CHAN SAI LUNG, SYLVESTER and Another v. CHAN SAI LUN, HENRY

IN THE COURT OF APPEAL

1995, No. 12
(Civil)

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J U D G M E N T

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Mayo, J.A.:

1. The respondent has issued a summons by which he applies for the dismissal of this appeal on the grounds of the appellants' non compliance with Order 59 Rule 9 of the Rules of the Supreme Court.

2. The complaint which is made by the respondent is the appellants' failure to supply a bundle of documents 7 days prior to the hearing of the appeal.

3. What is clear is that the appeal cannot satisfactorily be dealt with unless documentation is available to enable the court to consider the issues which have been raised.

4. The appellants who have now filed some documents have requested that an adjournment of 7 days should be ordered. We do not consider that the interests of justice would be served by this. Non compliance with Order 59 Rule 9 has effectively meant that we are unable to entertain this appeal and having regard to the issues which can properly be raised on the order made by Keith J, and their context in the litigation as a whole it would be wrong for us to protract this appeal further. It follows from this that the appellants' application for an adjournment is dismissed. The respondent must have his costs of the appeal.

Godfrey, J.A. :

5. The appellants appeal from a number of interlocutory orders, made at first instance by Keith J., in a probate action.

6. The judge granted the appellants no substantive relief other than an injunction to restrain the respondents from removing assets belonging to the deceased out of the jurisdiction. On the other matters, the judge came to conclusions adverse to the interest of the appellants.

7. The appellants are acting in person. It is not easy, of course, for litigants in person to conduct litigation like this. However, in the present case, the appellants have obviously received assistance from behind the scenes from a number of well-meaning people attempting to assist them. Sadly, however, it is plain that the appellants are obsessed by their case, and are persisting in a course of action which is extremely damaging to their own interests. Their case at the trial of the action will be that the deceased, who was their father, did not make a valid will. I say nothing about the merits of the appellants' case; if there is any merit in it, that will be for a judge at the trial of the action to consider. But one thing has become clear, that in the course of this litigation the time of the court has been wasted by a vast number of interlocutory applications made by the appellants, delaying the day of judgment to resolve the substantive issues. This is intolerable.

8. Since the appellants are litigants in person prosecuting the appeal, I have no doubt that it will never be possible for the case to be placed properly before this court unless advantage is taken of provisions made by the Rules of the Supreme Court for the proper prosecution of appeals. I refer, in particular, to O59, r.9(3) which reads as follows :

"At any time after an appeal has been set down in accordance with rule 5, the Registrar may give such directions in relation to the documents to be produced at the appeal and the manner in which they are to be presented and as to other matters incidental to the conduct of the appeal as appear best adapt to secure the just expeditious and economical disposal of the appeal."

In future, when a respondent is faced with an appeal by a litigant in person in which the papers have not been properly presented, or properly presented in time, the sensible course for the respondent to take is to apply to the court under O59, r.9(3) for directions ensuring that the papers may be presented to this court in proper order. It is perfectly impossible for this court to deal with masses of paper thrown at it at the last minute. I hope that if ever there is to be any further appeal in this (or any other) case litigants will remember to take advantage of the provisions made by the rules to see, that by the time the case is presented to the Court of Appeal for a substantive determination, the papers have been placed in proper order and directions given for the just expeditious and economical disposal of the appeal.

9. I turn briefly to the merits of the present case. The gravamen of the complaint of the litigants in person seems to be this. Here is this will under challenge; if the challenge is successful, they will become entitled, as on an intestacy, to the benefit of the deceased's estate. But in the meantime, their brother, the respondent, is frittering it away, to the prejudice of the interests of the litigants in person. That may be correct. If it is correct, then there may be room for the appointment of an administrator pending suit, for which the appellants have asked. But one thing is perfectly impossible, and that is for this court, or any other court in modern times, to appoint as an administrator pending suit a prospective beneficiary who is not only party to the suit, but is also acting in person, especially when that party is plainly obsessed with the litigation.

10. The only hope therefore of success for the litigants in person in the instant case would lie in an application to the court (although I do not encourage it) for the appointment of an independent administrator pending suit in order to preserve the assets. It is true that, in the nineteenth century, there were a number of isolated cases in which the court did appoint a party to the suit as administrator pending suit, but that is never done now. In so far as the appellants ask for an administrator pending suit and ask that they themselves be appointed, I would dismiss that application as an application which has no hope of success whatever, and is accordingly an abuse of the process of the court. But we do not have to go that far. We can dispose of this present appeal simply by dismissing it on the ground that the appellants have failed to comply with the rules relating to the lodgment of copies of documents referred to in argument as "bundles" (strictly speaking, all that has to be done is to lodge copies of the necessary documents and out of courtesy, to supply an index of them to the other side). Since the appellants have failed to supply these documents in accordance with the rules, I, too, would be in favour of dismissing this appeal.

11. This appeal has taken over an hour of this court's time. It is a disgrace to the jurisprudence of Hong Kong. I have no doubt that this is the just course to take, although the litigants in person may not come to appreciate it for some little time. There is nothing further that I wish to add.

Nazareth, V.-P.:

12. I agree with my Lords that the respondent's summons for dismissal of the appeal must be granted.

13. It is not disputed that documents that are required by Order 59 to be filed more than one week before the hearing had not been so filed. Nor has there been any satisfactory explanation given. We are told only that correspondence from the respondent's solicitors resulted in the appellants being "harassed". The only correspondence that I can see was sent by the respondent's solicitors pointing out that the documents had not been filed. They were entitled to send such correspondence and it brought home to the appellants their duty to file those documents. Moreover, the appellants have already made at least one application for extension of time to serve their supplementary notice of appeal. But it is not only this allegedly technical breach, which in fact is not technical in the circumstances, that we are concerned with because there is a history behind the application.

14. What the appellants are seeking to do is to challenge the authenticity of the will their elder brother has filed and sought probate. Their father died in January 1990. An application for probate was made in November 1992. Since then the matter has occupied much time of the courts. Numerous interlocutory applications have been made.

15. What brings the matter before us are a whole series of interlocutory applications which came before Keith J on 16th December 1994. He carefully considered them. They related to matters like a request that the summons be heard in open court. The rules require the summons to be heard in chambers. Keith J rightly refused that application. The appellants asked for Father Joyce to be present during hearing in chambers. Keith J granted that application. The appellants asked for official shorthand notes to be provided. Keith J found that similar applications had been made before and the transcripts had not been paid for. He said that he would consider the matter further when the evidence was given. He was also asked for the 2nd appellant to be appointed as administrator of the estate pending suit. She made allegations that the elder brother was dissipating the assets of the estate. Quite rightly Keith J refused it. As my Lord, Godfrey JA, has pointed out, a person so interested in and obsessed with the matter would not in modern times be made an administrator of the estate; at best an independent administrator would be appointed. Keith J was also asked to appoint the 2nd appellant to be trustee of the property of the deceased. For the same reasons that application was refused. Again, I cannot see that any court would grant that application.

16. The appellants asked that the elder brother be restrained by interlocutory applications from removing from the jurisdiction any of the assets. Keith J considered the matter very carefully. He said that he was not able to deal with the matter without looking into it fully. But he very generously granted an interlocutory injunction, pending the final consideration of that application. The appellants also asked for a lien on the property of the elder brother. Rightly Keith J refused that. The appellants asked for return of the deceased's property which they said had been appropriated or disposed of. In the end they reluctantly accepted his solicitor's statement that none had been appropriated or disposed of.

17. Finally, the appellants asked for orders requiring various banks, financial institutions and even hospitals to preserve various records. Keith J pointed out that he did not have power to order these strangers to the proceedings to preserve records. It can be seen from even that short account that Keith J carefully considered all the numerous interlocutory applications. Somewhat generously he granted two of them and the remainder he refused or deferred. He dealt with them in a perfectly sensible and proper way. I can see no merit whatever in the appeal. Although, therefore, I agree that the respondent's summons should be granted and the appeal dismissed for failure to comply with O59 r9, this is only after carefully looking at the documents. The fact that we have been in court here for one and a half hours does not reflect the time that we have spent in looking at all the documentary material heaped upon us in a totally disorganised way. I, therefore, have no hesitation in granting the application of the respondent, dismissing the appeal for breach of the requirement of O59 r9. Hopefully this will expedite the determination of the real issue, the allegation that the will is a forgery.

18. The respondent is to have his costs of the appeal.