DEACONS (a firm) v. WHITE & CASE LTD LIABILITY PARTNERSHIP AND OTHERS

HCMP 2591/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2591 OF 2003

(ON AN INTENDED APPEAL FROM HCA 2433/2002)

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J U D G M E N T

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Hon Rogers VP:

1. This is an application for variation of a costs order which this court made when the appeal in this matter was heard. The basis of this application is that the appeal to this court was an abuse of the process of court and that, in particular, subsequent events have shown that to be true.

2. In summary, I would state that for my part I agree that subsequent events have shown that any goodwill - which I will come to in a moment - which the judge below has indicated should be used in taking all steps to pursue the expeditious resolution of this matter has been absent.

3. The 3rd and 4th defendants have indicated that they wish to apply for leave to appeal to the Court of Final Appeal. Despite the fact that a draft notice of motion has been prepared, that has not been filed. It has been submitted to this court today that the 3rd and 4th defendants have 28 days in which they can file that notice of motion and that, in my view, flies in the face of the premise upon which Gill DJ gave his directions on 19 June (see page 28, lines 10 - 14 of the transcript). A brief history of the matter can be summarised as follows.

4. On 15 July this court offered a date for hearing of any application for leave to appeal to the Court of Final Appeal on Friday 18 July at 10 am. On the following day, on 16 July, Messrs Herbert Smith, the solicitors for the 3rd and 4th defendant replied inter alia:

"The present position is that the Notices of Motion are being finalised by junior counsel before we seek to have them settled by leading counsel. Due to leading counsel's other pre-existing commitments, we do not expect to be in a position to finalise the Notice of Motions much prior to Friday in any event."

5. The Friday which this court, and no doubt the reader of the letter was intended to assume, would have been Friday 18 July and not some other Friday. On the same day, on 16 July, the Acting Registrar of the Court of Final Appeal notified the parties that a session had been provisionally reserved for hearing the potential leave application and the captioned matter on 25 July at 9.15 am.

6. On 16 July, this court offered the parties the possibility that the matter of the application for leave to appeal to the Court of Final Appeal could be listed in this court on Monday 21 July at 10 am, that is today. On 17 July, Herbert Smith wrote to the solicitors for the plaintiffs and said:

"For your information, we enclose a copy of our letter to his Lordship's clerk today. As you will see, the timetable that you have suggested in relation to our client's application to the Court of Appeal for leave to appeal to the Court of Final Appeal is not feasible. As you are aware, the Notices of Motion required have not yet been filed and, indeed, due to our leading counsel's prior commitments, we have not yet obtained his input on the drafts prepared by junior counsel. Also as set out in our letter to his Lordship, our client's leading counsel is not available for a hearing on Monday and, with the greatest respect to his Lordship, we do not feel able to advise our clients that it would be appropriate for them to proceed with their application, other than with leading counsel, and indeed the same leading counsel who appeared on their behalf at the substantive hearing before the Court of Appeal."

On the same day Messrs Herbert Smith wrote to the Registrar of the Court of Final Appeal saying:

"At the present time, due to an existing court commitment, leading counsel for our client is not available earlier than Thursday, 24 July and we have not yet ascertained from the Civil Appeals Listing Office the availability of the Court of Appeal on that day or thereafter. In short, our position remains as set out in our letter of yesterday's date, namely that even assuming the application to the Court of Appeal is not allowed, we do not expect our clients to make an application to the Court of Final Appeal on 25 July 2003."

7. On 19 July, which was last Saturday, two days ago, Messrs Herbert Smith wrote to the solicitors for the plaintiff saying:

"As you are already aware, Mr Chan SC was not available on Friday 19 July 2003, nor is he available on Monday 21 July 2003. We will copy you in on our letter to his Lordship's clerk."

And then on 20 July, which was yesterday, a Sunday, Messrs Herbert Smith wrote a letter to the clerk of this court saying:

"However, as our letter also explained, when we first engaged Mr Chan to appear on our clients' appeal to the Court of Appeal, he indicated that he had other pre-existing commitments from early July 2003 onwards which would limit his ability to deal with further matters. In the event, he was able to make himself available for the hearings in the Court of Appeal on 8 and 9 July, but we now understand he feels that, at least in the coming two weeks, he must, as he had indicated previously, devote his full attention to the commitments he has already made where he has approaching deadlines."

The letter then goes on to indicate that the solicitors have been approaching other leading counsel and then the letter further on says:

"Fortunately [counsel] has indicated he has time available in the coming two weeks to advise and appear on behalf of our clients and papers were forwarded to him on Saturday to begin reading into the matter. He has also been able to spend time this morning being briefed in relation to the matter by [junior counsel] and us. However, inevitably it is going to require him some time simply to read into the matter, the papers for which are substantial. Further, he (like all other leading counsel considered and approached, did not say that they were unable to accept the instructions simply because the identities of the parties) also has pre-existing Court commitments that he must give precedence to, with the result that having discussed this matter with him, the earliest he considers that he would be properly briefed and prepared for a hearing would be Thursday 31 July 2003."

8. In my view, the history of the correspondence shows no willingness on the part of the 3rd and 4th defendant to issue their notice of motion, nor to proceed with any application. I should make it clear at this stage that it is this court's view that this matter can be dealt with by junior counsel who should, in any event, be ready and able to deal with the matter in the absence of leading counsel.

9. A speedy trial has been ordered in this matter. The speedy trial has been, unfortunately, adjourned and the parties cannot expect the court to adjourn matters continuously simply because they indicate a potential intention to take a step which has never materialised.

10. In my view, the dates now have been offered. This court, although it will be hearing a six-day appeal, is confident that that case will not take six days and is prepared to hear any application for leave to appeal to the Court of Final Appeal at 10 o'clock on any day in the coming week and, provisionally, Wednesday would seem to be an appropriate date.

11. The leading counsel who the correspondence indicated that the 3rd and 4th defendants previously wished to instruct and the court, as a matter of indulgence, was prepared to accommodate, is apparently engaged in final submissions in a case today and, according to the judge in that case, is hoped to be concluded today in any event. But, even so, as this court has indicated, the presence of leading counsel on any such application should be unnecessary.

12. The Court of Final Appeal, should it be necessary, has offered to accommodate the parties on Friday of this week. It seems to me quite clear that if the 3rd and 4th defendants are not prepared to avail themselves of these arrangements which the court is prepared to make, they should proceed with the trial as quickly as possible. A speedy trial has been ordered and, in all the circumstances of this case, that would be appropriate.

13. With regard to the costs, this court has given urgent consideration as to whether the costs order should be varied, as requested, by the plaintiffs. The difficulty which this court perceives in that is that it would be taking into consideration matters which have emerged since the hearing. So for that reason, this court is not disposed to vary its costs order on the appeal.

Hon Le Pichon JA:

14. I agree.

Hon Rogers VP:

15. When I indicated that this court was prepared to offer any day this week, of course, that is not Friday, because that was the date that the Court of Final Appeal has offered.