WONG HON SHEUNG v. DAIKACO CO. LTD. and Others

IN THE COURT OF APPEAL

1997, No. 33
(Civil)

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D E C I S I O N

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Nazareth, V.-P. (giving the judgment of the Court) :

1. On 24th December 1996 Findlay J dismissed the plaintiff's claim and entered judgment for the defendants. Notice of appeal was filed by the solicitors for the plaintiff on 4th February 1997. On the same day it was served upon the solicitors for the respondents.

2. No notice of setting down having been received by them, the solicitors for the respondents caused a search to be made by one of their clerks of the court file in the Court Registry. They found in that file only one notice of appeal which had upon it two endorsements. One was in manuscript by "Stanley Chan, clerk to Messrs Karbhari & Cham", the plaintiff's solicitors, certifying that he had served the notice upon Messrs Richard Tai & Co, solicitors for the defendants on 4th February 1997. The other was a mechanically endorsed receipt of the court's fees of $1,045 by the Supreme Court Accounts Office on 4th February at 15:29.

3. The respondents' solicitors therefore not unreasonably concluded that the appeal had not been set down. About the middle of March they had a further search made of the court file only to find that the situation was exactly the same. Accordingly on 19th March they wrote to the plaintiff's solicitors complaining that the appeal had not been set down. No reply to that letter was ever received. Subsequently the respondents' solicitors made yet another search of the court file and the position being unchanged, they took out a summons on 14th June 1997 seeking an order first that the appellant's notice of appeal be struck out for failure to set down the appeal as required by O59 r5 of the Rules of the Supreme Court. And second, in the alternative, that the appellant give security for the respondents' costs.

4. The submissions before this Court of Mr Kenny C.P. Lin for the respondents were in substance that the appellant had not lodged the documents in conformity with O59 r5(1) of the Rules of the Supreme Court (now High Court) upon which the Registrar had to set down the appeal, and secondly, that it is now too late for the delay to be excused. Order 59 r5 reads as follows:

"5. Setting down appeal

(1) Within 7 days after the later of (i) the date on which service of the notice of appeal was effected, or (ii) the date on which the judgment or order of the Court below was sealed or otherwise perfected, the appellant must lodge with the Registrar-

(a) a copy of the said judgment or order, and

(b) two copies of the notice of appeal, one of which shall be indorsed with the amount of the fee paid, and the other indorsed with a certificate of the date of service of the notice.

(2) Upon the said documents being left, the Registrar shall file one copy of the notice of appeal and cause the appeal to be set down in the list of appeals; and the appeal shall come on to be heard according to its order in that list unless the Court of Appeal or a judge of that Court otherwise orders.

(4) Within 4 days after an appeal has been set down, the appellant must give notice to that effect to all parties on whom the notice of appeal was served."

5. Mr Lin submitted that only one copy of the notice of appeal had been submitted, and that both endorsements had been made on that same copy. The Registrar therefore was not empowered to cause the appeal to be set down in the list of appeals. Moreover, he submitted that there was no evidence that the Registrar had in fact set down the appeal in the list of appeals.

6. We pause here to say that after we had heard the submissions of counsel on both sides, we reserved judgment in order to enable, with the consent of both parties, enquiries to be made with the High Court Appeals Registry as to the procedure adopted with respect to the filing of the notice of appeal and setting down. Those enquiries revealed what had not been discovered before, that the file had been endorsed "set down in the appeal list on 4th February 1997". Accordingly, the solicitors and both parties were notified of this result and offered the opportunity to make submissions orally or in writing. Only the respondents' counsel availed of the offer and put in written submissions which we have taken into consideration.

7. It is clear that the registry staff did not have strict regard to the provisions of O59 r5. Only one copy of the notice of appeal was lodged. Moreover, both the required endorsements were made on that copy instead of one endorsement upon one of the two copies required to be lodged and the second on the other.

8. Moreover, Mr Lin also submitted that since the notice of appeal was served on the respondents' solicitors at 5:10 pm on 4th February 1997 as clearly stated in the affirmation of the appellant's solicitors' clerk who served it, the appeal could not have been set down before the notice of appeal was served. That may be so since the registry would have closed at 4:15 pm and there is no evidence of any leave having been given to file or lodge any document after 4.15 pm. On the other hand, the notice of appeal might have had the certificate of service endorsed upon it before it was lodged. It appears also that registry staff have sometime at least allowed notices of appeal to be filed upon undertakings or an understanding that they will be served on the same day; and likewise that judgments not yet sealed will be filed upon being sealed. All this still leaves unanswered the question of how or when Mr Chan came to endorse the notice of appeal to the effect that the respondents had been served on 4th February. That does not require the disposal of this appeal to be further delayed. We pause again to say that the departures from strict compliance with the requirements of r5 by registry staff have as a result of this case been investigated and measures are being taken to ensure proper compliance.

9. In the light of the foregoing which are accepted by the parties, it seems to us that the extent of non-compliance with r5 is such that the notation on the file that the appeal had been set down, must be regarded as devoid of effect. However, bearing in mind that the appellant took all the steps to set down the appeal that were apparently permitted by the registry staff on a fairly general and probably known basis, and bearing in mind that he must have believed that he had done so, we would grant the appellant an extension of the time necessary to file his notice of appeal in a manner strictly complying with the requirements of r5. Hopefully that will bring these proceedings back on track.

10. We do not understand Mr Lin to pursue the matter of security for costs and We would make no order in that regard.

11. As to costs, it seems to us that the fault is to be partly attributed to the practices permitted by the registry, compounded by the applicant's disregard of the clear requirements of r5 and the failure to respond to the respondents' solicitors' letter of 19th March. Although, therefore, the respondents' application has failed, it seems to us that the proper order that should be made is that the costs of the summons be costs in the cause of the appeal.

12. Before we leave this matter, we think it opportune to echo the suggestion that Cons V-P made in Chan Cheryl v Ngai Po-lun Paul [1990]1 HKC 148; 154B, that the Rules Committee might reconsider the wording of O59 r5, which he observed 'seems more appropriate to the English practice in which, in particular, the Registrar of Civil Appeals, an officer whom we do not have as such in this jurisdiction, plays a significant part.' The fact that the difficulty in that case involved a different aspect of r5, only goes to show that there may be more than one feature to be reconsidered.