MAKHSSIAN TRAJAN VAHE v. MAKHSSIAN TRAJAN VAHE v. MAYER BROWN JSM, MAYER BROWN INTERNATIONAL LLP alias MAYER BROWN. SOLICITOR ASSOSIATE SIMON AU MING, AVOCATE SOLICITOR, DAVID MCKELLAR

HCA 934/2020

[2022] HKCFI 385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 934 OF 2020

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D E C I S I O N

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1.  This is an application for an extension of time for the plaintiff to bring an appeal against my Judgment dated 31 December 2020, following a hearing on the previous day.

2.  In that Judgment, I struck out the claim brought by the plaintiff against each of the four named defendants.  Mr Trajan, the plaintiff, tells me this morning that he applied to the Court of Appeal for leave to appeal from my decision within time, in the sense within about 18 days of the decision, but received a response from the Court of Appeal on 11 March 2021 informing him that because his claim had been struck out, he did not need leave to appeal, but would have had a right to appeal.

3.  Unfortunately, the plaintiff was then incarcerated, he tells me from some date in March until, it seems, 30 November 2021.  Three weeks or so later, he issued this summons now seeking permission from me to appeal out of time.

4.  I should mention that in a rather unsatisfactory manner the plaintiff appears to have obtained this morning’s hearing date without actually filing the summons.  I have made inquiries through my clerk as to how that might have occurred.  But I have not yet been provided with an answer, save that what may have happened is that the plaintiff may have shown the summons at the Registry and obtained a hearing date but then chosen not to file it.  Why that would happen, again, I am afraid I simply do not know.  Ultimately, a copy of the summons was provided to me after it had been provided to the solicitors for the defendant.

5.  In any event, the application is significantly out of time.  It has not been supported by any affirmation and it does seem to me that I am entitled on an application of this nature to take into account my view of the potential merits of any appeal, even if originally there was a right of appeal which did not require leave.

6.  Having recently re-read my judgment of 31 December 2020 and having considered matters this morning, and notwithstanding the explanation for the passage of time from Mr Trajan as to his being in jail for a significant period of the time which has expired, it seems to me that there is no proper basis in the exercise of my discretion to extend time for him to appeal.

7.  As he put it, actually on the merits of the appeal he would, of course, leave it to the Court of Appeal to decide.  It seems to me that if he is to be given an extension of time of this length since my original Judgment, then it would be a matter for the Court of Appeal to give him that extension if they thought there were sufficient merits in any argument on the appeal for such an extension of such a length to be granted.

8.  So in the circumstances, I dismiss the application.