LAU PUI KEI AND ANOTHER v. LEUNG CHI WAI AND ANOTHER

LAU PUI KEI AND ANOTHER v. LEUNG CHI WAI AND ANOTHER

The court exercised its discretion to join Wing Lung because the question of Tung Sing Printing's vicarious liability directly affects the insurer's indemnity exposure and the arbitration would not resolve that issue before trial; the risk of prejudice from delay was mitigated by assurances and the limited scope of the insurer's participation, whereas refusal would risk leaving the insurer unable to protect its position and result in incomplete adjudication. The application to amend the defence was refused.

Citation
LAU PUI KEI AND ANOTHER v. LEUNG CHI WAI AND ANOTHER
Parties
1st Plaintiff: LAU PUI KEI (administrator of the Estate of LAU CHEUK KIT TITUS, deceased); 2nd Plaintiff: LAU PUI KEI; 1st Defendant: LEUNG CHI WAI; 2nd Defendant: TUNG SING PRINTING COMPANY LIMITED; Applicant (insurer Seeking Joinder/proposed Defendant): WING LUNG INSURANCE CO. LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 July 2008
Case Number
HCPI532/2006
Procedural Posture
Personal Injuries Action (consolidated) / Pre Trial Application for Joinder Under O.15 R.6(2) (trial Listed for 6 August 2008); Parallel Arbitration on Insurer's Disclaimer
Outcome
Application to join Wing Lung Insurance Co. Limited granted; application to amend statement of defence dismissed; costs reserved (nisi) with specific allocations
Legal Topics
Joinder, Vicarious Liability, Insurer Indemnity, Arbitration Vs Court Proceedings, Amendment of Pleadings, Pre Trial Procedure
Source Language
EN
Tort Insurance Law Civil Procedure Employment Law (vicarious Liability) Arbitration Joinder Vicarious Liability Insurer Indemnity +3 more

Case Brief

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Parties

LAU PUI KEI (administrator of the Estate of LAU CHEUK KIT TITUS, deceased)

1st Plaintiff

LAU PUI KEI

2nd Plaintiff

LEUNG CHI WAI

1st Defendant

TUNG SING PRINTING COMPANY LIMITED

2nd Defendant

WING LUNG INSURANCE CO. LIMITED

Applicant (insurer Seeking Joinder/proposed Defendant)

Procedural Posture

Personal Injuries Action (consolidated) / Pre Trial Application for Joinder Under O.15 R.6(2) (trial Listed for 6 August 2008); Parallel Arbitration on Insurer's Disclaimer

Legal Issues

  1. 1 Whether insurer Wing Lung can be joined as a party under O.15 r.6(2)(b)
  2. 2 Whether Wing Lung is liable to indemnify its insured under the Motor Vehicles Insurance (Third Party Risks) Ordinance s.10(1) if defendants are held vicariously liable
  3. 3 Whether the pending arbitration should preclude joinder or trial determination of vicarious liability

Ratio Decidendi

The court exercised its discretion to join Wing Lung because the question of Tung Sing Printing's vicarious liability directly affects the insurer's indemnity exposure and the arbitration would not resolve that issue before trial; the risk of prejudice from delay was mitigated by assurances and the limited scope of the insurer's participation, whereas refusal would risk leaving the insurer unable to protect its position and result in incomplete adjudication. The application to amend the defence was refused.

Court Disposition

Application to join Wing Lung Insurance Co. Limited granted; application to amend statement of defence dismissed; costs reserved (nisi) with specific allocations

Orders

  • Wing Lung Insurance Co. Limited is to be added as a party (joined) to the consolidated personal injuries actions
  • Application to amend the statement of defence is dismissed