Thomson LP:

The plaintiff in these proceedings is an infant suing by his next friend and he is claiming compensation under s. 7 of the Civil Law Ordinance for loss arising from the death of his father as a result of the alleged negligent driving of a motor vehicle owned by the first defendant and driven by the second defendant. The alleged negligent driving occurred on 22 November 1960, and the plaintiff's father died on 23 November 1960.

The writ (with statement of claim endorsed) was issued on 27 November 1963, that is four days after the expiration of the period of three years mentioned in sub-section (5) of s. 7 of the Civil Law Ordinance which reads as follows (the italics are mine):

Not more than one action shall be brought for and in respect of the same subject matter of complaint, and i every such action shall be brought within three years after the death of such deceased person." No defence was filed but on 27 January 1964 the defendant's took out a summons under O. 25 r. 4 for an order that all further proceedings in the action be stayed and that the writ be struck out on the ground that the claim endorsed on it was frivolous and vexatious and an abuse of the process of the Court. The basis of the application is thus stated in the supporting affidavit:

The action commenced by the Writ of Summons herein must necessarily fail because it was not brought within three years after the death of the deceased person in question.

The application came before Hashim J who adjourned it into open Court for hearing and in the event made an order that "the plaintiff's suit be dismissed".

Against that decision the plaintiff has now appealed.

The grounds of appeal may be summarised as being that the application to strike out was premature because it was made before a defence was filed and that, in particular, no such order should have been made on the application of a defendant who wished to take advantage of a statute of limitation.

As regards the first of these grounds the application was made under O. 25 r. 4 which reads as follows:

The Court or a Judge may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous and vexatious, the Court of a Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.

The power under this rule is separate and distinct from the power under r. 2 of the same order. As was said by Lindley MR in the case of Hubbuck & Sons Ltd. v. Wilkinson, Heywood & Clark, Ltd. [1889] 1 QB 86, 91.

Two courses are open to a defendant who wishes to raise the question whether, assuming a statement of claim to be proved, it entitles the plaintiff to relief. One method is to raise the question of law an directed by O. XXV r. 2; the other is to apply to strike out the statement of claim under O. XXV r. 4.

"There is nothing in the wording of the rule to show that a defendant who wishes to proceed under it must first file his defence before he can do so and Gilleghan v. Minister of Health [1932] 1 Ch 86 is a case where a successful application was made by a defendant under the corresponding English rule before a defence had been filed.

Some forty years earlier the point was considered by, the English Court of Appeal in the case of Attorney-General of the Duchy of Lancaster v. London and North Western Railway Co. [1892] 3 Ch. 274 which was a case under the corresponding rule of the Chancery of Lancaster Rules, 1884.

The Vice-Chancellor had held that he had no jurisdiction to strike out the statement of claim or stay the action under the rule. His grounds were that no defence had been filed and that the action was not on the face of the statement of claim frivolous or vexatious but raised an important point of law. An appeal was dismissed on the ground that an important and difficult question of law wa