Shamdasani, Murli Pessumal v. The Incorporated Owners of Chungking Mansions

CACV000199A/1991

1991, No. 199
(Civil)

IN THE COURT OF APPEAL

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Coram: Hon Penlington, Bokhary, JJ.A. and Godfrey, J.

Date of hearing: 13 October 1993

Date of delivery of judgment: 13 October 1993

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J U D G M E N T

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Godfrey, J.:

1. This is an application for leave to appeal to the Privy Council from an order of this Court made on 26th February 1993 dismissing the appellant's appeal. The period for an appeal to the Privy Council, a period of 14 days from the date of that order, expired on 12th March 1993. The present application was made on 17th June 1993, almost 4 months after the date of the judgment of this Court. In those circumstances, the proposed appeal cannot proceed unless this Court grants leave. This Court must consider before doing so: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if an extension of time is granted; and (4) the degree of prejudice to the respondent if the application is granted: see the judgment of Lord Donaldson of Lymington M.R. in Norwich & Peterborough Building Soc. v. Steed [1991] 1 WLR 449 and see also Mallory v. Butler [1991] 1 WLR 458.

2. I turn first to the length of and reasons for the delay. The delay was occasioned, the appellant says, because the solicitors acting for him in his appeal to this Court failed to advise him of his right to appeal to the Privy Council. The appellant puts the matter in this way in paragraph 3 of his affirmation made on 30th September 1993:-

"3. My previous legal advisers did not advise me in relation to my right of appeal to the Privy Council, and I was, therefore, unaware of such right and the prescribed time limits."

Speaking for myself, I am extremely surprised by this. I should have thought that the appellant's previous solicitors would have been under a duty to advise their client of his right of appeal to the Privy Council; in this jurisdiction, a right to appeal as of right when the sum involved in the appeal is (as here) of sufficient size, and would have been unlikely to fail to discharge that duty. I am also extremely surprised that the appellant was not aware, quite independently of any advice given or not given to him by his former solicitors, of that right. But that is what he has said in his affirmation and, as Mr Coleman for the appellant observes, it is only right for us to act on the footing that what the appellant says is true. I propose therefore, despite my misgivings, to accept that the appellant did not become aware of his right of appeal to the Privy Council in time to launch his appeal within the prescribed period. It appears that he did not approach his present solicitors for advice until mid-April 1993, when he was for the first time advised of the possibility that he might be able to appeal from the decision of this Court to the Privy Council. Thereafter, it took some little time for the appellant's solicitors and counsel to get their tackle in order before launching this present application.

3. Mr Coleman submitted that it was the duty of solicitors and counsel properly to prepare an application of this sort and that accordingly this further delay was not unjustified. However, having regard to the fact that the appellant was already out of time, I should have thought it incumbent on his solicitors and counsel to treat the matter as one of urgency. And as Lord Donaldson of Lymington M.R. pointed out in Norwich & Peterborough Building Soc. v. Steed (see above) at p.454:-

"Once the time for appealing has elapsed, the respondent who was successful in the court below is entitled to regard the judgment in his favour as being final. If he is to be deprived of this entitlement, it can only be on the basis of a discretionary balancing exercise, however blameless may be the delay on the part of the would-be appellant."

4. The delay here has been considerable, and in my judgment was not justified.

5. I come now to the third factor to be considered; the chances of the appeal succeeding if an extension of time is granted.

6. Two points are taken by Mr Coleman. The first is a limitation point. I need not describe this. It was taken unsuccessfully before the judge. It was not pursued at all before this Court. Mr Coleman says he ought to have leave to resurrect it before the Privy Council. In my view, it would be quite wrong for this Court to assist the appellant to do this. The point was abandoned, and in these circumstances it seems to me absurd to suggest that this Court should consider the point to be of sufficient substance to warrant leave to appeal being granted from the decision of this Court to the Privy Council.

7. The second point is a point on estoppel. This Court pointed out in its judgment that there was no dispute in this case as to the law or to the facts, but only as to the conclusions which ought to be drawn from them. Mr Coleman complained that in the judgment of this Court, when considering the estoppel point this Court must have confused the concepts of "representation" and "reliance". But this was mere playing with words. And he says that, over a long period of time, the conduct of the respondents, the incorporated owners of Chungking Mansions, must have led many people to think that they would not object to a continuance of the conduct of which they now complain. In a very broad sense, the appellant's feeling that he has been treated inequitably is quite understandable. But this Court is not concerned with equity in so broad a sense. The question before this Court was simply: whether or not the proprietary estoppel for which the appellant was contending could possibly be established on the facts of the case. This Court came to the clear and unequivocal conclusion that it could not.

8. Mr Coleman in effect now seeks to resurrect, not the proprietary estoppel argument which failed before this Court, but a different argument based on estoppel which was also abandoned before this Court. Once again, it seems to me to be absurd to suggest that in those circumstances the appellant should be given leave to put his case before the Privy Council in a completely different way from the way which it was presented to this Court.

9. In the result, I am, for my part, quite satisfied that there are no merits in the application.

10. As to the fourth factor, the respondents have not suggested at any stage that they would suffer any prejudice if the application was granted. Indeed, it appears to be the case that the respondents wish to embark upon the same course of conduct from which they say the appellant is precluded. There would, therefore, be nothing in this point if it were taken by the respondents (which it is not). But for the reasons I have attempted to state, I am quite satisfied that this application for leave to appeal ought to be dismissed.

Bokhary, J.A.:

11. Litigation is, for those engaged in it, unsettling in a variety of ways while it lasts. And the life or potential life of litigation is extended by a system of appeals. Nevertheless, that system is efficacious and indeed necessary if justice is to be administered properly as a system. Also, its potential for the unsettling of the affairs of litigants is limited by an arrangement under which the time limited for lodging appeals is strictly regulated, subject only to an overriding judicial discretion which by its nature is to be exercised cautiously.

12. It is no small matter to say to a winning party that the other side is to have leave to appeal out of time and, therefore, after a time when the winning party become entitled to think that the matter was at an end in his favour.

13. The approach to the discretion to extend time for appealing has been dealt with fully by my brother Godfrey. For the reasons which he gives, I am of the opinion that, on a proper approach to the relevant factors, this is clearly a case in which there should be no extension and no leave to appeal to Her Majesty in Council. I, too, would dismiss this application.

Penlington, J.A.:

14. I have considered the first aspect of this matter, the question of delay, on the basis that of course we have an affidavit before us and provided it does not patently appear to be false we should accept it. But, nevertheless, there must be some degree of skepticism that the appellant; a businessman, should not be aware of cases going to the Privy Council from this Court particularly where they involve substantial sums of money. However, as I say, accepting that the affidavit correctly sets out the reason for the delay, we then turn to the merits of the application. Having considered the judgment of this Court of which I was not a member and having looked particularly to the course of conduct of this litigation, I have no doubt whatever that there is no reasonable prospect of success should we grant the leave asked for. The application for leave to appeal to the Privy Council out of time is refused. The respondent will have its costs of the application.

Representation:

Mr Russell Coleman (Messrs Robert W.H. Wang & Co.) for the Appellant

Mr Warren Chan (Messrs Ng & Partners) for the Respondent