that court. But we in this court should, in my judgment, refuse this application.

Rogers, J.A. :

8. When this matter came before this Court on the initial application for leave to appeal to the Court of Final Appeal, I concluded my remarks by saying :

"I have doubts as to whether, in the end, this action itself merits proceedings to the Court of Final Appeal since by the time it reaches there, I have no doubt that Letters of Administration will be granted, but, as the matter stands today, I would agree that the matter is of great general or public importance."

9. As has already been said, Letters of Administration had in fact already been granted by that stage. Had I known that at that stage I doubt that I would have been of the mind that the matter should go the Court of Final Appeal, as I indicated at the time.

10. In the Court below, the action was stayed pending the grant of Letters of Administration. This Court has decided that was correct. The bar to the plaintiff proceeding to final judgment has thus now been removed.

11. The issues, as far as I can see are, as far as the plaintiff is concerned, the costs which have been thrown away and perhaps some subsidiary issue as to whether the Defendant should be allowed to peruse the probate files for the purpose of part of the decision as to costs. But as far as the Legal Aid Department is concerned, that Department wishes to know the answer to what they say is the procedural complexities which are involved in situations such as arose in this case. After questioning by the Court, counsel for the existing Plaintiff has now stated that the Legal Aid Department is prepared to put all the Plaintiffs in a position where they would not be, in any way, financially prejudiced no matter what the outcome of any appeal to the Court of Final Appeal.

12. Nevertheless, in my view, I agree that any appeal to the Court of Final Appeal is largely academic. In those circumstances, I consider that it is right for the Court of Final Appeal itself to determine whether leave to appeal should be granted rather than this Court. This is particularly so in a case such as this, where, as far as I can see, there is a grave danger of the costs exceeding or at least being high in relation to any damages which might be awarded.

13. For those reasons, I concur that this Court should not grant leave.

Representation:

Miss Audrey Eu, S.C. (M/s. Chan & Chuk assigned by D.L.A.) for the Plaintiff

Mr. Nicholas Pirie (M/s. Munro Claypole & Reeves) for the Defendants

CACV 46/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 46 OF 1999

(ON APPEAL FROM HCPI 516/1997)

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J U D G M E N T

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Godfrey, J.A. :

1. Under section 22 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, an appeal lies to the Court of Final Appeal in any civil court or matter at the discretion of the Court of Appeal or the Court of Final Appeal, in any case in which, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision : see section 22(1)(b).

2. In this case, Miss Audrey Eu, S.C., for the plaintiff in the proceedings below, submits that there is a question involved in the case which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

3. I am of the opinion, speaking for myself, that there is a question of great general or public importance here. The question involves the practice of the court and of the legal profession in personal injuries cases in which the victim of the accident has unhappily died and it is sought to institute proceedings on behalf of his estate at a time when no grant of representation to that estate has been issued. The question may be framed as follows :-

"Whether a person who claims to be intending to apply for a grant of letters of administration to the estate of a deceased person is entitled to institute proceedings in his own name, but in the capacity of 'intended administrator' of the estate of the deceased person, for the benefit of the estate of the deceased person, and to carry on those proceedings down to judgment, being a judgment which will bind the estate of the deceased person."

4. This question involves consideration of the provisions of section 55A of the High Court Ordinance, Cap. 4 and of the provisions of Order 15 rule 6A of the Rules of the High Court, made pursuant to section 54 of that Ordinance. No useful purpose would be served by elaborating upon those matters in this judgment.

5. But we are told that in the present case, in which the proceedings below were instituted and are being maintained purportedly on behalf of the estate of the deceased person by one who has not yet obtained a grant of representation, that that person has, in fact, now applied for such a grant, and that his solicitors are satisfied that they have answered all requisitions of the Probate Registry which, if unanswered, might have presented an impediment to the making of such a grant. It follows that such a grant may be made in the near future, and perhaps before the case is listed for hearing in the Court of Final Appeal.

6. In order to meet that possibility, Miss Eu has offered to undertake, on behalf of the plaintiff's solicitors, within 24 hours of being themselves notified of the making of a grant of representation in favour of the plaintiff, to notify the defendants' solicitors accordingly. That would enable the defendants to take such course as they might then be advised to take in relation to the hearing of the appeal to the Court of Final Appeal.

7. I would, for my part, accept that undertaking and, on that footing, make the order for which the plaintiff now asks, i.e., an order under section 22(1)(b) of the Hong Kong Final Appeal Ordinance which indicates that, in the opinion of this court, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

Rogers, J.A. :

8. There are two claims in this case. One is under the Fatal Accidents Ordinance and the other is under the Law Amendment and Reform Consolidation Ordinance.

9. The plaintiff makes no claim himself for dependency under the Fatal Accidents Ordinance. He is the recipient of legal aid, but it is feared that those who could claim a dependency under the Fatal Accidents Ordinance might not be able to receive legal aid. That aside, the question remains as to the cause action under the Law Amendment and Reform (Consolidation) Ordinance which survives the death of the deceased.

10. In my view, the question which might arise in this case could be phrased in this way :-

"Whether Order 15 rule 6A(3) should be interpreted as being made under and so as to give effect to section 55A(c) of the High Court Ordinance as well as under section 55A(b) so as to enable a person to proceed to obtain judgment for the benefit of the deceased's estate without obtaining Letters of Administration once he has obtained an order under Order 15 rule 6A(4)(a) to act as a Plaintiff."

11. I have doubts as to whether, in the end, this action itself merits proceedings to the Court of Final Appeal since by the time it reaches there, I have no doubt that Letters of Administration will be granted, but, as the matter stands today, I would agree that the matter is of great general or public importance.

12. I would concur in the order which Godfrey, J.A. has read out.

Representation:

Miss Audrey Eu, S.C. (M/s. Chan & Chuk assigned by D.L.A.) for Plaintiff

Mr. Nicholas Pirie & Mr. Louis Tong (M/s. Munro Claypole & Reeves) for Defendants

CACV 46/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 46 OF 1999

(ON APPEAL FROM HCPI NO. 516/97)

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. This is an appeal from an order made by His Honour Judge Jackson (sitting as a deputy judge of the Court of First Instance) on 26 January 1999 in an action launched by the brother of a deceased person, Zhong Yizhou, who died in a traffic accident in Hong Kong on 16 May 1995. The brother, in whose name the action is brought, holds a power of attorney from the wife, the mother, the sons and the daughter of the deceased. That power of attorney authorises the brother to represent what I may conveniently call "the family" in claiming damages from the person responsible for the traffic accident or from the vehicle owner. The power of attorney declares that, in handling the above matters on the family's behalf, the attorney is authorised to attend court hearings, to answer the suit, to plead, to withdraw the suit, to reconcile, to appoint solicitor(s), barrister(s) and accountant(s) and to pay for all the expenses the attorney may think appropriate. It further provides that all legal actions taken and documents signed by the attorney in respect of the handling of the above matters should be recognised by the family.

2. The brother has been advised that, in these circumstances, he is entitled to maintain this action for damages both under the Fatal Accidents Ordinance, Cap. 22, on behalf of the dependants of the deceased, and under the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23, on behalf of the estate of the deceased. Although at one stage it appeared the defendants to the action were prepared to go along with this, the action subsequently ran into the sand, for the point was taken that, since the brother was not the administrator of the deceased's estate, it was not properly constituted. That point having succeeded below, the brother now appeals.

The claim under the Fatal Accidents Ordinance

3. So far as the Fatal Accidents Ordinance is concerned, it is provided by section 5 of that Ordinance, under the rubric "5. Persons entitled to bring the action" that an action under the Ordinance shall be brought by and in the name of the executor or administrator of the deceased : see section 5(1). It is further provided, by sub-section (2), that :

"If -

(a) there is no executor or administrator of the deceased; or

(b) no action is brought within 6 months after the death by and in the name of an executor or administrator of the deceased,

the action may be brought by and in the name of all or any of the persons for whose benefit an executor or administrator could have brought it." (Emphasis added.)

4. The brother is not an executor or administrator of the deceased (although we are told he has applied for a grant of administration to the estate of the deceased). Nor is the action brought by or in the name of all or any of the persons for whose benefit an executor or administrator could have brought it: the action is brought solely in the name of the brother.

5. In these circumstances, as it seems to me, the brother has failed to bring himself within section 5, and the court below was right to refuse at this stage to entertain the further prosecution of the claim under the Fatal Accidents Ordinance.

The Law Amendment and Reform (Consolidation) Ordinance

6. So far as the Law Amendment and Reform (Consolidation) Ordinance claim is concerned, this is a claim on behalf of the estate of the deceased. It is argued on behalf of the brother that the action is properly constituted in the name of the brother under Order 15 rule 6A of the Rules of the High Court, sub-rule (3) of which provides (so far as is material) as follows :-

"(3) An action purporting to have been commenced by ... a person shall be treated, if he was dead at its commencement and the cause of action survives, as having been commenced by his estate ... whether or not a grant of probate or administration was made before its commencement."

7. In such a case, sub-rule (4) provides for an order to be made appointing a person to represent the deceased's estate, and for an order for the proceedings to be carried on by the person so appointed. But the first question to be considered is whether the action is an action within sub-rule (3).

8. As it seems to me, this action clearly is not. This action does not purport to have been commenced by the deceased. It purports to have been commenced by the brother. Accordingly, sub-rule (3) does not apply, for the brother was not dead at the commencement of the action and no cause of action survives in him. Only when a person dies, and after the date of his death an action is commenced in his name, do the provisions of sub-rule (3) come into operation. This is not that case. Accordingly I have no doubt, unfortunate though it may be, that the court below was again right.

Conclusion

9. I would accordingly dismiss this appeal.

Rogers, J.A. :

10. I agree and there is nothing that I can usefully add.

Godfrey, J.A. :

11. The appeal will be dismissed with costs. There will be an order for a separate taxation of the appellant's costs for the purposes of the Regulations made under the Legal Aid Ordinance, Cap. 91.

Representation:

Mr. Patrick Lim (M/s. Chan & Chuk) for Plaintiff

Mr. Nicholas Pirie (M/s. Munro Claypole & Reeves) for Defendants