THE CHINA AND SOUTH SEA BANK LTD v. TAN SOON GIN GEORGE

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J U D G M E N T

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Cons, Ag. C.J. delivered the judgment of the Court:

1. On the 8th June we gave leave to appeal to Her Majesty in Council. One of the conditions we imposed was that the Plaintiff should procure the preparation of the record of appeal and despatch the same to England within 3 months.

2. This is an application for directions with regard to the preparation of the record and for the amendment of our Order as it has been drawn up.

3. The proceedings in this Court arose originally from the dismissal by Rhind J. of an appeal against the entry by a Master of summary judgment against the Defendant in the sum of something over $33 million. We allowed the appeal, holding that there was an arguable defence based on the Plaintiff's negligence.

4. In support of the application for leave to appeal to Her Majesty in Council 2 affirmations were filed in the registry by an officer of the Plaintiff Company, a Mr. Yick Chun Wah. The second of those affirmations was merely to correct minor errors in the first, which itself had two purposes. One was to observe that the question of negligence had not been raised in the court at first instance - a matter of which we were made fully aware on the hearing of the appeal. The other was to introduce evidence to contradict negligence as a matter of fact. Part of the evidence was by way of exhibits attached to the affidavits which, speaking for myself, L had not perused before the hearing of the application for leave.

5. At that hearing, when counsel for the Applicant referred to these affirmations, this Court indicated that it was reluctant to look at any evidence which had not been before the court below or before itself at the appeal. Counsel then did not press the question further, but he did read to this Court a circular letter from the Hong Kong Association of Banks referring to our decision, and he referred to a bundle of what were said to be standard conditions imposed by various banks within the territory, all of which documents had been exhibited to the affirmations of Mr. Yick. Counsel took that course in support of his suggestion that the appeal to their Lordships involved questions of great general or public importance.

6. Counsel for the Applicant now concedes that the affirmations should not be part of the record, but is concerned that when application is made to their Lordships, as. is at the moment so intended, to admit the affirmations as further evidence then, he will in some way be prejudiced if the documents are not within the record already submitted.

7. In our view it would be quite wrong to include in the record documents that were not either before the court below or before this Court as part of the evidence in the action or the appeal. Neither of the affirmations of Mr. Yick nor the exhibits thereto fall within that category, and in our view should therefore not be included in the record or the index that is to be submitted.

8. We feel that the Applicant's fears are unfounded. We are confident that if we should be wrong in the view we have taken, their Lordships will not hold it to his prejudice. Alternatively if before the time for the despatch of the record arrives, the Applicant is able, as the result of appropriate enquiries, to indicate to this Court that the practice of their Lordships does require that the documents in question be in some way be attached or appended to the record, then of course application can again be made to this Court.

9. The second matter, with which we have to deal today is the preamble to our Order of the 8th June. As it has now been perfected the order recites that we had read the two affirmations. That is net correct and to that extent the recital must be deleted from the Order.

10. Counsel for the Applicant contends that there should be included in its place a recital that the circular of the Hong Kong Association of Bank's was read, and that reference was made to the bundle of standard conditions. Counsel for the Respondent objects to these as respectively irrelevant and unnecessary. We however are satisfied that a recital in those terms would accurately reflect what took place in this Court, and we do not see that there can be any valid objection to it.

11. We are therefore agreed that the draft Order should he so amended, and we also direct that the two affirmations in question should not be included in the record or the index to be submitted in this instance to Her Majesty in Council. As the matter is basically one of directions, subject to what counsel may say, we think the costs of to hearing should be costs in the appeal.