MAX SHARE LTD AND ANOTHER v. NG YAT CHI

FACV No. 3 of 1997

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 1997 (CIVIL)

(ON APPEAL FROM CACV No. 252 OF 1996)

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D E T E R M I N A T I O N

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Mr Justice Bokhary, P.J.:

1. This is the Appeal Committee's determination.

2. On 16 October 1997 we granted the appellants leave to appeal. They filed their Case on 31 December 1997.

3. Now by a summons dated 6 January 1998 the respondent seeks the setting-aside of the appellants' Case plus consequential relief.

4. Such setting-aside is sought on two grounds. The first is that, so the respondent contends, the appellants' Case fails to deal with issues which we, in our Determination of 16 October 1997 granting leave to appeal, said the parties would have to address. As to this ground, we say no more than that the appellants' Case has no shortcoming in that regard such as would warrant any setting-aside or similar sanction.

5. The second ground is that, so the respondent contends, the appellants' Case fails to comply with rule 27(2) of the Hong Kong Court of Final Appeal Rules, which provides that:

"The Case shall be signed by the counsel for the party or the party himself."

6. In the present case, the appellants' leading and junior counsel have put their manuscript signatures to the draft Case which they settled. By reason of logistical difficulties, they happened to have put their manuscript signatures to the draft after the Case prepared from it was filed and served. Their printed names appear at the end of the copies of the appellants' Case which have been filed and served.

7. That, the respondent argues, is insufficient to comply with rule 27(2). He argues that rule 27(2) requires that counsel put their manuscript signatures to the copies of the Case filed. We pause to observe that rule 25(1) requires an appellant to file six copies of his Case, while rule 25(2) requires a respondent likewise to file six copies of his Case.

8. What the word "signed" means depends on the context in which it appears. There are circumstances in which a person may sign a document through the agency of another. Indeed, as Romer LJ said in London County Council v. Agricultural Food Products Ltd. [1955] 2 QB 218 at pp223-224: "It is established ... as a general proposition that at common law a person sufficiently 'signs' a document if it is signed in his name and with his authority by somebody else". So where a statute requires that a document be signed, it is a question of construction as to whether the statute displaces the common law rule and, in the words of Quain, J. in R. v. Kent Justices (1873) LR 8QB 305 at p.307, "makes a personal signature indispensable".

9. Signing a document is not necessarily confined to putting one's manuscript signature to that document. For example, it was held by the Court of Appeal in England in Goodman v. J Eban Ltd. [1954] 1 QB 550 that a bill of costs was duly "signed" when accompanied by a letter to which the solicitor had applied a rubber stamp bearing a facsimile of his signature.

10. In certain circumstances, even the printing on a document of a person's name by another person satisfies a requirement that the document be signed by the former. And that has been established in regard to pleadings, which is a context closely analogous to the one with which we are concerned.

11. Order 18, rule 6(5) of the Rules of the High Court here (which is identical to Order 18, rule 6(5) of the Rules of the Supreme Court in England) provides that:

"Every pleading must be signed by counsel, if settled by him, and, if not, by the party's solicitor or by the party, if he sues or defends in person."

12. The rule that counsel must sign any pleading settled by him is one of great antiquity. It has existed in one shape or form from the time of Henry V. Whatever may have been the position in a bygone era, it has long been the position, here as well as in England, that (as it is put in note 18/6/1 at p.294 of the 1997 Supreme Court Practice):

"Counsel's signature to the draft is sufficient, and his name may be printed at the end of the pleading."

13. This Court came into existence on 1 July 1997 to exercise the power of final adjudication which the Judicial Committee of the Privy Council used to exercise in respect of appeals from Hong Kong before that date. It is legitimate therefore to look at the relevant practice in the Privy Council. It is well-known that the practice there has long been for counsel's names to be printed at the end of the Cases lodged. And yet rule 61(c) of the Judicial Committee Rules 1957 SI 1957 No. 2224 also uses the word "signed", saying:

"Whether the Case is printed or duplicated every tenth line thereof shall be numbered in the margin and it shall be signed by at least one of the Counsel who attends at the hearing of the Appeal or by the party himself if he conducts his Appeal in person."

14. The respondent cites a Practice Note in [1924] WN 64 based on what happened in the Privy Council in Montreal Light, Heat & Power Co. v. City of Montreal. He contends that it shows that counsel's manuscript signature to the case is necessary. But it does not show that at all.

15. The problem which arose in that case was not the absence of any manuscript signature. It arose because, although the rule there provided that each party's case shall be signed by at least one of the counsel "who attends at the hearing", neither of the counsel who signed the case attended the hearing. We daresay that when the problem was solved by the appellant's junior counsel at the hearing signing the case on the spot at their Lordships' suggestion, he signed it in manuscript. But that would obviously be the quickest and most convenient course in the circumstances. And it would be adopted even though the printing of his name would have been perfectly acceptable.

16. Counsel's manuscript signature to a draft settled by him is a mark of its authenticity. Therein lies its utility. And counsel's manuscript signatures to drafts settled by them and delivered to their instructing solicitors are a routine feature of the system under which the two branches of the legal profession operate. But the presence of counsel's manuscript signature on any document prepared from such a draft and then filed is no part of that system. What routinely happens is that the solicitors, acting with counsel's implied authority, cause counsel's name to be printed on the document to be filed.

17. We hold therefore as follows. Where a Case has been settled by counsel, rule 27(2) of the Hong Kong Court of Final Appeal Rules (which provides that "The Case shall be signed by counsel for the party or the party himself") is complied with if (i) counsel has put his manuscript signature to the draft of the Case settled by him (which, by virtue of the presumption of regularity, he will be presumed to have done in the absence of any reason to think otherwise) and (ii) his printed name appears at the end of the copies of such Case as are filed and served. In short, counsel signs the Case when he puts his manuscript signature to the draft knowing that his name will in due course be printed at the end of the Case as filed and served. If counsel's manuscript signature is not put to the draft before the Case is filed and served, that omission would be a mere irregularity that can then be cured by counsel putting his signature to the draft albeit belatedly. That is what has happened here.

18. Accordingly, the appellants have complied with rule 27(2). And the respondent's summons must be dismissed.

[The applicant and the respondents were heard on costs; the Officer Receiver did not seek any order as to his costs; and it was ordered that, as between the applicant and the respondents, the costs of the summons be costs in the appeal]