ERIC EDWARD HOTUNG v. ANTHONY ERIC RYAN HOTUNG AND OTHERS

HCA571/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

ACTION NO. 571 OF 2003

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R U L I N G

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1.  I take the view that this application is, in fact, I am sorry to say, misconceived.  The matter before me on the appeal was whether I felt able, in all the circumstances, to overlook certain defects in the affidavit. And as appears in my judgment, I took the view that it was proper to overlook them.  Then there was the separate point as to whether it was necessary to have an apostille and I took the view that this was not necessary in these particular circumstances.

2.  What has now happened is that the defendants’ solicitors acting on behalf of the 2nd, 3rd and 5th defendants wish an extension of time so that they may lodge an appeal against that decision by me.  Time expired on 8 December, and I am told and, of course, I accept that under Order 59 rule 7 there is in fact no need to ask for leave to appeal notwithstanding that this is very much an interlocutory order and this could have been done in good time.  What Mr Peaker says is that this has all come about as a result of a letter that was written by the plaintiff’s solicitors to his firm, dated 5 December, stating a position, in paragraph 2, that they took the view that on the evidence no issue was raised as to the fact that a settlement on costs between the 3rd and 5th defendants and the plaintiff had been reached.  That, they say, is a bare statement of fact; it is not accepted by the defendants, of course, and as a result of that they applied, as a matter of urgency, for a transcript of the appeal before me to be prepared so that they could know precisely what was submitted on behalf of both parties before me. They do not accept that this is the position at all.  Really, this is the reason why they seek an extension of time so that they can have time to consider the appeal and consider their position.  It seems to me that this is entirely misconceived.

3.  The question of an appeal from my order must turn entirely on the correctness of the order that I made and whether I was correct to have exercised my discretion to overlook the irregularities on the face of the affidavit and whether I was correct in saying that an affidavit sworn in the State of New York did not, in fact, require an apostille, having regard to the provisions which deal with the admissibility of affidavits as set out in the particular rule of the High Court.

4.  This point as to the effect of the letter of 5 December can all be dealt with.  The affidavit will go in before the Master on the taxation.  I am told there is a summons taken out by the plaintiff to strike out the bill of costs.  It is very much a question of fact as to whether such a settlement was arrived at.  My own recollection is that the point was certainly not conceded by Mr Egan on the appeal before me, and I think that is going to be borne out by the transcript, and the Master himself, on hearing the summons to have the bill struck out, will, no doubt, as a matter of case management decide whether this issue of fact, as to whether a settlement was arrived at or not, will need to be determined before he goes any further.  That point, therefore, is entirely available to the defendants to take.  They are not in any sense prejudiced by the outcome of the appeal before me; the appeal only determined that use could be made of the affidavit, notwithstanding its defects.

5.  The other point that I ought to make is that where time has now run its course, it is only right that there should be an explanation for the delay.  Some explanation is now forthcoming from Mr Peaker but it seems to me that where I am exercising a discretion I need to be shown grounds of appeal to show that there is reasonable merit in the appeal from my order and I have got no such grounds.  So that is an additional reason for dismissing the application, which I do, with costs.