THE INCORPORATED OWNERS OF NINE QUEEN'S ROAD CENTRAL and Another v. MINKIND DEVELOPMENT LTD.

IN THE COURT OF APPEAL

1997, No. 136
(Civil)

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J U D G M E N T

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Nazareth, V.-P. :

1. In this appeal, the notice of appeal is dated 5th July 1997 and presumably was lodged on the same day. On 11th July 1997 notice was given of setting down in the Court of Appeal list and on the same day the appellant made application for a date for the hearing of the appeal to be fixed. The parties attended before the Listing Clerk on 25th July 1997 and the hearing date was fixed for 11th and 12th November, that is today and tomorrow.

2. On 30th July a notice of that was sent out to the parties. Some time in the following month, in August, the Listing Clerk was informed presumably by the appellant that the parties might want to withdraw the appeal.

3. On 3rd September the Listing Clerk was concerned that no further development had taken place and instructed my clerk to ascertain from the solicitors acting for the appellant what they proposed to do. She was informed that they planned to withdraw the appeal and that a copy of the draft consent summons had been sent to the respondent's solicitors for consideration.

4. Nothing then happened until 19th September when Judiciary staff again became concerned as to what was happening. My clerk again spoke to the appellant's solicitors. Again she did not get beyond the secretary to the solicitor concerned, who simply said that she would call back.

5. By 4th November she had not called back and again my clerk telephoned to find out what was happening. She was informed by the secretary that she, the secretary, had spoken to someone at the High Court to say that they wished to vacate the hearing date of the 11th and 12th November 1997. She was informed that that sort of verbal notice could not be treated as proper notice and it was necessary for a consent summons to be filed if the dates were to be vacated. The secretary indicated that she would have a consent summons put in as soon as possible. Nothing happened and on 8th November 1997, three days before the hearing, my clerk again spoke to the secretary telling her no consent summons to vacate the hearing dates had been received. She added that if the consent summons was not received before today, the hearing of the appeal would be proceeded with.

6. Turning to the hearing today, the appellant is represented by Mr Kenneth Chow. He has explained that after the appeal had been lodged, the client obtained the advice of Senior Counsel that the appeal would be difficult and from that point, the client entered into negotiations with the respondent for withdrawal of the appeal. Those negotiations, this Court is told, have been very difficult. The respondents, he says, have been intractable. Meanwhile, the client was informed of how difficult the legal position was. Senior Counsel originally briefed withdrew from the case. Senior Counsel who replaced him, at one time seemed hopeful something of legal substance might emerge; later his time was all taken up by another major case. The advisers were placed in a difficult position. Without the consent of their client, they could not settle or withdraw the appeal. So, that position continued to yesterday.

7. However, Mr Chow says he is now instructed to inform the court the client does not wish to proceed and accordingly the appeal may be dismissed.

8. Clearly the appeal has not been prosecuted with the diligence it should have been, to put it mildly. It is now not to be pursued. The only order we can make is to dismiss it.

9. But as to the costs inter partes, it may well be that the respondents might wish to pursue that matter. The only position we can take at this stage is not to deal with them. If we were to say no order as to costs as Mr Chow appeared to suggest, that would be an actual order. I would therefore simply not deal with the matter of costs, leaving the respondents free to apply if they wished.

10. I turn now to the conduct of the appellant's solicitors. I have recounted in some detail what has taken place. The result of their conduct has been that two days of the court's time has needlessly been lost in circumstances in which they could very easily have prevented this by simply making an application for vacation of the hearing dates. They could even have done that ex parte, if the respondents would not cooperate. But they took no such step. They have let matters drag on to the very end so that these two days have been lost.

11. It should be well known to the profession that it is not possible within a couple of weeks, and even considerably longer, to bring on appeals. There are no running lists in the Court of Appeal as there are in the Court of First Instance. Not only have the resources of the court and taxpayers' money been wasted needlessly but this sort of waste of hearing days prejudices other appellants waiting for hearing days.

12. It is the duty of solicitors when it becomes reasonably clear that a hearing is not going to take place to take immediate steps to vacate the hearing dates, a fortiori when no less than two whole days have been set aside. That stage in this appeal must have been reached many weeks ago at the latest.

13. It is neither necessary nor incumbent upon court staff to have to repeatedly remind solicitors that a particular hearing date has to be vacated or other necessary action taken. When that is done in the interest of the efficient use of court time, and moreover, to also assist the solicitors, it is grossly discourteous for the court staff concerned to be fobbed off as some sort of nuisance in the way they were here. And that would be so even in ordinary circumstances. Here, bearing in mind that solicitors are officers of the court and having regard to their duties and obligations in relation to ongoing proceedings, the position is much worse. The solicitor concerned could not have been unaware of the repeated enquiries and that her secretary was simply fending them off. It all added up to the necessary workings of the judicial process being treated with contempt. I say that advisedly. Mr Chow has now expressed the apologies of the solicitor. However all that may be, it seems to me that not only have the appellants' solicitors been in serious default but that the wasted costs are attributable to that default. I would therefore call upon them under O62 r8(2) of the Rules of the High Court to show cause why an order should not be made disallowing costs between them and their client; that is to say, all the costs or alternatively only those costs incurred after August 1997, when it first became apparent that the appeal might be withdrawn.

14. Having said all that, a fax which the appellant's solicitors transmitted yesterday, 10th November, at 5.30 pm after working hours, has minutes ago reached my clerk and now been handed up to me. It adds nothing to what Mr Chow has told us, other than that they apologise and seek the Court's indulgence.

Wong, J.:

15. I agree with the Vice-President that the appeal is to be dismissed and also the course that he proposes.

Le Pichon, J.:

16. I concur with what has fallen from the lips of the learned Vice-President and I have nothing to add.

[Mr Chow having informed the Court on instructions that the solicitors would not oppose the order disallowing the costs between them and the appellant, the Court ordered that such costs incurred after 27th August 1997 be disallowed.]