ALVAREZ & MARSAL ASIA LTD v. NICHOLAS TIMOTHY CORNFORTH HILL

HCMP2461/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2461 OF 2006

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D E C I S I O N

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1. Officially one matter is listed before me today, namely HCMP2461/2006.  However, in reality the papers placed by the parties before me covered four matters.  Apart from HCMP2461/2006, there are three other actions : HCA56/2007, HCA57/2007 and HCMP73/2007.  The parties in these matters are Mr Nicholas Timothy Cornforth Hill (“Mr Hill), Alvarez & Marsal Asia Limited (“A&M”) and HBFP Limited (“HBFP”).  Their roles as plaintiff and defendant sometimes are reversed in different actions and I shall refer to them by their abbreviated names. 

2. Mr Hill and HBFP are represented by Messrs Richards Butler and A&M are represented by Messrs Jones Day.  The actions all concerned the aftermath of Mr Hill’s retirement from, and transfer of, a business.  The details do not matter and I shall say little about them.

3. The matter before me is listed for a 15-minute hearing only.  The parties had, for some time prior to today’s hearing, by correspondence reached an agreement in principle that no substantive argument should take place today and the hearing should be adjourned for argument with three hours reserved.  There is also a summons for specific discovery, issued in HCMP2461/2006, and the agreed time estimate for that summons is 30 minutes.  It has been agreed that such 30 minutes was to be subsumed within the three-hour estimate and not in addition to the three-hour estimate.  To put the point shortly the adjourned hearing of all the matters before me is going to be for three hours as opposed to three and a half hours.

4. One matter stood in the way of resolving today’s hearing by consent summons and I was called upon to rule on it.  The issue is whether or not the order for adjournment should contain a specific direction that the adjourned hearing should be heard by Poon J.  Mr Hill and HBFP wanted the matter to be adjourned to Poon J.  A&M wanted the matter to be simply adjourned for argument before any companies judge.  A&M are not opposed to Poon J hearing the matter : they simply say that the fixing of date and the listing before a judge should, in this case, take its natural course and that the adjourned hearing should be heard by any companies judge who is available.  That judge may or may not be Poon J and at the adjourned hearing that judge may or may not choose, upon hearing submissions, to reserve the subsequent conduct of these matters to himself.

5. Somewhat ironically today’s hearing was initially fixed to be heard by Poon J but was transferred to be heard by me because Poon J is otherwise engaged.

6. Mr Beresford for A&M and Mr Manzoni for Mr Hill and HBFP had articulated the arguments for and against adjourning the matter to be heard by any companies judge as opposed to only by Poon J.  

7. I have considered all the matters that put before me and the materials placed before me in the hearing bundle.  In the exercise of my discretion, I have decided that the matter should be adjourned but not be heard only by Poon J.  In other words, I have decided that the matter should be adjourned for argument to be listed before any judge for the reasons I outlined briefly below.

8. In this saga the only occasion when the name of Poon J has been expressly mentioned in an order is at a directions hearing in HCA56/2007 and 57/2007 which took place on 7 May 2007.  In this regard I am aware that Master de Souza, in the hearing earlier this month dealing with the discovery summons, also adjourned that summons to be heard by Poon J this morning, but that reference to Poon J is readily explicable because by the time Master de Souza heard that summons it must have been obvious that Poon J is going to hear these matters this morning and as a matter of convenience Poon J’s name was mentioned in Master de Souza’s order. 

9. But putting that to one side, I now come back to the summons for direction’s hearing in HCA56/2007 and 57/2007.  On that day Mr Registrar Chan ordered that the summonses for directions in those two actions be adjourned to be heard by Poon J, naming him expressly with 30 minutes reserved.  I was told that this was or might have been because of an unspoken understanding between the parties before Mr Registrar Chan that because Poon J has previously on 26 April 2007 handled HCMP2461/2006 as well as HCMP57/2007 at a directions hearing, those two HCMP matters would somehow go back to be heard by him in due course.  Further, since it was envisaged that HCA56/2007 and HCA57/2007 should also be dealt with together with those two HCMP matters, Poon J’s name was expressly mentioned in Mr Registrar Chan’s order for directions. 

10. But even assuming that to be the case, the adjourned hearing directed by Mr Registrar Chan had already taken place before Poon J on 1 June 2007.  On that occasion Poon J further adjourned part of the summons for directions in those two actions and a counter-notice for directions to be heard at the same time as the summons for directions in HCMP2461/2006.  That order did not reserve the matter to Poon J himself.  The adjourned hearing contemplated by Poon J therefore could have been heard by any judge who was allocated to hearing.  The Notice of Appointment happened to have Poon J’s name written on it but that is not the same as a judicial order stating that a case must or can only be heard by a particular judge.

11. One frequently encounters the situation where a summons or notice of hearing bears the name of a particular judge but that is not binding, and there is no guarantee one will get the judge written on the Notice or Summons.  As I have said, the matter has now ended up before me.  I therefore do not place a lot of weight to the historical fact that Poon J’s name was expressly mentioned in Mr Registrar Chan’s order for directions or to the fact that Poon J had in fact heard the adjourned hearing adjourned from Registrar Chan.

12. As a substantive reason Mr Manzoni suggested that Poon J has already had a grasp of the actions and their interrelationship.  It was said that the background to these actions is complex and it would be conducive to the economic and expedient disposal of the matters if the matters were to be heard by a judge who has already had a grasp of the matters. 

13. I do not underestimate the usefulness of having a judge who has had a grasp of the underlying issues and the facts of an action but it must always be a matter of degree.  In the present case it may be an invidious thing for me to say, but from what I have seen in the papers, Poon J’s contact with these matters had been confined to a hearing on 1 June dealing with HCA56/2007 and 57/2007 where he gave standard orders for discovery and adjourning the rest of the matters, as well as a directions hearing in HCMP73/2007 on 26 April 2007.  

14. Now, of course any judge would have done his/her reading before entertaining a hearing even though it might simply be a hearing for directions.  But I am not convinced that any grasp that a judge might have obtained in a hearing of such nature is sufficient to outweigh the potential disadvantage, namely added waiting time which might result if the hearing had to be adjourned to be heard by one judge and one judge alone.  Of course I do not know now the state of the diary of Poon J but common sense dictates that the wider the pool of judges that a hearing can be fixed in front of, the greater the chances that an earlier hearing date can be obtained. 

15. As to the potential length of the hearing, Mr Manzoni had suggested that if the matter were not adjourned to be fixed before Poon J, then he would have some concerns as to whether it could be completed within three hours.  He did not, however, insist that if the matter were to be fixed before another judge then the hearing time must be lengthened to a day. 

16. In any event as Mr Beresford suggested, the expeditious handling and disposal of the case can be assisted by earlier disclosure of the parties’ position as to the directions that they intend to seek. 

17. I am going to give further directions in that regard over and above the order that the parties had agreed in principle and any fear that the matter may not be completed within three hours can hopefully be alleviated.  I am therefore going to make an order in terms of the draft handed up to me by Mr Manzoni this morning but deleting the references to “before Poon J” in both orders.  As I have said, this does not preclude the matter from being heard or fixed before Poon J but it allows for the possibility that it being fixed before any other judge.

18. As I have said earlier, in the draft order disposing of the discovery summons in HCMP2461/2006, an estimated hearing time of 30 minutes has been inserted in the body of the order.  As I understand from Mr Beresford, that 30 minutes was supposed to be subsumed within the three hours and not in addition to the three hours.  I would have to leave it to the parties to sort out the wording of the order so that when it comes to fixing a date a time of three hours would be needed and the registry would not insist on three and a half hours.  

19. I also understand that the parties, following today’s order, would formally file Consent Summonses in the other two High Court actions and in HCMP73/2007 to ensure that all those cases are going to be heard at the same time and together with the adjourned hearing of HCMP2461/2006.  The intention is plainly that the adjourned hearing for all the outstanding matters in the two High Court actions and in HCMP2461/2006 and in HCMP73/2007 to be heard at the same hearing in the same three hours.  I hope this makes it clear.  If it is still not clear, this judgment (which will be transcribed) can be shown to the staff of the Registry.  If there are still any problems, the parties are at liberty to consult the Practice Masters and I am sure they will help.