MIOKO SAKURADA LOUVET v. LOUIS ARISTIDE CHARLES LOUVET AND ANOTHER

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J U D G M E N T

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Kempster, J.A. :

1. On 30 May 1973 Louis Aristide Charles Louvet, a French citizen, and Mioko Sakurada, a Japanese citizen, were lawfully married in Paris. As regards their respective worldly goods a contract for Separation de Biens was concluded. Thereafter the parties lived together in France for some two and a half years until 1975 when the husband's calling as an international banker took him to Hong Kong where his wife joined him. At the end of 1979 the wife left Hong Kong and her husband for good and has lived in France, supported by him, ever since. He has remained in Hong Kong.

2. Between about 1982 and 1988 negotiations took place in Frahce for an agreement as to the financial provision to be made for the wife with a view to a consensual divorce involving no allegation of fault. They proved abortive. On 12 September 1988 the wife caused a petition for divorce to be filed in the Hong Kong District Court. On about 10 October following the husband caused divorce proceedings alleging fault to be commenced in Paris. It is now common ground that both courts have the appropriate jurisdiction and reasonably obvious that two sets of proceedings are in the interests of neither party.

3. On 25 October 1988 the husband issued a summons seeking a stay of the Hong Kong proceedings which, after a number of procedural vicissitudes, was heard during November. On 30th of that month Judge Blackwell announced that the application would be dismissed and that he would give his reasons on 12 December. On that date the order was made and the reasons given and counsel for the husband asked for leave to appeal. He was told to make his request in writing. This was easier said than done as, on the same occasion, the judge ordered the proceedings to be transferred to the High Court. I can only construe what transpired as a refusal which meant that the husband had 14 days in which to ask this Court for leave to appeal pursuant to section 63(3) of the District Court Ordinance (Cap 336). In the event it took him some 63 days to issue the necessary summons seeking not only leave to appeal against the order of 12 December 1988 but also against two earlier orders refusing to grant adjournments and leave to file an Answer out of time. That application, dated 22 February 1989, came before one of the Vice-Presidents of this Court, sitting as a single judge, on 3 March and, upon undertakings having the effect of preserving the status quo, he adjourned it for hearing before a court of three.

4. Our hearing of that application has lasted for no less than four working days during the greater part of which we have been taken through evidence and authorities directly relevant to the merits of a substantive hearing of the proposed appeal. This was because one of the factors affecting the exercise of our discretion to extend time as well as to give leave is the existence of a good arguable case on any appeal. Others, in the context of extension of time, are the reasons for the delay and any prejudice suffered by the other party to the proceedings. C M Van Stillevoldt B V v E L Carriers Inc [1983] 1 WLR 207.

5. I am satisfied that the husband has a good arguable case and, having so concluded, the less said about material considerations, enforcement, discovery, practicalities, undertakings and the legal principles to be applied the better because my view is necessarily tentative and provisional and one or more of us may, in due course, be called upon to make definitive findings in this context.

6. If time is extended no appreciable prejudice will be suffered by the wife over and above the delay necessarily associated with a grant of leave and that resulting from the reduction in the aggregate assets of the parties attributable to the costs of a protracted application. Less readily determined is whether or not the husband has demonstrated reasons for his delay which would allow us to exercise a judicial discretion in his favour. Despite some inconsistent averments from his solicitor about the adverse effect of Christmas and the general workload on her ability to comply with the statutory provisions as to time the real reason for delay was the wish to await the outcome of the wife's concurrent challenge to the jurisdiction of the French Courts. A week after 15 February 1989, when it became known to the wife's solicitors here in Hong Kong that jurisdiction had been affirmed in Paris, the application for leave to appeal out of time was filed. This reason seems to me perfectly understandable albeit it involved deliberate neglect of the provisions of section 63 and considerable delay resulted. Had the French Court found the other way the grounds for seeking a stay in Hong Kong would have disappeared. There would have been no lis alibi pendens. What can legitimately and forcibly be criticised was the respondent's failure to disclose his reason for delay when expressly and repeatedly asked about his intentions by solicitors acting for the wife. I cannot, however, think for one moment that those solicitors were so naive as to be unaware of the reason for delay. By letter of 9 January 1989 the husband's solicitors indicated his continued intention to seek leave to appeal and, for her part, the wife postponed setting down her own Petition for hearing until after determination of the jurisdiction issue in the French Court. As has so often been said in this and other contexts each case must be determined on its own and often unique facts.

7. In this Court, as in the Court of Appeal in England, "... time is of the essence ... in all respects …" per Sir John Donaldson MR in A Co v K Ltd [1987] 1 WLR 1655 at p 1656. But in considering whether the Court will accept an appeal at all I think it right to adopt the approach of Lord Greene MR In re Berkeley deceased [1945] Ch 1 at p. 4 :

"If the Court, in the the light of (the whole of the circumstances) considers it just to extend the time then it will do so".

Even taking into account earlier failures by the husband to comply with orders within the time limited I am of the opinion that it is, in all the circumstances of this case, just that time should be enlarged to seek leave to appeal from the order of 12 December 1988 refusing a stay. I would therefore both enlarge time and grant leave to appeal against that order; Notice of Appeal to be lodged before 4 pm on Friday 12 May.

8. Insofar as the husband seeks leave to appeal against the orders of 17 and 22 November 1988 out of time I find no basis for the exercise of our discretion in his favour and would dismiss the application.

Clough, J.A.:

9. I would not have acceded to this application for extension of time for leave to appeal against the three relevant orders of His Honour Judge Blackwell made on the 17th and 22nd November 1988 on the adjournment issue and on the 12th December 1988 on the stay issue. As the other members of the court have arrived at a different conclusion I shall confine myself to giving brief reasons for my opinion.

10. When deciding whether or not to extend time in a case such as this the court has a discretion to exercise and it has to look at all the circumstances of the case, including (1) the length of the delay; (2) the reasons for delay; (3) the chances of an appeal succeeding if time is extended and (4) the degree of prejudice to the respondent if time is extended. It then has to decide whether it will in all the circumstances of the case be just to extend time : see In re Berkeley [1945] Ch. 1 (C.A.) and c.f. C.M. Van Stillevoldt B.V. v. E.L. Carriers Inc. [1983] 1 WLR 207 and Palata Investments Ltd. v. Burt & Sinfield Ltd. [1985] 1 WLR 942 (C.A.).

11. In the present case I would accept that the husband has an arguable case for contending that the judge's decision was wrong on both the adjournment and stay issues. I would also accept that the wife cannot show any appreciable degree of prejudice arising if time is extended, apart from the inevitable prejudice that befalls any respondent who has obtained judgment and is faced with an appeal.

12. However, in my judgment, the length of the delay and the reasons for it advanced on behalf of the husband's lawyers are wholly unacceptable in all the circumstances. The first process towards obtaining leave to appeal out of time on behalf of the husband did not issue until the 21st February 1989. That was in the erroneous form of an ex parte originating motion, but it clearly indicated that some form of application was being made.

13. The application was made about three months after the orders made on the 17th and 22nd November and more than two months after the order made on the 12th December. Mr Allman-Brown has advanced various arguments, which I do not find sustainable for contending that the husband should be treated as having 28 days from the 12th December 1988 to apply to this court for an extension of time for leave to appeal, as a result of the judge having transferred the case to the High Court on the 12th December 1988.

14. However, on his own admission this application is 44 days out of time. This is very substantial delay when s.63 of the District Court Ordinance (Cap. 336) provides a time limit of 14 days for applying for leave to appeal, initially to the District Court Judge and then, upon his refusal, to this court.

15. What is the explanation for the delay? Reliance is placed on the intervention of the Christmas holidays and pressure of work for the initial delay. That is not an acceptable excuse. As regards the remainder of the delay evidence has been filed to the effect that the husband's counsel and solicitor made a deliberate decision to defer applying for leave to appeal until the outcome of a stage of pending divorce proceedings between the parties in a French Court was known. It is further deposed to that the husband's lawyers did not know of the successful outcome of the French proceedings (in which the French court rejected the wife's contention that it was without jurisdiction) until the 15th February 1989, although the French court had given its decision on the 8th February. The reason for the failure by the husband's French lawyers to communicate the result of the French proceedings is deposed to be "For reasons not yet explained".

16. It is contended in the evidence of the husband's solicitor that the reason for the delay in this matter and for the lull in the Hong Kong divorce proceedings was that both sides were waiting for the decision of the French court on the jurisdiction issue.

17. I am wholly unable to accept this contention on the evidence before this court. Moreover, after the husband's solicitor had referred in a letter dated the 9th January 1989 to "the assumption that our client continues to challenge the Hong Kong Court as the appropriate forum and this matter proceeds to appeal....", the wife's solicitors adopted a very clear stance in their letter dated the 16th January 1989. In that letter they pointed out that the time for applying for leave to appeal had expired. They concluded with the following words:

".... We feel it is therefore pertinent to ask whether your client does in fact intend to make an application to extend the time for that purpose and if so what steps have been taken to effect that course of action.

    We are not prepared to allow this case to stand in abeyance whilst your client at best prevaricates and at worst attempts to frustrate and ignore the Orders of the Hong Kong Court.

    We suggest you seriously address yourselves to the issues in this matter and advise us what steps your client intends to take.

    We would further remind you that you have an application on file to apply for leave to file your Answer out of time dated as long ago as 3rd November 1988. If you do not intend to pursue that application you are under a duty to inform us and the Court."

There was no response whatsoever to these demands.

18. Furthermore, on the 3rd January 1989 the husband's solicitor had sworn an affidavit in the French proceedings in which she had referred to the judgment of His Honour Judge Blackwell as being "in the course of being appealed". At the material time that was certainly not the position.

19. The reasons for prescribed time limits for appeals and related applications are too obvious to be re-stated now. In this case it seems to me that the husband's lawyers have really arrogated to themselves the right to make their own rules and to apply for leave to appeal out of time and when they considered it appropriate.

20. Whatever may be the merit t of their proposed appeal I do not consider that this court should countenance such conduct which amounts, in my view, to a deliberate and inexcusable breach of the rule's governing appeal procedure. Whilst I have sympathy for the husband in such a situation I would have dismissed this application on the ground that justice does not require that a party whose lawyers do not find it necessary to comply with the time limits imposed by the rules governing appeals until it becomes convenient, should nevertheless be granted leave to appeal out of time. This would be a dangerous precedent.

21. For those reasons I would have dismissed this application.

Macdougall, J.A.:

22. I agree with what my Lord Kempster has said. There is nothing that I can usefully add. I too would grant leave to appeal out of time and to the extent that he has indicated.