CLARE HOLLINGWORTH v. THOMAS EDWARD JUSON

HCA 249/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 249 OF 2006

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DECISION

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1.  On 30 May 2006, the Director of Legal Aid gave notice of the defendant’s application for legal aid by filing a memorandum.   Consequently, there is a statutory stay of the present proceedings for 42 days under section 15 of the Legal Aid Ordinance.  On 30 June 2006, the Director of Legal Aid filed a memorandum of refusal of Legal Aid.  By summons filed on 30 June 2006, the plaintiff applied to lift the stay. 

2.  As stated by Litton JA (as he then was) in the case of Lee Shiu Ming v. Yeo Hiap Seng (Hong Kong) Limited (unreported) CACV 39/1993, “The primary function of the court is to do justice between the parties.  In considering whether to lift the stay, the court should consider what is just and fair to the parties having regard to all the circumstances of the case.”

3.  On the facts of the present case, the following matters are relevant in determining the plaintiff’s application. 

4.  The first is the purpose of the statutory or legal aid stay.  It is to enable the Director of Legal Aid to properly assess and process the legal aid application.  It is correct for Mr Stock to say that section 15 of the Legal Aid Ordinance relates only to legal aid application.  It is trite that an appeal against a refusal of legal aid does not, by itself, give rise automatically to a stay of the proceedings.  A legal aid stay is also unlike a general permanent or interim stay.  It is for a specific purpose.  Whether the underlying purpose has been achieved is, in my view, a most relevant factor in deciding whether to lift the stay. 

5.  In the present case, the defendant’s legal aid application has been refused.  Even if he has already lodged an appeal against the refusal, that does not automatically mean that the stay should not be lifted. 

6.  Normally, where the lifting of a stay will mean that the applicant is deprived of a proper opportunity to get legal representation, the court will be sympathetic and will be inclined to allow the stay to continue.  However, where it is clear that the applicant will not be seeking private representation, there is little point in continuing the stay.  Similarly, as in here, where the litigant has been and continues to be legally represented notwithstanding the refusal of legal aid, the stay cannot be said to be necessary or justified for the purpose of enabling the litigant to obtain legal advice or representation. 

7.  Another important consideration on the circumstances of this case is what prejudice would the lifting of the stay occasioned to the defendant.  The major point in Mr Bedford’s submissions is that the defendant will be prejudiced because his two summonses had been re-fixed as a result of the statutory stay and if the stay is now lifted, the two summonses will be heard after the plaintiff’s Order 43 application when it would be otherwise under the original timetable. 

8.  It is correct to say that the defendant’s two summonses were issued before the plaintiff’s Order 43 application and were originally scheduled to be heard in June of this year. 

9.  The Registrar had by his order of 27 March 2006, directed that the plaintiff’s summons should not be listed nor heard until after the defendant’s summonses are determined.  The plaintiff appealed against that order.  On 3 May this year, Deputy Judge Gill allowed the appeal and substituted the Registrar’s order with an order that the plaintiff’s summons be listed for hearing forthwith.  On the face of it, the Deputy Judge did not accept the defendant’s argument that the plaintiff’s summons should not be heard until after his two summonses had been disposed of.  Gill DJ, in his oral reasons, commented that it is in the plaintiff’s best interests to proceed with her account application quickly and as soon as possible. 

10. It goes without saying that it is not for this court to reopen issues that have already been canvassed and determined by the Deputy Judge. 

11. Mr Bedford argues that Deputy Judge Gill’s order does not have the effect of directing that the plaintiff’s summons be heard forthwith.  It only directs that the hearing of the summons can be listed forthwith.  With respect, I am unable to agree with this contention.  Plainly, the Deputy Judge had allowed the appeal in its entirety.  He had substituted the entire order of the Registrar with his own order.   The important issue is not whether the appeal to the Deputy Judge is a rehearing or not.  What is important is there is no longer any direction that the defendant’s summonses should be heard first and before the plaintiff’s summons.  That would be sufficient to counter the defendant’s complaint that if the stay is lifted, his summonses could not be heard before the plaintiff’s application for an account. 

12. The defendant has no legitimate basis for complaint when the situation was brought about by his late application for legal aid.  He made his legal aid application just two weeks before the hearing of his own Order 80 summons.  He ought to have known, and should have been advised, that the consequential 42 days statutory stay would cause his first summons, if not both summonses, to be derailed.   The plaintiff’s summons being more than a month away, however, would have stood in different light.  It may or may not be adjourned. 

13. In short, the defendant has no legitimate basis for insisting that his two summonses should be heard ahead of the plaintiff’s summons.  It follows that he cannot complain of unfairness or prejudice if the effect of lifting the stay is to have the plaintiff’s application heard before his own two summonses. 

14. It is also submitted by Mr Bedford that the defendant may appeal against the refusal of legal aid and he has yet to receive the reasons for his legal aid refusal.  As I have noted, the legal aid appeal does not automatically give rise to a stay.  Further, given it is just a matter of nine days or so to the end of the stay, there is, realistically, no likelihood of the legal aid appeal being heard and determined before the end of the stay.  The defendant’s position today is therefore no different from what it will be at the end of the stay period.  There is thus no real prejudice to the defendant to lift the stay today instead of waiting for another nine days or so. 

16.  Mr Bedford also criticizes the lateness in the plaintiff’s application to lift the stay.  I accept the argument that it is prudent for the plaintiff to wait for the outcome of the legal aid application.  No doubt, the plaintiff’s application to lift the stay will be on very weak ground if it were made before the decision is known.  The position will be similar to what it was in the case of Lee Shiu Wing and the court is rather unlikely to have lifted the stay when there is a first legal aid application pending. 

17.  However, I would also point out that it is evident from the court’s letter in reply to the defendant’s solicitor’s letter seeking an indication on vacating today’s hearing on account of the legal aid application that the court has not ordered that the hearing be vacated.  Specifically, the letter says that the matter will be reviewed in the week before the hearing.  It is therefore not up to the defendant to expect with any certainty or confidence that the hearing today would be vacated, especially in the light of the Director of Legal Aid’s decision given on Wednesday. 

18.  As to the merits or importance of the defendant’s two summonses, I do not wish to pre-empt the outcome.  I need only say this.  The Deputy Judge had concluded that the two summonses do not amount to good ground for withholding the plaintiff’s application.  There is no appeal against the order and I have said that it is not for this court to rehearse the arguments again and to come to a different conclusion. 

19.  In any event, I respectfully agree with the Deputy Judge’s analysis.  I see no need to withhold the hearing of the plaintiff’s summonses so that it should be heard after the defendant’s two summonses.  I am not persuaded that it is improper to proceed with the plaintiff’s application first or that Mr Bedford has shown that it is unfair or impossible for the defendant to face the plaintiff’s application without his two summonses being heard and dealt with.  I would have thought that, in any event, whether the plaintiff brings these proceedings in her own name or through a next friend or guardian ad litem, if the defendant is under duty to account, then he has to render an account. 

20. In conclusion, I grant the plaintiff’s summons.