LEONORAH BOULTER v. CHRISTOPHER COMPTON STANLEY

HCMP 1296/2008

in the high court of the

hong kong special administrative region

court of appeal

MISCELLANEOUS PROCEEDINGS no. 1296 of 2008

(on an intended appeal from hca NO. 765 of 2005)

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BETWEEN

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D E C I S I O N

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1.  This is an application for leave to appeal out of time from an assessment of damages in a libel case.  That assessment was heard exactly two years ago and the judgment was given on 31 July 2006.  The case arises out of a minor disagreement and a fracas between two former directors of a company.  The plaintiff, who was one of the directors, sued the defendant, who shortly before had been another of the directors.

2.  It is the defendant’s submission that because of a misunderstanding between him and his former solicitors a judgment on liability was entered by consent.  However, nothing was done about that and then there was an assessment of damages.  I have no idea how old the defendant is, but he was suffering from a heart condition and apparently had a heart operation in the United Kingdom.  At the time when the assessment was made he had written to the plaintiff’s solicitors to say that he would not be there.  He appears to have assumed that that would be good enough to get an adjournment, but of course it was not, and he by then apparently was unrepresented so a judgment was entered in the sum of $30,000 for the libel, which reflects the minor nature of this whole incident, and, surprisingly, $150,000 for aggravated damages.

3.  I have looked at the judgment.  I have to say, in fairness to the defendant, that had this been a minor incident of delay, having looked at the assessment I would have given leave to appeal because I consider that there are probably a number of irrelevant matters which were taken into account in assessing the aggravated damages.

4.  Be that as it may, the next step that the defendant took was in September of that year, when he wrote to the Master saying that he had been away.  The Master wrote back promptly and told him to appeal.  That he never did.  Eventually, bankruptcy proceedings were taken and now, two years after the assessment of the damages, the defendant seeks to appeal.

5.  I regret that I take this decision simply on the basis it is too late.  Life has gone on.  These are, dare I say, not excessive amounts and certainly not excessive amounts when one takes into account the legal costs involved.  Mr Pierrepont, who has said just about everything he could on this application, has indicated that the plaintiff is unlikely to get anything out of the bankruptcy, even if the defendant is made bankrupt.  I am not entirely sure whether that is because the defendant has no assets in the jurisdiction or no assets at all, but in my view there is only one course that can be taken on this occasion and that is not to accede to this application for leave to appeal out of time.