DBS BANK (HONG KONG) LTD v. SIT PAN JIT

HCA 382/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 382 OF 2009

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D E C I S I O N

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I. BACKGROUND

1.  This is an application by the plaintiff to vacate the trial dates.  The trial of this action has been fixed to be heard on 11 February 2014 with 11 days reserved.  Leave to set this action down for trial was granted by the Registrar on 9 November 2012.  The trial dates were fixed on 12 March 2013. The plaintiff applies to vacate the trial dates on the ground that their preferred leading and junior counsel are unavailable.

2.  Pursuant to leave granted by the Registrar to set this action down for trial, the plaintiff filed an application to set a case down for trial on 21 December 2012.  On 2 January 2013, the parties were notified by the court to attend before the Deputy Clerk of Court (Civil) (“Clerk”) on 12 March 2013 for the purpose of fixing the trial dates. 

3.  The plaintiff’s solicitors made enquiries and ascertained that the earliest date on which both leading and junior counsel acting for the plaintiff would be available for an 11-day trial would be in June 2014.  The parties were informed by the Clerk that the court’s earliest available date for an 11-day trial would be 11 February 2014.  The plaintiff’s solicitors informed the defendant’s solicitors of their predicament, but were told that the defendant would like to proceed with the trial as soon as possible and would not agree to a trial in June 2014. 

4.  The plaintiff’s solicitor himself attended before the Clerk on 12 March 2013 and in the presence of a representative from the defendant’s solicitors asked for a trial date in June 2014.  As the Clerk rightly informed the parties’ representatives, paragraph 5(3) of Practice Direction 7.1 provides that an order that the hearing date be fixed in consultation with counsel instructed or expected to be instructed for the hearing of any action does not bind the court  to secure the agreement of such counsel.  It only requires the Court or the Clerk to give effect to their wishes so far as may be convenient to the court diaries, which shall have priority.  On such basis and given the defendant’s disagreement, the Clerk was not prepared to fix the trial dates to June 2014. 

5.  The plaintiff’s solicitor requested to defer the fixing of the trial dates pending an urgent application to the Listing Judge for directions.  However, as the representative of the defendant’s solicitors objected to deferring the fixing of the trial dates on the basis that the defendant’s instructions were to proceed with the trial as soon as possible, the Clerk did not accede to the request by the plaintiff’s solicitor and proceeded to fix the trial dates in February 2014 as aforesaid.

6.  In his affirmation supporting the Summons, the plaintiff’s solicitor stated he was informed by the Clerk on 12 March 2013 that the then court diary had an available slot for an 11-day trial from 4 to 18 June 2014 when the plaintiff’s existing team of counsel would be available.

7.  The plaintiff argued they would be prejudiced if their existing counsel would not be available to appear at trial.  Junior counsel engaged by the plaintiff had been heavily involved in this case since mid-2009, including settling pleadings and witness statements as well as advising on expert evidence.  He had rendered three pieces of counsel’s advice in 2011 and 2012 and prepared a joint advice with leading counsel in 2013.  Leading counsel had been retained since mid-2012 and had reviewed all pleadings and evidence.  The plaintiff suggested it would be unlikely for new counsel to be as familiar with the case as existing counsel, and legal costs would be incurred for the new team to get up to speed on the case.  It was said that read-in fees for new leading and junior counsel would be in the region of HK$500,000.00, and there might be other costs (eg further advice from new counsel with possibility of further applications for amendments to pleadings and other interlocutory applications that may delay the trial).  It was further contended that a deferral of the trial for 4 months would not cause substantial prejudice to the defendant.

8.  According to the plaintiff’s summons, the application was made under Order 25 rule 1B(2) of the Rules of the High Court (“RHC”) and the inherent jurisdiction of the court.  Order 25B rule 1B provides as follows:

“……

(2) A party may apply to the Court if he wishes to vary a milestone date.

(3) The Court shall not grant an application under paragraph (2) unless there are exceptional circumstances justifying the variation.

……

(8) In this rule –

“milestone date” means-

(a) a date which the Court has fixed for – ……

(iii) the trial; or

(b)     a period fixed by the Court in which a trial is to take place.”

9.  The above provision is echoed and clarified in paragraph 42 of Practice Direction 5.2 (Case Management) which provides as follows:

“Milestone dates will be immovable save in the most exceptional circumstances and for that purpose, for instance, late instructions from client, change in the team of lawyers, the absence of prejudice to the other party which cannot be compensated for by costs, will not be treated as exceptional circumstances.”

Such guidance is also reflected in paragraph 13 of Practice Direction 7.1 (Court of First Instance – Civil Listing) (“PD7.1”) which provides as follows:

“Parties are reminded that the trial date is a milestone date under Order 25, rule 1B(8) and is immovable except in the most exceptional circumstances and for that purpose, for instance, late instructions from client, change in the team of lawyers, the absence of prejudice to the other party which cannot be compensated for by costs, will not be treated as exceptional circumstances.”

10.  Since the trial dates of the present action had been fixed by the Clerk for 11 February 2014 for 11 days, Mr Lee, counsel for the defendant, submitted that in order to vary the trial dates which were milestone dates the plaintiff had to establish exceptional circumstances, which he said they failed to do. 

11.  But notwithstanding the plaintiff’s reliance on Order 25 rule 1B(2) of the RHC as evident from their summons, Mr Man, counsel for the plaintiff, claimed that was not the proper basis for the application.  He submitted that I should treat the plaintiff’s application as one that called upon the court to exercise de novo the administrative function of fixing the trial dates pursuant to the direction of the Chief Justice under section 28(2) of the High Court Ordinance Cap.4 (“HCO”) (in contra-distinction to the court’s judicial function to vary the scheduled trial dates) even though on 12 March 2013 the Clerk had already performed such administrative function by fixing the trial in this action to commence on 11 February 2014.  On such basis, Mr Man argued that it would not be necessary for the plaintiff to show exceptional circumstances.

12.  To understand Mr Man’s arguments, it is necessary to start with the relevant provisions of PD7.1 as follows:

“5. The Fixture List

(1) When granting leave to set down for trial in the Fixture List, the Master or Judge may fix the trial date or a trial period or direct the parties to attend before the Clerk of Court on a specified date to fix the date(s) for trial.

(2) Unless otherwise directed by the Court, the Clerk of Court will notify the parties to attend the Court on a specified date for the purpose of fixing dates for trial.

(3) An order that the date be fixed in consultation with counsel instructed or expected to be instructed for the hearing of any action does not bind the Court or the Clerk of Court to secure the agreement of such counsel. It requires the Court or the Clerk of Court only to give effect to their wishes so far as may be convenient to the court diaries, which shall have priority. ……

B Listing and Fixing of Dates

7. A Judge of the High Court has been appointed Listing Judge (civil). He will be in charge of the listing of civil causes in the Court of First Instance.

8. A Master of the High Court has been appointed Listing Master. He will perform such duties as shall be assigned to him by the Listing Judge.

9. The powers of the Listing Judge or Listing Master shall, when necessary, be exercised respectively by another Judge or Master.

10. The fixing of dates, either by a Judge or a Master, is an administrative function exercised under the direction of the Chief Justice in terms of the power granted to him by section 28(2) of the High Court Ordinance (Cap. 4). It is not a judicial function exercised in accordance with Rules of the High Court and accordingly the appeal procedures provided by those Rules are not applicable.

11. Applications for leave to set down civil causes for trial in either the Running List or the Fixture List shall generally be made at the Case Management Conference. ……

14.    Any application to vary the trial date shall be made by summons to the Listing Master or Listing Judge with supporting affidavit setting out the exceptional circumstances on which the party making the application will seek to rely. ……”

13.  According to paragraph 10 of PD7.1, in fixing the trial dates a judge or a master carries out an administrative function exercised under the direction of the Chief Justice in terms of the power granted to him by section 28(2) of the HCO.  But the judge or master may instead direct the parties to attend before the Clerk to fix the date(s) for trial (see paragraph 5(1) of PD7.1).  Consequently, the Clerk also acts in an administrative capacity when he fixes the trial dates for any particular case pursuant to leave granted by the judge or master to set such case down for trial in the fixture list.

14.  Mr Man recognised it would be inappropriate for the Clerk to resolve disagreements between the parties over the fixing of the trial dates, but for the present action he complained against the Clerk’s refusal to stand down the fixing of the trial dates to enable an urgent application to be made to the Listing Judge to resolve the differences between the parties and also against what he described as the Clerk’s inflexible application of paragraph 5(3) of PD7.1 to give priority to the court diaries in face of disagreements between the parties.  Mr Man submitted that the Clerk’s exercise of his administrative function in fixing the trial dates in the present action to commence on 11 February 2014 was therefore “erroneous”, and consequently I should treat the plaintiff’s application as if they were seeking to fix the trial dates for the first time and exercise my administrative (and not judicial) function accordingly.

15.  To start, I note there does not appear to be any court order for fixing the trial dates in consultation with counsel’s diaries.  On 9 November 2012, the Registrar granted leave to set the present action down for trial in the following terms:

“Leave be given to the Plaintiff to set down for trial within 42 days from the date hereof for a 11-day trial before a bilingual judge. There should be a pre-trial review hearing of 30 minutes before the trial judge on a date to be fixed 12 weeks before the date of trial; ……”

The Registrar has been seized of the case management of the present action all along, and in the context of the nature and issues of the present action he has not seen fit to order that the trial dates be fixed in consultation with counsel’s diaries.  Hence, the fixing of the trial dates would not be dependent on the availability or otherwise of counsel instructed or to be instructed for the trial by either party.  I do not see how the Clerk erred in giving the earliest dates in the court diaries for an 11-day trial in February 2014.  Since the present action is ready for trial, there is public interest in the administration of justice for the expeditious despatch of the court’s business.

16.  But even if there is an order for consulting counsel’s diaries, was the Clerk “erroneous” in proceeding to fix the trial dates in face of the parties’ disagreements and in giving priority to the court diaries in the circumstances? In my view, he is not.  The primary function of the Clerk in fixing the trial dates is administrative.  His function is to call upon the parties to attend upon him so that he can give effect to the order for setting the case down for trial (which in the present action was granted by the Registrar in his judicial capacity) by fixing the trial dates.

17.  As Mr Man rightly conceded, it is inappropriate for the Clerk to entertain debate over the parties’ disagreements over the trial dates, which disputes may not be necessarily limited to counsel’s available dates, and then to deliberate and decide on such disagreements.  If there are matters which any party or parties consider important and must be factored into the administrative exercise of fixing the trial dates, then these matters should have been raised with the judge or master who exercises the judicial function of giving leave to set the case down for trial rather than with the Clerk who exercises the administrative function of fixing the trial dates.  For example, an ailing witness or a busy expert may be basis to persuade the judge or master when setting the case down for trial to direct that the trial should take place during a particular time window. 

18.  That being the case, I see nothing wrong with the Clerk in proceeding to fix the trial dates in the present action in face of disagreements between the parties.  Even before the Civil Justice Reform (and more so afterwards), an important objective of the administration of justice is for cases that are ready for trial to proceed to trial as soon as possible.  Mr Man submitted that deferring the trial in the present action will have no impact on the public administration of justice because other trials or hearings can be channelled to fill in the diary vacancy upon vacating the trial dates in February 2014.  However, such submission focuses on filling the court diaries and ignores the wider public interest of expeditious dispatch of the court’s business, namely that parties who come to court for resolution of their dispute expect a trial to take place speedily once the case is ready (and insofar as finite judicial resources permit) so that the party who is eventually vindicated by such trial will be able to enjoy the fruits of any judgment in his favour as soon as possible.

19.  Indeed and practically speaking, it would not be of benefit to defer the fixing of the trial dates because in the meantime court diaries as well as counsel’s diaries will continue to be filled by other matters, and even a short deferral may mean losing the original available trial dates and new issues being raised over counsel’s or witness’ availability and/or other matters in respect of future trial dates not only for the party disputing the original trial dates but also for the other party as well.  This is in fact borne out in the present action because by the time of the hearing before me the plaintiff’s preferred leading counsel was no longer available in June 2014 and his earliest availability for an 11-day trial is in September 2014.

20.  In my view, the provision in paragraph 5(3) of PD7.1 is eminently sensible and in accordance with the above considerations.  The court recognises that parties may wish to instruct preferred counsel for the trial, but such wishes cannot dictate the fixing of the trial dates.  The Clerk will give effect to the parties’ wishes so far as may be convenient to the court diaries, which shall have priority.  There is a public interest that trials should be heard as soon as possible.  To recognise a right to speedy trial without mandating a corresponding arrangement by the courts to make way for smooth and expeditious trial would only make the right illusory.

21.  It therefore follows that the Clerk has not erred in fixing the trial dates in the present action for February 2014.  That being the case, the application before me is not one for de novo exercise of the administrative function under section 28(2) of the HCO, but rather it is an application to vacate and re-schedule the trial dates already fixed.  This means that the plaintiff has to establish exceptional circumstances to justify moving the normally immovable milestone trial dates. 

22.  However, having heard submissions by Mr Man and Mr Lee, I am not persuaded that the matters raised by Mr Man, which he presented most skilfully, are sufficient to support an exercise of discretion in favour of the plaintiff let alone exceptional circumstances.

23.  In approaching the plaintiff’s application, I need to consider the following matters:

(a) what is the nature of the proceedings and what is at stake in particular to the plaintiff who makes the present application?

(b) what is the difficulty in having other senior and junior counsel in taking up this case on behalf of the plaintiff?

(c) what is the risk of prejudice or other disadvantage to the defendant if the trial is postponed to June 2014 or beyond?

As explained above, the plaintiff’s application must also be considered in the context of the administration of justice, in particular the public interest in the expeditious despatch of the court’s business.

24.  I now turn to the nature of the claim and counterclaim which in the context of the present application need only be dealt with briefly.  Such brief overview can be gleaned from the summary of case annexed to the plaintiff’s and the defendant’s 3^rd listing questionnaires filed on 4 and 5 September 2012 respectively.

25.  The plaintiff is a bank and the defendant was their customer.  The defendant opened a securities account with the plaintiff, and the plaintiff extended banking facilities to the defendant for investing in financial products through such account.  Some of the products were equity linked notes, and all financial products were mortgaged or charged to the plaintiff as security.  Due to decrease in value of the defendant’s investments as a result of the financial crisis in October 2008, the plaintiff sold the defendant’s investments and claimed for the margin shortfall and/or the amounts due under the facilities in the sum of US$3,429,724.27.

26.  The defendant claimed that he opened the securities account with the plaintiff and obtained banking facilities from the plaintiff upon reliance on advice and/or representation by their staff being a Mr Kong, that the contents of the contractual documents in respect of the securities account were not fully explained to him and he was unaware of the terms, and that Mr Kong made misrepresentations giving assurances as to the security of the investments in order to induce him to engage in the eventually unsuccessful investments on margin.  The defendant further contended that the plaintiff owed him a duty of care in contract/tort that was breached, and that the plaintiff acted in breach of regulatory rules as a result of which he suffered actionable loss.  The defendant counterclaimed for his loss.

27.  In my view, whilst I appreciate the plaintiff’s wish to retain preferred counsel, the issues that arise in the present action are not such that they cannot be handled by another team of counsel.  Disputes arising from the fallout of the financial crisis in 2008 are not unknown to the courts and practitioners, and I am sure there are other experienced counsel also versed in the relevant issues under contract, tort and the regulatory regime.  Even bearing in mind the amount of the claim, I am not convinced that the issues arising are so particular that they cannot be properly handled by a new team.  It will be almost 10 months from now until trial commences in February 2014, and there will be time enough for new counsel to become familiarised with the case.  It is not a situation in which new counsel is brought in for a rushed preparation for an imminent trial.

28.  I am not persuaded that a whole new spate of interlocutory applications (including applications for amendment of pleadings) will necessarily follow whenever a new team of counsel is engaged.  The new culture under the Civil Justice Reform requires that parties should not take out unnecessary interlocutory applications, and I am sure responsible counsel appreciative of the spirit of the reform will not advise that interlocutory applications be issued merely because of change of counsel.  If the needs of the case justify an interlocutory application to be made (and I hasten to say that I am not inviting such interlocutory application), then I expect it will be issued even if there is no change of counsel. Indeed, Mr Man in his submissions already alluded to a possible striking out application.

29.  It must be true that having new counsel will involve some duplication of effort and possibly some duplication of expense.  However, the new team will have the benefit of the previous work done by the existing team of counsel engaged by the plaintiff (including their written opinion and advice), and I am not persuaded that the read-in effort will be as expensive as suggested by the plaintiff’s solicitors. 

30.  Whilst I accept that the plaintiff has made the present application with promptitude, the possibility of trial dates not being able to accommodate counsel’s availability is an envisaged factor in civil litigation.  This is alluded to in PD7.1 which reflects the underlying objective of ensuring that a case is dealt with as expeditiously as is reasonably practicable. 

31.  As regards the disadvantage to the defendant, I do not underestimate the prejudice in having to wait for another 4 months or more for the trial.  At least part of his case turns on the oral testimony of witnesses, and such situation suggests that the sooner the trial is heard the better.  Here, as explained above, preferred leading counsel for the plaintiff is no longer available for June 2014 and is only available in September 2014 at the earliest.  When I enquired with Mr Man whether the plaintiff will proceed with the trial by merely retaining preferred junior counsel if the trial were to be re-fixed to be heard in June 2014, Mr Man frankly admitted that the plaintiff had not made up their mind and might instruct another leading counsel.  In that case, it is unclear whether the June dates would suit new senior counsel.  It is also important to note there is no telling that leading and junior counsel for the defendant or even the court diaries are now still open for a trial in June or September 2014.  In all the circumstances, I am not persuaded that it is justified to vacate the trial dates in February 2014 and to postpone the trial to June 2014 or even later to accommodate the plaintiff’s preferred leading and/or junior counsel. 

32.  I therefore refuse the plaintiff’s application.  There is no reason why costs should not follow event.  I therefore grant a costs order nisi that the plaintiff should pay costs of the application to the defendant to be summarily assessed and paid forthwith.

33.  For the purpose of the summary assessment of costs, I grant the following directions:

(a)     if no application is made to vary the costs order nisi within 14 days from the date hereof, the defendant do within 21 days from the date hereof lodge and serve statement of costs not exceeding one page pursuant to Practice Direction 14.3, and the plaintiff do within 7 days thereafter lodge and serve succinct summary of objections in bullet-point format of not more than one page in respect of the plaintiff’s statement of costs (“Objection Summary”), and unless otherwise directed the summary assessment of costs will be by paper disposal;

(b)    if application is made to vary the costs order nisi within 14 days from the date hereof, the plaintiff and the defendant do within 7 days thereafter lodge and serve their respective statement of costs, and the party seeking variation of the costs order nisi do within 14 days from the date hereof fix a date with the Listing Clerk for the hearing of the application for variation of the costs order nisi and summary assessment of costs before me in chambers (open to the public) on a date not before 35 days from the date hereof with half hour reserved.