DEACONS (a firm) v. WHITE & CASE LTD LIABILITY PARTNERSHIP

HCMP 2591/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2591 OF 2003

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D E C I S I O N

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1. There is before me an application made by the 3rd and 4th Defendants in HCA 2433/2002 for leave to appeal two orders out of time. The two orders are:

(1) An order dated 13 March 2003 made by Deputy Judge Poon limiting discovery in the action ("the 13 March 2003 Order").

(2) An order dated 1 April 2003 also made by Deputy Judge Poon striking out certain paragraphs in the Defence of the 3rd and 4th Defendants ("the 1 April 2003 Order").

2. Both orders were made against the 3rd and 4th Defendants but no appeals were lodged on time. Time expired for the service of notices of appeal on 4 April 2003 (for the 13 March 2003 Order) and on 22 April (for the 1 April 2003 Order).

3. The trial of the action was fixed to commence on 2 June 2003. On that day, Deputy Judge Poon informed the parties that he was acquainted with a capital partner of the Plaintiff, Deacons. This was Mr David Zee. The learned judge and Mr Zee were at one stage close friends and even shared a flat. However, the learned judge said this in relation to his relationship now with this person, "But Mr Zee is neither a close friend nor a casual acquaintance". This is an extract from his judgment in relation to an application that was made to the learned judge by all the Defendants on 5 June 2003 that he recuse himself from presiding at the trial. This judgment was given on 9 June 2003.

4. It was not until 17 June 2003 that the 3rd and 4th Defendants decided to seek an extension of time to appeal from the 13 March 2003 and 1 April 2003 Orders. This is, in my view, a significant delay particularly when a new trial judge (Deputy Judge Gill) had been assigned on 10 June 2003 to take over the case as the trial judge at short notice to begin the trial. I have been informed this morning that in fact the learned judge has begun to hear several interlocutory applications (about 9 in total). Some 30 days have been fixed for the trial of this action and Deputy Judge Gill has kindly accommodated the parties by sitting in the long vacation if necessary.

5. All the above is in the context of an action in which an expedited trial had been ordered and, as I recall, was a sentiment that was shared by the Plaintiff and Defendants alike. Indeed, I would say that in the circumstances, even as early as 2 June 2003 when the learned judge in fact revealed his relationship with Mr Zee, the 3rd and 4th Defendants should have been looking at this matter with some degree of urgency. No real explanation has been vouchsafed for this delay even today except that Mr Burns has said that many matters had to be considered including the judgment. Indeed, the matter is somewhat exacerbated by what Mr Burns has said about the appeal from the two orders perhaps taking as long as 2 days if the Court of Appeal were minded to deal with the merits of the two orders as well. Applications for extensions of time to appeal must be made promptly, although what is prompt of course depends on the prevailing context.

6. I do not, however, ignore the Defendants' argument that if Deputy Judge Poon had been asked to recuse himself at the hearing that led to the two orders, he would probably have done so. This is particularly so when the relevant parts of the Defence that were the focus of the two Orders did in part refer to the capital partners (including Mr Zee). Mr Burns submits that the logical consequence is that the relevant orders should be set aside although it is accepted that they were not nullities.

7. In my view, the delay aspect is by itself sufficient to dispose of the applications.

8. Even if I were wrong on the aspect of delay, it is in my view perhaps even more significant that the draft notices of appeal relate not to the merits of the two orders but are solely directed at the issue of the judge's apparent bias. What, one might ask rhetorically, is the point of any appeal being successful and the matters being remitted to Deputy Judge Gill (which is the order sought)? It seems to me quite pointless to have Deputy Judge Gill reconsider two further interlocutory applications when the 3rd and 4th Defendants had not shown any indication whatsoever that they are likely to succeed this time. I am reinforced with these conclusions by the fact that the Defendants simply did not appeal Deputy Judge Poon's two orders and were content to start the trial with these two orders in place. Whatever Mr Burns says about the strengths of the Defendants' case in overturning Deputy Judge Poon's two orders on their merits, I have not been addressed on any. As a matter of discretion on this ground, I would also refuse the application.

9. In the circumstances, I dismiss the applications for extension of time to appeal the 13 March 2003 and the 1 April 2003 Orders.

Remarks: