RURIKO NAGATA AND OTHERS v. NEW JAPAN SECURITIES INTERNATIONAL (H.K.) LTD.

IN THE COURT OF APPEAL

1993, No. 136
(Civil)

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J U D G M E N T

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Penlington, J.A.:

1. At the hearing of this appeal we granted the respondent's application for an adjournment to a date to be fixed. We now give our reasons for so doing.

2. This is an appeal from a decision of Rhind J of the 16th June 1993 whereby he granted leave to the plaintiffs (the appellants) to amend their re-re-amended statement of claim in some respects but refused to do so totally. This meant that the appellants would be precluded from claiming in respect of certain share transactions carried out between the parties in 1985 and 1986.

3. At the hearing of the appeal on the 22nd December application was made by the defendant (the respondent), pursuant to a summons issued the previous day, that the appeal be adjourned. This was on the ground that the appeal bundle had not been lodged by the appellants within the time limit provided for by Order 59 Rule 9 of the Rules of the Supreme Court, i.e. not less than 7 days before the appeal is likely to be listed for hearing. The bundle was lodged in the court at 4 p.m. on Monday the 20th December and served on the respondent's solicitors shortly after, whereas it should have been lodged on the 13th.

4. Affidavits were filed in support of and opposing the adjournment by solicitors acting for each party and it would seem from those that cause of the delay in lodging the appeal bundle was primarily the preparation of a transcript of proceedings before Rhind J. These had been tape recorded on the court machine and the tapes released to the respondent's solicitors. However they were apparently of a poor quality. The appellants had a transcript prepared from notes taken by counsel and the solicitor at the hearing. There was no agreement as to a correct version.

5. In his affidavit the solicitor for the appellant states that he did not realise that preparation of the re-re-re-amended statement of claim would be as time-consuming as it proved to be but he does say that he did not commence preparation of the bundle until the 13th December, the date on which it should have been lodged. He goes on to say that he did not consider that the respondent would be prejudiced by delay in lodging the bundle as it already had access to all the relevant documents.

6. Mr. Ronny Tong Q.C., leading counsel for the respondents submitted in support of the application that the Court Rules must be obeyed unless there is a good reason why that could not be done in any particular case. No such reason had been put forward here. He frankly conceded he was unable to say that he could not go on with the appeal due to the late service of the bundle but he considered that he had not been able to give the preparation of the respondent's case the time it deserved. He was engaged in another matter all day on the 21st December. He referred in particular to a diary kept by the 1st appellant which was contained in one of the bundles and he considered was highly relevant to the question of the appellant's knowledge of how the share dealings, which were the subject of the claim, were carried out. The additional claim was for many millions of dollars and, if allowed, would require additional expert evidence.

7. Mr. Barlow, for the appellants, conceded that the bundle should have been filed sooner than it was and his instructing solicitors apologised for the delay. Nevertheless the penalty of an adjournment was out of all proportion to the fault which had been committed. The trial before Rhind J. was set down for six weeks from early February and it was vital that these dates be kept. He emphatically denied a suggestion that the appellants had been dilatory in the prosecution of their claim. The delays which had occurred were due to the respondent's failure to make full discovery.

8. No good reasons have been advanced for the failure to comply with the rules. It is admitted that preparation of the appeal bundle did not start until the day on which it should have been lodged. The main reason put forward for that delay is the problem with the transcript. If agreement could not be reached over the transcript the appellant should have simply lodged its own version with a note saying that it was not agreed but that the respondent had the court's tapes and the appellant did not have access to them. It would then have been up to the respondent to have lodged its own version.

9. The rule that the appeal bundle must be lodged within seven days of the date set down for the hearing of an appeal is the minimum period consistent with fairness to the respondent and the good administration of the Court in making use of its reading days. Indeed, in a complicated or lengthy appeal the period provided is too short for adequate preparation either by the Court or the parties and for this reason the rule warrants review.

10. It will be a rare case in which a party has a good reason for failing to comply. The duty is on the appellant and he must comply whether or not the respondent cooperates. If for some reason it becomes clear that it will not be possible for an appellant to comply he should apply to the Court of Appeal for an extension of time before the time limit expires. The usual consequence of failure to comply or apply will be that the appeal date will be vacated and the appellant (or more usually his solicitor personally) will pay the costs thrown away.

11. In some cases the court may consider whether the appeal should be dismissed.

12. The requirement in England is more onerous. The Order 59 Rule 9 requires that the appeal bundles be lodged within 14 days of the appeal being included in the list of forthcoming appeals. If the bundles are not so lodged the appellant's solicitors are told that failure to lodge the bundles by a specified date will result in the appeal being listed before a Master for cause to be shown why it should not be dismissed with costs. Any application for an extension has to show good reasons for the delay.

13. For these reasons we granted the application to adjourn this appeal but ordered that it be brought on again as a matter of urgency so as if at all possible the trial dates in February will not be lost.

14. The part of this judgment which considers the effect of a failure to comply with 0.59 r.9 R.S.C. has the approval of the Chief Justice and the Vice-Presidents of the Court of Appeal.