RE GILL AJMER SINGH

HCMP 194/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 194OF 2013

(ON AN INTENDED APPEAL FROM HCAL NO. 171 OF 2012)

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DECISION

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1.  By summons filed on 28 January 2013, the applicant applies for an extension of time to appeal against the decision of Lam JA (sitting as an additional judge of the Court of First Instance) made on 11 December 2012 refusing him leave to apply for judicial review.

2.  The applicant is an Indian national who came to Hong Kong in 2004.  He claimed that on 20 August 2008, he had an accident while working on a construction site and sustained serious injuries to his left eye. He was granted legal aid to commence employees’ compensation proceedings (case no. DCEC 348/2010). The trial initially scheduled to be in December 2012 has been adjourned to a date to be fixed.  Sometime in 2012, the Director of Legal Aid discharged his legal aid as it was considered that there was less than 50% chance of success.  The applicant’s appeal against the decision was dismissed. He sought, but without success, assistance from the pro bono legal assistance scheme of the Bar Association.  He therefore became unrepresented in the employees’ compensation proceedings as he could not afford private representation. 

3.  At the same time, the applicant had also brought a personal injury claim in the Court of First Instance in respect of the same incident (case no. HCPI 582/2011), which has proceeded to the stage of checklist review.

4.  On 7 December 2012, the applicant filed an application for leave to apply for judicial review.  The relief sought is the abolition of the common law rule of maintenance and champerty.  According to the applicant, he was willing to give a proportion of the compensation received to lawyer or third party on a “no win, no pay” basis.  However, because of the common law of maintenance and champerty, he could not do so.

5.  In support of his application, the applicant filed an affirmation made by Mr Aziz Akbar Butt, said to be the chairman of International Human Channel Limited (IHCL).  Mr Butt claimed that the problem encountered by the applicant is very common in Hong Kong.  He commented adversely on the Director of Legal Aid and stated that third party funding and contingency fees were allowed in England and Australia.  He claimed that the IHCL had conducted a survey in 2009 which found that the majority of the respondents favoured abolition of the common law restriction.  Referring to Article 35 of the Basic Law, the judgment of Ribeiro PJ and Bokhary PJ in Winnie Lo v. HKSAR FACC 2 of 2011 and the position in other common law jurisdiction, Mr Butt said that the common law rule of maintenance and champerty should be removed.

6.  On a consideration of the paper, Lam JA refused to grant leave for the reason that “the proposition that the common law of champerty and maintenance, as applied in Hong Kong, contravenes Article 35 of the Basic Law is not reasonably arguable.  The question was considered by the Court of Final Appeal in Winnie Lo v. HKSAR FACC 2 of 2011.”  Mr Justice Lam cited paragraph 22 of the judgment of the Court of Final Appeal which concluded that the torts and crimes of maintenance and champerty are constitutional. His Lordship also referred to Unruh v. Seeberger (2007) 10 HKCFAR 31 at paragraphs 95 to 97.

7.  Order 53 rule 3(4) of The Rules of the High Court, Cap.4A requires an appeal against the refusal of leave to apply for judicial review to be made within 14 days after the order is made.

8.  In deciding whether to grant an extension of time to appeal, the court will normally take into account the following factors:

(1) The length of the delay;

(2) The reason for the delay;

(3) The chances of the appeal succeeding if time is extended; and

(4) The prejudice to the potential respondent if time is extended.

See Hong Kong Civil Practice 2013 Vol.1 para.59/4/9.

9.  The applicant is about a month out of time when he made the present application.  It is not a very serious delay.  His reason for the delay is that he was misinformed by his friend that the time limit for appeal was 28 days and that he needed to obtain his friend’s help to prepare for the application for extension of time to appeal.  These do not in law amount to good reason.  However, the most important consideration is the chances of success of the intended appeal.

10.  In his summons seeking extension of time, the applicant put forward the following proposed grounds of appeal:

(1)  It is reasonably arguable that the common law of maintenance and champerty is unconstitutional as it is against Article 35 of the Basic Law.

(2)  The Judge was wrong to rely on Winnie Lo v. HKSAR FACC 2 of 2011.

(3)  The Judge failed to consider:

(a)  The applicant’s rights and the general public’s fundamental right of free access to justice, as protected by Article 35, is seriously affected and infringed by the common law of maintenance and champerty.

(b)  The common law of maintenance and champerty is equivalent to putting condition on and limiting the right of the right of access to justice, which should be free from any obstructions.   

(c)  The common law rule has already been abolished in other common law jurisdictions and its retention in Hong Kong is discriminatory and against the Basic Law and the human right concept of equality.

11.  The applicant’s intended judicial review application is to seek an abolition of the common law of maintenance and champerty. The core basis for the application is that the rule is unconstitutional, being an infringement of Article 35 of the Basic Law.

12.  In Unruh v. Seeberger (2007) 10 HKCFAR 31, Ribeiro PJ, giving the judgment of the Court of Final Appeal, examined the origins, development and the scope of the common law of maintenance and champerty and its application in Hong Kong.  In paragraph 78, His Lordship held that

“The common law rules making maintenance and champerty criminal offences, torts and a ground of public policy for invalidating tainted contracts, were part of Hong Kong law prior to 1997 and remain applicable by virtue of Article 8 of the Basic Law.”

13.  In paragraphs 95 to 97, Ribeiro PJ discussed “access to justice” considerations as one of the categories excluded from the application of the common law rules of maintenance and champerty:

95. A second excluded category involves what might today be referred to as cases involving “access to justice” considerations. In Hong Kong, Article 35 of the Basic Law recognizes access to the courts as a fundamental right.[55] It has never been a defence to an action nor a ground for a stay to show that the plaintiff is being supported by a third person in an arrangement which constitutes maintenance or champerty.[56] Neither does liability for maintenance or champerty depend on the action or the defence being bad in law.[57] It follows that an attack on an arrangement said to constitute maintenance or champerty could well result in a claim which is perfectly good in law being stifled where the plaintiff, deprived of the support of such an arrangement, is unable to pursue it. This is a powerful argument for such cases to be excluded from the ambit of maintenance and champerty. This was recognized by the Privy Council in Ram Coomar Coondoo v Chunder Canto Mookerjee[58] where their Lordships stated:

“...a fair agreement to supply funds to carry on a suit in consideration of having a share of the property, if recovered, ought not to be regarded as being, per se, opposed to public policy. Indeed, cases may be easily supposed in which it would be in furtherance of right and justice, and necessary to resist oppression, that a suitor who had a just title to property, and no means except the property itself, should be assisted in this manner.”

96. Lord Phillips of Worth Matravers MR in R (Factortame Ltd) v Transport Secretary (No 8)[59] recently placed conditional fees in the same context, stating:

“Conditional fees are now permitted in order to give effect to another facet of public policy – the desirability of access to justice. Conditional fees are designed to ensure that those who do not have the resources to fund advocacy or litigation services should none the less be able to obtain these in support of claims which appear to have merit.”

97. It is again obvious that this access to justice category is not static. The development of policies and measures to promote such access is likely to enlarge the category and to result in further shrinkage in the scope of maintenance and champerty. Different measures, whether statutory or judicial, may be taken in different jurisdictions. Here in Hong Kong, a litigant who is funded by the Supplementary Legal Aid Scheme is required to make a contribution out of recovered proceeds for the benefit of the Fund.[60] In England and Wales, conditional (but not contingency) legal fee agreements have received statutory support in certain types of cases.[61] This has entailed the development of after the event insurance against adverse costs orders.[62] The development of multi-party litigation or class actions raises questions concerning the conduct of promoters and funders of such litigation.[63]”

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[55] Article 35: “Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies. Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.”

[56] Martell v Consett Iron Co Ltd [1955] Ch 363 at 421-422; Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] 80 ALJR 1441, §82.

[57] Neville v London “Express” Newspaper, Limited [1919] AC 368 at 382-383.

[58] (1876) LR 2 App Cas 186 at 210, per Sir Montague E Smith.

[59] [2003] QB 381 at §62.

[60] Legal Aid Ordinance, Cap 91, s 32. The Director has a charge over the proceeds for such contribution: s 18A (3A).

[61] Pursuant to the Courts and Legal Services Act 1990, s 58 and the Conditional Fee Agreements Order 1995 (S.I. 1995 No. 1674) and the Conditional Fee Agreements Regulations 1995 (S.I. 1995 No. 1675).

[62] See the discussion of conditional fees and after the event insurance in Callery v Gray [2002] 1 WLR 2000 (HL).

[63] See Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] 80 ALJR 1441.

14.  In identifying the considerations of modern public policy which result in conduct being characterised as maintenance or champerty, His Lordship pointed out that the totality of the facts must be examined asking whether they pose a genuine risk to the integrity of the court’s processes and that countervailing public policies must be taken into account, especially policies, inter alia, in favour of ensuring access to justice: at paragraphs 102 and 103.

15.  In the more recent case of Winnie Lo v. HKSAR, the Court of Final Appeal rejected the constitutional challenge made to the criminal offence of maintenance.  In holding that the law of maintenance and champerty is constitutional, Bokhary PJ stated (at paragraph 22):

“The ingredients of the torts and crimes of maintenance and champerty are restrictive, and rightly so. In so far as the law thereon is in a state of development, such development involves contraction and not expansion. Subject to one question, I have no hesitation in holding that the requirements of adequate accessibility and sufficient precision are met. The question which has given me pause is this. Access to justice is of course a fundamental right. And it has to be decided whether its protection is properly provided for by the ingredients of these two torts and crimes. I have come to the conclusion that it is. Such protection is accorded by the excepted category consisting of cases involving access to justice considerations. In their approach to the ambit and operation of this category, the courts will always take all due care to protect the fundamental right concerned. That being so, I am satisfied that the torts and crimes of maintenance and champerty are sufficiently certain to be constitutional. I answer the certified question in the affirmative.”

16.  It is therefore clear that:

(1) The Court of Final Appeal has confirmed that the common law of maintenance and champerty is part of the law of Hong Kong.

(2) The principle of access to justice guaranteed by Article 35 of the Basic Law had been considered by the Court of Final Appeal when considering the constitutionality of the common law of maintenance and champerty.

(3) The Court of Final Appeal considers the common law of maintenance and champerty to be constitutional.

(4)   In deciding whether an arrangement is caught by the common law of maintenance and champerty, the entire factual circumstances and policy considerations such as access to justice will have to be taken into account.

17.  In the light of the clear decisions of the Court of Final Appeal, Lam JA is correct in holding that the applicant’s basis for judicial review, namely, the common law of maintenance and champerty is unconstitutional and infringes Article 35 of the Basic Law, is not reasonably arguable.  Further, there is no error in referring to paragraph 22 of the judgment in Winnie Lo v. HKSAR.  All the matters that were advocated by the applicant, including access to justice considerations and the position in other common law jurisdictions had already been identified and addressed by the Court of Final Appeal in the two judgments mentioned above.

18.  Accordingly, the intended appeal against the refusal of leave to apply for judicial review has no prospect of success.  For this reason alone, the application for extension of time to appeal should be refused.

19.  In conclusion, the application to extend the time to appeal against the decision of Lam JA is dismissed.