Introduction

Trial dates are regarded as 'milestone dates' for civil litigation in Hong Kong and are therefore immovable, save for 'exceptional circumstances'. Such circumstances might include the death or verified and unexpected ill health of a party's key witness. In such circumstances, the courts have a discretion to adjourn a trial (that does not otherwise settle). An exercise of such discretion involves balancing the prejudice suffered by the parties, as a result of an adjournment, with the primary aim of securing a just resolution of a dispute in accordance with their substantive rights. In Lam v Lam,(1) the unexpected death of the plaintiff (who was the primary witness in support of his case) justified an adjournment of the trial scheduled to commence on 7 June 2021.

Background

These proceedings concern various actions arising out of the plaintiff's substantial estate. The plaintiff in the actions died unexpectedly on 1 January 2021. It appears that the plaintiff's estate does not have much value other than the assets claimed in the various actions. The trial of the actions was scheduled to commence on 7 June 2021. On 1 April 2021 the plaintiff's executors applied to adjourn the trial to a date to commence not before 1 September 2021. The adjournment application was heard by the trial judge at a pre-trial review on 14 April 2021.

The reasons given by the executors for the adjournment included that they needed another two or so months to make further inquiries and ascertain what further evidence might be needed in substitution of the plaintiff's witness statements. The plaintiff had been the primary witness in support of his case in the actions. The fact of the plaintiff's death and the importance of his prospective evidence do not appear to have been in dispute.

The issue for determination by the court was whether to allow an adjournment of the trial and, if so, on what terms.

Decision

The court noted the relevant legal principles set out in previous case law.(2) While these principles arose out of situations where witnesses were unavailable for reasons other than death (eg, on account of their arrest and detention overseas), they applied with appropriate adaptation to a situation where an important witness died before trial.

The court is required to determine whether there are 'exceptional circumstances' such as to justify an adjournment. In exercising its discretion, the court has to balance the risk of prejudice and inconvenience to the parties (in allowing an adjournment) with the need to ensure that in giving effect to the objectives of the court rules, the primary aim is to secure a just resolution in accordance with the parties' substantive rights.(3)

On the facts, the court appears to have had little difficulty in deciding that there were 'exceptional circumstances' justifying an adjournment of the trial – particularly given that the plaintiff (before his death) had been the primary witness in support of his own case. Further, given the nature of the plaintiff's estate, it was crucial that the executors be allowed sufficient time and opportunity to prepare for trial.

The court also noted that despite the inconvenience caused to the defendants, they had not put forward any evidence of specific prejudice which might be caused to them in the event of an adjournment. For example, it still appeared to be the case that the defendants' witnesses were willing and available to give evidence at a later date in the event of an adjournment.

The court, in balancing the factors in favour of granting or refusing an adjournment, allowed the executors' application and ordered an adjournment of the trial of the actions – however, this was (as expected) on the basis that the costs of the adjournment application and the adjournment itself be paid by the plaintiff's estate to the defendants.

Comment

Given that the plaintiff's death was not in dispute and he had been a key witness in support of his own case, the court's decision is not surprising. There were 'exceptional circumstances'.

However, in this context, 'exceptional circumstances' are just that. Trial dates are usually sacrosanct, particularly given modern-day pressures on court lists and regard for other court users – these concerns are heightened in a COVID-19 environment. That environment should also give trial lawyers pause for thought concerning (for example) the health of a party's witnesses or, where a witness is based overseas, their ability to travel to Hong Kong – especially, while travel restrictions are in place. A key witness's reluctance to travel to Hong Kong to give evidence at trial because of COVID-19 is unlikely to be an 'exceptional circumstance' or justify their giving evidence by videoconferencing facilities (for further details please see "Court reviews witness's reluctance to travel to Hong Kong because of COVID-19").

Where a witness is unable to attend trial for good reasons, this should be brought to the court's attention promptly.

Endnotes

(1) [2021] HKCFI 1282, 14 April 2021.

(2) For example, Re Arko Ship Leasing Ltd [2013] 2 HKLRD 121.

(3) Rules of the High Court, Order 1A, Rule 2(2).