F v. C
Read the full judgment text of FCMC 5954/2012 on BabelCite. This Family Court judgment before Deputy District Judge D. Cheung.
Civil procedure – Leave to appeal – Out of time – Ancillary relief – Power of Attorney – Mental capacity – Fresh evidence – Ladd v Marshall – Costs – Wife sought leave to appeal out of time against decision granting Husband leave to apply for ancillary relief – Grounds included irrational decision, attorneys' authority, and absence of material info – Court found no reasonable prospect of success on appeal grounds – Fresh evidence admitted regarding Husband's mental capacity under Ladd v Marshall conditions – Delay of 5 months not excused due to Wife's avoidance behavior – Costs awarded to Husband – Application for leave to appeal denied.
Legal issues: Prospect of success of intended appeal · Admission of fresh evidence · Discretion to grant leave out of time · Costs order
Outcome: Application for leave to appeal denied.
Cites 3 cases
|
FCMC 5954/2012 [2019] HKFC 217 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 5954 OF 2012 ----------------------------
---------------------------- Coram : Deputy District Judge D. Cheung in Chambers (Not open to public) Date of Submission of the Petitioner : 20th May 2019 and 17th July 2019 Date of Submission of the Respondent : 3rd June 2019 and 3rd July 2019 Date of Ruling : 20th August 2019 (paper disposal) ------------------------------------- RULING ( Leave to Appeal ) ------------------------------------- The application 1.The Wife by Summons dated 16th May 2019 (“the application”) sought leave to appeal out of time against my decision dated 13th December 2018 (“the decision”) granting the Husband leave to apply for ancillary relief against the Wife. The Husband opposed the application. Proposed grounds of appeal 2.In essence, the Wife says that I was wrong in granting leave to the Husband to apply for ancillary relief against the Wife. She sets out 3 proposed grounds of appeal in her draft Notice of Appeal as follows:
3.The application is out of time. It is submitted by the Wife that the Court has a discretion to grant leave to appeal out of time, considering the following factors : (1) length of delay; (2) reason(s) for delay; (3) prospect of success of the intended appeal; and (4) whether the grant of leave to appeal out of time would cause prejudice to the opposite party. 4.In the following discussion, I shall first deal with the prospect of success of the intended appeal before I deal with the other 3 factors. Applicable Legal Principle 5.Section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard. 6.The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that the applicant has an arguable case with reasonable chance of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011. 7.The Court of Appeal is unlikely to interfere with the exercise of the Court’s discretion unless it can be shown that it has clearly exercised that discretion incorrectly. Alternatively, it will be necessary to show that the Judge was wrong on the law or in relation to a certain legal principle. Discussion The 1st Ground of Appeal 8.In the skeleton submission for the Wife, it stated that the decision to grant leave to apply for ancillary relief is directly at odds with the finding of fact that the Husband did not consent to the divorce and there was no separation prior to the grant of decree of divorce. While the evidence was adduced to provide an explanation of the question of delay in the Husband’s application, such evidence was accepted by and relied on by the Court in granting leave. In other words, the Court accepted that there was evidence that suggested the divorce was obtained in circumstances that would at the least give rise to doubt on its validity. 9.The main complaint of the Wife under this ground of Appeal suggested that no reasonable Judge would have exercised his discretion to grant leave to apply for ancillary relief without further enquiry and when the divorce, on which such ancillary relief application is necessarily premised, was obtained unlawfully. 10.In the Husband’s submission, it was submitted that a party seeking ancillary relief not made in a petition must obtain leave from the Court, and in so doing, satisfy the Court as to (1) why there was an omission of the ancillary relief claimed; (2) whether there has been undue delay; and (3) whether the application has a seriously arguable case. 11.The Husband submitted that he was unaware of the details of the Consent Summons, thus he did not claim certain elements of ancillary relief under his Form 4, and evidence on this point was submitted only for the purpose of satisfying the Court as to the reason for the omission in the petition, not to argue a case that the divorce had been obtained through fraud/misrepresentation or that the Consent Order should be set aside. 12.In the decision, I accepted the Husband’s explanation as to why he was unaware of the details of the Consent Summons (§§28-45), and I found that there is evidence to support the Husband’s explanation as to why he did not claim any ancillary relief in his Form 4. 13.The Husband’s case is that the parties only separated in 2016 when the husband moved to England instead of January 2011, and the Husband suggested that the divorce was obtained unlawfully and liable to be set aside, however, the Husband was not going to set aside the divorce. 14.My view is that if the Husband is not intending to keep the marriage, there is no need for him to set aside the divorce. To the Husband, the only remaining issue is just the ancillary relief, and this is why the Husband sought leave to apply for ancillary relief if it had never been resolved. 15.As to the differences of the date of separation, this issue will be re-visited and considered when the issue of ancillary relief is determined. By that time, the differences of the date of separation contested by the parties will be heard and determined. 16.Due to the above analysis, I cannot see any reasonable prospect of success in relation to Ground 1 of the intended appeal. The 2nd and 3rd Ground of Appeal 17.I shall deal with the 2nd Ground and the 3rd Ground of Appeal together, because the main issue to be determined is the health of the Husband. 18.Whether these 2 grounds of appeal can be successfully established is closely connected to the issue of whether fresh or further evidence from the Husband should be admitted. The issues can be conveniently and sufficiently covered under the following sub-headings. The law on admission of fresh/further evidence 19.Having read the written submission of both parties, I am of the view that the following represent a brief summary of the relevant legal principles on admission of fresh or further evidence in the case of an appeal. 20.Order 59 rule 10(2) of the Rules of High Court provides that the Court of Appeal shall have the power to receive further evidence on question of fact:
21.It is trite law that the Ladd v Marshall conditions apply to all appeals, and the Court of Appeal adopts a strict approach in applying Ladd v Marshall [1954] 1 WLR 1489 because:
(See also: Hong Kong Civil Procedures (2018) at §59/10/8 at p1167) 22.Under Ladd v Marshall (supra), the applying party must satisfy 3 conditions, namely:
23.Fresh or further evidence may be adduced on the “otherwise” situation, under which the applying party has to satisfy the court that (See: Hong Kong Civil Procedures (2019) at §59/10/8):
24.The Wife submitted that the Husband relied on the principles of Ladd v Marshall purporting that a letter dated 31st May 2019 from one Dr. Gascoigne of St Francis Hospice (“the 31st May 2019 report”), should be admitted and considered by the Court for the purpose of considering the Wife’s application for leave to appeal out of time. 25.The Wife argued that the general rule is that new evidence must satisfy all three limbs of the Ladd v Marshall test before it can be considered by the Court at this stage, unless it falls within any of the recognized exceptions to this general rule, and the Husband’s new evidence does not fall within any of those recognized exceptions, therefore he must satisfy the Ladd v Marshall test. 26.The Wife complained that it clearly does not satisfy the first limb of the Ladd v Marshall test in that it clearly could have been obtained on or before the 4th December 2018 hearing with reasonable diligence. 27.The Wife submitted that the 10th May 2018 report (“10th May 2018 report”) was considered by the Court before granting leave on 13th December 2018 for the purpose of considering the Husband’s medical condition for the hearing on 4th December 2018. 28.The Wife complained that the 3rd December 2018 report clearly set out the most relevant and up-to-date assessment of the Husband’s medical condition for the 4th December 2018 hearing, and clearly should have been put before the Court for consideration prior to the granting of leave on 13th December 2018 but was not, and without any explanation as to the delay when the report was already available on the day of or shortly after the hearing. 29.In the skeleton submissions for the Wife, it was submitted that I had failed to consider or sufficiently consider whether those prosecuting the application purportedly on behalf of the Husband could lawfully rely on the Power of Attorney dated 18th March 2016 (“the Power of Attorney”) to do so. 30.It was submitted that the doctor reports set out in no uncertain terms that by 2nd January 2018 onwards, the Husband was no longer able to communicate with his attorneys. 31.Pursuant to s.1A(1)(b) of the Power of Attorney Ordinance (Cap 31) and s.2 of the Mental Health Ordinance (Cap 136), the Power of Attorney ceases to be effective for any purpose, upon a person becoming mentally incapable or incapacitated, which includes the inability of the donor of the power “to communicate with any other person who has made a reasonable effort to understand him, any intention or wish to grant a power of attorney.” 32.It was submitted that there was evidence before me that the Husband was mentally incapable or incapacitated, in particular including being unable to communicate with any other persons including his attorneys and solicitors despite their reasonable efforts to understand him, his intention and wishes, and that want of authority is plainly a fundamental matter. 33.It was further submitted that the Husband’s attorneys disclosed, for the first time on 16th April 2019, an Enduring Power of Attorney executed by the Husband on 18th March 2016 (“Enduring Power of Attorney”), and the grant of leave was made in the absence of material information possessed only by the attorneys and not disclosed even at the hearing, concerning the capacity of the attorneys to act for the Husband. 34.The Wife argued that the decision made in the absence of material information as to the Enduring Power of Attorney was unlawful in that (i) on 18th March 2016 they were appointed as attorneys pursuant to both a general power of attorney and enduring power of attorney; (ii) the general power of attorney ceased to have effect due to the inability of the Husband to communicate; and (iii) at the time of the leave hearing, the Enduring Power of Attorney was not registered and the attorneys had no lawful authority to continue acting on behalf of the Husband until such time as they comply with ss. 4(3) and 9 of the Enduring Powers of Attorney Ordinance (Cap 501). 35.Section 4(2) of the Enduring Powers of Attorney Ordinance provides that “If the attorney has reason to believe that the donor is or is becoming mentally incapable, he must, as soon as practicable, apply under section 9 for registration of the Enduring Power of Attorney, and section 4(3) provides that “In the event of the subsequent mental incapacity of the donor, the attorney shall not do anything under the authority of the power unless or until it is registered. 36.The Wife submitted that the Court will recall that it was previously deposed or opined in evidence filed on behalf of the Husband for the hearing on 4th December 2018 that the Husband “is not in a physical condition to speak nor hear anything”, “he could not move his muscles”, “he is unable to communicate normally by speech”; he is at times “confused” and “his speech is extremely poor and unintelligible”. 37.The Husband submitted that the Wife recently and belatedly took issue with status of the Power of Attorney by arguing that the Husband had not been mentally capable of giving instructions to the Attorneys to conduct these proceedings. 38.Notice of revocation of previous Power of Attorney was given to the Wife on 18th March 2016 and was received and signed by the Wife on 23rd March 2016. The Wife did not take issue with the Power of Attorney at that point in time. 39.In April 2017, the Wife then started that she was going to challenge the execution and validity of the Power of Attorney but this was never pursued. 40.For more than 2 years after the Wife received the Notice of Revocation of the previous Power of Attorney granted to the Wife and more than a year after the Wife informed in writing that she would challenge the execution and validity of the Power of Attorney, the Wife at no point raised this issue prior to the hearing on 4th December 2018. 41.In the decision, I was satisfied that the Wife was aware of the hearing date and chose not to attend the leave application hearing, I therefore heard the leave application in the absence of the Wife. 42.In the 10th May 2018 report, it was stated that the Husband was terminally ill with multiple sclerosis and required all care, and that he was unable to read, write or care for himself in any way at all and was unable to communicate normally by speech. 43.I do not find that the disabilities of the power to communicate normally by speech is equivalent to becoming mentally incapable or incapacitated. 44.During the leave application hearing, I was satisfied that despite of the physical disabilities of the Husband, there is no issue of disabilities of his mental capacity. 45.Now that the Wife had raised the mental capacity as an issue, the Husband and the Attorneys sought to adduce further evidence directly addressing the Husband’s mental capacity, namely the 31st May 2019 report. The Husband submitted that this was clearly not in existence at the time of the hearing on 4th December 2018. 46.It was submitted by the Husband that the first limb of Ladd v Marshall is not whether or not the evidence was in fact available, but whether a party acting with reasonable care could have anticipated the need to call the relevant evidence. 47.Phipson on Evidence (19th Edition) at 13-07 stated that the test is not whether or not the evidence was in fact available, but whether a party acting with reasonable care have anticipated the need to call the relevant evidence. 48.The Husband had provided the 10th May 2018 report to the Court before the leave application hearing, and there is no issue of mental disabilities which may affect the validity of the Power of Attorney. 49.Those who acted for the Husband is under a duty to inform the Court if there is a change of circumstances related to the mental capacity of the Husband even though the Wife was absent during the leave application hearing. 50.At the leave application hearing, I do not find that the Husband had lost his mental capacity albeit he was suffering from physical disabilities. 51.Now the Wife complained that by reference to the disabilities suffered by the Husband, the Husband had lost his mental abilities. This is how the Wife interpreted the content of the various medical reports of the Husband. 52.My view is that the complaint of the Wife needed to be addressed by the Husband directly now but not at the time of the leave application hearing when the exact complaint of the Wife had never been articulated. 53.By reason of the aforesaid, I find that acting with reasonable care, those who acted for the Husband and the Husband could not have anticipated the need to call the relevant evidence required to address the issue raised by the Wife now. I therefore find that the first limb of Ladd v Marshall is satisfied. 54.I also accept that the 2nd and 3rd limb in Ladd v Marshall are satisfied. The 31st May 2019 report stated that as one of the Specialty Doctors at the Hospice of St Francis where the Husband was cared for during his admission with them from December 2018 to February 2019, the Medical and Nursing Teams were able to communicate with the Husband effectively about all aspects of his care and treatment. 55.The 31st May report also stated that the Husband was able to communicate his decision unequivocally via a combination of verbal and non-verbal means such as body language, nodding, shaking his head and using his eyes to indicate agreement or disagreement with what was being proposed or discussed. 56.I found that the said evidence would have an important influence on the evaluation of the Wife’s late challenge to the mental capacity of the Husband, as it covered the relevant period in question and address the area that were being contested. 57.I further find that it is credible by reason of the abilities of the author to give direct and relevant evidence and also of the professional status of the author to give the said evidence. 58.I therefore find that leave should be given to the Husband to adduce further evidence, namely the 31st May 2019 report in its consideration of the Wife’s application for leave to appeal out of time. 59.As I had mentioned earlier, the 2nd Ground and the 3rd Ground of Appeal touched on the health of the Husband. 60.It was submitted that the Husband continued to retain the ability to communicate and was not mentally incapacitated as alleged by the Wife, and that the 31st May 2018 report confirmed the Husband has the mental capacity to make decisions. 61.The Husband further submitted that the medical reports filed thus far made no reference to the Husband’s mental incapacity, only that he was now in the final stages of his MS, which has had repercussions upon his physical capacities. 62.The Husband complained that the Wife only referenced to selected phrases from the medical reports that support her arguments, and there are other reports that the Court should consider which provide a more balanced overview of the Husband’s current condition. 63.The Husband referred to the most recent letter from the Husband’s current doctors dated 31st May 2019 exhibited to the 2nd Affidavit of the Husband’s mother and attorney, confirmed the Husband’s ability to communicate and his mental capacity. 64.The Husband also submitted that since he was not mentally incapacitated at the time of the leave hearing, nor is he at present, there has been no need for the Attorneys to register or rely on the Enduring Power of Attorney. 65.At the leave application hearing, I did not find that there was evidence before me that the Husband was mentally incapable or incapacitated. 66.The 31st May 2019 report clearly address the issue raised by the Wife. Due to the above analysis, I cannot see any reasonable prospect of success in relation to Ground 2 of the intended appeal. 67.The Enduring Power of Attorney was not relied on by those who acted for the Husband at the leave application hearing. If the validity of the Power of Attorney is not affected at the leave application hearing, I cannot see why failing to disclose the Enduring Power of Attorney to the Court at the time of leave application hearing would affect the decision. 68.I, therefore, cannot see any reasonable prospect of success in relation to Ground 3 of the intended appeal. 69.Having considered the matters set out above, I am not satisfied that the Wife would have a reasonable prospect of success in all her proposed grounds of appeal described above. 70.I also do not find that there is “some other reasons” that the appeal should be allowed to be heard. 71.Consequently, the application for leave to appeal is denied. 72.I also see no reason why I should exercise my discretion to grant leave to appeal out of time, as I am not satisfied that the Wife would have a reasonable prospect of success in all her proposed grounds of appeal described above. 73.Apart from the aforesaid reason, there is a delay of 5 months to launch an appeal. The reason provided by the Wife is that she is formally diagnosed with severe Major Depression Disorder. 74.The psychiatrist opined that the Wife failed to recognise her illness over the years. It is submitted that her condition affected her ability to handle the responsibilities and pressures of legal proceedings. 75.The psychiatrist also opined that the avoidance behaviour she exhibited, including avoidance of facing legal proceedings, is common for people who suffered from similar psychiatric condition. 76.The Wife appeared with her solicitors and Counsel at a hearing on 7th January 2019, since then she is legally represented again. 77.The avoidance behaviour she exhibited including avoidance of facing legal proceedings as opined by her psychiatric cannot be an excuse for her not to appeal in time because in April 2017, the Wife stated that she was going to challenge the execution and validity of the Power of Attorney and this was set out in the letter from her former own firm of solicitors of which she was a senior partner at that time dated 7th April 2017 and at a hearing on 7th January 2019, she still failed to raise the issue of her challenge to the Power of Attorney or the mental capacity of the Husband. 78.I see no reason why she cannot appeal in time with the 1st Ground and the 2nd Ground of the intended appeal after she decided to be legally represented again and appeared with counsel. 79.The Husband submitted that the Wife’s belated attempt to raise the issue of the status of the Power of Attorney must be seen in the context of her deliberate avoidance of the Court process. 80.My view is that the delay by the Wife in launching the appeal will cause substantial prejudice to the Husband. 81.In view of the aforesaid, I therefore will not exercise my discretion to grant leave to appeal out of time. Conclusion 82.Unsuccessful applications for leave to appeal are usually visited with costs orders. I would therefore order that the Wife do bear the Husband costs of the application to be taxed if not agreed. 83.This is a costs order nisi, to be made absolute within 14 days from today.
Representation: Mr. Earl Deng and Ms. Isabel Tam instructed by JCC Cheung & Co. for the Petitioner Mr. Robin Egerton and Ms. Madeleine Booth instructed by Oldham, Li & Nie for the Respondent | ||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 5954/2012