Lam Wing Yee v. City Super Ltd

CACV 550/2019

[2021] HKCA 1198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 550 OF 2019

(ON APPEAL FROM HCPI NO 523 OF 2016)

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D E C I S I O N

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1.The plaintiff has lodged an appeal against the judgment of the Court of First Instance dated 5 November 2019 dismissing her action for damages for personal injuries.[1] The defendant has applied for an order for security for costs, and an unless order was made for the plaintiff to file an affidavit in opposition by 14 May 2021, but she did not do so. Instead, the plaintiff, by summons dated 14 May 2021, sought an order that the defendant’s application for security be stayed pending the determination of the plaintiff’s legal aid appeal and an order that, if her legal aid appeal fails, she may file an affirmation in opposition to the defendant’s application for security within 14 days thereafter.

2.The Registrar gave directions for the parties to file evidence and an application bundle and written submissions.  Having considered the materials, I consider it appropriate to deal with the plaintiff’s application for stay on the basis of written submissions without a hearing.  This is my decision on the plaintiff’s summons in so far as it seeks a stay.

3.The plaintiff was legally aided at trial but, after lodging her notice of appeal and applying for legal aid for the appeal, she was notified in March 2020 that legal aid was refused for her appeal.  She lodged an appeal against the refusal and it was originally scheduled for 10 July 2020.  On 9 July 2020, however, for reasons apparently unconnected with the plaintiff, the hearing was adjourned to a date to be fixed.  Meanwhile, the plaintiff sought to apply to the Bar Free Legal Service Scheme (“BFLSS”) for legal assistance in pursuing her legal aid appeal.  She said that because of the outbreak of the third wave of the pandemic in Hong Kong, she was only able to make an application to BFLSS with all the necessary information on 22 September 2020.  Apparently again because of the pandemic, BFLSS took longer than usual to process her application.  The defendant, having asked for security for costs in correspondence and waited many months for actual progress in the plaintiff’s legal aid appeal, finally decided to take out a summons for security for costs on 7 April 2021.

4.Shortly afterwards, on 21 April 2021, BFLSS decided to grant free legal assistance to the plaintiff in relation to her legal aid appeal. 

5.By a letter of the Legal Aid Department dated 21 July 2021, the plaintiff was informed that the hearing of her legal aid appeal was fixed for 11 October 2021.

6.It is not in dispute that if the plaintiff is successful in her legal aid appeal, the defendant’s application for security for costs would become unnecessary.  While the defendant cannot be criticised for issuing its application for security as it did, given that there is now a date in the not too distant future for the legal aid appeal, the stay sought is likely to be of a relatively short duration.  It is true that much time has lapsed since the substantive appeal was lodged, but the defendant has not been able to point to any real prejudice that would be caused by the slight further delay occasioned by the stay now sought.  It seems to me that for pragmatic reasons and to promote the efficient use of resources including judicial resources, the defendant’s application for security for costs should be stayed pending the plaintiff’s legal aid appeal.  I so order.  On a nisi basis I direct that costs of the stay application be in the cause of the substantive appeal. 

7.For the avoidance of doubt, I have not dealt with that part of the plaintiff’s summons which seeks leave for her to file an affirmation in opposition to the defendant’s application should her legal aid appeal be unsuccessful.  That part is adjourned pending resolution of the legal aid appeal.  The plaintiff is directed to inform the court and the defendant of the result of the legal aid appeal once it is known.

Written Submissions by Ivan Lee & Co, for the Plaintiff

Written Submissions by Winnie Mak, Chan & Yeung, for the Defendant

[1] [2019] HKCFI 2507.