WONG KWOK CHIANG AND OTHERS v. LONGO CONSTRUCTION LTD AND ANOTHER

Headnote : Details of grounds of appeal when they may be ordered: 0.59, r.3.

IN THE COURT OF APPEAL

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J U D G M E N T

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Silke, V.-P.:

1. This is an unusual application. There is listed for hearing on the 10th May consolidated Appeals in which the Plaintiffs, in Appeal No.168 of 1987, seek to appeal from an order as to costs made by His Honour Judge Sharwood sitting as a Deputy High Court Judge and in Civil Appeal No.16 of 1988, the Plaintiffs seek leave to appeal from orders made by the same judge given-at the trial of the action. There is also across-appeal by the Defendants in No.16 of 1988.

2. The application for consideration today is one by the Defendants for an order that the Plaintiffsdo within 14 days serve on the Defendants' Further and Better Particulars of the Grounds of Appeal in No.16 of 1988. It is late because of the complexity of the case and the very long transcript.

3. The Defendants followed the normal procedures under 0.18, r,12 of the Rules of the Supreme Court by writing to the Plaintiffs requesting these Particulars and, upon their not being received, bringing this summons.

4. A Notice of Appeal is not a pleading. For my part despite the provisions of 0.59, r.10(1) I do not consider that the provisions of 0.18, r.12 can be properly invoked in this Court. Counsel suggested sub-rule (3) of Rule 10 could assist him but, with respect, I do not consider that it can. It simply empowers the Court of Appeal to give any judgment and make any order which the Court below should have given or made and in addition to make such further orders as it considers necessary in the final determination of the appeal.

    0.59, r.3 deals with the Notice of Appeal and its contents. In particular, sub-rule (2) of Rule 3 states that:

"and every such notice must specify the grounds of the appeal and the precise form of the order which the appellant proposes to ask the Court of Appeal to make."

5. In days when the appellate procedure was somewhat different a series of cases dealt with the contents of the process which then brought matters before an Appellate Court. Murfett v, Smith^(l) was one where the grounds' simply stated: misdirection and that the verdict was against the weight of the evidence. On the basis that a person who comes to this Court to maintain a verdict should be in a position to understand upon what grounds it is impugned the Court held those grounds not to be sufficient and the motion for the new trial was refused. Taplin v. Taplin⁽²⁾ followed Murfett⁽¹⁾ and extended it to appeals both in the Probate and the Divorce. divisions. Pfeiffer v. Midland Railway⁽³⁾was again a matter where the grounds alleged misdirection but the details were not stated. It was held that "misdirection" was too vague and that the grounds musi state how and in what manner the misdirection occurred.

6. In Hughes v. The Dublin United Tramways Company Limited⁽⁴⁾ a Notice of Motion for a new trial lay for consideration of the Appellate Court. It was there held that that Notice, which was grounded upon misdirection and non-direction by the judge at the trial of the action, should state specifically the Particulars of the nondirection and misdirection relied one it followed Pfeiffer⁽³⁾. Lord O'Brien L.C.J. giving the judgment of the Court said at p.274:

"Having regard to the English cases cited by Mr. O'Connor, we think that a statement of the specific grounds of misdirection and of non-direction relied on should have been given. It is not stated in the notice of motion for a new trial what these grounds are."

7. A notice requiring particulars had been given but had not been complied with. Leave was given to amend as to the misdirection and non-direction and the appellant was required to state particulars as to those within 4 days.

8. In Sansom v. Sansom⁽⁵⁾, which dealt with the then new Order 53 and which is reported as a Practice Note, Denning L.J. advised that grounds of appeal should not be elaborate. They should be short and simple. They should state the broad issues for decision but not the detailed reasons in support. Grounds of appeal should not be treated as pleadings end elaborated to extend to many pages.

9. In Aviagents Ltd. v. Balstravest investments Ltd⁽⁶⁾, the Court of Appeal made reference to its having an inherent power to control its own proceedings and in that case, struck out a Notice of Appeal where the appeal was plainly not a competent appeal. I adopt the reference to regulating our own proceedings. In so doing the narrowing of the issues clarity and precision, the avoidance of delay, the shortening of the hearing and the avoidance of excessive costs are matters which to be borne in mind.

10. To that end, while I do not consider there is authority to order the giving of particulars as requested by the Defendants, it would be of considerable assistance both to them and to this Court if the Plaintiffs were to make a "statement of the nature of their case" in relation to the three grounds for which those particulars were sought.

Ground 1 reads:

"The Learned Judge wrongly admitted documentary and photographic evidence, undisclosed before the trial and wrongly relied on the same in arriving at factual findings which were central to the issues in the said trial."

11. On that_-ground, the,Plaintiffs should state the nature of their case:

(1)     indicating the passages in the transcript relating to the alleged wrongful admission;

(2)     setting out the particulars of the documentary and photographic evidence to which the ground refers;

(3)     indicating the passages in the judgment where, it is said, the trial judge came to findings wrongly based upon them and

(4)     setting out shortly the issues in the trial to which reference is made.

Ground 2 reads:

"The Learned Judge misconstrued parts of the evidence of expert witnesses, in particular the full and proper meaning and effect of the said evidence and proper meaning and effect of certain technical terminology."

12. The Plaintiffs should state the nature of their cases:

(1)     with references to the transcript, the evidence of the experts which the trial judge is said to have misconstrued;

(2)     in short compass, that which the Appellants say is the full and proper meaning and effect of the expert evidence; and

(3)     indicate the technical terminology to which reference is made

Ground 5 reads:

"The Learned Judge failed to attach sufficient weight if at all to those parts of the evidence from both the Plaintiffs' and the Defendants' witnesses, which tended to support the Plaintiffs' case.''

13. The Plaintiffs should state the nature of their case on this ground:

(1)     by stating, with references to the transcript, the Plaintiffs' evidence;

(2)     by stating, with references to the transcript, the Defendants' evidence; and

(3)     in short compass, their reasons for alleging that the portions of the evidence specified in (1) and (2) tended to support the Plaintiffs' case.

14. Counsel for the Plaintiffs at the hearing of this summons left the matter for the decision of this Court. He was in some difficulty as there had earlier been adjourned in open Court a Notice of Motion brought by the Plaintiffs' instructing solicitors for leave to cease to act. While that matter has not been determined, there apparently being the possibility of some compromise of which I shall say no more, the result was that counsel was lacking in instructions. But be that as it may, for the reasons given, in my judgment, the grounds of appeal which are in the very general terms indicated should be clarified.

15. As the Appeal is very close to hearing, these matters which I have set out should be provided on or before mid-day on Thursday, the 5th of May.

16. The Applicants/Defendants to have their costs of this summons

17. Liberty to both parties to apply.

(1) (1887) 12 P.D. 116

(2) (1888) 13 P.D. 100

(3) (1886) 18 Q.B.D. 244

(4) (1911) 2 I.R. 115

(5) [1956] 1 W.L.R. 945

(6) [1966] 1 W.L.R. 150