XCHRX ROBERT JAMES BROOK v. THE LAW SOCIETY OF HONG KONG

IN THE COURT OF APPEAL

1997, No. MP 3626

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J U D G M E N T

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Mortimer, V.-P. :

This is an application inter partes for leave to appeal out of time. The appeal proposed is against an order of Keith J refusing the applicant judicial review of a decision of the Law Society in which it refused to admit the applicant as a solicitor.

The background

2. The applicant aspires to be admitted as a solicitor in Hong Kong. He has passed the local examination but the Law Society decided that he had not completed - as I understand it - sufficient service as a trainee or had sufficient experience in the jurisdiction of his admission and were not disposed to waive this requirement. The Law Society had issued him with a certificate of apparent eligibility to enable him to take the examination.

3. He sought judicial review of the Law Society's decision to refuse to admit him, taking two points:

(1) That the Law Society, having issued a certificate of apparent eligibility, could not then say later he was not eligible; and

(2) That he had a legitimate expectation that if he passed the exam, he would be admitted.

4. The hearing before Keith J took place on 27 June 1997. He gave judgment on 14 July 1997 against the applicant. The judge's order was perfected on 30 July 1997 so that if the applicant wished to appeal against the judge's order, time began to run on 30 July. Time expired on 10 September.

5. The applicant seeks leave from this Court for an extension of the time for appealing on the basis that he, through his solicitors, applied for legal aid on 11 August - that is some 11 or 12 days into the time for appealing. The Legal Aid Department failed to grant him a legal aid certificate until well after the time for appealing had expired. The legal aid certificate was granted on 26 September 1997 and his solicitor received the certificate on 30 September.

The chronology

6. It is useful to set out the chronology of events which is to be found in Suzanne Gardner's affidavit.:

(1) 14 July 1997. Keith J's judgment, dismissing the applicant's application for judicial review.

(2) 30 July 1997. Keith J's order sealed.

(3) 5 August 1997. An opinion from senior counsel on the merits submitted to the Legal Aid Department.

(4) 11 August 1997. A letter from the applicant's solicitor to the Legal Aid Department requesting that an application for legal aid be dealt with expeditiously in light of the time limit for appealing.

(It is to be noted the solicitor did have in mind the time limit for appealing on 11 August.)

(5) 11 August 1997. The same day, the Legal Aid Department issued a notice of application for legal aid.

(Mr Dykes pointed out that the notice was headed "Legal Aid Ordinance Cap. 91" followed by the words "under section 15, regulation 7(a)". That was inappropriate in this case, because those provisions if relevant would involve an automatic stay of proceedings. I understand Mr Dykes was suggesting that perhaps the Legal Aid Department thought the proceedings were stayed and therefore expedition was not essential.)

(6) 26 August 1997. The solicitor wrote again to the Legal Aid Department asking for the application to be dealt with expeditiously.

(7) During the first half of September. This must include the date when the time for appealing expired. There were negotiations between the solicitors and the Legal Aid Department about the level and timing of the applicant's contribution.

(8) 26 September 1997. Legal aid certificate granted.

(9) 30 September 1997. That certificate received by the solicitors.

(10) 13 October 1997. Instructions sent to senior counsel upon receipt of instructions from the applicant who was abroad.

(11) 16 October 1997. Advice from senior counsel to say - although it was no doubt known already to the solicitors - that the applicant was out of time and that an application for extension should be made if the Law Society did not consent. He was drafting a notice of appeal.

(12) 16 October 1997, the same day. Letter from the solicitors to the solicitors for the Law Society, asking for consent to an extension of time.

(13) 21 October 1997. Letter from the Law Society to the solicitors refusing consent.

(14) 27 October 1997. Instructions received from the applicant (after his return from abroad) to draft the summons for extension of time. That summons was issued - an ex parte summons on 29 October.

(15) 5 November 1997. An inter partes summons was issued. The summons I am concerned with today.

The principles

7. In order for me to exercise my discretion in the applicant's favour, I have to consider a number of matters. Obviously I have to consider the length of delay. Secondly, I have to consider the reasons for delay. Thirdly, I have to consider the chances of success on appeal. Finally, I have to consider whether there is any prejudice to the respondent in the failure to appeal in time. It is to those matters that I now turn.

Delay

8. First, the length of delay. The length of delay was from the end of time for appealing to 29 October. That was a period between, I suppose, six and seven weeks - about the same length of time as the applicant had for appealing. That is not, however, the only length of time that has to be examined by the court. It is also appropriate to consider the time which the applicant had for appealing, that is from 30 July to 10 September. Also, it is not wholly irrelevant to note in passing that the judge gave his decision on 14 July, some two weeks before the order was sealed. So the applicant had that time also to prepare himself for appealing if he wished to do so.

9. As to the length of delay, I would say that it is not insignificant but not of such length that I would say this application is out of court simply because of it. Obviously, I must consider the other factors.

The reasons for delay

10. I turn in those circumstances to perhaps the most important matter which is the reasons for delay. One must start as judges often do when considering such an application. Time limits are prima facie to be observed. Time limits are laid down for the orderly conduct of litigation. So that the parties know where they are. If a party has won in litigation, he is entitled to assume - if time expires and a notice of appeal has not been filed - that the matter is at rest. That he has won and that there is no appeal. That applies even if as in this case, he was notified that an application for legal aid was being made. The Law Society was informed on about 11 August that an application for legal aid would be made. That is a neutral matter. It would be quite different if during the period for appealing an application had been made either to the court or in correspondence for extension of time. That is sufficient to indicate to a winning litigant that an appeal is still alive.

11. But those are matters by the way. They are not matters upon which I would seek to decide this particular application. I turn to reasons relied upon.

12. The main reason advanced was that there was an application for legal aid and the applicant was not in a financial position to pursue litigation without the backing of the Legal Aid Department. To that effect the application was made on 11 August. The Legal Aid Department was told that an expeditious decision was required in the light of time for appealing. I am prepared to assume that the Legal Aid Department knew at that time that 10 September was when time would expire. Further on 26 August the Legal Aid Department were again asked to deal with the application expeditiously. I am not aware whether they were told again about the time limit for appealing. The affidavit is silent on that matter. But from early to mid-September there were negotiations between the Legal Aid Department and the solicitors about the contributions. There is a surprising reticence in the affidavit as to what was taking place over this vital time - from 26 August to 10 September - about the legal aid certificate. The solicitors ought to have been losing sleep over of this matter by that time for it is not the responsibility of the Legal Aid Department to file a notice of appeal. Notices of appeal have to be filed by applicants, or more particularly by their solicitors. There is, therefore, a strange absence of any explanation as to why the notice of appeal was not filed within time. The only explanation is that there was a legal aid application. That of itself is of course some explanation. It is not a good explanation without something further. There was no letter to the respondent asking for an extension of time on the basis that legal aid was still being considered. Nor there was an application to the court within time asking for an extension on that basis. If the applicant and his solicitors were mindful of trying to fulfil their duties within the time limits imposed by the rules, it is to be expected normally that they would take steps of that kind within the time for appealing. From mid-September to 26 September there is no indication what was happening save the awaiting of the issue of a legal aid certificate. The affidavit is silent whether there had been any indication that the legal aid was to be granted or not granted, so I am in the dark about that. But the legal aid certificate was given on 30 September.

13. Thereafter one would have expected a good deal of urgency in the activities of the applicant and the solicitors. But there was still a fairly relaxed attitude to the matter. Not until 13 October were instructions sent to leading counsel, and that was because by then written instructions had been received from the applicant. I find it difficult to understand why written instructions were necessary at that stage because instructions to appeal must have been given very long time before.

14. Thereafter the matter proceeded with appropriate speed. At any rate I am not prepared to take any other time delay against the applicant although it is to be noted that where the time for appealing is six weeks, a week's delay is not something that can be simply swept under the carpet.

15. On the reasons for delay my view is simply that no good reasons for the exercise of my discretion in the applicant's favour have been made out. The waiting for a legal aid certificate and allowing time to pass without doing anything is insufficient reason for not putting in the notice. Certainly when no application for extension was made and no letters were written within the time for appealing.

The chances of success

16. But that is, of course, not the end of the matter. I have to look at other things. Such relatively unacceptable reason for delay may become sufficient if, for example, the chances of success of the appeal were so high that to shut out a person would be a substantial injustice. So what about the chances of success here? A judge sitting alone on this sort of application has a limited opportunity to assess the chances of success. What I can say is simply this. This is not a case which strikes me as being a case where the chances of success are overwhelming. I expressed the view in the course of argument that there is an arguable case. I think that it is the proper way of putting it. There was an arguable case below as well. A well reasoned argument was put forward by Mr Dykes below, but it can also be said that the judge's reasons were careful and comprehensive. I am not able to say that there is any real likelihood of success though there is an arguable case.

Prejudice to the respondent

17. Finally, prejudice to the respondent. In this particular case, as I have said during Mr Dyke's argument, there is no prejudice to the Law Society involved in this delay.

Conclusion

18. Balancing all those matters, I would simply say this. My discretion is just engaged. There is just enough in all I have heard to enable me to exercise my discretion. But at the same time, having said that, I unhesitatingly exercise my discretion against the application for the reasons, I hope, I have set out.

19. This application is refused.

20. I see no grounds why the order for costs should not follow the event. The Law Society in those circumstances will have the costs of this application. The applicant's costs will be taxed in accordance with the Legal Aid Regulations.