WDA ARCHITECTS LTD v. MHS PLANNERS, ARCHITECTS & ENGINEERS AND ANOTHER

HCMP 838/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 838OF 2014

(On an intended Appeal from HCCL No. 43 of 2007)

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BETWEEN

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JUDGMENT

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1. I have before me an application for extension of time to appeal. It is an intended appeal against the decision of Bharwaney J on 14 January 2014. By that decision, the learned judge refused to grant leave for some proposed amendments of the Amended Statement of Claim. Leave was granted for some other proposed amendments.

2. Because of the way the order was drawn up and approved and the written reasons for decision was not yet handed down, solicitors for the Plaintiff was unsure whether leave was required for bringing an appeal against such refusal.  On 29 January 2014, the solicitor wrote to the court to seek direction under Order 59 Rule 21(3).  A draft notice of appeal was attached to the letter and copy of the letter and the draft were sent to solicitors for the Defendant.

3. Pending the giving of such directions, solicitors for the Plaintiff took out a summons for leave to appeal on 4 February 2014.  Again a draft Notice of Appeal was attached and the summons (together with the draft) was served on solicitors for the Defendant.

4. Reasons for decision were handed down on 11 March 2014.  Direction was given by the judge on 13 March 2014 that leave to appeal is not required.  The hearing for the 4 Feb summons was vacated accordingly.  By that time, the usual time for appeal has expired. 

5. On 7 April 2014, the Plaintiff took out the present summons for extension of time to appeal.  In the meantime, the Plaintiff sought advice from counsel on the merits of the appeal.

6. The approach of the court in dealing with application of this nature is well-established.  As submitted by Mr Joffe (appearing for the Plaintiff), the relevant factors are:

(a) Length of delay;

(b) Reason for delay;

(c) Merits of the intended appeal; and

(d) Prejudice to the other parties.

7. Mr Carolan (appearing for the Defendant) focused on two factors.  First, he submitted that the delay was inexcusable.  Because of that, he submitted that the Plaintiff has to cross a higher threshold in terms of the merits of the intended appeal: it has to be shown that the appeal has a real prospect of success before extension should be granted, citing Secretary for Justice v Hong Kong & Yaumati Ferry [2001] 1 HKC 125 at p.129-130.

8. Counsel further contended that the appeal does not meet that threshold.  He submitted that the Plaintiff should not be permitted to trim down the scale of the proposed amendments in the appeal.  In any event, even on the latest version of the amendment relied upon by the Plaintiff, Mr Carolan submitted that new causes of action are being added and they do not arise out of the same or substantially the same facts as an existing cause of action already pleaded in the Amended Statement of Claim.

9. I shall not repeat what has been set out in the affirmation of the solicitor for the Plaintiff.  It is quite clear that the Plaintiff intended to appeal against the refusal of leave to re-amend and the Defendant had been put on notice of such intention within time.  Whilst I do not agree with Mr Joffe that the draft notice attached to the summons of 4 February 2014 should be regarded as the service of Notice of Appeal for the purpose of Order 59 Rule 4 (since reading it together with the summons, it was quite plain that the Plaintiff at that stage took the view that leave should be obtained first), I am also not impressed by Mr Carolan’s submission that the delay was inexcusable.  Having regards to the uncertainty facing the Plaintiff, it is reasonable for the Plaintiff not to issue a Notice of Appeal pending directions from the court in such circumstances.

10. Bearing in mind that it was only on 11 March that the judge handed down his reasons for decision and his directions were given on 13 March, with reasonable time being given to the Plaintiff to consider the implications flowing from the reasons and the directions, I cannot regard the delay as inexcusable.

11. The usual test for extension of time is applicable.

12. On the merits, without pre-empting what the court of appeal hearing the substantive appeal may decide, I am of the view that the contentions advanced by Mr Joffe are reasonably arguable.  Though the Plaintiff did not advance a case of the trimmed down version of the amendments before the judge, it is reasonably arguable that the court should entertain such a version on appeal in the present case.

13. It is my conclusion that an extension of time to appeal should be granted to the Plaintiff.  The Plaintiff shall have leave to serve the Notice of Appeal within 3 days from today.