YEUNG TAI WAI v. KPMG PEAT MARWICK

DCEC 507/99

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’COMPENSATION CASE NO. 507 OF 1999

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Ruling

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Introduction

1. This is an application by the Applicant to set aside a Notice of Discontinuance signed by him on 14th March 2001. Provided I accede to this application he wishes me to re-instate the order of Judge Yung made as long ago on 20th August 1999 adjourning the Application sine die with liberty to both parties to restore it. It is necessary to relate the background to all of this in order to understand how the matter now comes about.

Background

2. The Application, which is one for Employees Compensation, is dated 8th July 1999 some 4 years and 3 months ago. On 11th July 1997 the Applicant who was employed as an office assistant by the Respondents, a multi-national accountancy firm, complains that he was injured when collecting a bag of documents from the Respondents' Wanchai office by being pushed against the turnstile of the tram that he was travelling on to return to his office at Central.

3. He was given Legal Aid to pursue the Application on 6th July 1999. The court fixed a call-over hearing on 25th August 1999 but that was vacated pursuant to a Consent Order made by Judge Yung who also directed the Respondents to file their Answer and a List of the Applicant's Earnings, which they did on 2nd September 1999. The Answer makes no admissions save for the fact that on the day in question the Applicant was employed by them.

4. The matter then lay dormant and on 26th April 2000 the Legal Aid Department discharged the Applicant's Legal Aid Certificate. The reasons given were that the Applicant no longer had "reasonable grounds for taking, defending or being a party to the proceedings" and that it was "unreasonable in the particular circumstances for [the Applicant] to continue to receive Legal Aid".

5. The next step occurred on 13th January 2001 when pursuant to the "liberty to restore" provision in Judge Yung's order the Respondents' solicitors wrote to the court asking that the matter be re-listed for further hearing. As a result a hearing date was appointed on 16th March 2001, that date having been notified to the parties by Notice dated 2nd March 2001. On 14th March 2001 the Notice of Discontinuance was filed by the Applicant. Leave to discontinue was given by the court on the following day subject to any issue as to costs. On 21st March 2001 the Respondents' solicitors wrote to the court to say that the parties had agreed that there would be no costs implication and an order was made to that effect on 23rd March 2001.

The Merits of the Application

6. Very nearly two and a half years later, the Applicant has written to the court, on 6th August this year, explaining that he wishes to resurrect his Application so as to have time to get sufficient evidence and money in order to make a fresh Application.

7. In his letter he has explained that because there was insufficient evidence of his injury the Legal Aid Department discharged his Legal Aid Certificate. He was told to get medical proof of his injury before making a further application for Legal Aid. Having received notice of the restored hearing on 16th March 2001, by which time he was unrepresented and not able to speak English, he rang the Respondents, who had by then dismissed him, to enquire of them as to what was happening. As to that he says the following in his application to the court :

"In March 2001 I was given notification by the Court to appear in court. As I did not know English or have legal knowledge, and the Legal Aid Department had withdrawn my legal aid, I had no lawyer acting on my behalf. Therefore, I rang for enquiries the company that had fired me. They replied that if I was not minded to attend court, I might present myself at the court prior to the date of court appearance for withdrawal of the case. If I lost the case in court that day, I would have to bear the costs. I was surprised at hearing that. I got no legal aid or money for court appearance. All I could do was to go to the court before the date of court appearance to cancel my medical evidence to re-apply for legal aid."

He then goes on as follows :

"Recently I showed a lawyer the following documents I had supplied you. It turned out that the document of my going to the court on 14.3.2001 for cancellation of court appearance had become one of a complete withdrawal of this case. I did not know English or know about the legal process or have knowledge as to how to deal with it. My intention was to present myself at the court on 14.3.2001 to ask to cancel the court appearance scheduled for 16.3.2001. As I was not good at expressing myself and had no knowledge of the legal proceeding, I made a complete withdrawal of the case by mistake. I beg the Court to hold by the basis of my right, i.e. point 3 (Application for an adjournment sine die) in the Notice of Appearing. I can then have enough time to get sufficient information and money for a fresh application for a court hearing. Thank you."

8. On the first hearing of the Application I gave the Respondents leave to reply to this letter by affirmation and the Applicant to reply that, which is what they have both done.

9. Miss Katherine Chu, the Respondents' solicitor, has affirmed on 8th September. The material parts of the affirmation start at paragraph 6 :

"	6.	On or about 6th March 2001, we received a Notice of Fixing Date from the Court dated 2nd March 2001. Pursuant to this Notice, we were required to attend Court on 16th March 2001 at 2:30 p.m. On the next day, i.e. 7th March 2001, I spoke to the Applicant on the phone. He told me that he had already informed the Labour Department and the Legal Aid Department that he did not wish to pursue further with his claim. I then told him that the Legal Aid Department had discontinued to act for him but they had not formally withdrawn the case for him. I suggested to the Applicant that if he did not wish to pursue with this action, he could discontinue the action. I further advised him that we would seek instructions as to whether our client would claim costs against him if he discontinued the action.
	7.	After obtaining instructions from our client, I wrote to the Applicant on or about 10th March 2001 on a without prejudice basis confirming that our client would not claim costs against him provided that he discontinued with this claim before the scheduled call-over hearing on 16th March 2001. There is now produced and shown to me marked "KWMC-3" a copy of our letter to the Applicant dated 10th March 2001.
	8.	On or about 12th March 2001, I spoke to the Applicant again on the phone and explained to him that our client would not claim costs against him if he discontinued this action before 16th March 2001. I told him that we had already sent him a letter in this regard and suggested that he went to the Court Registry direct before 16th March 2001 to discontinue his action after receiving our letter. I had also asked the Applicant to confirm progress with me.
	9.	On or about 15th March 2001, the Applicant telephoned and confirmed with me that this action was discontinued. He told me that he would fax a copy of the Court notice to me in the afternoon. We received the Notice of Discontinuance signed by the Applicant and dated 14th March 2001 by facsimile at around 4:11 pm on 15th March 2001. There is now produced and shown to me marked "KWMC-4" a copy of the Notice of Discontinuance which was faxed to us by the Applicant.
	10.	We then received a letter from the Court dated 16th March 2001 advising us of the remarks made by His Honour Judge Carlson on 15th March 2001 and these remarks were "Leave granted subject to any issue as to costs that may arises from this." There is now produced and shown to me marked "KWMC-5" a copy of letter from the Court dated 16th March 2001.
	11.	We wrote to the Court on 21st March 2001 confirming that the parties had agreed to no order as to costs in this action and a copy of this letter was also sent to the Applicant. There is now produced and shown to me marked "KWMC-6" a copy of our letter to the Court dated 21st March 2001.
	12.	We received a letter from the Court dated 26th March 2001 confirming that order was granted in respect of the application for discontinuance of this action. A copy of this letter is produced and shown to me marked "KWMC-7".
	13.	During my telephone conversations with the Applicant on 7th, 10th, 12th and 15th March 2001, the Applicant had clearly indicated to me that he did not wish to pursue further with this action. I verily believe that the Applicant did understand the effect of his discontinuing with this action and that he had intended not to pursue with this action any further. I also believe that there had been no misunderstanding between the parties. During all my telephone conversations with the Applicant, he had not indicated that he wished to vacate the hearing on 16th March 2001 and have the matter adjourned sine die."

10. I directed that Miss Chu should prepare a Chinese translation of that affirmation which she has done. This has enabled the Applicant to reply in detail on 17th September.

11. The material parts of this bear repetition here :

"In March 2001 I received notice from the court that my employer's legal representative has applied to restore the case. I was notified to attend a hearing on 16 March 2001. I was neither legally aided nor represented by a private lawyer. I did not understand the legal proceedings and my English was poor. There was still insufficient information and I had no money to prepare medical evidence. I felt that I lacked money and resources and I did not know what to do next with the legal proceedings. I therefore called KPMG PEAT MARWICK which sacked me. The lawyer of the company talked with me and I asked him/her what I should do if I did not want to attend court on that day. The lawyer of the firm gave me to understand that I could go to court to apply for the action to be dismissed. I was then unclear of the legal proceedings and lacked legal knowledge. Neither was I able to express in depth of my intention to cancel court appearance on that day. It was not as stated in item B of the affirmation of the employer's lawyer that I went to court with full understanding to apply for the action to be dismissed. Neither did we discuss about my intention to have the case adjourned sine die. Although there was no apparent misunderstanding in our communication, I, being ignorant of litigation, had been unable to express my real intention to have the case adjourned sine die. I was then misled to court with no knowledge of law.

What was even worse was that I was led to take unclear actions. The lawyer for the employer frequently mentioned that if I attended the court hearing, the company, that is party to the action, might consider suing against me for costs according to the 6th, 7th affirmation. I was not fully prepared with the information for action and have no money to instruct lawyer nor assistance from Legal Aid. In the fear of having to pay costs under the claim, I went to court and took unclear actions.

During the whole conversation between me and the lawyer for the employer, I was unclear and ignorant of the legal proceedings. I feared that I would be sued for costs by the employer's lawyer. I was totally misled that if I didn't want to appear in court, I could go to court to apply for the action to be cancelled. But I did not know that the action would be dismissed once and for all. I only thought that the action on that day would be cancelled. I was unable to express my intention clearly and unclear of various legal proceedings when I took the actions.

There was another reason which caused me to take unclear actions. At the instruction of the employer's lawyer, I went to the Court Registry on the 6th floor on 14 March 2001. I brought along the notice of hearing with me and said to the court clerk in express terms that I did not want to attend the hearing on 16 March 2001 and asked whether the action could be cancelled. It might be due to inarticulateness on my part but then the clerk did not enquire me of item 3 of the notice of hearing as to what my intention was, whether to cancel the action on that date and adjourn it sine die or to have the case dismissed. All that I was given by the Registry was a letter in English for me to sign. While my English was not good I mistook that it was for canceling the action on that day and the case would be adjourned sine die. And thereafter the notices I received were all in English which I could not fully understand. I was only told to sign the letter and serve a copy to the employer.

Finally I urge the Judge to appreciate that I have never wanted to give up item 3 of the hearing notice, that is my intention and right to adjourn the case sine die. It was only because I was not good at communicating and expressing myself, my poor English and my legal aid being revoked plus I was not fully prepared with the information that caused the misunderstanding. I pray to retain my right to adjourn the case sine die. I am now waiting for information to be ready to bring the case to court again."

12. It is the plain duty of the court to provide a litigant in person with proper assistance in his (or her) conduct of the particular litigation that he is pursuing. It must be vigilant to ensure that he has not been misled into taking a course of action that is to his prejudice and that he does not intend to take. Much has been done by the courts to simplify procedures and the mysteries of litigation are not what they were, even relatively recently. In Hong Kong because much of the practice of the law is in English care must be taken to ensure that a non-English speaking unrepresented litigant is not allowed to confuse or mistake himself into making an error. It is this, at all events in part, that the Applicant is complaining about.

13. Nevertheless, this is not the whole picture. Miss Chu has affirmed that on 7th March 2001 the Applicant had told her that he had informed the Legal Aid Department and the Labour Department that he did not wish to pursue his claim any longer. She has affirmed that in the course of four telephone conversations from 7th to 15th March 2001 the Applicant had clearly indicated to her that he did not wish to go on. On that basis she had sought and obtained instructions from her clients that if this was so they would not seek costs. Pursuant to these conversations that is what the Applicant did when he went to the court and signed the Notice of Discontinuance.

14. There is of course a conflict in the account of Miss Chu and the Applicant as to their conversations. Firstly, he suggests that he was told that if he went on they might seek costs against him. Further, that there was confusion in his mind as to whether the hearing date itself would be 'cancelled' rather than the whole Application brought to an end. This was then compounded by what happened once he spoke to the court staff who produced the Notice of Discontinuance which he signed. This all appears in his letter of 17th September.

15. In view of this apparent conflict I have considered whether I should give this unrepresented litigant "the benefit of the doubt" by holding that there are reasons for saying that he has allowed himself to be confused.

The Result

16. Ultimately, I have decided that what the Applicant complains of simply cannot stand up to reasoned scrutiny and I say that making every allowance for his lack of English and his ignorance of court procedures.

17. When one stands back from the facts it is quite clear that the Applicant had let the matter go to sleep for over 2 years. The Respondents took the initiative to have it restored. Miss Chu and the Applicant have had 4 conversations about the matter, in Chinese of course - the Applicant speaks no English. It was he who had told her that he had informed Legal Aid and the Labour Department that he was not going on. The two year silence speaks volumes as to that.

18. Based on, and following his conversation with Miss Chu he went to court and spoke to a member of the court staff, in Chinese, who following his request produced the Notice of Discontinuance form for him to sign. I don't have the slightest doubt that he knew precisely what he was doing and, now some 21/2 years later, for reasons best known to him he is seeking to resurrect this matter. I am certain that the court staff would not have produced the form that he signed unless it was clear to them that this is what he wished to do. Had he wanted to have the case further adjourned that was bound to have come out in his discussions with the court staff who would have indicated some other course of action and certainly not produced the form applying for Discontinuance. I am satisfied that he is now trying to make the most of his lack of English and his ignorance of court procedures to obtain an advantage to which, on this evidence, he is not entitled to. He knew precisely what was happening and his application must therefore be dismissed with costs, including those reserved on 28th August 2003.

19. I have directed that this judgment should be translated into Chinese for the Applicant. Accordingly, time for appealing and the like should not run until two days following the posting to him of the translation. The order for costs will also, in the usual way, be an order nisi.