LEE KWOK NING, LOBO AND ANOTHER v. EMCOM INTERNATIONAL LTD AND OTHERS

HCA 1338/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1338 OF 2008

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J U D G M E N T

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1.  I have refused to adjourn a special chambers hearing set down on the coming Friday notwithstanding the parties have consented to the adjournment.  These are my reasons.

2.  Below is a short chronology of events:

15.12.08  Summons taken out by D10 to set aside the default judgment against it (“the Summons”).

22.12.08  Call-over.  Adjourned to a date to be fixed with 3 hours reserved.  A Master gave a timetable for parties to filea round of affirmations, within a period of 8 weeks.

12.01.09  Unless order for D10 to file and serve the supplemental affirmation by 23.1.09.

23.01.09  D10 filed the supplemental affirmation.

04.02.09  D10’s solicitors invited P’s solicitors to attend fixing a date for hearing the Summons.

P’s solicitors replied stating that since they would be seeking time extension for the Plaintiffs to file their affirmations in opposition (in view of the spring holidays and complicated nature of the case), it would be premature to fix a date.

05.02.09  D10’s solicitors replied stating that since the length of the substantive hearing had already been fixed by consent and was not dependent on the length of the parties’ affirmation evidence, a hearing date could be fixed provided that parties made sufficient provision of time for the filing of their respective affirmations.  D10’s solicitors expressly stated, “Our client is eager to proceed with its application to set aside the interlocutory judgment and on the basis that the court has already set out a timetable for the filing of affirmations, we are of the respectful view that provided we build in sufficient room for your clients’ need to seek the indulgence of the court for extension the parties should not delay the fixing of a hearing date.  In view of the busy court diaries, a hearing before a Master for a 3 hours appointment is likely to be a few months away and it is more the reason for the parties not to delay.

09.02.09  Appointment before Listing Clerk.  Date for hearing fixed to 29 May 2009 (“the Hearing”).

06.04.09  Unless order for P to file affirmation by 21.4.09.

21.04.09  P filed affirmations in opposition.

06.05.09  Unless order for D10 to file affirmation in reply by 20.5.09.

20.05.09  D10’s summon to adjourn the Hearing

22.05.09  D10 obtained relief leave to file the affirmation in reply notwithstanding the time limit under the unless order was breached by 1 hour 10 minutes.

22.5.09  Consent summons to adjourn the Hearing with one day reserved.  The consent summons was not approved.

25.5.09  Hearing of the consent summons before me.

29.5.09  Date set down for hearing of the Summons.

3.  I approached the question of adjournment by asking 2 questions:

(i)  What was the reason for the adjournment?

(ii)  Was the application for adjournment made promptly?

What was the reason for the adjournment?

4.  The affidavit in support of the adjournment clearly showed that as early as 4 May 2009, D10’s solicitors has, on counsel’s advice,indicated that 3 hours were not sufficient for arguments and proposed to reserve one day.  The Plaintiff’s solicitors readily agreed 2 days later, as the Court granted leave to D10 to file the affirmation in reply by 20 May 2009, leaving the parties with only about a week to deal with all outstanding matters before the Hearing.

5.  The need to reserve one day for argument was not unreasonable in my view, given the issues raised in various affirmations.

Was the application for adjournment made promptly?

6.  Paragraph 17 of PD 5.4 on Preparation of Interlocutory Summonses and Appeals to Judge in Chambers for Hearing provides as follows:

“ If the parties’ legal representatives take the view that the original allotted time for the hearing is insufficient, they should notify the Court as soon as possible in good time before the hearing so that appropriate arrangement can be made.”

The duty is on both parties to notify the Court.

7.  Unfortunately, the 2 firms of solicitors engaged in argument until 7 May as to whether the costs of the application for adjournment should be “costs in the cause” or “costs of and incidental to this application be to the Plaintiff”.  Two valuable weeks elapsed when neither party did anything to bring the intended adjournment to the court’s notice.

8.  Both parties were at fault.  D10 eventually took out this application only 7 days ahead of the Hearing, which was clearly insufficient. (Comparison should be made with paragraph 16 of the same PD where not less than 14 days should be allowed to refix a hearing before a master to before a judge.)  The Plaintiff, on the other hand, consented to the adjournment and just assumed that the Court would grant it.

9.  The application for adjournment was not made promptly.

Other relevant circumstances

10.  One can see from the above chronology that if the timetable laid down by the Master at the call-over hearing had been adhered to, there would have been about 3 months (“buffer time”) for parties to agree upon extension of non-milestone dates, consider the affirmations and prepare skeleton submissions.  As it turned out, each party failed to adhere to the timetable but only filed affirmations under compulsion of unless orders, the last affirmationbeing filed only 9 days before the Hearing.

11.  Further, as disclosed from correspondence in the month of February 2009, the parties foresaw the risk of fixing a hearing date before affirmations in opposition defining what were expected to be complicated issues were filed.  They knew the busyness of the Court’s diary.  They have taken into account the possibility of the need to extend time to file affirmations when determining on the Hearing date.  They foresaw the need to ask for more time for argument on the substantive issues but spent time unwisely on argument of costs, which could have been left to the special chambers hearing.

12.  The consent summons was tantamount to forcing an adjournment upon the Court.  With only 4 more working days to go before the special chambers hearing, there is little chance that the Court can find an alternative matter to fill up the 3 hours.

13.  In my view, in laying the timetable and fixing the Hearing, the Court has sufficiently taken into account the wishes of the parties and  accommodated their needs.  The parties should be held to their bargain.  Any lack of time for preparation of the Hearing was of their own making – in failure to properly manage the time given and to notify the Court sufficiently in advance of the need for a longer hearing time. 

14.  One of the underlying objectives of the Civil Justice Reform is to ensure that a case is dealt with as expeditiously as is reasonably practicable; and to ensure that the resources of the Court are distributed fairly: Order 1A, rule 1(b) and (f).  To adjourn the Hearing will be another 11 weeks’ wait given the present state of the Court’s diary.  Each adjournment of a substantive hearing means that the court’s time could not be used on another case which has real urgent issues waiting for adjudication.  It is also undesirable to leave a default judgment under challenge for over 7 months.

Conclusion

15.  Having considered all the circumstances, I therefore refused the application for adjournment and directed that the Hearing do proceed.  It is for the parties to make full use of the 3 hours by presenting more detailed written submission.  It will be up to the learned Master to decide whether to continue the hearing in the afternoon.

16.  Notwithstanding the parties’ consent as to costs, I make no order as to the costs of and incidental to this application for adjournment.  Each party should bear the consequence of its own fault.