Dr F and Another v. Education and Accreditation Committee of the Medical Council of Hong Kong and Another

CACV 274/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 274 OF 2015

(ON APPEAL FROM HCAL NOS 26 AND 55 of 2014 (Consolidated))

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BETWEEN

AND

BETWEEN

_______________________

(Consolidated pursuant to the Order of

the Honourable Mr Justice Au dated 15 September 2014)

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REASONS FOR JUDGMENT
AND
DECISION ON COSTS
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Hon Lam VP (giving the Reasons for Judgment and Decision on Costs of the Court):

1.In this application, the 1^st Respondent seeks leave to serve a Respondent’s Notice out of time.  The court below handed down its decision on 13 November 2015.  The Notice of Appeal was served on 11 December 2015 and the appeal was set down on 17 December 2015.

2.Application to fix a date for the hearing of the appeal was made on 5 January 2016.  The hearing date was fixed with the agreement of the parties on 12 January 2016.  The appeal is scheduled to be heard on 13 December 2016 with only one day reserved.  Notice of hearing was given to the parties on 22 January 2016.

3.According to Order 59 Rule 6(3)(b), the 1^st Respondent had 21 days after the service of the Notice of Appeal to serve its Respondent’s Notice.  In the context of this appeal, the 1^st Respondent should have served its Respondent’s Notice by 2 January 2016.  Due to an oversight on the part of the Senior Government Counsel handling the case, this was not done.

4.On 27 May 2016, a summons was taken out on behalf of the 1^st Respondent seeking leave to serve its Respondent Notice out of time.

5.On 13 June 2016, the court drew attention of the parties to Altomart Ltd v Salford Estates (No 2) [2016] 2 All ER 328 and invited parties to propose directions for the conduct of the summons.

6.Solicitors for the Applicants wrote to the court on 22 June 2016 setting out extensive reasons for opposing the summons.  Reference was also made to the English approach in Altomart, supra as well as two other cases: R (Idira) v Secretary of State for the Home Department [2016] 1 WLR 1694 and Denton v TH White Ltd [2014] 1 WLR 3926 regarding extension of time to file respondent’s notice.

7.Solicitors for the Applicants pointed out that at the court below, Au J decided the matter on the sole basis that the relevant decisions were not reviewable on account of their preliminary nature (“the justiciability issue”).  Although other grounds (described as “substantive judicial review grounds”) were canvassed, Au J did not adjudicate on the same.  Thus, solicitors for the Applicants said this in that letter:

“ It is inappropriate for the 1^st Respondent to ask the Court of Appeal to, in exercising its appellate jurisdiction, decide detailed and complex issues and make findings of fact and law, without the benefit of any such reasoning or decision making at all from the Court of First Instance. We are additionally of the view that it is highly impracticable for the Court of Appeal to make determinations on the merits of the substantive judicial review grounds, which Au J did not even consider.”

After referring to the complexity of those other issues and the time (estimated by the solicitor to take at least 3 days on appeal) which would be needed for the proper ventilation of the substantive judicial review grounds, the solicitor said:

“ It is emphasised by the Appellants that they would not have objected if there had been some minor inadvertent error by the Respondent or if the Respondent’s Notice dealt with justiciability - the sole issue in the appeal. But it does not. To allow this Respondent’s Notice will place the Court of Appeal in the position of being asked to do what the primary judge did not adjudicate upon and will mean the existing one-day appeal is wholly insufficient.”

8.Senior Government Counsel wrote to the Court on 27 June 2016 intimating he agreed that the English approach in Altomart, supra and Denton v TH White Ltd, supra, should govern the application. He referred to paragraph 2 of the Notice of Appeal which seemed to have raised an issue on the substantive judicial review grounds.  Paragraph 2 stated as follows:

“ The Judge was also wrong in law in holding that there were no ‘exceptional circumstances’ to justify the Court’s intervention in respect of the Decisions (§§22-23, 48). It is demonstrated in caselaw authority, including from the Hong Kong Court of Appeal in Drs X, Y and Z v EAC and the Medical Council [2013] 1 HKLRD 167 that the EAC’s recommendations are reviewable. It is also well established in law that preliminary decisions are reviewable so as to ensure that there is a lawful exercise of discretion and that the decisions are procedurally fair. Recommendations of legal significance are also considered clearly reviewable. The Judge ought to have held that the Decisions are reviewable in light of the significant and identifiable errors of law and procedure identified in the decision-making process, and the consequential unlawfulness of the full Council’s decision if it were to adopt the Decisions. It should therefore have been held on this basis that there is good reason or ‘exceptional circumstances’ to review the Decisions now.”

(The emphasis was added by us as the underlined sentence was relied upon by the Senior Government Counsel to support his argument.)

9.With that perception, he deemed it necessary for the 1^st Respondent to advance arguments on those grounds and the proposed Respondent’s Notice is to serve such purpose.  He further said:

“ For the avoidance of doubt, the 1^st Respondent does not have any self-standing intention to delve into argument on the substantive grounds. However, if (as appears to be the case) the Appellants seek to advance argument on such grounds, the 1^st Respondent ought to have the opportunity to do so as well.”

10.Having considered parties’ representations in the correspondence, the Court gave these directions on 13 July 2016:

“ Based on the submissions set out in the letters, the court considers that,

(a) The summons should be dealt with on a date before the substantive hearing of the appeal;

(b) There is no dispute that the proper approach for processing the summons is set out in the English cases;

(c) The only issue is the application of that approach to the facts of the present appeal bearing in mind the issues raised in the Notice of Appeal and the issues decided by the Judge in the court below.

In light of the foregoing, and in view of the desirability of resolving the matter promptly, the lack of complexity of the summons and directions for filing skeleton submissions (which can incorporate input from counsel handling the substantive appeal if counsel is not available to attend the hearing), the court will fix a 9:30 appointment (with an estimate of ½ hour) on 11 August for the determination of the summons before 2 judges.  Skeleton submissions shall be lodged by the 1^st Respondent at least 14 days before the hearing and by the Appellants at least 7 days before the hearing.”

11.With such background in mind, it is somewhat surprising to us that in his written submissions Mr Leung (counsel for the 1^st Respondent) revisited the question of the proper approach and invited us to consider some local authorities which suggested a slightly different approach.  Given the limited time and opportunity to develop the arguments on the proper approach, we are not minded to decide in this judgment (as it is not necessary to do so for the reasons given below) whether Hong Kong should adopt the approach in those English authorities.  Such exercise would have to be left for another occasion.

12.It seems to us the overriding question in the present context is what are the issues in the present appeal.  In his written submissions, Mr McCoy SC (counsel for the Applicants) made it crystal clear that the Applicants did not intend to ask this court to determine the substantive judicial review grounds and the only issue to be determined is the justiciability issue.  Thus he said at §6 that the Applicants had conclusively and repeatedly disavowed any intention to run the substantive judicial review issues at the appeal hearing.  Apart from the letter of 22 June 2016, he also referred to a letter of 30 June 2016.  He reiterated at §7:

“ There is accordingly no intention and has never been any intention on the part of the Applicants to argue the substantive grounds of judicial review afresh before this Court in the substantive appeal, nor can there rationally be.”

13.As for paragraph 2 of the Notice of Appeal, Mr McCoy explained that the reference to the significant and identifiable errors of law and procedure in that paragraph should be understood in the context of the arguments on justiciability and the assessment on whether the decisions concerned are of legal significance and as such reviewable.  He further said at §10.2 that such errors were to be regarded as “exceptional circumstances” to justify the Court’s intervention at this stage.

14.At §11, counsel further said:

“ It is therefore evident that the sole focus in the appeal is, and has always been, the Judge’s preliminary assessment of significant and identifiable errors of law and procedure in the course of deciding the question of justiciability. As shown in the Judgment, the Judge’s primary consideration was whether there are sufficient errors of law and procedures identified so that the decisions are ones of substantive legal consequences and of determinative effect (§§20-22). This must necessarily exclude any findings of fact in that regard and cannot engage the substantive grounds of judicial review …”

15.With respect, having read the judgment of Au J and paragraph 2 of the Notice of Appeal in that light, we have difficulties in pinpointing what are the significant and identifiable errors of law and procedure referred to in that paragraph and the basis on which they are said to constitute exceptional circumstances.  We paid special attention to the paragraphs in the judgment which Mr McCoy specifically alluded to in paragraph 2 of the Notice of Appeal and in his written submissions.  We cannot discern from the judgment below that an argument had been run before Au J that the Decisions are reviewable in light of the significant and identifiable errors of law and procedure identified in the decision-making process.

16.Further, the Notice of Appeal did not ask for the matter to be remitted back to the Court of First Instance for determination of the substantive grounds of judicial review.  It only asked for the dismissal of the application for judicial review to be set aside.

17.Against such background, we can understand the concern of the Senior Government Counsel when he made the application for extension of time by the summons of 27 May 2016.

18.At the hearing, Mr McCoy confirmed that he would not argue on the merits of the substantive grounds of judicial review at the hearing of the appeal and no point would be taken that the merits of such grounds constitute exceptional circumstances. 

19.In light of the submissions by Mr McCoy, it is now clear that the substantive grounds of judicial review would not be addressed at the appeal.  In addition, irrespective of what was said in paragraph 2 of the Notice of Appeal, in light of such intimation before us, this Court will ensure that arguments on such substantive grounds of judicial review would not be entertained. 

20.Hence, there is no longer any need for the 1^st Respondent to be concerned with the substantive grounds of judicial review.  If this Court were to determine the justiciability issue in favour of the Applicants in December, the case would be remitted back to the Court of First Instance.

21.Seen in this light, the Respondent’s Notice is not necessary.  For this reason, we dismissed the summons. 

22.We have heard submissions on costs. In the circumstances, whilst it is fair to say that the 1^st Respondent was justified in issuing the summons, we are of the view that those acting for it should have been more proactive in seeking clarification from the Applicants after reading the correspondence. In the circumstances, we order that the costs of the summons be the Applicants’ costs in the cause of the appeal.

Mr Gerard McCoy SC and Ms Denise Souza, instructed by Mayer Brown JSM, for the applicants

Mr Wilson Leung, instructed by the Department of Justice, for the 1^st respondent

Attendance of the 2^nd respondent excused