TSE KWOK WAI v. SAN WUI COMMERCIAL SOCIETY YMCA OF HONG KONG CHRISTIAN SCHOOL

HCSA 23/2022

[2022] HKCFI 3287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO.23 OF 2022

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO. 27398 OF 2021)

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DECISION

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INTRODUCTION

1.  The defendant is a school registered under the Education Ordinance (Cap.279, Laws of Hong Kong) (“the School”).

2.  The claimant’s daughter (“Daughter”) was admitted into the School as a Year 1 student in September 2014. She was promoted to Class 3E in September 2016.

3.  The claimant’s case was that the School had undergone a “Class Restructure” on 31 October 2016, and as a result, Daughter was allocated to Class D3 from November 2016 onwards. He said that since then, Daughter was taught the Year 4 curriculum. In other words, the Year 3 curriculum was skipped. The claimant then found in September 2017 that while most of Daughter’s classmates had been promoted to Year 5, Daughter still remained as a Year 4 student in the 2017/2018 academic year, and she was allocated to Class “Year 4 Hope”.

4.  The claimant claimed, among other things, that the defendant was in breach of the term to carry out the service with reasonable care and skill which was implied pursuant to section 5 of the Supply of Services (Implied Terms) Ordinance (Cap.457, Laws of Hong Kong) in that Daughter had:

(1)  skipped the Year 3 curriculum; and

(2)  been taught the Year 4 curriculum twice.

5.  He therefore claimed for a return of the school fees paid for the period between November 2016 and November 2017[1] in the total sum of $75,000[2].

THE ADJUDICATOR’S DECISION

6.  The trial was conducted in front of a Deputy Adjudicator (“the Deputy Adjudicator”) who dismissed the claimant’s claim by his Decision dated 9 June 2022 (“the Decision”). His reasoning[3] may be summarised as follows:

(1)  As Daughter did not give evidence at the trial, the claimant had only adduced his own hearsay evidence on what Daughter had been taught in Year 3. That would be so even if it was the claimant’s evidence that he had inspected Daughter’s homework at home;

(2)  The claimant had failed to adduce evidence on the reason why Daughter’s class had to be named from “Class 3E” to “Class D3”;

(3)  Although the claimant admitted that the School teachers had provided tailor-made course materials for the students of the School after the “Class Restructure”, he had failed to adduce any such materials as evidence. He claimed that he had thrown the materials away, and that the School had refused to provide a copy thereof despite his repeated requests. He has therefore failed to discharge his burden of proof on the matter;

(4)  The evidence of Mr Moore, the current School Principal, was credible and reliable, and therefore should be accepted;

(5)  The claimant’s reliance on the fact that Daughter’s Mathematics Book 3C and Book 3D were clean (as opposed to the fact that Daughter had jotted a lot of notes in her Mathematics Book 4A) to show that Daughter was not taught the Year 3 curriculum was rejected on the ground that it was pure conjecture, since it was unknown as to why Daughter did not write any notes on those books;

(6)  In any event, the claimant could not prove his case solely by virtue of whether a mathematics textbook had been used. In fact, the School had given an explanation on the matter by virtue of its letter dated 23 December 2020;

(7)  The claimant’s admission that he could not tell whether the curriculum taught in two different academic years was identical showed that he was not sure whether there was any repetition in the curriculum taught, and that even if there were any repetition, what subjects had been repeated;

(8)  Although the claimant claimed that half of Daughter’s Year 4 classmates had been promoted to Year 5 in September 2017, he could not tell the exact number thereof. He only alleged in his evidence that the School should provide the information. In the circumstances, he had failed to discharge his burden of proving this allegation. In any event, even if he could prove that half of those classmates had been promoted to Year 5, this does not necessarily mean that Daughter had been taught the Year 4 curriculum again on all subjects;

(9)  Therefore, the claimant had failed to discharge his burden to prove that Daughter was taught the Year 4 curriculum on all subjects when she was in Class D3;

(10)  He had also failed to prove that Daughter was taught the Year 4 curriculum again when she was in Class “Year 4 Hope” from September 2017 onwards.

THE APPEAL

7.  The claimant has put forward the following grounds in support of his intended appeal against the learned Deputy Adjudicator’s Decision:-

(1)  The learned Deputy Adjudicator erred in law in deciding that the claimant’s evidence was hearsay evidence rather than direct evidence;

(2)  The learned Deputy Adjudicator was wrong in discounting the weight to be attached to the claimant’s evidence without taking into consideration the fact that his oral evidence was consistent with his witness statement;

(3)  The learned Deputy Adjudicator was wrong to rule that the claimant’s submission that the Year 3 curriculum was skipped by reliance on the state of the two Mathematics Books was a conjecture;

(4)  The learned Deputy Adjudicator erred in considering that the School had provided an explanation by virtue of its letter dated 23 December 2020;

(5)  The learned Deputy Adjudicator was wrong in accepting Mr Moore’s evidence and had failed to take into account the inconsistencies of his evidence;

(6)  The learned Deputy Adjudicator had failed to consider the fact that Mr Moore’s evidence was hearsay evidence as he only joined the School in September 2018, that is, after the time period against which the present claim was lodged;

(7)  The learned Deputy Adjudicator erred in ruling that the claimant’s complaint was based on his own conjecture;

(8)  The learned Deputy Adjudicator was wrong in finding that the claimant could not prove that there was any repetition in the curriculum by relying on his admission that it was difficult for him to tell whether the curriculum taught in two different academic years was exactly the same;

(9)  It was unreasonable for the learned Deputy Adjudicator to rule that even if half of Daughter’s Year 4 classmates had been promoted to Year 5, this does not necessarily mean that Daughter had been repeatedly taught the Year 4 curriculum on all subjects;

(10)  The learned Deputy Adjudicator was wrong to hold that the defendant was not obliged to provide the claimant with the documents submitted by the School to the Education Bureau (“EDB”) (which the School heavily relied on);

(11)  While the learned Deputy Adjudicator had limited the time for the claimant to cross-examine Mr Moore, he did not impose a similar limitation when the claimant was cross-examined, and it was unfair;

(12)  The learned Deputy Adjudicator was also unfair in that when Mr Moore hesitated as to how to answer the claimant’s cross-examination in respect of the clean Mathematics textbooks, he ruled that Mr Moore was not required to answer the question;

(13)  The learned Deputy Adjudicator also erred in refusing the claimant’s application to obtain a copy of the recordings of the proceedings and, as a result, the claimant could only rely on his own memory when he prepared his closing submissions.

LEGAL PRINCIPLES

8.  There are two areas in respect of which it is necessary set out the applicable legal principles.

9.  Firstly, the following principles are applicable to an application for leave to appeal, in particular, in the case where the ground of appeal involves challenges against findings of facts.

10.  Section 28(1) of the Small Claims Tribunal Ordinance (Cap.338, Laws of Hong Kong) provides that:

“Any party who is aggrieved by a decision of the tribunal—

(a)  on any ground involving a question of law alone; or

(b)  on the ground that the claim was outside the jurisdiction of the tribunal,

may apply to the Court of First Instance for leave to appeal and the Court of First Instance may grant such leave if it thinks fit.”

11.  Hence, generally speaking, a party cannot challenge any finding of facts made by the Small Claims Tribunal because it does not involve any question of law. Having said that, this is not an absolute rule. In Kwong Miles Services Limited v Commissioner of Inland Revenue [2004] 3 HKLRD 168[4], Bokhary PJ adopted what Lord Millett said in his speech in Runa Begum v. Tower Hamlets LBC [2003] 2 AC 430 at p.462G-H, in which his Lordship summarised the Edwards v. Bairstow[5] basis of appellate intervention in this way:

“A decision may be quashed if it is based on a finding of fact or inference from the facts which is perverse or irrational; or there was no evidence to support it; or it was made by reference to irrelevant factors or without regard to relevant factors. It is not necessary to identify a specific error of law; if the decision cannot be supported the court will infer that the decision-making authority misunderstood or overlooked relevant evidence or misdirected itself in law.” (at [32])

12.  Bokhary PJ then went on to say at [37]:

“In an appeal on law only the appellate court must bear in mind what scope the circumstances provide for reasonable minds to differ as to the conclusion to be drawn from the primary facts found. If the fact-finding tribunal’s conclusion is a reasonable one, the appellate court cannot disturb that conclusion even if its own preference is for a contrary conclusion. But if the appellate court regards the contrary conclusion as the true and only reasonable one, the appellate court is duty-bound to substitute the contrary conclusion for the one reached by the fact-finding tribunal […]”

13.  Moreover, it is trite that leave to appeal shall not be granted unless the Court is satisfied that the intended appeal has a reasonable prospect of success. A “reasonable prospect of success” means an appeal with prospects that are more than fanciful without having to be probable.

14.  Secondly, leave to appeal may be granted if it is reasonably arguable that there is any misdirection on the part of the trial Adjudicator. However, Order 55 rule 7(7) of the Rules of the High Court (Cap.4A, Laws of Hong Kong) provides that:

“The Court shall not be bound to allow the appeal on the ground merely of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court substantial wrong or miscarriage has been thereby occasioned.”

15.  In Wong Yin Fong & Others v ISS Hong Kong Services Ltd[6] [2005] 2 HKLRD 648, Lam J (as he then was), in explaining the aforesaid rule, adopted the test formulated by Sir John Donaldson MR in Dobie v Burns International Security Services [1985] 1 WLR 43:

“Once you detect that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the Tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection. It is only if it is plainly and unarguably right notwithstanding the misdirection that the decision can stand. If the conclusion was wrong or might have been wrong, then it is for an appellate Tribunal to remit the case to the only Tribunal which is charged with making findings of fact. [The appellant] did not have to go to the length of saying that the Tribunal’s findings were perverse, and the majority [of the EAT] were wrong in thinking that they were prevented from sending the matter back on the basis that another Tribunal, to wit themselves, would have reached a different conclusion. All three of them were obliged, in my judgment, to remit the matter to the Tribunal notwithstanding that this is a very stale case …” (at [74]) (Emphasis added)

DISCUSSION

16.  As mentioned, the claimant had put forward a large number of grounds of appeal. In my view, these grounds may be grouped into the following grounds:

(1)  Ground 1: The learned Deputy Adjudicator’s findings of facts were wrong, and he had misdirected himself when he considered:

(a)  whether he should accept the evidence of the claimant and Mr Moore; and

(b)  what weight he should attach thereto;

(2)  Ground 2: The learned Deputy Adjudicator was wrong to hold that the defendant was not obliged to provide the claimant with some documents which were relevant;

(3)  Ground 3: The learned Deputy Adjudicator was wrong in limiting the time for the claimant to cross-examine Mr Moore;

(4)  Ground 4: It was unfair for the learned Deputy Adjudicator to interrupt the claimant’s cross-examination of Mr Moore;

(5)  Ground 5: The learned Deputy Adjudicator erred in refusing the claimant’s application to obtain a copy of the audio recordings of the proceedings.

Ground 1 – Finding of facts

17.  The claimant has made quite a number of points to attack the learned Deputy Adjudicator’s findings of facts.

18.  As explained above, the appellate Court would only interfere with such findings made by the Tribunal under very limited circumstances.

19.  In the present case, it suffices for me to say the followings:

(1)  The learned Deputy Adjudicator did not misdirect himself on what is and what is not hearsay evidence;

(2)  Generally speaking, the Tribunal’s assessments of the evidence, the credibility of witnesses, whose case is more inherently probable, etc. do not involve questions of law and therefore leave should not be granted for the purpose of challenging such assessments[7];

(3)  I am not satisfied that the facts of the present case fall within the narrow ambit within which the claimant should be granted leave to appeal against the learned Deputy Adjudicator’s findings of facts.

Ground 2 – Discovery of documents

20.  Under this Ground, the claimant complained that the defendant had refused to provide him with various documents despite repeated requests, and the learned Deputy Adjudicator was wrong to hold that the defendant was not obliged to provide the claimant with those documents.

21.  As I see it, there are three categories of documents which are relevant under this Ground, namely:

(1)  Documents which the defendant relied on in its Defence (various documents which the defendant had submitted to the EDB);

(2)  The tailor-made teaching materials which the School had designed for Daughter;

(3)  Name lists of Year 4 and Year 5 students at the material time.

Documents submitted to the EDB

22.  From the transcripts of the Pre-Trial Review hearing held on 14 February 2022 (“the PTR”), it can be seen that the claimant had repeatedly requested the defendant to provide him with documents which the defendant alleged in its Defence that it had submitted to the EDB. However, the learned Deputy Adjudicator took the view that:

(1)  The defendant could decide what evidence should be relied on at the trial before the Tribunal;

(2)  As the claimant had the burden of proof, the claimant should be obliged to produce documents in support of his case;

(3)  The Tribunal could not force the defendant to produce documents[8].

23.  The same request was made by the claimant during the trial. The learned Deputy Adjudicator stated that if the defendant considered that it had produced adequate evidence to defend the claim, the Tribunal had no power to force the defendant in producing further evidence[9].

24.  In my view, it is reasonably arguable that the learned Deputy Adjudicator had misdirected himself on the law of discovery because:

(1)  Pursuant section 16(2) and 16(3) of the Small Claims Tribunal Ordinance, the Tribunal may require the production of any document which is relevant in any proceedings, and is obliged to inquire into any matter which it may consider relevant to a claim;

(2)  The documents which the defendant provided to the EDB are prima facie relevant to the claimant’s claim because those documents were referred to by the defendant in its Defence;

(3)  It appears that the defendant was still keeping a copy of those documents at the time of the PTR[10];

(4)  It is reasonably arguable that discovery of those documents is necessary for disposing fairly of the matter;

(5)  In discharging his duty of investigation, the learned Deputy Adjudicator may in his discretion require the defendant to produce documents so as to achieve a fair outcome. It is reasonably arguable that the learned Deputy Adjudicator has misdirected himself when he said that he had “no power to force the defendant to produce documents” and that the defendant had the liberty to decide what documents to produce.

25.  I am not in a position to conclude (at least at this stage) that the learned Deputy Adjudicator’s dismissal of the claimant’s claim was plainly and unarguably right notwithstanding the misdirection.

26.  Therefore, leave to appeal should be granted in relation to this complaint.

Tailor-made teaching materials

27.  In relation to the tailor-made teaching materials, the learned Deputy Adjudicator stated the followings in his Decision:

“申索人在作供時同意被告學校的老師是有為學生度身訂造教育素材，亦有把這些教材提供給學生，但是申索人從來沒有提供過任何一份作為證據。申索人作供時指已把教材掉了，學校應有齊全一套，但他問了學校多次，學校沒有給他一套。申索人就他的正面主張有舉證責任，是須要舉證，而不是作出推論。” (at [30])

28.  It appears that the learned Deputy Adjudicator had used the same approach in dealing with the claimant’s requests for a copy of the tailor-made teaching materials.

29.  As the claimant’s case was that there was duplication on the curriculum taught in Year 3 and Year 4, the tailor-made teaching materials used by Daughter must be highly relevant. However, the same was not placed before the Court at all.

30.  I am of the view that my conclusion reached in relation to the documents submitted to the EDB is equally applicable to the said teaching materials. Leave to appeal should be granted also for this reason.

Name lists

31.  In this respect, the learned Deputy Adjudicator stated the followings in his Decision:

“最後，申索人聲稱在2017年9月開學時發現有半數上年度的同班同學升讀五年班 (見C6第4段和申索人結案陳詞的C6)。申索人在作供時雖然說是他親眼看到上述情況，但他答不到有多少人，更指出最準確是應該由校方提供資料，他沒有可能數得到。申索人要為他的正面主張負上舉證責任。基於申索人上述的答案 ，本席認為在相對可能性之下他未能證明他所指在2017年9月開學時有半數上年度的同班同學升讀五年班的情況。即使有半數上年度的同班同學升讀五年班，這亦不能證明[Daughter]重讀了四年班課程所有科目一次。” (at [37]) (emphasis added)

32.  Again, the learned Deputy Adjudicator took the view that since the claimant had the burden of proving his case, the defendant was not obliged to produce any document which sheds light on the number of students who remained in Year 4 in the second academic year together with Daughter after they had allegedly completed the Year 4 curriculum.

33.  It is at least reasonably arguable that the learned Deputy Adjudicator had misdirected himself in this regard.

34.  Having said that, it should be noted that it was the learned Deputy Adjudicator’s view that even if the claimant could prove that more than half of Daughter’s Year 4 classmates had been promoted to Year 5, that does not mean that Daughter had been repeatedly taught the Year 4 curriculum in the second academic year. I agree with that view. Hence, the disclosure of the class lists is not necessary for disposing fairly of the matter.

35.  I therefore hold the view that leave to appeal should not be granted in relation to the non-disclosure of the class lists.

Ground 3 – Time for cross-examination

36.  I will first of all set out the factual matters relevant to this Ground.

37.  The trial was fixed to be heard on 28 February 2022. One day was reserved for the whole trial. It appears from the Court notes that the estimated length of the trial was fixed by another Deputy Adjudicator, without consultation with the parties. That is totally understandable, because it may well be difficult for the parties to estimate, for example, how long the cross-examination of the witnesses would take.

38.  In the end, there were only two witnesses who had given oral evidence at the trial, namely, the claimant himself and Mr Moore. It did not take long for the claimant to give evidence because Mr Moore did not cross-examine him at length. As a result, Mr Moore started to give oral evidence for the defendant at around 11am, and he started to be cross-examined at around 11:25am[11].

39.  Shortly before the Tribunal took the lunch break on 28 February 2022, the learned Deputy Adjudicator enquired with the claimant how much time he would require to finish his cross-examination of Mr Moore. The learned Deputy Adjudicator explained that since he had another case to deal with at 2:30pm in the afternoon, he would like to know whether it was possible to complete the evidence within the same day, on the assumption that another 1 hour and 15 minutes would be provided for the claimant. The learned Deputy Adjudicator also stated initially that in the event it was not enough, he would probably adjourn the trial altogether to another date, so that the parties did not have to go back to the Tribunal at all in that afternoon.

40.  In reply, the claimant answered that 1 hour and 15 minutes was not quite enough, and he estimated that it would probably take another 3 hours to complete his cross-examination of Mr Moore.

41.  Originally, it appears that the learned Deputy Adjudicator had agreed that, in that case, the trial should be adjourned to another date.

42.  However, Mr Moore submitted that since the claimant did not have any evidence to prove his claim, it would be a waste of time for him (Mr Moore) to come back to the Tribunal on another date.

43.  The learned Deputy Adjudicator’s attitude changed after he had heard Mr Moore’s objection. Although the claimant once again expressed that he might need another 3 to 4 hours to complete his cross-examination, the learned Deputy Adjudicator decided that, pursuant to his duty to “manage the case”, the further time for cross-examination should be limited to 1.5 hours in the same afternoon (and it is in this respect of the case management direction that the claimant considered it unfair).

44.  The learned Deputy Adjudicator then adjourned the case to 3pm on the same day, and expected that it should finish by 4:30pm.

45.  The other case which was fixed before the learned Deputy Adjudicator took much longer to finish than expected. As a result, the trial of the present case only resumed at around 4pm. In the end, the hearing lasted until 5:11pm, whereupon the learned Deputy Adjudicator adjourned the trial to another date so that the claimant could carry on with his cross-examination of Mr Moore, with 30 minutes reserved.

46.  I will now turn to discuss the merits of the claimant’s Ground.

47.  While it has not been expressly provided in the Small Claims Tribunal Ordinance or in the Small Claims Tribunal (General) Rules (Cap.338A, Laws of Hong Kong) that the Tribunal has power to limit the time for cross-examination, there is no doubt that the learned Deputy Adjudicator has such a power as part of his case management power, so that the proceedings at the Small Claims Tribunal are conducted not only fairly but also as expeditiously as possible. In section 37 of the Small Claims Tribunal Ordinance, it is provided that:

“Where no provision is made by this Ordinance or rules made under section 36, the practice and procedure in the tribunal shall be such as the tribunal may determine, either generally or in any particular proceeding.”

48.  The question here is whether the learned Deputy Adjudicator has exercised this power properly. In this regard, I will bear in mind what the Court of appeal held in Mimi Kar Kee Wong Hung v Severn Villa Ltd & Others [2012] 1 HKLRD 887 as follows:

“31. It must also be borne in mind that the orders made by the Judge in the intended appeal are case management decisions in the exercise of the discretion of the trial judge. Case management decisions are only subject to appeal in rare circumstances. The appellant faces a ‘very high hurdle’ and must show that the judge ‘has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task’, or if the judge ‘erred in principle or the order was irrational having regard to the issues that had to be resolved’. It need hardly be emphasised that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.”

49.  I must say that I have some concern on the time limit imposed by the learned Deputy Adjudicator in the present case:

(1)  The learned Deputy Adjudicator initially was minded to adjourn the trial to another date without imposing any time limit for cross-examination. He only changed his mind because of Mr Moore’s preference to complete his evidence on the same date. I do not think that is the correct basis upon which the time limit should be imposed, especially when Mr Moore did not give any particular reason as to why he could not attend hearing on another date (and in my view, the adjournment of the hearing would at most cause him some inconvenience). Indeed, Mr Moore at one stage said that the adjournment of the hearing to another date would just mean another day out of office;

(2)  It should be remembered that the trial was originally fixed for one day, and there were supposedly two hours left for the claimant to cross-examine Mr Moore in the afternoon of the trial date[12]. Eventually, less than two hours (before 4:30pm) were available for the claimant to cross-examine Mr Moore merely because another case had been fixed to be heard before the learned Deputy Adjudicator in the afternoon on the trial date. The claimant’s right to cross-examine Mr Moore should not be prejudiced by such a matter;

(3)  The claimant had made it very clear time and again at around 1pm on the trial date that he needed at least another three hours for the purpose of cross-examining Mr Moore. However, the learned Deputy Adjudicator all of a sudden imposed an 1½ hour limit without any prior warning, when the trial was still within the original estimation of time (not to mention that such an estimation was not made with the involvement of the claimant).

50.  If the learned Deputy Adjudicator had indeed strictly enforced the 1½ hour time limit and stopped the claimant from going on when his cross-examination was not completed, I would most probably grant leave to appeal on this Ground.

51.  However, that was not what happened:

(1)  As aforesaid, the trial only resumed at around 4pm because the other case fixed to be heard at 2:30pm had taken much longer time to complete than expected;

(2)  Shortly before 5pm, the learned Deputy Adjudicator decided to adjourn the trial to another date (“the Adjourned Trial Date”) (with 30 minutes reserved for the claimant to cross-examine Mr Moore);

(3)  The trial resumed at around 10am on the Adjourned Trial Date;

(4)  At around 10:30am, the learned Deputy Adjudicator, on his own initiative, told the claimant that 10 more minutes would be given to the claimant for cross-examination;

(5)  Shortly before 10:52am, the claimant, without being asked, indicated to the learned Deputy Adjudicator that he only had one more question to ask Mr Moore;

(6)  At around 10:52am, the learned Deputy Adjudicator, on his own initiative, told the claimant that 5 more minutes would be given to the claimant for cross-examination;

(7)  The claimant then carried on with his cross-examination until around 11:05am, when he informed the learned Deputy Adjudicator that all questions had been asked. The evidence of Mr Moore was therefore completed.[13]

52.  From my reading of the Transcripts and the learned Deputy Adjudicator’s notes, it is quite clear that, at the end of the day, the Tribunal had allowed the claimant to carry on with his cross-examination of Mr Moore until the claimant confirmed that he had asked all the questions he had. Hence, despite the initial imposition of time-limit, I am of the view that the claimant had been given a reasonable opportunity to cross-examine Mr Moore.

53.  In these circumstances, it is not reasonably arguable that the learned Deputy Adjudicator has gone clearly wrong, or had made orders which would clearly involve an injustice or an inability for the Tribunal to carry out its task. Neither can it be said that it is reasonably arguable that learned Deputy Adjudicator had erred in principle or that the way he conducted the trial was irrational having regard to the issues that had to be resolved.

54.  I therefore reject this Ground.

Ground 4 – Conduct of cross-examination

55.  The claimant complained that the learned Deputy Adjudicator had interrupted his cross-examination of Mr Moore on different occasions.

56.  I have read the relevant parts of the transcripts, and take the view that the learned Deputy Adjudicator was only exercising his discretion in disallowing irrelevant questions. There is nothing wrong about that.

57.  This Ground is therefore rejected.

Ground 5 – Recording of the proceedings

58.  Lastly, the claimant complained that the learned Deputy Adjudicator had erred in refusing his application to obtain the recordings of the proceedings so that he could prepare his closing submissions properly.

59.  From the transcripts, it seems that what the claimant had applied for was the transcripts of the trial.

60.  One of the reasons why the application was refused was that acceding to the claimant’s application would lead to delay of the proceedings.

61.  The decision to refuse the application for transcripts is a case management decision. In my view, it is not reasonably arguable that the learned Deputy Adjudicator was plainly wrong in the exercise of his discretion.

62.  This Ground is therefore rejected.

CONCLUSION

63.  By reasons of the aforesaid, I grant leave to the claimant to appeal against the learned Deputy Adjudicator’s decision dated 9 June 2022 on the ground that:

“The learned Deputy Adjudicator was wrong to hold that the defendant was not obliged to disclose the following documents to the claimant:

(1)  Documents which the defendant had submitted to the EDB in answer to the claimant’s complaints referred to in its Defence;

(2)  The tailor-made teaching materials which the School designed for Daughter while she was in Year 3 and Year 4.”

COSTS

64.  The claimant’s costs of this application will be in the cause of the appeal.