CCMJ v. SSM formerly known as SKL

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

----------------------------

----------------------------

__________________________

__________________________

D E C I S I O N
(Leave to Appeal out of time, Leave to file
submissions in reply on variation of costs)

__________________________

Foreword

1.   The Applicant is the Father.  The Respondent is the Mother. There are 2 matters listed before this Court today for disposal. 

2.   First, there is the Applicant’s Summons dated 24 August 2016 (“Appeal Summons”) seeking leave to appeal out of time against this Court’s Decision dated 27 July 2016 (“Costs Variation Decision”) in respect of his Summons for variation of costs (“Costs Variation Summons”) taken out back on 19 June 2015, that is to say, about some 16 months ago.

3.   Secondly, there is the Applicant’s Summons dated 24 June 2016 (“Leave to file Reply Summons”) seeking leave to file his reply submissions on his variation of costs application.  This Leave to file Reply Summons was scheduled to be heard on 29 August 2016.  At the hearing on 29 August 2016, this Summons was adjourned to today with costs reserved.

4.   The Applicant’s present lawyers Miss Chan Hoi Yan Andrey filed her 2^nd Affidavit in support of the Leave to file Reply Summons.  The Applicant himself filed his 41^st Affirmation in support of the Appeal Summons.

5.   As set out in paragraph 5 of the Costs Variation Decision, apart from the parties’ agreement to have the Costs Variation Summons to be dealt with by way of paper disposal, the parties managed to also agree on the timing and filing of written submissions. There was a joint letter dated 21 April 2016 which contained the agreed directions and time schedule for the filing of respective written submissions.  There was no agreement for the Applicant to file a further submission in reply in those agreed directions. 

6.   On 22 April 2016 this Court granted an Order in terms of the parties’ agreed directions as per their joint letter dated 21 April 2016.   Nonetheless, the Applicant’s submissions were filed later than the original agreed time schedule which was agreed to be 6 May 2016 (that is to say, 14 days after the 22/4/2016 Order as agreed).  It turns out that an ‘unless order’ was needed in order to compel the Applicant to do so and the time was extended to 4 p.m. on 26 May 2016.  The Respondent then filed her submissions on 10 June 2016 (with 9 June 2016 being a public holiday).  Having received both parties’ written submissions, this Court started to consider its decision on the Father’s Costs Variation Summons which was then handed down on 27 July 2016.

The hearing today and time estimation

7.   Today’s hearing was scheduled for 12:00 noon which, unfortunately due to the massive number of cases (11 in total between 9:30 a.m. and noon) after the long weekend ending yesterday, this case could only start around 1:00 p.m.   The Appeal Summons taken out by Messrs. Chan & Chan was marked for a “3 minutes” hearing.  Such time estimate is grossly under estimated in light of the nature of such application.  In any event the hearing started around 1:00 p.m. 

8.   Counsel Miss Athena Wong for the Applicant having started for about 20 minutes until around 1:20 p.m. when it was obvious that she was nowhere near the end of her submissions, this Court raised the concern on the hearing time since Respondent’s Counsel Mr. Kevin Li has yet to make his reply.  Miss Wong then informed the Court that she might need probably another 30 minutes or so to finish her submissions, that is to say, around 1:50 p.m.  Having said, the time estimate for the Appeal Summons should have been listed for an hour if not more rather than listed for a “3 minutes” hearing.   Even worse is that Counsel Mr. Kevin Li was engaged for another case in the afternoon at 2:30 p.m. in the Lands Tribunal in Kowloon and that he has yet to take his lunch. 

9.   Both Counsel then agreed that the hearing of the Appeal Summons could continue by way of paper disposal based on respective written submissions filed subject to the Applicant having the right to file a further written submissions in reply to that of the Respondent’s submissions.

10.   Eventually, both parties confirmed that the hearing of the Appeal Summons be continued by way of paper disposal without further hearing in this Court to save costs and time.  By consent, the Applicant was granted leave to file his written submissions in reply within 21 days, that is, on or before 1 November 2016.

The applicable law and legal principles

11.    The jurisdiction to grant leave to appeal was contained in Section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.  It is trite law that the duty of showing reasonable prospect of success falls upon the applicant for leave to appeal, namely, the Applicant in this case.

12.   The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hon Fok JA at paragraph 9 of that Judgment).

13.    When determining whether leave to appeal out of time should be given are, the following factors have to be considered :-

(a) the length of the delay;

(b) the reasons for the delay;

(c) the prospects of success;

(d) the extent of prejudice that would be caused to the other party if leave is granted.

(see : Norwich and Peterborough Building Society v. Steed [1991] WLR 449 followed by Birkenhead Properties & Investments Ltd v. Leung Yiu & Ors [1998] 1 HKLRD 527.)

Whether leave to appeal out of time should be given in this case ?

14.   To start with, it is a matter for the Court’s discretion as to whether justice could be served by allowing extension of time for seeking leave to appeal.  

15.   However, in the present case, the Costs Variation Decision was handed down on 27 July 2016.  The Appeal Summons was issued on 24 August 2016, that is to say, the last day of the 28-day appeal period.  Thus, there is no issue of the present appeal being brought out of time as Counsel Miss Athena Wong so alleged.

16.   In light of the Applicant’s submissions also covered leave to appeal out of time, I am prepared to go through those submissions and also the factors for determining leave to appeal out of time which also include the factor of whether there exists any reasonable prospect of success.

(a)   Length of the delay

17.   For the computation of time just said, there is no issue of the Applicant’s appeal being brought out of time. 

(b)   Reasons for the delay

18.   Even if there is an issue as to delay (which is not the case here), I am minded to say that in the Father’s 41^st supporting Affirmation, there can hardly be seen any legitimate reasons for the delay in filing the Appeal Summons. The following paragraphs are what the Applicant had said in the 41^st Affirmation purportedly to be his “reasons” for the delay :-

“4. On 26^th May 2016, I filed and served my submissions on the Costs Summons.  On 10^th June 2016, the Respondent filed and served her submissions on the Costs Summons.

5. Having perused the Respondent’s submissions, I found that a number of points expressed therein called for clarification. Therefore, on 24^th June 2016, I instructed my solicitors Messrs. Chan & Chan (“my solicitors”) to take out a Summons seeking leave to file and serve my reply submissions on the Costs Summons as per the draft attached thereto (“the Reply Summons”). The hearing of the Reply Summons was scheduled for 29^th August 2016 at 12 noon before Deputy District Judge G. Own.

6. On 26^th July 2016, my solicitors received a letter dated 26^th July 2016 from the from the Respondent’s solicitors stating that the Respondent was prepared to agree to the Reply Summons on condition that a few amendments were made to the draft reply submissions. There is now produced and shown to me marked ‘CCMJ-41-1’ a copy of the said letter.

7. After being informed of the Respondent’s stance, I sought and awaited advice from my solicitors and counsel on whether the amendments were acceptable.  In view of the Respondent’s agreement, I believed that the Reply Summons could be disposed of without a hearing.

8. Nonetheless, on 27^th July 2016, my solicitors informed me that Deputy District Judge G. Own handed down the Decision in which the Costs Summons was dismissed with costs to the Respondent.

9. Knowing that the Reply Summons had yet to be disposed of, I instructed my solicitors to write to the Court on 8^th August 2016 praying that the Court could set aside the Decision.  There is now produced and shown to me marked ‘CCMJ-41-2’ a copy of the said letter.

10. On 16^th August 2016, however, my solicitors informed me that the Court did not see fit to do so.  There is now produced and shown to me marked ‘CCMJ-41-3’ a copy of the Order/Comments made by the Court.”

19.   From reading the above, the Applicant attempted to put forward his “reasons” for the delay by reference to what had happened between himself and his solicitors and; also between his lawyers and the Respondent’s lawyers.  Counsel Miss Wong also referred to those events stated above are actually the “reasons” for the delay.  Miss Wong further submitted that this was not a case where the intended appellant simply ‘sits on’ the matter and did nothing.  With respect, I do not agree with Miss Wong.

20.   Lawyers are supposedly fully conversant with the relevant rules, practice and procedure at each stage of the litigation process and, more importantly, what step to take at each stage of the proceedings in order to protect his or her client’s best interests.  Take a day to day example in personal injuries litigation cases, if the parties are in active negotiation for settlement when the legal right to bring the claim is going to be statute-barred, could the intended claimant/plaintiff simply let the time passes and then, when negotiation fails, issue the Writ and seek the Court’s indulgence to extend the limitation period by saying that it was not the case that the claimant/plaintiff had done nothing and let the limitation period passed, there had been active negotiation which unfortunately had fallen through ?  In such an example, issuing a protective writ is the diligent and proper way of protecting the client’s rights and interests which competent lawyers would do whilst the active negotiation could still be on-going.

21.   Another submission by Counsel Miss Wong that not issuing the Appeal Summons within time is for costs savings hoping that it could be resolved is, in my view, a complete non-starter.   If the Applicant is not satisfied with the Costs Variation Decision, the only option open to him is to seek leave to appeal to overturn it.   In the absence of any appeal, how could the Costs Variation Decision be resolved even if consent was obtained from the other side for him to file a further submission in reply ?  Moreover, the costs for the filing of the Appeal Summons when compared with the Costs Order at stake which has been reviewed and upheld on 27 July 2015, is just minimal.

22.   Had this Court all along been provided with copies of the letters exchanged between the 2 law firms (which was not the case and in fact should not be the case) and was then put on notice of the on-going negotiation as to the intended filing of a further submissions by the Applicant, there is still no rule or practice or any norm that the Court (being under the duty to deliver its reserved decision expeditiously under the spirit of the Civil Justice Reform) should then ‘refrain’ from so doing and wait and see how things go along outside the courtroom between the parties’ lawyers. 

23.   In my view, if the Applicant’s lawyers only managed to schedule a hearing date for the Leave to file Reply Summons (dated 24 June 2016) to be heard 2 months later on 29 August 2016, they could always seek urgent directions from this Court, or even from the Duty Judge, for expediting the hearing of such Summons with good reasons being provided.  No such step had ever been taken.  No reason was put forward even at this stage as to why such step of seeking urgent directions had not been taken or contemplated.   What the Applicant or his Counsel Miss Athena Wong is attempting to argue is that, as I see it, it is a matter of course (my emphasis) that the Court should look after the Applicant’s case or monitor the way how the Applicant conducted his case.   Without doing so, it would then be a ‘breach of the rules of natural justice and fairness’ as Counsel Miss Athena Wong so framed her argument.  I will come to such contention later in this Decision.

24.   Moreover, even if there was special arrangement for expediting the hearing of the Leave to file Reply Summons by the Applicant’s lawyers, such application might still be contested and there is no assurance that the Applicant could obtain leave to do so at the end of the day. 

25.   Taking all the above into account, I find that the “reasons” provided for the delay are nothing but excuses.  Luckily, there is no such issue of delay in the present appeal; for otherwise, the Applicant will lose on such factor.

(c)   The prospects of success

26.   In a gist, the Applicant’s only ground of appeal (as per the draft Notice of Appeal) is that this Court should have, but did not, withhold handing down its Costs Variation Decision until the Applicant’s Leave to file Reply Summons was heard.  Counsel Miss Wong in her written and oral submissions even went further to refer to “breach of the rules of natural justice and fairness”; not acting in accord with the spirit of the Civil Justice Reform (“CJR”) where the Court or Tribunal should ensure fairness between parties; not fulfilling the duty to act fairly so on and so forth.  It was then submitted that at the end, what had happened is that this Court just handed down its Costs Variation Decision on 27 July 2016, which is over a month before the date scheduled for the hearing of the Leave to file Reply Summons, without giving the Applicant the right to be heard on such Summons.

27.   Further, the Applicant at paragraphs 9 and 10 of his 41^st Affirmation submitted that this Court, having handed down the Costs Variation Decision, did not set it aside and hand down ‘a new decision’ after giving the Applicant the chance to file his Reply Submissions so requested by them. 

28.   In my decision, such contentions of the Applicant and his Counsel which was relied upon as his grounds of appeal (though not specifically pleaded so in the draft Notice of Appeal) are unscrupulous and bound to fail for the following reasons.

(a) According to the records, there was no letter or even any memo from the Applicant’s lawyers, Messrs. Chan and Chan, informing this Court that they had filed the Leave to file Reply Summons and requesting this Court to expedite the hearing of such Summons.  I must say that it is not the duty or obligation, or even there had ever existed any practice or norm, for a Judge who had reserved his or her Decision on any matter, and before handing down the Decision, to first have a thorough ‘go-through, search or vet’ the entire case file to ensure that there was no applications filed which are pending.  It is entirely wrong to expect a Judge to do such an exercise, if not being disrespect to the Judge or discourteous to the Court;

(b) Had the Court or the Judge been so informed, it is still a matter of judicial discretion as to whether the mere filing of a Summons by a party could then ‘defer’ a reserved Decision from being handed down.  Any such ‘deferment’, if I may use such a phrase, must be considered with extreme care and caution and should be rare for otherwise the Court would be ‘monitored’ by the parties when exercising its judicial functions, including handing down of reserved decisions.  Moreover, there is always unmeritorious applications taken out by unscrupulous litigants with the intention to delay the due process of litigation or defer the other party from receiving the fruits of litigation; 

(c) It is always the sole responsibility of the lawyers to look into the matter with due diligence and competence when determining the need or urgency of any application, to see whether special arrangement should be called for so that his or her client’s rights and interests may be well protected or secured, rather than simply ‘throwing in’ (if I may use such phrase in the present context) an application and then completely shifting the responsibility over to the Court or blaming the Judge for not attending to it. Any attempt to take chance over the Court’s diary on fixing of hearing dates not early enough to cater for any urgent situation as a ground of appeal, as happened in the present case; and also to seize it as an ‘excuse’ or ‘explanation’ for not taking steps which ought to have been taken by the lawyers but somehow not been taken or even overlooked must fail and would not be tolerated.

29..   In order to complete the picture, I have also considered the contents of the Applicant’s submissions in reply sought to be filed which was attached to the Leave to file Reply Summons.   I come to the conclusion that those matters had either been canvassed by this Court when arriving at the Costs Variation Decision dated 27 July 2016 or merely a repetition of matters which had earlier been pleaded.

30.   Considering all the above, I find that there are no reasonable prospects of success on appeal, whether on the contention that this Court had not attended to the Leave to file Reply Summons before handing down the Costs Variation Decision; any alleged ‘breach of the rules of natural justice’ or even on the submissions in reply intended to be filed by the Applicant attached to the Leave to file Reply Summons.

31.   The submission that this Court did not set aside the Costs Variation Decision and hand down a ‘new decision’ is totally incorrect and go against any established procedure, legal practice or jurisprudence.  There is no basis for a Court to set aside a decision which had been handed down (my emphasis) and then to hand down (my emphasis) ‘a new decision’.  This is different from the case of variation (my emphasis) of an Order on legitimate grounds.   Counsel Miss Wong does not seem to have further submissions to make on this issue although the Applicant had referred to it at paragraphs 9 and 10 of his 41^st Affirmation.  I would add that it is unprecedented for such suggestion to come from legal practitioners (see contents of the letter from Messrs. Chan and Chan dated 8 August 2016 produced as exhibit “CCMJ-41-2”).

(d)   The extent of prejudice to the other party

32.   Although there is no issue of the Applicant’s appeal being brought out of time, I am prepared to say that the extent of prejudice caused to the Respondent is substantial had I been required to deal with this factor.   The prejudice is the substantial delay of the proceedings and also deferring the Respondent from receiving the fruits of litigation, both of which caused by the litigation conduct of the Applicant.

33.   As said, the Applicant’s Summons for variation of the Costs Order was filed about 16 months ago on 19 June 2015, not to say the substantive Costs Order granted in favour of the Respondent which was embodied in the Judgment on Financial Provisions handed down on 5 June 2015.  For various reasons, such application to vary costs was only set down for disposal in April this year by the Applicant. It is always the party, which is the Applicant in this case and had been legally represented, who wishes to seek review of costs to pursue his application expeditiously and efficiently.

34.   As the docketed Judge overseeing this case for nearly 6 years, the Respondent has all along been receiving legal aid on public funds since 2010 (save and except her application for travel with the child in summer vacation this year).  Any fruits of litigation, including costs, should be finalized and preferably received within a reasonable time.  On the other hand, the Applicant has all along (save and except a brief moment of just 2 days only) been spending enormous legal fees throughout the past 6 years.  At paragraph 26 of one of my Ruling in this case dated 10 June 2015 where I had said :-

“26. The Father has all along been legally represented by reputable firms with extensive matrimonial practice and experienced Counsel.  I have no hesitation to say the Father must have been apprised with the contents and meaning of every single documents, orders, directions and reports with the benefit of full legal advice.  It strikes my surprise that the Father now seeks to refer and also accedes to those comments of this Court contained in the Judgment dated 5 October 2012 of which he had once disagreed with and sought to obtain leave to appeal from this Court and the Court of First Instance.  For the sake of completeness, the Father had so far instructed 3 firms of solicitors (Messrs. Michale Li & Co., Messrs. Lam, Lee & Lai, Messrs. Haldanes) and engaged 6 Counsel to protect his interests (Miss Jennifer Tsui, Mr. Felix Li, Miss Annie Lai, Miss Francis Irving, Miss Mairead Rattigan, Mr. Jeremy S.K. Chan) throughout different stages of the proceedings.”

35.   As a matter of fact and court records, subsequent to the aforesaid Ruling in June 2015, there are also the successor law firms of Payne Clermont and the present firm of Messrs. Chan and Chan instructed by the Applicant, Counsel Mr. Keith Hotten was instructed for one hearing on 31 March 2016.  Counsel Miss Athena Wong should be the 8^th Counsel acting for the Applicant in this case.  Moreover, and it is most unfortunate, there is on the file records that the Respondent has recently issued a Judgment Summons which has yet to be heard later this year against the Applicant for his non compliance with various orders and undertakings, which includes the terms in main Financial Judgment handed down on 5 June 2015.  The Applicant had once attempted to appeal the main Financial Judgment which was dismissed with an indemnity costs order summarily assessed at HK$100,000 against him granted by the Court of Appeal (see HCMP No.2059 of 2015, dated 7 December 2015).  For that hearing, Counsel Miss Athena Wong also represented the Applicant on the instructions of the law firm, Payne Clermont. 

36.   Given the contumacious attitude and litigation conduct of the Applicant, I am satisfied that if leave to appeal is granted, whether it is out of time or within time, the Respondent and the child in question would be seriously prejudiced by the Applicant’s conduct of litigation which no Court would encourage or tolerate. If such litigation conduct is to be accepted, I firmly believe it is in contravention to the spirit of the Civil Justice Reform (CJR) regime.

37.   With respect, Counsel Miss Wong’s submission that this Court having breached the rules of natural justice and fairness; not acting in accord with the spirit of the Civil Justice Reform (“CJR”) in that the Court or Tribunal should ensure fairness between parties; not fulfilling the duty to act fairly is totally unsustainable. How could a party or his lawyers who had failed in taking a step in the litigation process or acted diligently or competently turn around to make the assertion that his or her client was being unfairly treated by the Court ?  Any such assertion is beyond any sense of logic, justice or even professional ethics. 

Any exceptional circumstances ?

38.   To complete the picture, I have also considered whether there are any exceptional circumstances where justice calls for leave to appeal to be granted to the Applicant.

39.   Given careful consideration, I simply do not find any exceptional circumstances exist.

40.   For all the reasons above, I find the Applicant’s Appeal Summons fails and must be dismissed.

41.   Following the dismissal of the Appeal Summons, the Leave to File Reply Summons becomes academic and must be dismissed.

Costs

42.   Given careful consideration, I decided that it is fair and reasonable to apply the normal rule of costs to follow the event.  The Applicant shall pay the costs of the 2 Summonses to the Respondent, to be taxed if not agreed.  The Respondent’s own costs be taxed in accordance with Legal Aid Regulations with Certificate for Counsel.

Orders

43.   I now make the following Orders :-

(a) The Applicant’s Appeal Summons dated 24 August 2016 be dismissed;

(b) The Applicant’s Leave to file Reply Summons dated 24 June 2016 be dismissed;

(c) The Applicant do pay the costs of and occasioned by the Appeal Summons and the Leave to file Reply Summons to the Respondent, including all costs reserved (if any), to be taxed if not agreed; and

(d) The Respondent’s own costs on both Summonses be taxed in accordance with Legal Aid Regulations.

44.   I also grant Certificate for Counsel on both Summonses.