The Personal Representative of the Estate of Chan Chuen, Deceased v. Forestside Ltd

HCA 2055/2011

ACTION NO 2055 of 2011

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REASONS FOR DECISION
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Second application in 10 days for adjournment

1.Reasons for my decision (“Reasons for Decision”) on 29 December 2015 refusing the plaintiff’s application to adjourn the trial were handed down this morning.  I incorporate the Reasons for Decision here by reference and adopt the same abbreviations.

2.It would appear that the plaintiff succeeded in her legal aid appeal yesterday.  That notwithstanding, she appeared in person this morning.

3.She applied for an adjournment.  That was the second application since 29 December 2015.

4.There was no affidavit evidence in support of the application. No counsel had been instructed to make the application on her behalf.  Mr Lung Siu Wing (“Mr Lung”), a solicitor of Messrs So Lung & Associates, sat next to the plaintiff.  Needless to say, Mr Lung had no right of audience in Court.

5.Relevant information was again not provided by the plaintiff. Instead, information had to be extracted.

6.The plaintiff said that barrister Chan (presumably Mr Kenneth CL Chan) was not in Hong Kong and that he would not return until 18 January.

7.In reply to a question by the Court, the plaintiff said Mr Chan would be free from 18 to 26 January.  There were 6 scheduled sitting days between 18 to 26 January.  She did not provide any information on Mr Chan’s availability after 26 January. 

8.Nor was any information on attempts (if any) made to instruct other counsel.  The plaintiff cannot assume that the Court would accommodate her to suit the convenience of Mr Chan.  Whether or not suitable counsel would be available is a different point.  The point here is that there is no evidence of any effort to find, retain and instruct counsel.  As I said in paragraph 19 of the Reasons for Decision:

“Litigants have no right to expect the Court to grant them indulgence if they do not act with due diligence. Litigants should properly equip themselves for legal proceedings. The Court does not wait for dilatory litigants to be ready.”

9.In reply to a question by the Court on who would bear the costs wasted by an adjournment (if granted), she initially said she would.  She is legally aided.  That should mean she would be unable to bear costs.  There would be no compensation to the defendant for the prejudice suffered by way of wasted costs.

10.Mr Lung said something to her and she said legal aid would pay.  The statement does not appear to sit well with the following statement by the Director to Messrs So Lung & Associates by fax dated 7 January 2016:

“… we are not in a position to agree to bear costs of adjournment. That said, we shall respect whatever costs order the court shall think fit in the circumstances of this case”, underlining in original.

Orders made

11.I refused what was in effect an application to adjourn to dates to be fixed. 

12.Not without reluctance, I adjourned the hearing to 2:30 p.m. on 11 January 2016, with costs reserved.

13.I also ordered the senior partner of Messrs So Long & Associates to write to the Court to explain what they told the plaintiff about legal aid bearing the costs of adjournment.

The plaintiff in person, present

Mr Johnny Mok SC, leading Mr Johnny Ma, instructed by Messrs Lo & Lo,for the defendant