WILLIAM YOUNG HONG YUI and Others v. BANK OF CREDIT AND COMMERCE HONG KONG LTD.

IN THE COURT OF APPEAL

1993, No. 185
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

1. This matter comes before us upon a motion by the appellants seeking first the discharge of an order of Penlington JA made on 22nd March by which he dismissed the appellants' application, by summons dated 28th February 1995, for an extension of time for compliance with conditions of leave to appeal to Her Majesty in Council, and, second, the extension of time refused.

2. It emerges before us today that the Notice of Motion before us is itself out of time and another application is made from the bar for time to be extended for that also. It is common ground that in addressing an application of this sort, the four factors listed by this Court in Incorporated Owners of Chungking Mansions v Shamdasani 1991 Civil Appeal No. 199, unreported, apply. Penlington JA referred to this decision, and to the factors. No point arises on items (1) the length of the delay, (2) the reasons for the delay, and (3) the chances of the appeal succeeding. But as to the fourth, the degree of prejudice to the respondent if the application is granted, Mr Barlow, for the appellants, submits that he does have grounds for complaint. This stems from a passage at p.5 in the judgment of Penlington JA where he said:

"The respondent says that it has been prejudiced by the delay in this matter in that it has not been able to take action against the other depositors until there was some finality in this matter."

That is the only passage in the judgment which deals with prejudice. Mr Barlow submits that this Court is entitled to intervene upon the line of authority cited at para. 59/1/56 of Vol. 1 of the Supreme Court Practice 1995 commencing with Evans v Bartlam [1937] AC 473 H.L.(E.), that where the judge has failed to exercise his discretion, this Court is entitled to re-examine that matter. However, there is nothing in the judgment of Penlington JA from which this Court can conclude that that discretion was not exercised. The judge, having specifically referred to the fourth factor, i.e. prejudice, must have taken it into account.

3. However, if he did fail to do so, it would then fall to this Court itself to exercise the discretion that would not have been properly exercised. Mr Harris, for the respondent, has pointed out that the delay would have prejudiced the respondent because the various depositors against which it has pending claims would have been able to take action to limit the effect of the judgments it might obtain. I accept on that basis that there must be some prejudice which, in the circumstances clearly tip the scales against the appellants. In all the circumstances there are clearly no grounds for interfering with the conclusion of the judge. Upon that basis, the application must fail.

4. I, therefore, do not find it necessary to consider also the matter of the motion before this Court being out of time. But it has to be said that, as before the judge in respect of the matters he addressed, no satisfactory explanation has been given for the delay in giving notice. But these are not matters upon which it is necessary to rely in refusing the appellants' motion, which I would do without further ado.

Godfrey, J.A.:

5. I agree. But in deference to the skilful argument of Mr. Barlow, for the appellants, I would add a few words of my own.

6. This is, in effect, an appeal from a decision of a single Justice of Appeal. Mr. Barlow accepts that this court will not interfere with the exercise of that discretion unless satisfied that the single Justice of Appeal erred in principle, and that this court should follow the practice of the English Court of Appeal to the same effect: see Wren v Braunston Canal Services, "The Times", 23 November 1990, unreported elsewhere.

7. The question then becomes - Did the single Justice of Appeal here err in principle? Mr. Barlow urges us to hold that he did. Mr. Barlow says that he erred because he failed to give any proper weight to the lack of proof of prejudice to the respondent here. The question of prejudice had been mentioned by the respondent to the single Justice of Appeal, and this had been referred to in his judgment; but he had not evaluated it, at any rate in express terms.

8. It is true that, as my Lord, the Vice President has said, the only reference to prejudice in the judgment is as follows:

"The respondent says that it has been prejudiced by the delay in this matter in that it has not been able to take action against the other depositors until there was some finality in this matter."

9. Mr. Harris, for the respondent, points out that the point is really that the longer a resolution of the issue between the appellant and the respondent is delayed, the greater the difficulties the respondent will encounter in recovering from other debtors what is due to the respondent. This is real prejudice; and, for my part, I am satisfied that, although the single Justice of Appeal makes no express finding upon the point, having mentioned it in his judgment, he must be taken to have evaluated it in coming to the conclusion which he did, which was that he should dismiss the appellants' summons. The matter was entirely one for his discretion. In my judgment, there is no sufficient justification here for us to interfere with his exercise of that discretion. There is nothing further I would wish to add.

Liu, J.A.:

10. The four material considerations were clearly identified by Penlington JA. Reference was also made to matters of prejudice raised in counsel's submission. It is, in my view, inconceivable that the judge could have overlooked that clearly identified material consideration. I agree, and in effect neither of the applications for extension may be entertained.