MR. Y. KHAN v. MR. P.G. O'DEA AND ANOTHER

Action No. 5850/82

IN THE HIGH COURT OF JUSTICE

HONG KONG

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JUDGMENT

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1. There are two summonses before me: one from the Defendants asking for an order that the stay of proceedings under Section 15 of the Legal Aid Ordinance consequent upon the Plaintiff's application for legal aid dated the 16th of January of this year being removed and an order that any future applications for legal aid by the Plaintiff in these proceedings shall not operate to stay the proceedings pursuant to the Section. There is a summons from the Plaintiff asking that summons being struck out pursuant to the inherent jurisdiction of the Court on the grounds that it is premature out of order, oppressive, vexatious and an abuse of process. It is obviously convenient that I should deal with both those matters together.

2. These proceedings relate to a taxation only of costs awarded against Mr. Khan after judgment was given against him on the 27th February 1985. The taxation was originally to be heard on the 25th November of last year. There was an adjournment because at that time Mr. Khan had made application or wanted to consider making an application to appeal against the order for costs. He did not do so but by the 30th December when the matter was restored Mr. Khan had applied for legal aid and pursuant to Section 15 of the Legal Aid Ordinance, the Master stayed the matter. The Plaintiff's application for legal aid on that occasion was refused, he appealed, his appeal was rejected, and the taxation was again listed on the 26th February. However, before that date was fixed, Mr. Khan had made a further application for legal aid and it is the effect of that application that falls to be considered in relation to these two summonses.

3. On neither occasion when Mr. Khan made his application for legal aid has the director sent a memorandum to the Court of his application. Section 15(1) of the Legal Aid Ordinance requires the Director as soon as practicable after the application is made to notify the other party and to file in the Court in which the litigation is pending a memorandum of the notification. Section 15(2) provides that where a memorandum is so filed, unless otherwise ordered by a judge of the Court in which the litigation is pending, all proceedings in the litigation shall by virtue of the Section be stayed for such period as may be prescribed and during that period, unless otherwise ordered by any such judge, time fixed by or under any law or otherwise for the dealing of any act or the taking at any step in the proceeding shall not run. The period hag been prescribed under Section 7(a) of the Legal Aid Regulations. It is 42 days.

4. There is no limit upon the number of applications that a person may make for legal aid. The fact of making an application for legal aid (unless a judge orders otherwise) will be to stay the proceedings for 42 days. If the application is rejected and another application is made, it could be thought that the proceedings could be stayed indefinitely by a person who wishes to avoid a hearing. It is suggested-against Mr. Khan that is exactly what he has done in his present application for legal aid. It is suggested that he is seeking to have the proceedings for taxation adjourned and when his application for legal aid is rejected or the appeal against the rejection is refused, he will then make a further application and so succeed time and time again in having the matter adjourned.

5. Mr. Khan assures me that he is not seeking to do this. He points to the fact that he made his second application for legal aid before he knew of the hearing date. I am not concerned with the motives in these matters but for what it is worth I accept that Mr. Khan is not seeking to delay these proceedings by this means.

6. When Master Suttill adjourned or stayed the proceedings for taxation on the 30th of December 1985, he took the view that although a memorandum had not been filed because he was satisfied that there had been an application by Mr. Khan for legal aid, the stay was automatic under Section 15(2) of the Legal Aid Ordinance. With respect to him, I agree with his decision. The rights of the parties under Section 15(1) and Section 15(2) cannot depend upon whether or not the Director of Legal Aid has fulfilled his obligations under Section 15(1). If the Court is satisfied that a party has made an application for legal aid, even though a memorandum has not been filed, Section 15(2) still applies.

7. I turn now to the present situation: Mr. Khan's application for legal aid in these proceedings was made on the 16th January. When the hearing began this morning the result of that application was not known and with Mr. Khan's consent and the consent of Mr. Lewis who appears for the Defendants, I asked for inquiries to be made, first as to whether there was a memorandum on the Court file and second to discover whether or not the Director of Legal Aid intended to file such a memorandum. The result of those inquiries indicated that this day morning Mr. Khan's application for legal aid was to be refused. I therefore adjourned for an hour to allow Mr. Khan to discover the exact position. He returned with a notice of refusal. The notice of refusal indicated that he had been refused legal aid on two grounds, first, on the ground that these proceedings are outside the legal aid scheme because they relate to defamation, and second, under Section 10(3) of the Legal Aid Ordinance. It may well be that as these matters relate to defamation the first ground is conclusive but the issues in relation to legal aid are not before me and I make no decision and express no view as to whether or not it is open to Mr. Khan to successfully appeal against the refusal. The fact is that he has the right to appeal against such a refusal, if he swishes and he is so advised. He has seven days in which to make up his mind and he has indicated to me that he wants to take some advice as to whether it is worthwhile him appealing.

8. It is of course likely that he would have an uphill task in any such appeal because he has made an earlier application which went to an appeal and his applications were refused.

9. The present situation is, therefore, that the hearing of the taxation is set down for the 26th February, the day after tomorrow, a time during which the period for appeal against the refusal of legal aid this morning has not expired.

10. Let me turn now to deal with these summonses. First, the summons by Mr. Khan asking that the Defendants' summons be struck out. I dismiss that summons. The Defendants' summons is certainly not an abuse of process of Court nor it is premature. If any proceedings stand stayed by the operation of law under Section 15(2) it is open to any party to apply to the Court for variation of the period laid down by the Section and the Regulations. I am satisfied therefore that the Defendants' summons is a proper one.

11. I turn then to consider what periods ought to be laid down in relation to this particular hearing on the 26th February.

12. As Mr. Khan had already made application for legal aid before the date was fixed for hearing and as that application proceeded until it was dealt with by the Director of Legal Aid, I am satisfied that Mr. Khan ought to have time to consider his position in relation to any appeal. Therefore, I am not prepared to curtail the period so that the hearing must take place on the 26th February. Indeed the result of the application will be to increase the period so as to allow Mr. Khan to consider the question of appeal. The period from today which I think proper is 21 days. That is intended to give time for Mr. Khan to appeal, or the appeal to be heard if he appeals, and for a new day to be fixed.

13. The next matter I must consider is the question of any future applications for legal aid by Mr. Khan in respect of this same hearing for taxation. Now, as I have said I accept Mr. Khan's assurance that he is not seeking to use the right to apply for legal aid repeatedly in order to avoid the hearing. I accept that at face value. However, because there is some fear on behalf of the Defendants that he may do that there is inherent power in the Court to prevent the danger of any abuse of process. It certainly would be an abuse of the process of the Court if any party should seek to make repeated applications for legal aid in order to try to obtain the benefit of the automatic stay under Section 15(2) of the Legal Aid Ordinance.

14. In those circumstances the stay of 21 days which I now make covers both this application and any application that may be made in respect of this hearing for taxation. I limit it to that because that is what is at present before the Court.

15. I am quite satisfied that I have jurisdiction and power to make such an order, because if such an order is not made it would be open to Mr. Khan to try to make repeated applications for legal aid. That would be an abuse of process. I make that order not out of any fear that Mr. Khan will seek to so act (for I accept his assurances) but so that these matters are clearly laid down for the future conduct of these proceedings.

16. Now I am going to add one further point because I have had an opportunity of reading these papers with some care. I think it would be right for me to reserve any further applications to myself, in relation to any further stay and also to give the parties liberty to apply, limited to the length of any stay.

17. I do not envisage that there will be any further application by either party in respect of the length of the stay but if for any reason it is impossible to maintain the time limits which I envisage it would

be only fair to give the parties liberty to apply in relation to those time limits.