NATHANIEL LYMER v. THE MASS TRANSIT RAILWAY CORPORATION AND OTHERS

CACV 304/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 304 OF 1999

(ON APPEAL FROM HCPI NO. 1137 OF 1998)

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J U D G M E N T

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The application

1. On 1st September 1999, Suffiad J. dismissed the Plaintiff's claim against the 4th and 5th Defendants for want of prosecution. His order was sealed on 18th September. The order was an interlocutory one. Thus, if the Plaintiff decided to appeal against the order, he had to serve the Notice of Appeal by 2nd October: see Ord. 59 r. 4(1)(a). In fact, it was not served until 29th October. Accordingly, the Plaintiff now applies for an extension of time for serving the Notice of Appeal. If he does not get that extension, he will not able to pursue the appeal at all.

The reason for the delay

2. The reason why the Notice was not served by 2nd October was because counsel for the Plaintiff (not Miss Corinne Remedios who appears for the Plaintiff today) thought that the Plaintiff had 6 weeks from the sealing of the order, not 14 days, to serve the Notice of Appeal. That is because she mistakenly thought that Suffiad J.'s order had not been an interlocutory order. Mr. Adrian Huggins S.C. for the 4th and 5th Defendants points out that there is no satisfactory evidence as to how counsel made that mistake. Did she just assume that the order was not an interlocutory one? Or did she look up the point and take an erroneous view of the materials she read? For my part, I do not think that that matters very much. What does matter is that the Plaintiff would indeed have had 6 weeks to serve the Notice of Appeal if Suffiad J.'s order had not been an interlocutory order. Therefore, if the Plaintiff had had 6 weeks to serve the Notice of Appeal, the Notice of Appeal would have been served in time. It is true that the Director of Legal Aid informed the Plaintiff's solicitors on 20th October that Suffiad J.'s order was an interlocutory order, but even if the Plaintiff's solicitors had acted on that advice immediately, it may have been too late for the Notice of Appeal to be served earlier than it eventually was. What all this demonstrates is that none of us are infallible. Like anyone else, even experienced and highly competent counsel can occasionally make mistakes.

The effect of the delay

3. Fortunately, the delay was not all that long, and I do not believe that it can be said that the 4th and 5th Defendants have suffered any relevant prejudice other than prejudice of a minimal kind. It is true that by a letter dated 15th October and sent to the 4th Defendant in England, the 4th Defendant was informed that the time for the Plaintiff to appeal had expired. But it is not suggested that the 4th or 5th Defendants had been prejudiced by reason of the fact that the setting down of the appeal will now take place a few weeks later than it would have been set down if the Notice of Appeal had been served in time - apart, of course, from prejudice of the same kind which caused the judge to dismiss the action against the 4th and 5th Defendants for want of prosecution. As for that, I doubt whether a few weeks' further delay will have any additional impact on the recollection of the witnesses. If their memories are poor now, the damage will already have been done a few weeks ago. If it is not that poor now, the additional few weeks would not make any significant difference.

The merits of the appeal

4. In the balancing exercise which I have to conduct, I have taken into account the merits of the Plaintiff's appeal. I have not considered the merits at too great a length because otherwise this application would have turned into a mini-hearing of the appeal. But the conclusion which I have reached is that the Plaintiff has a sufficient chance of success so as to tip the scales in favour of granting the Plaintiff the extension of time which he seeks. That chance principally relates to the argument that the judge erred in concluding that such inordinate and inexcusable delay as he found there had been had resulted in prejudice to the 4th and 5th Defendants. It is, I believe, arguable that the judge erred in failing to consider whether the recollection of the witnesses had already become irretrievably damaged by the time when that inordinate and inexcusable delay began.

5. As for the other aspect of prejudice, namely, the continuing worry which a professional man has when faced with proceedings which call into question his professional competence, the fact is that it is arguable that that worry will continue as a result of the contribution notice served on the 4th and 5th Defendants by the other Defendants. I appreciate that the remarks made by Glidewell L.J. in Draper v Ferrymasters Ltd. [1993] P.I.Q.R. P356 at p.367 have a bearing on this argument, but at present it is just not possible to assess the argument without further and more mature consideration.

Conclusion

6. In short, denying the Plaintiff an extension of time, and therefore denying him the opportunity to mount an appeal which has a chance of success, would in my judgment be out of all proportion to the need to mark the importance that time limits be complied with, when (a) the mistake was that of the Plaintiff's counsel, (b) the delay was not all that long, and (c) the relevant prejudice to the 4th and 5th Defendants caused by the delay is minimal, if not non-existent. Accordingly, I extend the Plaintiff's time for serving the Notice of Appeal to 29th October, which was the date on which the Notice of Appeal was in fact served.