TWG TEA CO PTE LTD AND ANOTHER v. TSIT WING (HONG KONG) CO LTD AND OTHERS

FACV No. 15 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 15 OF 2015 (CIVIL)

(ON APPEAL FROM CACV NO. 191 OF 2013)

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D E C I S I O N

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Mr Justice Fok PJ :

Introduction

1. At the conclusion of the hearing of the application for leave to appeal to this Court from the judgment of the Court of Appeal in CACV 191/2013, the Appeal Committee granted leave to appeal and announced that the appeal would be heard on 12 and 13 January 2016[1].

2. By summons dated 27 July 2015, the respondents have applied for an order that the hearing dates of the appeal “be adjourned to a date to be fixed upon consultation with the diaries of leading counsel and counsel of both parties or such other date that the Court deems appropriate upon taking into account counsel’s diaries”.  The summons is supported by an affidavit of Ms Luk Ching Ping, Theresa, one of the solicitors acting for the respondents in this appeal.

3. Having initially supported the application, subject to any adjourned dates for the hearing being convenient to their counsel, the appellants now oppose it[2]. In accordance with written directions given by the Registrar on 6 August 2015, this application is being determined on the papers without a hearing.

The fixing of dates in the CFA and need for cogent reasons to vary them

4. The fixing of dates for the hearing of an appeal is pre-eminently a matter of case management for the Court, whether acting through the Appeal Committee or the Registrar.  The decision as to when to hear a particular appeal is one which affects the distribution of the Court’s business and, in this regard, to a greater extent than other courts in Hong Kong, the convenience of the Court is critical.  It is now the general practice of the Appeal Committee, when granting leave to appeal, at the same time to fix dates for the hearing of the substantive appeal.  In fixing such dates, the Appeal Committee has regard to the Court’s proposed future sitting schedule.  Dates for a substantive appeal will be chosen at the discretion of the Appeal Committee to ensure the appropriate allocation of resources and division of labour on the basis of factors including the Court’s overall caseload, the distribution of work between sitting sessions and the distribution of work between individual overseas non-permanent judges.

5. Like any other case management decision, particularly in the era following the Civil Justice Reform of 2009, this decision is one which is court-driven rather than party-driven and litigants can have no legitimate expectation that the convenience of the Court will yield to their personal circumstances, in particular the convenience of themselves or their legal representatives[3]. Where an appellate court in Hong Kong has fixed dates for the hearing of an appeal, it will require cogent reasons why a date should be vacated[4]. This requirement applies a fortiori in the case of this Court since its constitution as a single court consisting of five judges, including one overseas judge, means that there is a greater need for the Court to determine when appeals are to be heard and for fixed dates to remain unchanged.

6. The context of the fixing of dates is important.  Although the continuity of representation has been identified as a public interest element in the context of an application for the admission of overseas counsel[5], it does not follow that the continuity of representation is a particularly weighty factor in the context of an application to adjourn dates fixed for a hearing in this Court.  Whether the continuation of such representation is a factor sufficient to justify an adjournment will depend on the cogency of the argument that that continuity is at risk, the degree of prejudice to the party affected and the overall convenience to the Court in maintaining the dates that have been fixed.

Consideration of the respondents’ arguments in support of the application

7. The respondents’ arguments in support of the application to vary the hearing dates are based on the fact that the counsel they intend to instruct for the appeal, namely Mr Mark Platts-Mills QC, Ms Winnie Tam SC and Mr Philips B.F. Wong are said not to be available on the dates in question.  The unavailability of all three counsel to appear in this Court on those dates gives rise, it is contended, to serious prejudice since all three have been acting for the respondents throughout the litigation and appeared at the trial at first instance, on intermediate appeal to the Court of Appeal and before the Appeal Committee on the application for leave to appeal.

8. Before addressing counsel’s unavailability I will first deal with a point addressed by the respondents in their written submissions, namely that the respondents gave no indication of unavailability of counsel at that time.  This point was raised by the Registrar by way of initial brief response in correspondence with the respondents’ solicitors directing them to issue a formal summons should the respondents wish to seek the adjournment of the hearing dates.  The initial response has been understood to suggest that the respondents acquiesced in the fixing of the hearing dates by the Appeal Committee but this is not in fact the position since the Appeal Committee did so without reference to the parties at the leave application and did not invite submissions in relation to those dates.  However, it is of no moment that the Registrar’s response might have been so understood because the main thrust of his response, namely that a summons would be necessary if the respondents wished to apply to adjourn the appeal, was correct since the question of whether the dates fixed by the Appeal Committee should be varied would have to be considered by a single permanent judge of the Court.

9. A further point that can be discounted is any suggestion of delay on the part of the respondents in making the application.  This is not an argument raised by the appellants but is addressed by the respondents because the Registrar directed them to issue the summons to adjourn after the filing of the Notice of Appeal in this matter.  This direction was perfectly proper since there would be no certainty the appeal would proceed until the Notice of Appeal was filed and that could only happen after the appropriate amount of security for costs was provided by the appellants.  Due to a dispute raised by the appellants over the amount of security for costs, the Notice of Appeal was not filed until 16 July 2015.  That dispute, however, was a matter outside the control of the respondents and there is no question of any delay in the making of this application under consideration.

10. I return therefore to the respondents’ main point, namely prejudice arising from their counsel’s unavailability on the dates presently fixed for the hearing of the appeal.  This involves two separate considerations: first, whether the respondents’ counsel are unavailable; and secondly, whether, even assuming such unavailability, that would be a cogent reason for granting the adjournment sought.  It is understandable that a litigant will generally wish to have his particular lawyer of choice represent him in court.  However, there is no such unqualified right on the part of a litigant and, as pointed out above, there can be no legitimate expectation that a court will arrange its calendar for the convenience of the particular legal representative chosen by a party.

11. In the present case, Ms Winnie Tam SC and Mr Philips B.F. Wong “have been booked to conduct another trial already set down for the same period”[6] apparently acting for the plaintiffs in that matter.  Such a booking is not, of course, the same as a delivered brief amounting to a firm commitment to appear in that other matter.  Ironically, junior counsel for the appellants, Mr Douglas Clark, is instructed to act on behalf of the defendants in that other matter and has indicated to his solicitors in this appeal that he is available for the dates fixed as he will give priority to this appeal.  In support of Mr Clark’s position, the appellants rely on paragraph 127(a) of the Code of Conduct of the Hong Kong Bar Association and paragraph (f) of Law Society Circular No.6/81 concerning the “Marking of Counsel’s Diary”[7].  In response, the respondents argue that the circumstances of the other case are such that, if Ms Tam and Mr Wong did as Mr Clark is proposing to do, this would be unfair to the plaintiffs in that other case.

12. It is not necessary to resolve that debate for present purposes, although it is open to counsel to return a brief in the circumstances referred to in the Circular in question.  The more significant fact, in my view, is that there is no indication in the papers before me as to whether any approach has been made to the trial judge hearing that other matter in January 2016 to inquire whether he would be prepared to release Ms Tam and Mr Wong for the two days required for the hearing of this appeal.  This might necessitate an adjournment of that other trial but brief interruptions of trials are not exceptional.  At the very least, this cannot be discounted as a possibility until asked for and refused and, most importantly, such an arrangement would solve the respondents’ dilemma so far as Ms Tam and Mr Wong are concerned. Since, if this request had been made to the trial judge and refused, it is a point that would almost certainly have been referred to in Ms Luk’s affidavit, it may be reasonable to infer that no such request has in fact been made.  I would add that the possibility of either one of Ms Tam or Mr Wong being released from the other trial is all the more realistic a prospect since that ought not to necessitate the adjournment of the trial.

13. So far as Mr Platts-Mills is concerned, no details of his indisposition are given in Ms Luk’s affidavit.  The respondents’ reply submissions now indicate that his unavailability is “because of a family commitment which commences before the dates currently fixed and ends after those dates and to which members of his family from around the world have committed to attend (which was arranged before the Appeal Committee fixed the dates)”.  Whilst one naturally has sympathy for the sanctity of family commitments and it is not for this Court to pry into the particular commitment, it would not on its face seem to be an insurmountable obstacle preventing Mr Platts-Mills from appearing in this appeal on 12 and 13 January 2016.  Moreover, if that commitment extends over a longer period than the two days of the appeal, it is not immediately apparent that Mr Platts-Mills could not temporarily excuse himself from it to appear in the appeal.  Be that as it may, the explanation given for Mr Platts-Mills’ unavailability is not, with respect, the most cogent of reasons in support of the adjournment.

14. Taking the positions of the respondents’ counsel team as a whole, it is not clear that all three members of the team are in fact unavailable for the dates fixed for this appeal.  There must be some prospect, notwithstanding the practical difficulties identified by the respondents, that one or two, or possibly even all three, of their counsel team could in fact organise their professional and personal arrangements such that they could appear in this appeal on the dates in question.

15. Even if, contrary to the view I have taken, one assumes that all three of the respondents’ counsel are unequivocally unavailable for the appeal dates, it is necessary to consider whether that factor alone is enough to outweigh the convenience to the Court of hearing this appeal on 12 and 13 January 2016.  In this regard, it is contended that the appeal is of great commercial importance to the respondents, that it raises important questions of law as identified by the Appeal Committee in granting leave and that there is a recognised public interest element in the continuity of legal representation of a litigant.

16. As I have already indicated, the context of the fixing of dates and the adjournment of dates fixed for an appeal hearing in this Court is different to that of an application to admit overseas leading counsel and the public interest element of continuity recognised in the latter context does not carry the same weight in the former context.  As to the commercial importance of the appeal to the respondents and the importance of the questions of law, these are relevant but not determinative factors.  There is no reason to think that alternative counsel cannot be instructed to appear on their behalf in the appeal or that their case cannot be adequately argued by such other counsel. It is self-evident that lawyers are not a rarity and alternative representation is usually a possible solution where a first choice is unavailable.  In the present case, although there is some indication in the papers that there might be difficulty in instructing local leading counsel due to conflicts of interest or prior commitments, there is no evidence that a suitable alternative leading counsel from the English Bar specializing in intellectual property law cannot be instructed.  Instructing replacement counsel would, of course, involve some duplication of work but the extent of that duplication may not be as extensive as requiring three new counsel to cover the same ground as the existing team since it must be at least possible that one or more of the existing team can be retained.  The asserted disadvantage of being deprived of counsel who appeared below is not a compelling point since the issues for this Court are primarily ones of law rather than fact and it is to be expected that a full transcript of any relevant evidence or submissions in the courts below will be available if necessary.

17. Other miscellaneous matters were also relied upon by the respondents. It was suggested that there is an absence of prejudice to the appellants if the appeal hearing is adjourned.  That may be so but, whilst the presence of prejudice to the appellants might be a relevant factor weighing against an adjournment, its absence is not a factor of any relevant weight in favour of the respondents’ application.  Likewise, the fact that the dates of other hearings in the course of this litigation were fixed with reference to counsel’s diaries cannot and does not give rise to any expectation that the same procedure will apply in this Court.  I accept that the respondents may feel a sense of grievance over the fact that the appellants have to an extent blown hot and cold in their stance as to the dates for the appeal hearing and the adjournment application and that the appellants may have acted inconsistently in relation to the fixing of the date for the hearing of the application for leave to appeal.  However, that is water that has flowed under the bridge and not strictly relevant to the respondents’ application, which stands to be considered on its own merits.  For the reasons I have given above, I am not persuaded that there is a cogent reason to adjourn the dates fixed for this appeal.

Disposition

18. The respondents’ summons is therefore dismissed with costs to the appellants.