MARK RICHARD CHARLTON SUTHERLAND v. CRB (a firm)

CACV 501/2022, [2025] HKCA 495

On Appeal From [2022] HKCFI 3382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 501 OF 2022

(ON APPEAL FROM HCMP NO 2285 OF 2019)

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DECISION

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Hon G Lam JA (giving the Decision of the Court):

1.  This is the Court’s decision on the defendant’s application to strike out the plaintiff’s Revised Notice of Appeal.

Background

2.  By judgment dated 19 April 2024 (“CAMP Judgment”),[1] this Court granted an extension of time to the plaintiff to appeal against the order made by Au-Yeung J on 4 November 2022 on the plaintiff’s originating summons in HCMP 2285/2019.[2]  That litigation related to the taxation of the bills of costs issued by the defendant in respect of work done in certain family court proceedings involving the plaintiff. 

3.  The original Notice of Appeal was purportedly filed by the plaintiff on 30 December 2022, which was out of time, but the requisite fees were paid and an appeal number was assigned: CACV 501 of 2022.  The judge below having refused an extension of time in a decision dated 19 May 2023,[3] the plaintiff renewed his application to this Court by summons dated 5 July 2023 issued in CAMP 245/2023.  That summons sought “leave to file and [serve]” a Revised Notice of Appeal (“RNoA”) “out of time” to appeal from the relevant orders made by the judge on 4 November 2022.  In §52 of the CAMP Judgment, this Court granted an extension of time for the plaintiff to file and serve a notice of appeal limited to the grounds raised in §§1, 2, 3 and 4(a) and (b) of the draft RNoA, but no deadline was specified.

4.  On 31 May 2024, the plaintiff filed and served an RNoA.  The plaintiff’s counsel has explained on affirmation that he had given his opinion to the plaintiff that there was no 28-day deadline for serving the RNoA and that he and his instructing solicitors had taken heed of this Court’s observations in §39 of the CAMP Judgment[4] and made a real effort to reduce and rephrase the grounds of appeal with more precision.

5.  By Order 59 rule 5 of the Rules of the High Court (Cap 4A):

“ 5. Setting down appeal (O. 59, r. 5)

(1) Within 7 days after the date on which service of the notice of appeal was effected, the appellant must lodge with the Registrar—

(a) a copy of the sealed judgment or order and a copy of the reasoned decision (if any); and

(b) two copies of the notice of appeal, one of which shall be indorsed with the amount of the fee paid, and the other indorsed with a certificate of the date of service of the notice.

(2) Upon the said documents being left, the Registrar shall file one copy of the notice of appeal and cause the appeal to be set down in the list of appeals.

(3)  Within 4 days after an appeal has been set down, the appellant must give notice to that effect to all parties on whom the notice of appeal was served.”

6.  When the original Notice of Appeal was filed back in December 2022, the court fees were paid and a copy of the reasoned decision below was lodged.  But the plaintiff did not, within 7 days of the CAMP judgment or of serving the RNoA on 31 May 2024, lodge copies of the RNoA and a copy of the sealed judgment or order below as required by Order 59 rule 5(1).  Eventually the plaintiff filed a summons dated 9 July 2024 for an extension of time to do so.  The Registrar of Civil Appeals directed that the plaintiff’s summons be dealt with in due course after disposal of the defendant’s application to strike out, perhaps because it was not known at that time that the defendant would also rely on the non-compliance with rule 5(1) for its application.  Since the parties had not revisited this direction, we shall not determine the plaintiff’s summons here.

7.  As the defendant has observed, the RNoA served was drafted “slightly differently” to the draft placed before this Court that led to the CAMP Judgment, but the defendant made no complaint that its content did not correspond to the grounds permitted by this Court.  What the defendant, contends is that the RNoA was itself served out of time and thus incompetent, and by a summons taken out on 7 August 2024 it seeks an order that it be struck out.

8.  Pursuant to Order 59 rule 14, we consider it appropriate to deal with the defendant’s application on the basis of written submissions without an oral hearing.

Strike out

9.  The first and by far the primary ground of the defendant’s application to strike out is based on Order 59 rule 4(1)(c).  Rule 4(1) provides as follows:

“ 4. Time for appealing (O. 59, r. 4)

(1) Except as otherwise provided by these rules, a notice of appeal must be served under rule 3(5) within—

(a) in the case where leave to appeal to the Court of Appeal is required under section 14AA (not being a case to which sub-paragraph (b) applies) or section 14(3)(e) or (f) of the Ordinance, 7 days after the date on which leave to appeal is granted;

(b) in the case of an appeal from a judgment, order or decision given or made in the matter of the winding up of a company, or in the matter of any bankruptcy, 28 days from the date of the judgment, order or decision; and

(c)  in any other case, 28 days from the date of the judgment, order or decision concerned.”

10.  The defendant submits that in this case, whilst the CAMP Judgment itself did not specify a deadline, it falls within the phrase “judgment, order or decision” in rule 4(1)(c) and the RNoA must therefore be served within 28 days from that judgment, i.e. by 17 May 2024.  The word “concerned” following that phrase in rule 4(1)(c) is naturally and ordinarily capable of referring to both the decision from which appeal is sought and also a decision extending time.  Rule 4(1)(c) does not refer to the judgment, order or decision “below” or “appealed against”.  A broader construction including decisions extending time would serve the purposes of the rule in providing a residual or default period of time within which notices of appeal are to be served, where other specific provisions do not apply.  A narrow construction would leave a lacuna, providing for no period of time within which a notice of appeal has to be served, merely because an extension of time has been granted without a specified deadline.

11.  We are unable to accept this argument.  Order 59 rule 4(1) concerns the time for service of the notice of appeal which is required by rule 3(5).  As rule 3(2) provides, a notice of appeal is given in respect of “the judgment or order of the court below”.  Thus rule 3 provides as follows:

“ 3. Notice of appeal (O. 59, r. 3)

(1) An appeal to the Court of Appeal shall be by way of rehearing and must be brought by motion, and the notice of the motion is referred to in this Order as notice of appeal.

(2) Notice of appeal may be given either in respect of the whole or in respect of any specified part of the judgment or order of the court below; and every such notice must specify the grounds of the appeal and the precise form of the order which the appellant proposes to ask the Court of Appeal to make.

…

(5) A notice of appeal must be served on all parties to the proceedings in the court below who are directly affected by the appeal; and, subject to rule 8, it shall not be necessary to serve the notice on parties not so affected.

…”

12.  Order 59 rule 4 goes on to provide for the time for appealing in different cases.  In particular, rule 4(1)(b) deals with an appeal from a judgment, order or decision given or made in a winding up or bankruptcy matter, and rule 4(1)(c) deals with cases other than those dealt with in rule 4(1)(a) and (b).  In rule 4(1)(b), the phrase “judgment, order or decision” appears twice and both plainly refer to the judgment, order or decision from which an appeal is being instituted.  Equally, the natural meaning of the phrase “judgment, order or decision concerned” in rule 4(1)(c) in this context seems to us to be the judgment, order or decision to be appealed against.  The plaintiff has cited previous cases where the phrase was so construed, though it should be noted that the argument raised here was not relevant in those cases.

13.  Rule 4(1) begins with the words “Except as otherwise provided by these rules, a notice of appeal must be served under rule 3(5) within …”.  It seems to us that rule 4(1) is intended to lay down the primary time limits to be prescribed by rules of court, not a secondary time limit where the court has given an extension from the primary time limit but not specified the length of the extension.  As the defendant accepts, on granting an extension of time, the court is free to specify when the notice of appeal should be served.  If the “judgment, order or decision concerned” in rule 4(1)(c) includes an order extending time, then 28 days would be the extension period fixed by the rule, and every time the court orders anything different, such as that the notice of appeal is to be served within 7 or 35 days from the date of the order, it would be an abridgment or enlargement of the prescribed period as the case may be.  That does not accord with the general understanding of the nature of the relevant process.  The defendant is unable to cite any authority in which rule 4(1)(c) was given the construction it contends for.

14.  Further, under Order 59 rule 15, “the period for serving notice of appeal under rule 4 … may be extended or abridged by the court below on application made before or after the expiration of that period”.  The defendant’s construction would mean that where the Court of Appeal has given an extension of time, the parties may apply to the court below to extend or abridge the time.  This does not seem to us to be the intention behind the rules.

15.  We do not think there is any lacuna that needs to be addressed by adopting the defendant’s construction.  In the unlikely event the court has granted an extension of time for serving a notice of appeal but has not specified a new time limit, the other party may apply to the court for directions such as a direction fixing a time limit. 

16.  The present case is not such a case.  The plaintiff had already filed and served a Notice of Appeal on 30 December 2022 but that was done beyond the time limit of 28 days from the judge’s order of 4 November 2022.  The original Notice of Appeal was therefore incompetent and liable to be struck out.  What the plaintiff needed was a “retrospective” extension of time to regularise the proceedings, which this Court had power to grant: see Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 2 HKLRD 906 at §5.  This was indeed the juridical nature of the order in the CAMP Judgment granting an extension of time.  This explains why all further proceedings in this Court had since been conducted under the original appeal of CACV 501 of 2022, and why the precise length of the extension need not be and was not spelt out in the CAMP Judgment.  The extension granted was expressly “limited” to the grounds specified in the CAMP Judgment.  This means that the plaintiff must replace the original Notice of Appeal with an amended one containing only those grounds, and that the retrospective extension of time was granted solely on this basis.  No time limit was specified or subsequently sought by the defendant for that particular act.  The plaintiff did file and serve his RNoA on 31 May 2024 containing only the permitted grounds.  We consider that the ground for striking it out based on Order 59 rule 4(1)(c) is not made out.

Setting down

17.  The defendant’s other ground for striking out the RNoA is that the plaintiff failed to cause the appeal to be set down within 7 days, contrary to Order 59 rule 5.  This is merely the obverse of the plaintiff’s summons, which in fact came earlier, for an extension of time to comply with rule 5.  If the plaintiff’s application failed, the appeal could not proceed.  It was unnecessary for the defendant to apply to strike out on this ground.

18.  The non-compliance with rule 5 has been described above.  The plaintiff’s solicitor, Ms Lee of Messrs. B Mak & Co, who was the only fee earner in the firm on this case, has explained in an affirmation that her mother underwent an eye surgery in mid May 2024 and she had been working from home mostly since late May 2024 in order to take care of her mother.  She requested the plaintiff’s counsel (Mr So) to assist, through his staff, in filing and serving the RNoA on 31 May 2024, which was done.  But she misunderstood that the steps of setting down the appeal would also be dealt with at Mr So’s end, and she was away from Hong Kong in early June 2024 for a few days.  She only realised the mistake when the defendant mentioned in a letter (which we take to be the defendant’s letter to the Court dated 2 July 2024) that they had not received any notice of setting down the appeal.  On 9 July 2024, a summons for extension of time was issued on behalf of the plaintiff.

19.  Whilst this Court was critical in the CAMP Judgment of the plaintiff’s previous delay (see §§16, 20 and 53), it should be noted that the non-compliance with rule 5 within time was on the available evidence solely the responsibility of his solicitor.  We do not think it is fair to characterise this incident as “another example” of the plaintiff’s “modus operandi” or “pattern” of delay as the defendant alleges.  Overall, whilst Ms Lee’s explanations hardly provide a valid excuse for the failure, we do not think it would be a proportionate response to strike out the plaintiff’s RNoA, which this Court has found to have a real prospect of success, by reason of the delay in having the appeal set down in these circumstances.

Disposition

20.  Accordingly, the defendant’s summons to strike out is dismissed.

21.  On a nisi basis we make an order that the defendant do pay the plaintiff’s costs of the defendant’s summons.  The plaintiff should file and serve a statement of costs within 14 days; the defendant may file and serve a statement of objections within 14 days thereafter.  Subject to such further directions as may be given, the Court will assess the plaintiff’s costs summarily without further notice to the parties.

[1]   [2024] HKCA 331.

[2]   [2022] HKCFI 3382; [2023] 1 HKLRD 1.

[3]   [2023] HKCFI 1383.

[4]   “39.  In our view, §2(a) of the draft RNoA is reasonably arguable and has a real prospect of success.  Having reached this view, we do not propose to further consider the other arguments raised in §§1, 2 and 3 of the draft RNoA, save to mention our provisional view that the validity of those other arguments are doubtful.  Mr Sutherland should carefully review whether he wishes to pursue them bearing in mind the possibility of adverse costs order being made against him for pursuing unnecessary and/or unmeritorious grounds of appeal regardless of the final outcome of the appeal.”