LAM WING YEE v. CITY SUPER LIMITED

CACV 550/2019

[2021] HKCA 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 550 OF 2019

(ON APPEAL FROM HCPI NO 523 OF 2016)

____________

____________

________________________

_________________

D E C I S I O N

_________________

1.  Further to my decision dated 12 August 2021 ([2021] HKCA 1198) temporarily staying the defendant’s application for security for costs of the appeal, it remains for me to deal with the plaintiff’s application for leave to file and serve an affirmation in opposition to the defendant’s application for security for costs.

2.  On 27 April 2021, Master Ho made an order that unless the plaintiff do file and serve her affirmation in opposition to the defendant’s summons for security for costs by 4 pm on 14 May 2021, she shall be debarred from doing so.  The plaintiff was legally represented at the time, albeit on a pro bono basis, but she did not file any affirmation in opposition by the stipulated time.  Instead, her solicitors had written to the court asking for a stay of the defendant’s application for security pending her legal aid appeal and, on 14 May 2021, filed a summons on the plaintiff’s behalf asking for a stay and an extension of time for the plaintiff to comply with the unless order pending her legal aid appeal.  The sanction provided for in the Master’s unless order had automatically taken effect.

3.  The plaintiff’s legal aid appeal failed on 29 October 2021.  The defendant’s application for security for costs therefore needs to be dealt with.  Pursuant to my directions, the plaintiff (acting in person) lodged submissions on 17 December 2021 as to why she should be allowed to file an affirmation in opposition despite the sanction under the unless order.  She stated that her lawyers were trying to obtain a stay at the time, and that she now has the assistance of the clinical legal education office of the University of Hong Kong and hopes to be able to lodge, with their assistance, arguments for her appeal and an affirmation to set out her reasons for opposing the application for security for costs.

4.  In my view there is no good reason to relieve the plaintiff from the sanction under the unless order having regard to all the circumstances including the matters set out in Order 2 rule 5 of the Rules of the High Court (Cap 4A).  The plaintiff knew of the unless order and the consequences of non-compliance.  The plaintiff’s lawyers could have filed an affirmation in opposition within time or sought an extension of the deadline.  Instead they chose to file a summons for stay, knowing that that summons did not have the effect of suspending time.  The sanction is not, in my view, disproportionate.  The plaintiff is simply debarred from filing an affirmation in opposition.  She is not debarred from opposing the application with submissions and arguments.  Indeed, an affirmation is supposed to contain evidence of facts rather than arguments. 

5.  In the skeleton argument lodged by her solicitors on 18 June 2021, some arguments on the quantum of security had already been put forward.  I give leave for the plaintiff to lodge within 21 days supplementary written submissions in opposition to the defendant’s application for security for costs.  Unless otherwise directed, the application will thereafter be determined on the paper.