BEIJING TONG GANG DA SHENG TRADE CO LTD v. ALLEN & OVERY (a firm) AND ANOTHER

BEIJING TONG GANG DA SHENG TRADE CO LTD v. ALLEN & OVERY (a firm) AND ANOTHER

The joinder application was dismissed because the assignment had been declared champertous and void leaving the assignee without locus and GBRE having ceased to be a party (effectively abandoning the proceedings); resuscitation by GBRE is subject to the original limitation period and is now time-barred; neither Order 20 rule 5(1) nor 5(3) permits reinstatement in these circumstances (rule 5(1) requires parties properly before the court and rule 5(3) applies to mistakes as to identity not mistakes as to rights), and the inherent jurisdiction cannot override limitation or justify reinstatement given the parties' deliberate champertous conduct; exercising the discretion would be unjust, so...

Citation
BEIJING TONG GANG DA SHENG TRADE CO LTD v. ALLEN & OVERY (a firm) AND ANOTHER
Parties
Plaintiff (assignee): Beijing Tong Gang Da Sheng Trade Co Ltd; Original Plaintiff / Proposed Re Joined Plaintiff: Greater Beijing Region Expressways Limited; 1st Defendant: ALLEN & OVERY (a firm); 2nd Defendant: Nigel Alexander Carlisle Aiken
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 May 2014
Case Number
HCA1491/2011
Procedural Posture
Civil Professional Negligence Proceeding With Interlocutory Applications (strike Out for Champerty; Joinder Summons) / Interlocutory Judgment on Joinder Application After Striking Out Order (joinder Summons Heard 24 April 2014; Judgment 12 May 2014)
Outcome
Joinder summons dismissed; order nisi of costs in favour of the 1st and 2nd defendants
Legal Topics
Joinder of Parties, Assignment of Cause of Action, Order 20 Rule 5, Strike Out for Champerty, Inherent Jurisdiction, Limitation Period
Source Language
EN
Civil Procedure Litigation Funding Champerty Professional Negligence Limitation Law Joinder of Parties Assignment of Cause of Action Order 20 Rule 5 +3 more

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Parties

Beijing Tong Gang Da Sheng Trade Co Ltd

Plaintiff (assignee)

Greater Beijing Region Expressways Limited

Original Plaintiff / Proposed Re Joined Plaintiff

ALLEN & OVERY (a firm)

1st Defendant

Nigel Alexander Carlisle Aiken

2nd Defendant

Procedural Posture

Civil Professional Negligence Proceeding With Interlocutory Applications (strike Out for Champerty; Joinder Summons) / Interlocutory Judgment on Joinder Application After Striking Out Order (joinder Summons Heard 24 April 2014; Judgment 12 May 2014)

Legal Issues

  1. 1 Whether the court may add Greater Beijing Region Expressways Limited (GBRE) back as plaintiff under Order 20 rule 5 after the assignment to the plaintiff was declared void for champerty
  2. 2 Whether resuscitation of proceedings by GBRE is subject to limitation where GBRE had ceased to be a party (abandonment/hiatus)
  3. 3 Whether Order 20 rule 5(3) correction for genuine mistake applies where the error related to rights not identity

Ratio Decidendi

The joinder application was dismissed because the assignment had been declared champertous and void leaving the assignee without locus and GBRE having ceased to be a party (effectively abandoning the proceedings); resuscitation by GBRE is subject to the original limitation period and is now time-barred; neither Order 20 rule 5(1) nor 5(3) permits reinstatement in these circumstances (rule 5(1) requires parties properly before the court and rule 5(3) applies to mistakes as to identity not mistakes as to rights), and the inherent jurisdiction cannot override limitation or justify reinstatement given the parties' deliberate champertous conduct; exercising the discretion would be unjust, so...

Court Disposition

Joinder summons dismissed; order nisi of costs in favour of the 1st and 2nd defendants

Orders

  • Joinder application dismissed
  • Order nisi of costs in favour of the 1st and 2nd defendants