EFFISCIENT LTD v. EDWARD EUGENE LEHMAN

HCMP 2524/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2524 OF 2011

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BETWEEN

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J U D G M E N T

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1.  On 24 February 2012 I heard an application by the applicant for an order extending time for entering the originating summons in these proceedings for hearing pursuant to Order 52, Rule 3(2). I gave an ex tempore judgment granting the application. The judgment has been reduced into writing. Also, and at the request of the respondent, a transcript of the hearing on 24 February has been produced.

2.  The respondent has sought leave to appeal my decision, and attached to his summons draft grounds of appeal.  The first ground is that an extension of time could not be granted for compliance with Order 52, Rule 3(2), and another application for leave to issue contempt proceedings has to be made.  In the draft grounds of appeal, which is in the name of Mr Allman-Brown, it states:

“Despite the submission of counsel for the respondent to the effect that the applicant must first apply to have leave to the court renewed, the learned judge erred by treating the applicant’s summons as a simple extension of time summons.”

3.  This was not argued by Mr Allman-Brown when he appeared on 24 February, as is clear from the transcript.  Neither was the submission clearly advanced in his written submissions served prior to the hearing, the substance of which went to whether or not leave should be granted, given the matters to which I refer in my judgment of 24 February.

4.  As it is, I can see nothing in the point that the court cannot extend time for issuing an application for the hearing of an originating summons for committal for contempt that has been served in accordance with the rules.  None of the cases to which Mr Allman-Brown refers in his submissions for the present hearing seem to me to be relevant. Indeed, the flaw in the argument seems to be illustrated by the events that transpired in previous contempt proceedings involving the same parties in HCMP2204/2010.

5.  In that particular case an application had to be made for leave to serve the originating summons out of the jurisdiction as Mr Lehman lives in Beijing.  It would seem that in such circumstances, almost necessarily an extension of time would need to be sought under Order 52, Rule 3(2), as it would be unlikely to be possible to obtain leave for service out of the jurisdiction and comply with the time period envisaged in subrule 3(2).

6.  The second ground, if I understand it correctly, is that even if time could be extended, it should not have been, and the applicant should have been required to make a fresh application to persuade the court that it was appropriate to grant fresh leave.  As an aside, I note that if this were correct, I would have granted fresh leave.  In the draft grounds, it says this:

“By ignoring the submission of counsel for the respondent that the applicant’s summons was a deliberate attempt to avoid the need to satisfy the strict test entailed in an application to renew lapsed leave.”

7.  Mr Allman-Brown did not make this submission.  I can see no basis, particularly having regard to the matters to which I refer to later, for concluding that the application was a deliberate attempt to avoid applying for fresh leave.

8.  The third and fourth grounds add nothing material to the first ground of appeal.  The fifth ground of appeal goes to the matter which did form the basis on which the respondent contested the application.  It was fundamental to the respondent’s argument that the applicant’s solicitors had made a similar error in previous contempt proceedings against Mr Lehman.  This allegation is expressly referred to in paragraph (G)(5)(b) of the draft notice of appeal.  It was fundamental to the very serious allegation made by Mr Allman-Brown that contrary to what Mr Bowers said in his affidavit in support of the application for an extension of time, namely that the failure to apply for a hearing date was an oversight, that it was in fact deliberate.  In other words, Mr Allman-Brown was explicitly suggesting that Mr Bowers was not telling the truth.  I was left with the impression, from what Mr Allman-Brown told me, as recorded at lines Q to S on page 5 and lines A to B on page 7 of the transcript, that he had seen documents that demonstrated that in the first proceedings a similar mistake had been made to the one which necessitated the application before me on 24 February.

9.  Mr Bowers did not accept that a similar mistake had been made in the earlier contempt proceedings, but nothing turned on this, as I decided to allow the application whether or not a mistake had been made.  However, after I received the application for leave to appeal, I called for the file in the earlier proceedings (HCMP 2204/2010).  This shows that contrary to Mr Allman-Brown’s submission, an application for the hearing of a concurrent amended originating summons (leave having had to be sought to serve the originating summons out of the jurisdiction) had been made within the specified time.

10.  In the hearing before me today, Mr Allman-Brown told me that the point he had been making was that an application for hearing of the originating summons in its original form had not been made within the specified time.

11.  It seems to me that the court was not properly appraised of the full facts and that Mr Allman-Brown’s characterisation of what had taken place was misleading.  I would note that it is not the first time that the respondent’s lawyers have made serious allegations of impropriety against the applicant’s solicitors which, it subsequently transpired, have been made on the bases of erroneous factual assumptions.  See paragraph 57 of my judgment dated 15 November 2011 in HCCW 377/2010 and HCCW 383/2010.  This cavalier attitude to impugning the integrity of other lawyers and addressing the court is not acceptable, and I do not expect it to be repeated again in either the substantive proceedings between the parties or in the present contempt proceedings.

12.  I dismiss the application for leave to appeal, which I consider to be without any merit, and order that the respondent pay the applicant’s costs which I assess in the gross sum HK$45,000 within 14 days.

(Discussion re availability of reasons for judgment)

(Discussion re housekeeping matters and timetable)

13.  I will make the following directions:

(1) Leave to the respondents to file and serve evidence of Miss Stephanie Lehman by 5 pm on 16 April 2012.

(2) The originating summons be set down for trial on 11 and 12 July 2012.

(3) The applicant file and serve a hearing bundle by 5 pm on 3 July 2012.

(4) The applicant file and serve written opening submissions by 5 pm on 4 July 2012.

(5) The respondent file and serve any written opening submission on which it wishes to rely by 5 pm on 6 July 2012.

(6) There be general liberty to restore.