IP CHEUNG KWOK AND ANOTHER v. IP SIU BUN AND OTHERS

Headnote

An action the hearing of which started on 14th September 1987 had to be adjourned part-heard when counsel's estimate of the length of the hearing proved to be a gross under-estimate. The case was adjourned to a date to be agreed between counsel. Counsel agreed on 1st June 1988, which would have resulted in an adjournment of 7½ months. The Court declined to accept this and the case was restored to the list for the parties to show cause why the hearing should not be resumed on 5th January 1988. No official shorthand note of the proceedings had been taken, the judge having dispensed with it, under Order 68, on an undertaking from counsel to provide the Court with an agreed note of the evidence:

HELD :-

(Observations on the circumstances in which the Court would be prepared to dispense with the official shorthand note provided for by Order 68.)

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. This is an action the hearing of which started on 14th September 1987. The Plaintiff was represented by leading and junior counsel. The fourth Defendant was represented by two leading and one junior counsel. The other Defendants appeared in person. The case had been estimated by counsel as one which was likely to last for three weeks; but one additional week had been reserved for contingencies. It became obvious that the estimate given for the length of the hearing was a gross under-estimate, and that the case would have to be adjourned to a future date for further hearing; this was because another case was listed before me to resume on 12th October 1987. (That was itself a part-heard case, the further hearing of which was itself likely to take four weeks; the hearing of that case in fact concluded last Friday, 13th November 1987.) In those circumstances, when adjourning the hearing of the instant case, I was invited to adjourn it to a date to be fixed "in agreement with Counsel's diaries". I acceded (as I now think, unwisely) to that application.

2. I was concerned to discover, at the end of October, that the date so agreed was the 1st June 1988. In those circumstances, I caused a letter in the following terms to be written to the parties (I quote it in full) :-

"I am directed by The Hon. Mr. Justice Godfrey to write to you about, the resumption of the trial of this case.

The trial began on 14th September 1987. Based on the estimate given to the Court for the length of the trial, 4 weeks were provided for the hearing. This was insufficient and the case had to be adjourned.

The estimate now given to the Court for the length of the adjourned hearing is for a further 4 weeks. The Judge will be able to resume the hearing on 5th January 1988. He intends as at present advised to restore the case to the list for hearing on that date and accordingly to rescind his earlier direction that a date be fixed by agreement between counsel. His reason is that the date so agreed, 1st June 1988, would result in an adjournment of 35 weeks. The Judge's view is that this is much too long a period for which to adjourn a part heard case to which it is the duty of counsel to give priority. A delay of this length, when a date some 5 months' earlier can be made available by the Court, appears to the Judge to be contrary to the interests of justice.

Nevertheless, the Judge is prepared to give the parties an opportunity to show cause why the case should not be listed for hearing on 5th January 1988. He will, if asked before close of business on 13th November 1987 to do so, restore the case to his list on 20th November 1987, for the purpose of hearing such representations as any party may then wish to make to him as to why the case should not be listed for hearing on 5th January 1988. If any representations are to be made, the Judge will require them to be supported by affidavit evidence, showing, in particular, that the lay client on whose behalf such representations are to be made has been informed that the Court is in a position to resume the hearing of the case on 5th January 1988 but has nevertheless given his consent to an adjournment to a later date. The Judge will also require confirmation that an agreed note of the evidence taken so far will, in accordance with the undertakings given to him at the commencement of the hearing, be provided for his use not less than 4 weeks before the date fixed for the resumption of the hearing.

Subject as indicated above, the case will be restored to the list for hearing on 5th January 1988. It is the Judge's desire that the content of this letter be brought forthwith to the attention of all counsel engaged in and committed to the case."

3. On or before 13th November 1987, the Plaintiff's solicitors and the 4th Defendant's solicitors indicated that they did wish the case to be restored to the list on 20th November 1987 (that is today) for the purposes I have mentioned (that it is to say, to show cause why the case should not be re-listed for hearing on 5th January 1988). It was apparently thought right to take out summonses returnable today for this purpose, although all that was required was for the parties to intimate, as I had suggested, that they wished the case to be restored to the list for hearing. That of course would have meant restoration of the hearing in open Court; but, as it is, the case has been listed for hearing before me in Chambers on the summonses taken out by the Plaintiff and the fourth Defendant respectively. I have cured this procedural irregularity by directing that the proceedings presently before me be treated as the restoration of the hearing and be heard before me in open Court.

4. I turn now to the substance of the present application. Both the Plaintiff and the fourth Defendant are content that the date fixed by their agreement, that is to say, 1st June 1988, should stand. The other parties have no objection. However, I have not the least doubt that it is quite contrary to the proper administration of justice to allow an adjournment of a part-heard case of a length much longer than that which is necessarily required to do justice between the parties. There is a role which the Court must play in taking control of its own proceedings. Nothing I have heard has satisfied me that an adjournment to a date so long away as 1st June 1988 is necessary in the interests of justice.

5. However, I am satisfied, on the evidence, that the date I have offered to the parties, 5th January 1988, is too early.

6. By an affirmation of the Plaintiff, made on 13th November 1987, the Plaintiff affirmed that he had made arrangements for business purposes to visit Canada, the United States and China, staring in mid-December 1987, and that be did not expect to be back in Hong Kong until late January 1988. He deposed that it was too late for him to change his itinerary and that, if the action was to resume in January 1988, he would not be able to attend the hearing. He asserted that it would be necessary for him to attend the resumed hearing to hear the oral evidence of the Defendants' witnesses, so as to give instructions to his counsel for cross-examination of these witnesses. He contended that his presence at the trial would be of vital importance. I think the Plaintiff in this evidence somewhat overstates the position, but the interests of justice would certainly not be served by depriving him of the opportunity to attend the hearing if he wishes; it is, I think true that the proper advancement of the Plaintiff's case requires that he should have the opportunity to be present at the resumed hearing. For this reason (and having regard to the fact that the Plaintiff must have been misled by the information, at the time correctly given to him, that the new hearing was fixed for 1st June 1988), I would not now propose to insist that this hearing be resumed as early as 5th January 1988. The Plaintiff in his affirmation also deposed that his leading counsel would not be available as early as 5th January 1988, and that there were also be difficulties with his junior counsel. Since counsel's commitment to a part-heard case must take priority over all other business, this does not impress me.

7. The Plaintiff's solicitor (who appeared before me at my invitation since the case had originally been listed to be heard in Chambers) told me that he would prefer the case to resume on 1st June 1983 but he did not advance any good reason why it should not resume earlier than that, so long as there was time for the note of the evidence, plainly required after an adjournment of this length, to be prepared. The fourth Defendant was represented before me today, as at the original hearing, by Mr. Charles Ching, Queen's Counsel. He accepted that when a case is adjourned part heard to a date to be agreed between counsel it would be an abuse of the procedure of the Court for counsel to agree on a date for resumption unreasonably far ahead, and helpfully indicated that in this case an earlier date that that originally agreed was in fact possible. Mr. Ching submitted with force that there would be difficulties about obtaining notes of the evidence by 5th January 1988. He accepted that the longer the adjournment, the further away from everybody's mind the evidence becomes. Mr. Ching also remarked that (as was the case) some of the witnesses in the present case would have to come from mainland China, and that some two months' notice to those witnesses would have to be given to ensure their attendance at the hearing. I accept this point, too, which again would make a resumption of the hearing on 5th January 1988 impracticable. Mr. Ching was good enough to indicate that the state of his own diary would permit him to attend the hearing if it were to be resumed on or after 6th April 1988. In all these circumstances, I think the hearing should be fixed for resumption on the 11th April 1988. I so direct. There is no good reason why the case should stand out of the list for several weeks longer than this and it is not in the interests of justice that it should do so.

8. I wish to say in conclusion two further things about this case. Frist, it is the duty of counsel to give an accurate estimate of the length of time that the case in which they are engaged is likely to take. I am well aware that this is not an easy duty to discharge, and that the longer the case is likely to take, the more difficult it is to give an accurate estimate. But the Court should, at all times, be kept informed of any reason counsel may have to revise the estimate; if that had been done in this case alternative dates could have been given which would have enabled the case to be heard without the necessity of an adjournment.

9. Secondly, I have referred to the fact that a note of evidence is to be prepared for the use of the parties and of the Judge in this case. Order 68 of the Rules of the Supreme Court provides for an official shorthand note to be taken of the evidence. These are proceedings in the High Court of Justice and the High Court is (or is supposed to be) "a Superior Court of Record" : see section 12 (1) of the Supreme Court Ordinance, Chapter 4. It is a blot on the administration of civil justice in Hong Kong that although Order 68 provides for an official shorthand note no official shorthand writer is in practice provided (except in very rare instances). While this ludicrous state of affairs continues (as apparently it has done for years without any correction) I propose to insist, in all witness actions, on an undertaking from counsel, in accordance with what in any case is counsel's duty, to take a proper note of the evidence, and I propose to invite counsel to agree to provide, if asked to do so, an agreed note of the evidence for the use of the Judge or the Court of Appeal. Only if this invitation is accepted will I be prepared to dispense with the official shorthand note for which, rightly, Order 63 provides. The necessary undertaking was given in this case and supported by the use of tape recorders, from which a note can be provided. On what I was told from the bar, it should be possible to produce the note by the middle of March, so that copies can be supplied to all counsel engaged in the case and for the use of the Judge before the date of the resumed hearing. In those circumstances, the damage to the proper administration of justice, done by resuming the hearing of a case so many months after the original hearing had to be adjourned, will be minimised. For the reasons I have endeavoured to state, I now direct that the hearing of this case be resumed on 11th April 1988.