Chan Chi Wai v Chan Sau Wah
Court of Appeal
Civil Appeal No 81 of 2019
Kwan V-P and Yuen JA
31 May 2019

Civil procedure — application to appellate court for leave to amend pleadings after judgment given against applicants at first instance — proposed amendments raised new case and entailed withdrawal of concession — Ladd v Marshall requirements not satisfied — no exceptional circumstances — risk of prejudice to other side — unfairness to other side — “state of evidence” bar under Flywin principles not overcome — leave to amend refused

After judgment had been given at first instance against all of the defendants and while the case was under appeal, the applicants (who were the 1st and 3rd defendants by original action and the 1st and 2nd plaintiffs by counterclaim) applied to the Court of Appeal under O. 59 r. 10(1) of the Rules of the High Court (Cap. 4A, Sub. Leg.) for leave to amend the Re-Amended Defence and Counterclaim. The proposed amendment would raise a new case of contractual licence, and would entail the withdrawal of a concession made by the defendants’ former trial counsel that the defendants had been occupying the suit premises pursuant to bare licences which had been properly revoked.

Held, dismissing the application, that:

1) There were three reasons why the amendments should not be allowed. (See para. 25.)

2) First, such an application must be subject to stringent scrutiny. Where full and final judgment had been given against a party, it would generally require an exceptional case before a court would accede to an application by that party to raise new points or call fresh evidence where that party could not satisfy the three Ladd v Marshall requirements. Those requirements were not satisfied in the present case. And there were no exceptional circumstances to warrant an exercise of discretion in the applicants’ favour (Ladd v Marshall [1954] 1 WLR 1489, Charlesworth v Relay Roads Ltd [2000] 1 WLR 230, Mak Shiu Tong v Yue Kwok Ying & Another (CACV 199/2002, [2004] HKEC 1188) applied). (See paras. 26–28.)

3) Second, the proposed amendments would involve the withdrawal on appeal of an express concession. The applicants bore the burden of showing that there was no risk that such withdrawal would prejudice the other side. There was such a risk (BT Pension Scheme Trustees Ltd v British Telecommunications PLC [2011] EWHC 2017; Deng Minghui v Chau Shuk Ling [2007] 1 HKLRD 905 distinguished). (See paras. 29–34.)

4) Third, the new points and new evidence involved would cause unfairness to the plaintiffs. The applicants could not overcome the “state of the evidence” bar under the Flywin principles. The Judge had ordered a stay of execution of his judgment for eight months to give the defendants time to bring partition proceedings. As to such proceedings, the applicants’ expressed fear was of different factual findings, not inconsistent factual findings. Different factual findings in fresh proceedings might be expected in view of different and additional evidence even if the background facts were the same in both proceedings. That would not constitute potential difficulties (Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356, Lehmanbrown Ltd v Union Trade Holdings Inc (HCMP 977/2015, [2015] HKEC 1139) applied). (See paras. 35–37.)

Application

This was an application to the Court of Appeal for leave to amend pleadings after judgment had been given at first instance and was under appeal. The facts are set out in the judgment.

Editorial Note: The Court of Appeal felt able to dispose of the application on written submissions without an oral hearing.

Jurisdictions: