THE SUNSHINE CAPITAL INVESTMENT LTD. AND ANOTHER v. DAIWA SECURITIES (HK) LTD. AND ANOTHER

THE SUNSHINE CAPITAL INVESTMENT LTD. AND ANOTHER v. DAIWA SECURITIES (HK) LTD. AND ANOTHER

The appeal is dismissed because the plaintiffs committed inordinate and inexcusable delay (nearly four years plus further delay) which significantly increased the risk that witnesses' memories had faded so that a fair trial would be impossible; the defendants' subsequent conduct was minor and caused no significant prejudice, and therefore did not outweigh the prejudice caused by the plaintiffs' delay, justifying dismissal and an order for costs.

Citation
THE SUNSHINE CAPITAL INVESTMENT LTD. AND ANOTHER v. DAIWA SECURITIES (HK) LTD. AND ANOTHER
Parties
First Plaintiff: The Sunshine Capital Investment Limited; Second Plaintiff: L.D.K. (Tong) International Inc., SA; First Defendant: Daiwa Securities (HK) Ltd.; Second Defendant: Daiwa Securities Co. Ltd.
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 December 1998
Case Number
HCA5582/1991
Procedural Posture
Civil Action Application to Strike Out for Want of Prosecution / Appeal to High Court From Master's Order Striking Out for Want of Prosecution
Outcome
Appeal dismissed; plaintiffs' action dismissed for want of prosecution
Legal Topics
Strike Out, Want of Prosecution, Delay, Prejudice, Fair Trial, Costs
Source Language
EN
Civil Procedure Civil Litigation Evidence Strike Out Want of Prosecution Delay Prejudice Fair Trial +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

The Sunshine Capital Investment Limited

First Plaintiff

L.D.K. (Tong) International Inc., SA

Second Plaintiff

Daiwa Securities (HK) Ltd.

First Defendant

Daiwa Securities Co. Ltd.

Second Defendant

Procedural Posture

Civil Action Application to Strike Out for Want of Prosecution / Appeal to High Court From Master's Order Striking Out for Want of Prosecution

Legal Issues

  1. 1 Whether the plaintiffs' delay was inordinate and inexcusable
  2. 2 Whether the delay created a substantial risk that a fair trial is impossible
  3. 3 Whether the defendants' conduct estops or otherwise precludes striking out under Lyell

Ratio Decidendi

The appeal is dismissed because the plaintiffs committed inordinate and inexcusable delay (nearly four years plus further delay) which significantly increased the risk that witnesses' memories had faded so that a fair trial would be impossible; the defendants' subsequent conduct was minor and caused no significant prejudice, and therefore did not outweigh the prejudice caused by the plaintiffs' delay, justifying dismissal and an order for costs.

Court Disposition

Appeal dismissed; plaintiffs' action dismissed for want of prosecution

Orders

  • Appeal dismissed
  • Plaintiffs' action dismissed for want of prosecution