CONG VAN HA v. THE DIRECTOR OF IMMIGRATION

IN THE COURT OF APPEAL

1997, No. 72
(Civil)

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. This is an appeal from a ruling of Yeung, J. given on 18 March 1997 in the course of the hearing of an application for a judicial review. The applicant in the judicial review (the appellant before us) is one Cong Van Ha and the respondent is the Director of Immigration. The case is one of those many tragic, indeed harrowing, cases involving an illegal immigrant from Vietnam of Chinese ethnic origin.

The judge's ruling

2. The appellant seeks to challenge in this appeal the judge's decision to refuse the appellant leave to amend her statement in support of her application so as to raise points connected with the conduct of an interview by an immigration officer with the appellant. It is now sought to allege that the interview (which took place as long ago as 1991) had been irregularly conducted and unsatisfactorily recorded by the immigration officer.

Background

3. Under O.53 r.6 of the Rules of the Supreme Court, the court may, on the hearing of the motion or summons by which the judicial review is instituted, allow an applicant to amend his statement in support of his application, whether by specifying different or additional grounds of relief or otherwise, on such terms, if any, as it thinks fit and may allow further affidavits to be used by the applicant. As it seems to me, this discretionary power to allow or not to allow such amendment is no different in nature from the power to allow or not to allow amendments conferred on the court by O.20 of the Rules of the Supreme Court in relation to civil litigation generally. As to those powers of amendment, it is well-settled that the decision whether or not to allow a proposed amendment is "entirely within the discretion of the judge, with which this court ought to be very chary in interfering"; see Byrd v. Nunn (1877) 7 Ch. D. 284, per James, L.J. at p. 286.

When should this court interfere?

4. The Court of Appeal has power at any stage of the proceedings to entertain an appeal from the refusal of a judge to grant leave to amend, both in ordinary civil litigation and in judicial review proceedings. But only in exceptional cases, where this court concludes that the judge was plainly wrong to have refused leave to amend, will it interfere, more particularly when the hearing before the judge has already commenced, and it is sought to appeal the judge's ruling before the hearing is concluded.

5. In E. McGarry (Electrical) Ltd v. Burroughs Machines Ltd, 14 April 1986, CA Transcript 346 (unreported) Dillon, L.J., in an appeal in a case which the judge had granted leave to appeal his interlocutory ruling to the Court of Appeal in the course of the hearing at first instance, said this:

"It is highly undesirable that there should be appeals in the course of the trial of actions. It is altogether better that matters of an interlocutory nature which crop up in the course of a trial should work themselves out in the course of the same trial without interlocutory recourse to this court before the facts have been completely determined and the trial has been concluded."

6. Llyod, L.J. said this:

"The Criminal Division of this court never hears appeals in the course of the trial. The Civil Division only does so in exceptional circumstances. The reason is not just that it interrupts the trial, although that is usually a sufficient reason. There is a further reason. If it became the practice to give leave to appeal in the course of a trial, this court would soon be overwhelmed with appeals, many of which would or might in the event prove academic."

7. Lloyd, L.J. cited an earlier case, Great Atlantic Insurance Co. v. Home Insurance Co. [1981] 1 WLR 529, in the course of his judgment in which Templeman, L.J. had said this :

"I agree wholeheartedly that appeals in the course of a trial should be firmly prevented or discouraged save in the most exceptional circumstances."

The appellant's argument

8. Mr. Kat, for the appellant, in a powerful argument, while not challenging any of this, submitted to us that this case was exceptional. He pointed out although the hearing in the present case commenced before the judge on 14 March 1997 and the judge's ruling was not made until 18 March 1997, the hearing began with the application for leave to amend which he had made to the judge. The judge made his ruling on the proposed amendment without having embarked on the substantive hearing at all. In those circumstances, says Mr. Kat, the case should be treated as if it were one in which the application for leave to amend had been made some time before the hearing started, and ought not to be treated as one made during the course of the hearing.

Conclusion

9. I do not agree. The hearing of the appellant's application for a judicial review has commenced. The fact that the first thing with which the judge was faced was an application by the appellant for leave to amend does not make any difference; that was still an application made in the course of the hearing. The judge has exercised his discretion to refuse the amendment, and in the absence of most exceptional circumstances, we should not interfere with that exercise of discretion at this stage of the proceedings.

10. For my part, I see no such exceptional circumstances here. I do appreciate, of course, that if at the end of the day the judge, having refused the application for leave to amend, finds against the appellant, she will be forced to come back to this court if she is advised that she has good grounds for appeal on the ground that, but for the refusal of leave to amend, she would have won before the judge. But be that as it may, the better course is, in my opinion, for us to adjourn this appeal generally, with liberty to the appellant to restore it if so advised only after the judge's determination of the case. By then the facts and the issues will be much more clearly identified, and it will be possible to say with some certainty whether or not the refusal of leave to amend was of such significance that a substantial miscarriage of justice must have occurred. For this court to spend half a day, or possibly even more, on this point now, before the judge of first instance has had an opportunity properly to review all the material before him, seems to me to be quite wrong and wholly unsatisfactory.

11. We do have a discretion of our own whether or not to entertain the appeal at this stage, as the appellant invites us to do, and I appreciate entirely that there is room for more than one view about this. I would not myself, having heard Mr. Kat's argument, now be disposed, as at one stage I was, to consider this appeal as one which, by reason of its prematurity, verges on an abuse of the process of the court. I do however still think that it would be very undesirable for us at this stage of these proceedings to attempt to review the judge's exercise of his discretion in refusing leave to amend.

12. For the reasons I have given, I would myself adjourn this appeal generally, as I have suggested, and I have nothing further I wish to add.

Ching, J.A. :

13. For my part, I am not satisfied that this Court should not interfere at this stage with the exercise of the discretion of the Judge below in refusing leave to amend.

14. I think that exceptional circumstances may well be found in the wording of the judgment which should persuade us to hear argument upon the matter now. I would then accept Mr. Kat's point that, as permitted by O.53 r.6(2), provision is made for an amendment upon the hearing. The hearing in question had not begun at all and therefore would not have been interrupted by any interlocutory appeal. As a practical matter, justice in this case might be greatly delayed if we were not to hear the appeal against the refusal to amend now. The applicant will have to contest the substantive hearing without all of her points available. If she were to lose at that substantive hearing she would no doubt then have to come back to this Court and then, if successful here, would possibly have to contest the matter again.

15. As, however, I am in the minority, I say nothing further.

Litton, V.-P.:

16. I agree with the judgment delivered by Godfrey JA.

17. The matter is not an easy one. Mr Kat has a perfectly valid point. At the end of the day, the key issue is whether this court in the exercise of its appellate function should interfere with what essentially was a matter of case management in the lower court. If the applicant should ultimately fail in her application for judicial review and should appeal to this court then we can look at the matter in its entirety. The proposed amendments can then be seen in their proper setting. I would accordingly make the order as proposed by Godfrey JA which I understand to be as follows: This appeal should be adjourned with liberty to restore after the hearing of the application for judicial review in the High Court. We need to hear the parties as to the costs.