JERRY CHEN v. WHIRLPOOL (HONG KONG) LTD

HCMP 1877/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1877 OF 2005

(ON AN INTENDED APPEAL FROM HCPI 787 of 2001)

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REASONS FOR DECISION
AND
DECISION ON COSTS

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Reasons for Decision

1. These are the reasons of my decision given on 5 October 2005.

Extension of time to appeal

2. This is an application by the plaintiff for extension of time to file the notice of appeal against the judgment of Suffiad J who dismissed his claim.  The judgment was delivered on 4 February 2005 and sealed on 17 February 2005.  Under the rules the time to appeal expired on 17 March 2005.  The application was lodged on 2 September 2005.

Legal Aid application

3. While on paper there is a substantial delay between the expiration of the appeal period under the rules on the one hand and the lodging of the present application on the other hand it is clear from the evidence that the plaintiff had intended to appeal against the judgment right from the beginning.  He instructed his solicitor (‘the solicitor’) to lodge an appeal on 5 February 2005.  He was on legal aid at the hearing below.  The solicitor then proceeded to ask the Director of Legal Aid (‘DLA’) to obtain counsel opinion on the merits of the appeal.  On 3 March 2005 DLA advised the solicitor that the plaintiff should lodge an application for legal aid.  The plaintiff lodged an application for legal aid to assist him in the appeal on 4 March 2005. 

4. It is fair to say that the delay in this case is caused solely by matters relating to the legal aid application.  By reason of the legal aid application, the time to appeal was enlarged to 27 April 2005.  Legal aid was refused on 13 April 2005.  On 28 April 2005 which was one day after the expiration of the enlarged appeal period, the plaintiff informed DLA of his intention to appeal against the refusal to grant legal aid and signed the notice of appeal which was prepared by DLA on 6 May 2005.

5. The hearing of the appeal was fixed for 17 June 2005.  On that date it was adjourned because DLA informed the Master that he intended to obtain a second opinion from counsel.  After the adjournment there was further correspondence between the solicitor and DLA.  The latter expressed his reluctance to obtain counsel’s advice.  On 6 July 2005, the solicitor applied to restore the hearing which was later heard on 28 July 2005.  On that date the Master allowed the appeal.  On the next day the solicitor asked DLA for assignment of counsel.  After reviewing the plaintiff’s financial condition, DLA issued the legal aid certificate on 18 August 2005.  Counsel was assigned on 22 August 2005.  Counsel drafted the Notice of Appeal on 29 August 2005 and on 31 August 2005 settled the paper drafted by the solicitor for the present application.  The application was lodged on 2 September 2005.

Importance of observing time to appeal

6. It is apparent from this recitation of events the plaintiff had given an explanation on the delay.  It is submitted by Mr. Wong, counsel by the defendant, that the application for legal aid is not a justification for not lodging the appeal within time.  There is no explanation why the plaintiff could not have lodged a notice of appeal.  He was after all represented by a solicitor.

7. The importance of lodging an appeal within time whilst the legal aid application is being pursued must be emphasised.  These are two distinct matters : see Grieg Middleton & Co. Ltd. v. Denderowicz [1998] 1 WLR 1164 and Brook v. The Law Society of Hong Kong HCMP 3626/1997, decision of Mortimer VP of 21 November 1997.  A solicitor who has been approached by a client who wished to pursue an appeal must draw this matter to his client’s attention even if he is assisting him in the legal aid application.

8. However, whether a failure to lodge a notice of appeal during the legal aid application can be exercised will depend on the circumstances of the case.  In this case the plaintiff was granted legal aid after his financial condition was examined by DLA.  Obviously this means his funds are limited.  Hence, I am not too impressed with the argument that he should have instructed junior counsel to draft the notice of appeal.

9. Further this is not a run of the mill case in which the solicitor, without the benefit of counsel, could have lodged a notice of appeal for the plaintiff.  The solicitor was actively asking DLA to obtain an opinion from another counsel (the plaintiff was represented by leading counsel at the trial).  He had also asked that leading counsel to provide an opinion on the merits of the appeal.  All this indicated that the task of drafting grounds of appeal is one that could be discharged by the solicitor.  All the more it would be meaningless for the plaintiff to lodge a pro-forma notice of appeal himself without identifying the specific grounds of appeal.

10. Furthermore as far as the defendant is concerned, it is fully aware that the plaintiff intends to appeal against the judgment.  Notice of the legal aid application by the plaintiff for the purpose of the appeal was served on the defendant’s solicitors.  On 17 June 2005 the solicitor wrote to defendant’s solicitors stating that

‘To avoid any future misunderstanding(s) and/or argument(s), we write to put on record that our client intends to appeal to the Court of Appeal from the Judgment of The Honourable Mr. Justice Suffiad delivered on 4 February 2005 and is in the course of applying for legal aid in this regard.’

11. After obtaining the legal aid certificate, the solicitor on 18 and 20 August 2005 respectively again wrote to the defendant’s solicitors and sought their consent to an extension of time to serve the notice of appeal.  This is not a case where the defendant was misled into thinking that it has secured a judgment which would not be appealed against by the plaintiff.

Merits

12. As to the merits of the appeal, one can say immediately that it involves difficult issues on the defendant employer’s liability towards the plaintiff.  The parties were represented at the trial by leading counsel assisted by experienced juniors.  Proceeding on the finding and concession that the defendant remained to be the plaintiff’s employer, my view is that there are substantial arguments on whether the defendant no longer have any control or supervision over the plaintiff whilst he was  working for Whirlpool Narcissus (Shanghai) Co. Limited.  The questions whether the defendant owed a duty of care to the plaintiff and whether that duty had been breached in this case deserve to be argued in the Court of Appeal. I am not prepared to say at this stage of the proceedings that the appeal is bound to fail.  

The approach

13. In an application for extension of time the modern authorities disapproves of a rigid and mechanistic approach which focused on the delay and the reason thereof.  Instead, the court must consider all the circumstances and decide whether the overall justice of the case requires the exercise of the discretion to extend time : see Nantong Angang Garments Co. Ltd. v. Hellmann International Forwards Ltd CACV 64/2005.

Conclusion

14. In this case justice requires an extension be granted.  I directed the notice of appeal to be served by 4 pm on 6 October 2005.

Decision on Costs

15. As to costs, the plaintiff had sought the defendant’s consent for an extension earlier.  I will order the plaintiff to pay the defendant the costs of the application but each party will bear its own costs in respect of the hearing before me.  The plaintiff’s own costs is be taxed in accordance with Legal Aid Regulations.