SANYO SECURITIES (ASIA) LTD v. LIN KUANG LUNG RAYMOND

IN THE COURT OF APPEAL

1995, No. 210 & 257
(Civil)

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J U D G M E NT

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Bokhary JA:

1. The summons before me seeks a direction that "The dates of hearing of these appeals be fixed in consultation with the parties' Counsels' diaries".

2. My power for present purposes is that contained in paragraph 3 of the Practice Direction pertaining to the Listing of Appeals found on p. 5.3 of the 1990 Revision of the Practice Directions of the Supreme Court.

3. That power is to make a direction that the Clerk of the Court do fix a date in accordance with item (b) of paragraph 2 of that Practice Direction even though the appeal concerned is a "short appeal" within the meaning of that paragraph.

4. Paragraph 2 reads:

"The Clerk of Court will fix a date for hearing in the following manner:-

(a) An appeal estimated to last for 2 days or less (a short appeal) will be fixed for hearing on the next available date;

(b) An appeal estimated to last for more than 2 days will, so far as practicable, be fixed for hearing in accordance with the preference of the parties."

5. Obviously, it is only in exceptional circumstances that a direction under paragraph 3 will be made. And that is for the very simple reason that the fixing of a date for a short appeal in the manner prescribed in item (b) of paragraph 2 rather than item (a) thereof is the exception rather than the rule.

6. Here we are dealing with consolidated appeals which seem to me to be very considerably heavier and more complex than the general run of short appeals.

7. I do not say that that alone would always justify a paragraph 3 direction. But in all the circumstances of the present case, I am of the view that my discretion under paragraph 3 does arise.

8. Initially, Mr Graham for Lin Kuang Lung resisted a paragraph 3 direction. He did so even when it became known that allowing matters to take their course under item (a) of paragraph 2 would result in the appeal being fixed for April 16 & 17 this year, which dates are not convenient to either Mr Graham or his proposed leader.

9. Mr Graham's client was prepared to suffer the disadvantage - Mr Graham will permit me to describe it as the considerable disadvantage - of not having even his services because of how much he, the client, fears delay. It appeared to Mr Graham that if a paragraph 3 direction were to be made, there would be every danger that dates would not be fixed for any time earlier than July this year. And that, Mr Graham's client feels, is too long a delay for his purposes.

10. It is not easy to assess the impact of delay. But I certainly start off on the basis but I am inclined to accept the sincerity of Mr Graham's client. He is hardly going to deprive himself of not only Mr Graham's services but also that of Mr Graham's proposed leader by opposing a paragraph 3 direction unless he genuinely feared the delay which such a direction would bring about.

11. Mr Waldron for Sanyo, whose application this is, persists in his application for a paragraph 3 direction. But some compromise has been worked out. For both Mr Waldron and Mr Graham say that if the matter were to be fixed in consultation with junior counsel's diaries ignoring the availability of proposed leaders then the delay should be acceptable.

12. I cannot make a paragraph 3 direction which directly instructs the Clerk of the Court to fix a date in consultation with junior counsel's diaries.

13. What I can do - and will do - is this. Both parties have undertaken not to include the position of any leading counsel when putting forward their preference. On such undertakings, I will make a paragraph 3 direction in the present appeal.

14. Two things remain: one is to express my thanks to Mr Waldron and Mr Graham; the other is to hear them on the question of costs.

[Costs]

15. Mr Waldron's summons asks that the costs of this application be in the cause; and Mr Graham is content that that should be so. I order that the costs of this application be costs in the cause accordingly.