AKHTAR JUNAID v. NGAI SUM MING AND ANOTHER

CACV 610/2020

[2021] HKCA 445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 610 OF 2020

(ON APPEAL FROM DCPI 4009/2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Lam VP (giving the Judgment of the Court):

1.  This appeal was obviously brought in the wrong forum. It is an appeal against a decision of a master in the District Court on security for costs made on 6 November 2020 in DCPI 4009/2019.

2.  The former solicitors for the Plaintiff filed and served a notice of appeal in this Court on 19 November 2020 seeking to appeal against that decision.

3.  Pursuant to Order 58 Rule 1 of the Rules of the District Court (Cap 336H), an appeal against the decision of a master in the District Court shall lie to a judge of the District Court in chambers, not the Court of Appeal.

4.  At the time of filing of the paper with the Appeal Registry, the Registry staff has already alerted the representative of that solicitor firm of the mistake.  Yet, the solicitor’s representative insisted on filing the document.

5.  Solicitors for the Defendant wrote to the former solicitors for the Plaintiff on 19 November 2020 pointing out the error of the latter.

6.  On 24 November 2020, the former solicitors for the Plaintiff sent a Notice of Discontinuance in this appeal to the solicitors for the Defendant, purporting to wholly discontinue the action.  However, that Notice of Discontinuance was not filed in court.

7.  In so doing, the former solicitors for the Plaintiff again adopted the wrong procedure.  An appeal is not an action. There is no procedure for discontinuing an appeal by a Notice of Discontinuance as Order 21 Rule 3 is not applicable to an appeal.

8.  The proper way to abandon an appeal is to seek a dismissal of the appeal by consent, see Practice Direction 4.1 paragraphs 74 to 76.

9.  Instead of filing the ineffective Notice of Discontinuance, the Plaintiff filed a Notice to Act in Person in this appeal on 8 December 2020.

10.  On 10 December 2020 solicitors for the Defendant wrote to the Registrar of the High Court drawing the attention of the Court to the procedural defects mentioned above.  A copy of the Notice of Discontinuance (which had not been filed) was also attached.  

11.  The matter came to the attention of the Registrar of Civil Appeals (“RCA”) who issued directions on 14 December 2020. In the directions, the RCA noted that the Plaintiff acted in person (because of the Notice to Act in Person of 8 December 2020) and directed the Plaintiff to file a dismissal by consent if he did not intend to proceed with the appeal on or before 30 December 2020.

12.  Those directions were sent to the Plaintiff at the address stated on his Notice of Act in Person and the solicitors for the Defendant.  However, the letter was returned as the person at that address refused to accept the letter.

13.  On 22 January 2021, the RCA issued another direction requiring the Plaintiff to confirm before 8 February 2021 if he would seek a dismissal of the appeal.

14.  On 2 February 2021, the Plaintiff replied by a letter confirming that he would like to have the dismissal of the appeal without affecting his future right to appeal from DCPI 4009/2019, if required.

15.  In light of that response, the RCA wrote to the parties seeking the Defendant’s position regarding the dismissal of appeal and costs.  The RCA also directed the Plaintiff to state his brief grounds of objection, if any, to the costs of the Defendant.

16.  By a letter of 19 February 2021, solicitors for the Defendant indicated that they had no objection to the dismissal of the appeal.  They indicated that they would seek costs in the sum of $17,017, with a breakdown of the same attached to that letter.

17.  The Plaintiff did not lodge any objection to the Defendant’s costs notwithstanding a further reminder by the RCA to do so on 8 March 2021.

18.  In the circumstances, it is plain to us that the appeal should be dismissed.  We order that the appeal be dismissed.

19.  As regards costs, we are of the view that the costs of the Defendant should be paid by either the Plaintiff or the Plaintiff’s former solicitors.  Before we address the incidence of costs, we would comment on the amount sought by the Defendant’s solicitors.

20.  According to the breakdown attached to the letter of 19 February 2021, the solicitor said he had used 2 hours and 55 minutes in respect of this appeal, including writing letters and advising the Defendant.

21.  We found the time incurred to be excessive on a party-and-party basis.  We would only allow 2 hours.  As a result, the quantum is reduced to $11,600.  We fixed the costs of the Defendant accordingly.

22.  On the incidence of costs, we are considering whether the former solicitors for the Plaintiff should be required to pay the same under Order 62 Rule 8 as the errors highlighted above are quite elementary.  For this purpose, we shall list the matter for a half an hour hearing on 15 April 2021 at 10:00 am to give an opportunity to the former solicitors to make representation through their counsel.  The Plaintiff should also attend the hearing.  On the other hand, since we have already fixed the quantum of the Defendant’s costs and we are minded to order either the Plaintiff or his former solicitors or both of them to pay the same, the attendance of the Defendant is not necessary.

23.  In the meantime, if the former solicitors agree to pay the costs in the sum of $11,600, they can give such indication in writing to the Court, the Plaintiff and the solicitors for the Defendant on or before 12 April 2021.  In that event, the Court shall deal with the matter on paper and vacate the hearing.