DCCJ 3157/2016
[2020] HKDC 1021
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 3157 OF 2016
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BETWEEN
Chan Fok Yi（陳福如）, the executor of the estate of Chan Li Mui（陳李妹）, Deceased
Plaintiff
and
All Occupiers of Lot No. 2 in Demarcation
1st Defendant
Tam Chung Chun（譚忠俊）
2nd Defendant
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Before: His Honour Judge KC Chan in Chambers (Paper disposal)
Date of the 2nd defendant’s written submissions: 21 October 2020
Date of the plaintiff’s written submissions: 28 October 2020
Date of the 2nd defendant’s written reply: 4 November 2020
Date of Decision: 11 November 2020
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DECISION
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1. This is my decision by paper disposal of an application by the 2nd defendant to add a certificate for counsel into the costs provision in the Consent Judgment made in the afternoon of 9 September 2020, the 2nd day of trial before me (“the Consent Judgment”).
2. Realizing that a certificate for counsel was not so included in the Consent Judgment and having invited but been declined agreement by the plaintiff, the 2nd defendant applied by letter dated 6 October 2020.
3. By that time, the Consent Judgment has not yet been sealed and perfected. It remains so today. This court is therefore not functus officio .
4. In any case, the correction of a judgment or order under O 20 r 11, the slip rule, pursuant to which the 2nd defendant is now applying, is not barred by the fact that the judgment or order has been sealed and perfected.
5. The main ground of opposition advanced by the plaintiff is that the Consent Judgment embodied the contract between the parties and the court has no power to vary its terms unless the usual grounds for so doing under contract law have been properly established.
6. It is trite and undisputed between the parties that (a) a consent judgment or order may be a contract or may evidence a contract between the parties, as the plaintiff now contends, or (b) it may only mean that the parties to it not objecting to the order or judgment being made, in which case, the court has a discretion to vary its terms according to normal principles . (Leung Yee v Ng Yiu Ming [2001] 1 HKLRD 309, CY Tsun Investment Co Ltd v The Incorporated Owners of Hoi To Court HCSA 16/2003, 2 July 2004, A Cheung J (as he then was)).
7. It seems to me abundantly clear that the Consent Judgment falls within the latter category. The circumstances leading to the making of the Consent Judgment were as follows.
8. This is an adverse possession case. The plaintiff is claiming the land as the present paper title owner. The 2nd defendant counterclaims for a possessory title. The plaintiff’s case in defence of the adverse possession is essentially one of strict proof. The parties have produced a joint single expert report which by and large supported the adverse possession, save there were a number of uncertainties in the expert’s reading of the survey sheets over the presence of certain sections of fence surrounding the land at certain periods of time.
9. On the 1st day and the forenoon of the 2nd day of trial, the court has finished hearing the parties’ opening submissions, as well as concluded the site visit, which took place in the afternoon of the 1st day of trial. Per the directions given by this court earlier, the expert attended the site visit and acted as a guide to lead us through a long list of locations and features within and near the land he has identified and spoken to in his report. Even though I have not had the opportunity to hear the plaintiff’s submissions on the expert report and on the quality of his opinion (as the matter was settled half-way through trial), I think I can fairly say that the expert has impressed the visiting party that he was very conversant with all the features regarding the history of occupation in the land and has substantiated his findings and opinion in his report. By that time, Mr Yim, counsel for the 2nd defendant, has also effectively taken the court through all the documentary evidence proving the 2nd defendant’s case. It was my clear impression at the time, up to that stage of trial, that the case of adverse possession was strong.
10. In the afternoon of the 2nd day when the trial resumed after lunch, and without any hint or indication given at any time earlier, Mr Chow on behalf of the plaintiff informed the court that the plaintiff would no longer pursue his claim and would concede judgment to the Counterclaim. I quote below the exchanges:-
“(2:33pm)
Chow:
There is some news to report to the court. Over lunch, there has been a development and I have instructions that the plaintiff shall not proceed with the claim and that they shall concede judgment to other side. If Your Honour would allow us, say, 30 minutes so that the parties can turn out the appropriate orders, the terms of the orders, and I think that should be able to deal with this action.
Court:
Entirely?
Chow:
Entirely.
Court:
Do you confirm that, Mr Yim?
Yim:
Yes. I have just been informed about this 10 minutes ago. So, I believe that if Your Honour can give us 30 minutes, we can draft a more refined judgment because …
[Mr Yim then refers to the Counterclaim and mentions in some length certain inadequacies in the wording of the prayers in the Counterclaim, which are not in line with the 2nd defendant’s entitlements under settled law and such]
[The court then indicates that declaratory judgment would not usually be given without hearing the matter substantively, but in this case having read the trial bundles and such, the court is prepared to grant it if the plaintiff accedes to it]
(The court then stands down at 2:36)”
11. The trial then resumed at 3:31 pm and the court was handed a draft “Consent Order”. Before I approved it, I queried whether the “Consent Order” would be more appropriately headed “Consent Judgment” in the circumstances. Both parties readily agreed. I made the amendment, among several minor ones, and made an order in terms of the amended draft.
12. I had that query not only because Mr Chow informed the court earlier on that the plaintiff would not proceed with his claim and would concede judgment to the Counterclaim, but also that the draft provided for all the relief as if the 2nd defendant had completely won this action - including the dismissal of the plaintiff’s claim with costs and all the relief the 2nd defendant claimed for in the Counterclaim, again with all the costs.
13. It is not even suggested by the parties, particularly not suggested by the plaintiff, that there was any negotiation between the parties, as in Cathay Pacific Airways Flight Attendants Union v Cheung & Choy (HCMP 1863/2007, unrep., 3 February 2009 DHCJ Au (as he then was)), a case now heavily relied on by the plaintiff. As indicated above, the 2nd defendant was only informed of the plaintiff’s concession 10 minutes before the court resumed in the afternoon of the 2nd day. It is also not even suggested that there was any negotiation over costs. The process whereby the draft “Consent Order” was agreed to was described in the plaintiff’s solicitors’ letter dated 25 September 2020, in which the plaintiff refused agreement to add a certificate for counsel, as follows:-
“With respect, the terms of the Consent Judgment were drafted and approved by a team of pupils, your counsel, your assistant solicitor and your handling solicitor before it was handed to us for approval. We agree to the contents without making any amendments. An order in terms was made by the court on the 9th September 2020.”
14. In the circumstance, it is very clear that the Consent Judgment was really a surrender on the part of the plaintiff (and in my view, a sensible and timely one) and therefore one that the plaintiff did not object to being entered, rather than it being the embodiment of a contract negotiated and reached between the parties. I therefore hold that I have a discretion to vary its terms according to normal principles.
15. In my view, it is equally clear that the non-inclusion of a certificate for counsel was an accidental omission on the part of the legal team of the 2nd defendant. In my judgment, the slip rule applies. The plaintiff has not for one moment suggested that whether a certificate for counsel would have been granted was a matter even open to debate. The plaintiff himself has all along engaged counsel. His pleadings were settled by Mr Chow. This trial was originally scheduled for 6 days. And the plaintiff was surrendering and was prepared to give to the 2nd defendant his full entitlement under his Counterclaim. Had this matter of certificate for counsel been raised at the time, I have no doubt that the plaintiff would have agreed to one being given; and in any case if there were dispute, I would have readily granted it without second thought.
16. In Wong Hung Kar Kee Mimi v Severn Villa Ltd [2014] 1 HKLRD 1088, Queeny Au-Yeung J observed
“the slip rule has been applied to correct orders where there was omission of counsel to seek costs and/or interest : In Re Earl of Inchcape [1942] Ch 394; Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300, 304B-D; Winston Camera & Radio Co Ltd v Combi (Singapore) Pte Ltd [1988] HKC 156. In the first two cases, the learned judges said that they had a very distinct recollection of their cases and they would have ordered costs or interest if asked for at the hearing.” (paragraph 21 at p.1096 and 1097)
17. Indeed and if I may add, in Winston Camera & Radio Co Ltd v Combi (Singapore) Pte Ltd , the 3rd case cited by Au-Yeung J in the above quote, the Court of Appeal, consisting of Yang CJ, Kempster and Power JJA, held that a mistake deriving from an accidental slip or omission of counsel in failing to ask for relief consequential upon a judgment may come within the parameters of O 20 r 11.
18. The plaintiff now relies on the case of The Bank of China v Xinyuan Trading Co. Limited (CACV 276/1998, 21 June 2000) to say that the court would not add in a term for certificate for counsel if it has not been applied for at the time. The case does not support a proposition as wide. Godfrey VP’s short judgment just said that he would not now know whether he would have granted a certificate for two counsel, which was what was applied for there, if it had been applied for but objected to at the time of the conclusion of the hearing. On that basis, the Court of Appeal there refused to apply the slip rule. In other words, it was a case, like many others, that the application of the slip rule was contended for but was held that the circumstances did not justify its application.
19. As said, in the circumstances of this case as set out above, I am of the clear view that the slip rule applies.
20. In the premises, I order that the Consent Judgment be amended by adding “with certificate for counsel” at the end of paragraph 4 therein, and also order on nisi basis, that the costs of this application be to the 2nd defendant with certificate for counsel, and the 2nd defendant’s own costs be taxed according to Legal Aid Regulations.
21. In light of the above, I do not find it necessary to deal with the 2nd defendant’s fall-back argument that the certificate for counsel should be added by way of an implied term.
( KC Chan )
District Judge
Mr Tony Chow, instructed by Fu and Cheng, for the plaintiff
The 1st defendant was not represented and did not appear
Mr Valentine Yim, instructed by Boase Cohen & Collins, assigned by the Director of Legal Aid, for the 2nd defendant