PMCL also known as LMC also known as KLMC v. AKK also known as KAK AND ANOTHER

FCMC 11521 / 2015

[2024] HKFC 219

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 11521 OF 2015

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REASONS FOR DECISION
(H’s Application for adjournment of Trial)

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1.  Today is the first day of the trial on ancillary relief dispute and preliminary issue (the “Trials”). This court was informed that the 1^st Respondent (“H”) applied by letter (“the Letter”) for an adjournment of the Trial on medical grounds. He enclosed with the Letter a sick leave certificate issued by Dr Chan of Hong Kong Adventist Hospital stating that H has received examination / treatment on 29 November 2024. The diagnosis is left sciatica and that H should be off from 29 November 2024 to 6 December 2024 (inclusive) (“Sick Leave Certificate”).

2.  H and the 2^nd Respondent (“ZL”), who are acting in person, are absent today. ZL had not participated in the proceedings since early 2023. She had not filed any pleadings nor evidence in the preliminary issues.

3.  The Petitioner (“W”) opposed to H’s application for adjournment.

4.  Having considered the Letter and the Sick Leave Certificate and heard the submission made by Mr Nagpal (with Ms Cheng), counsel for W, I agreed with Mr Nagpal that H has not adduced sufficient evidence to justify an adjournment of the Trials. At the end of the hearing, I made the following orders:

4.1.  The Trials be adjourned to 4 December 2024 and personal attendance of all parties are required.

4.2.  If H intends to seek adjournment of the Trials for medical reasons, he shall lodge and serve prior to the adjourned hearing medical evidence for the court’s consideration by producing a medical report prepared by a medical practitioner registered in Hong Kong certifying:

(1)  detailed diagnosis of H’s medical condition;

(2)  that H is unable to attend the Trials because of his medical condition;

(3)  any ameliorative measures can be taken to accommodate H’s physical condition for his attendance at the Trials, and if no such measures, why not; and

(4)  if it is opined that H is unfit to attend the Trials due to his medical condition, the likely time frame for his recovery and attendance at the Trial.

4.3.  Costs of today’s hearing be reserved.

5.  I now set out the reasons.

6.  The trial dates are milestones dates. A court will only vary a milestone date if there are exceptional circumstances justifying the variation: Rules of the High Court (“RHC”), Order 25 rule 1B(3).

7.  The court has a positive duty to exercise its case management power with a view to furthering the underlying objectives of the rules, including to ensure that cases are dealt with as expeditiously as is reasonably practicable. In the exercise of case management power, the primary aim is to secure the just resolution of disputes in accordance with the parties’ substantive rights. (RHC, Order 1A rules 1 and 4; Law Yin Pok Bosco v Dr Chan Yee Shing[1] at §18)

8.  The relevant principles for an adjournment of trial on grounds of medical illness of a party or a necessary witness can be found in the Court of Appeal’s decision in Law Yin Pok Bosco, per Fok JA (as he then was) (applied in Elijah Saatori v Raffles Medical Group (Hong Kong) Limited[2]at §11) as follows:

“9. In the ordinary course of events, milestone dates such as the dates fixed for trial of an action must, on occasion, yield to the vicissitudes of life. The illness of a party or a necessary and important witness may, depending on the circumstances of the case, justify vacating and re-fixing the trial dates. This is simply a manifestation of the principle recognised in Dick v Piller [1943] 1 KB 497, the headnote of which reads:

“When a witness in, or a fortiori a party to, an action in a county court is alleged to be prevented by illness from attending the court for a hearing of the case and the judge is satisfied of the fact of his illness and of the materiality and importance of his evidence and that the granting of an adjournment will not cause an injustice to the other party which cannot be reduced by costs, it is the duty of the judge to grant an adjournment, it may be on terms, and failure on his part to do so constitutes a miscarriage of justice which necessarily involves an error of law on which an appeal may be founded.”

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11. However, in order for an adjournment to be granted on this basis, the court is entitled to be satisfied that the inability of the litigant to be present is genuine and the onus is on the applicant for an adjournment to prove the need for such an adjournment: Teinaz v Wandsworth London Borough Council at §21.

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18. A court will only vary a milestone date if there are exceptional circumstances justifying the variation. The court has a positive duty actively to manage cases with a view to furthering the underlying objectives of the rules, one of which is to ensure that cases dealt with as expeditiously as is reasonably practicable. Of course, it remains nevertheless necessary for the court to recognise that its primary aim in the exercise of its powers is to secure the just resolution of disputes in accordance with the substantive rights of the parties.

19. Against this background and bearing in mind what we have said above, we would make the observation that it would in future be more helpful if medical experts were made aware of the court’s concerns about varying a milestone date and, when preparing reports in support of an application for an adjournment, the relevant experts should be asked to consider what ameliorative measures could be put in place if the party or witness were to have to give evidence and to explain, if this were the case, why such ameliorative measures might not be sufficient to address the perceived difficulties. This would assist the court in making an assessment on an informed basis as to whether an adjournment was warranted at that particular stage. An unexplained recommendation for an adjournment, even if accompanied by a diagnosis of the condition of the patient and the proposed course of treatment, does not serve the same purpose. Needless to say, such experts must also be prepared to come to court to give evidence to support his or her opinion if necessary, although as we observe below, it is not intended that applications of this nature become mini-trials in themselves.”

9.  This court retains a full discretion to manage cases litigated before it. The question whether the Trials shall be adjourned due to a party’s medical condition is a case management decision to be made by the court, but not a matter determined by medical expert: Law Yin Pok Bosco at §22.

10.  The Sick Leave Certificate, being the only evidence adduced by H, does not justify an adjournment of a milestone date: see also CKC v SHTH[3]. The Certificate does not address the issue in question, that is whether H is unfit to attend the Trials because of his medical condition. As Au-Yeung J rightly observed in Tsang Wing Kwai v Wong Wing Sze Tiffany[4]at §13, not all illness or medication required complete rest. There is also no evidence that H cannot attend the Trials with or without ameliorative measures implemented.

11.  H has actively participated in the proceedings. He made various interlocutory applications and attended hearings of these applications recently. The last application was by a Summons on 28 October 2024. That application was dismissed after a hearing on 6 November 2024[5]. H has lodged into the court his opening submissions for the Trials on 25 and 28 November 2024. Although H had mentioned in previous hearings that he had some pain, he had not suggested that he is not able to attend the Trials because of medical condition. On some of the previous occasions, H attended and completed the hearings with leave to address the court on his seat. In the last hearing on 6 November 2024, H made most, if not all, of his submissions on his feet without difficulties.

12.  The petition was commenced in 2015, almost a decade ago. The trial dates were fixed in December 2023. H had twice unsuccessfully applied for a stay or adjournment of the Trials on other grounds by Summonses dated 28 December 2023 and 4 October 2024. W has an interest and entitlement to have this protracted litigation be brought to a conclusion without unnecessary delay.

13.  The present case is different from Elijah Saatori, where the plaintiff produced a number of certificates to the effect that he was hospitalised and medically unfit to attend the trial. Chow J (as he then was) granted an adjournment on terms that the plaintiff paid all the taxed costs due to be paid to the defendant and a further sum into court as security for costs ordered to be paid and thrown away by the adjournment, failing which his claim shall stand dismissed.

14.  We have originally reserved 10 days for the Trials on the basis that H, W and ZL will give evidence. As ZL has not filed any evidence in the proceedings, there should be sufficient time to complete the Trials with a short adjournment.

15.  Having considered all the relevant circumstances before me, I allowed a short adjournment of the Trials to enable H to file sufficient evidence to support his case before the adjourned hearing if he has a real cause. In the absence of evidence adduced before the next hearing that justifies an adjournment, the court may consider proceeding with the Trials in the absence of the respondents.