1972-HKRS28-16-20_Part01 — Page 17

(Kap. 22)

(2) Where such application is made for the pur- poses of subsection (2) of section 29 before the com- mencement of any relevant action, or for the purposes of subsection (3) of that section, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff it appears to the court that. if such

an action were brought forthwith and the like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient-

(a) to establish that cause of action, apart from

any defence under subsection (1) of section

4 or so much of section 8 of the Fatal Accidents Ordinance as is mentioned in the said subsection (3); and

(b) to fulfill the requirements of subsection (1) or, as the case may be, of subsection (2) of section 29B in relation to that cause of action.

(3) Where such an application is made for the purposes of subsection (2) of section 29 after the com- mencement of a relevant action, the court shali grant leave in respect of any cause of action to which the application relates if, but only, if, on evidence adduced by or on behalf of the plaintiff it appears to the court that, if the like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient-

(a) to establish that cause of action, apart from any defence under subsection (1) of section 4; and

(b) to fulfill the requirements of subsection (1)}) of section 298 in relation to that cause of action.

and it also appears to the court that, until after the commencemem of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such a date as (apart from section 29) to afford a defence under subsection (1) of section 4.

(4) In this section "relevant action", in relation to an application for the leave of the court means any action in connexion with which the leave sought by the application is required.

Require- ments referred to

in 95. 29 and 29A.

1976. c. 43.

Sch. 1.

298. (1) The requirements of this subsection are fulfilled in relation to a cause of action if—

(a) it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were outside the knowledge (actual or constructive) of the deceased at all times until his death or until a date less than three years before his death; and

(b) either-

(i) the action was brought not later than three years after the death of the deceased;

OT

(ii) it is proved that the said facts of a decisive character were at all times outside the knowledge (actual or constructive) of each relevant person until a date which was not earlier than three years before the date on which the action was brought.

(2) The requirements of this subsection are ful- filled in relation to a cause of action if it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of each relevant person until a date which was not earlier than three years before the date on which the action was brought.

(3) In subsection (1) of this section, in its application to an action falling within paragraph (4) of subsection (1) of section 29. "relevant person" means any person who is or has been a personal representative of the deceased, including an executor who has not proved the will (whether or not he has renounced probate); and for the purposes of that sub- section regard must be had to any knowledge acquired by any such person while a personal representative or previously.

(4) In subsection (1) of this section in its applica- tion to an action falling within paragraph (b) of sub- section (1) of section 39 and in subsection (2) of this section, "relevant person" means, subject to subsection (5) of this section, any person for whose benefit the action is brought.