HE KEN AND OTHERS v. The Personal Representative of the Estate of TANG WAH also known as TANG WAH KEE, deceased

HE KEN AND OTHERS v. The Personal Representative of the Estate of TANG WAH also known as TANG WAH KEE, deceased

The dismissal of the defendant's summons for want of prosecution was correctly refused: although there was serious and partly inexcusable delay, there was no intentional or contumelious delay and no substantial prejudice that would justify the extreme sanction of dismissal; the court must apply the CPR's overriding objective and use proportionate remedies and available alternative sanctions and directions to enable a fair trial, therefore Master Levy's decision and directions were upheld.

Citation
HE KEN AND OTHERS v. The Personal Representative of the Estate of TANG WAH also known as TANG WAH KEE, deceased
Parties
Plaintiff: HE KEN; Plaintiff: DUDLEY HO KULL; Plaintiff: HO YING TSEUNG; Plaintiff: HO JACQUELINE; Plaintiff: HO HIU WAI; Plaintiff: HE XIAODONG; Defendant (personal Representative): The Personal Representative of the Estate of TANG WAH KEE (deceased)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 July 2011
Case Number
HCA66/2000
Procedural Posture
Civil Action Concerning Land and Tenancy (alleged Agricultural Tenancy) / Interlocutory Appeal/rehearing From Master's Dismissal of Defendant's Summons to Dismiss for Want of Prosecution
Outcome
Appeal dismissed; Master Levy's dismissal of the defendants' summons to dismiss for want of prosecution upheld
Legal Topics
Tenancy, Change of User, Illegal Structures, Delay/want of Prosecution, Costs, Proportionality of Sanctions
Source Language
EN
Property Law Landlord and Tenant Civil Procedure Evidence Tenancy Change of User Illegal Structures Delay/want of Prosecution +2 more

Case Brief

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Parties

HE KEN

Plaintiff

DUDLEY HO KULL

Plaintiff

HO YING TSEUNG

Plaintiff

HO JACQUELINE

Plaintiff

HO HIU WAI

Plaintiff

HE XIAODONG

Plaintiff

The Personal Representative of the Estate of TANG WAH KEE (deceased)

Defendant (personal Representative)

Procedural Posture

Civil Action Concerning Land and Tenancy (alleged Agricultural Tenancy) / Interlocutory Appeal/rehearing From Master's Dismissal of Defendant's Summons to Dismiss for Want of Prosecution

Legal Issues

  1. 1 Whether the action should be dismissed for want of prosecution due to long delay
  2. 2 Whether plaintiffs' delays caused such prejudice to defendants as to justify dismissal
  3. 3 Whether alternative sanctions to dismissal are appropriate

Ratio Decidendi

The dismissal of the defendant's summons for want of prosecution was correctly refused: although there was serious and partly inexcusable delay, there was no intentional or contumelious delay and no substantial prejudice that would justify the extreme sanction of dismissal; the court must apply the CPR's overriding objective and use proportionate remedies and available alternative sanctions and directions to enable a fair trial, therefore Master Levy's decision and directions were upheld.

Court Disposition

Appeal dismissed; Master Levy's dismissal of the defendants' summons to dismiss for want of prosecution upheld

Orders

  • Appeal dismissed with costs to the plaintiffs
  • Master Levy's orders and directions for future conduct of the trial adopted