Shek Kam-tin v. Chan Fuk-sang and Another
Read the full judgment text of CACV 50/1978 on BabelCite. This Court of Appeal judgment was delivered on 2 October 1979 before Roberts, C.J., Huggins, J.A. & Leonard, J..
Civil procedure – appeal – payment into court – deletion of references – recusal – costs – solicitors' costs – personal injuries – damages – assessment of future earning capacity – motor vehicle accident on 19 August 1974 – personal injuries – damages awarded $87,540 – appeal on quantum only – reference to payment amount in judgment and formal order – failure to delete from appeal papers – court inadvertently saw amount – whether court should continue hearing – court adjourned to avoid prejudice – solicitors ordered to pay wasted costs personally – Court held that it is the duty of appellant's solicitors to delete any reference to the amount paid into court from all papers submitted to the Court of Appeal, but the fact of payment need not be deleted – failure to do so resulted in adjournment and costs order against solicitors
Legal issues: Effect of Court's knowledge of payment into court on appeal hearing
Outcome: Appeal adjourned to be heard before another division of the Court of Appeal.
Cited by 4 cases
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CACV000050/1978
Coram: Roberts, C.J., Huggins, J.A. & Leonard, J. Date of Judgment: 2 October 1979 ----------------- JUDGMENT ----------------- Roberts, C.J.: 1. We have decided that we should deliver a full judgment in this matter, since the facts before us suggest that it is desirable to give some guidance to solicitors. 2. On 18th April, 1978, Zimmern, J. awarded $87,540 as damages for personal injuries sustained by the appellant as a result of the negligent driving of a motor vehicle by the first respondent on 19th August, 1974. 3. The appeal was based only on the ground that the judge had wrongly assessed one item of damages, namely the extent to which the future earning capacity of the plaintiff had been prejudiced by the accident. 4. In the course of his judgment, the judge makes a reference to the payment into court of a stated sum of money and orders that the balance of that sum be paid out to the solicitors for the defendants. 5. The formal judgment also mentions both the fact that there had been a payment of money into court and the actual sum paid in. 6. On 12th June, 1978 the respondents' solicitors wrote to the appellant's solicitors, asking them to ensure that, when the papers were prepared for the appeal, no reference was made to the amount which had been paid into court. 7. The papers for the appeal were unfortunately prepared by the appellant's solicitors very late and only appear to have been received by the respondents' solicitors on 27th September. 8. Among these papers were the two references which I have mentioned in the written judgment and the formal judgment. The respondents' solicitors immediately replied to the appellant's solicitors, objecting to the inclusion of these references in the papers to be put before this court. 9. The appellant's solicitors communicated with the court on 29th September, asking that the passages dealing with these matters should be excised from the documents put before this court. Unfortunately, this was too late; all members of the court had by then already read the papers and seen the references to payment in. 10. It was explained on behalf of the appellant's solicitors that they had thought that it would not be proper for them to do anything to alter either the formal judgment or the written reasons of the trial judge and that this was why they had not taken steps before to excise the passages complained of. 11. The proper procedure in England is set out in Order 59 rule 12(a), which is not in force in Hong Kong. That rule makes it perfectly clear that it is the duty of the appellant to omit from copies of all documents lodged by him for the purposes of an appeal any reference to the fact of payment into court or the amount of payment into court. 12. The position in Hong Kong, however, is different, and is the same as it was in England before Order 59 rule 12 (a) was introduced. This can be found in the 1976 edition of the White Book at p.379, where it is said that -
As we interpret that passage, any reference to the amount paid in should be deleted from the formal judgment, but the fact of payment in need not be. 13. For the guidance of solicitors who may not have encountered this problem before, we would like to draw attention to the proper procedure, where there is an appeal involving the quantum of damages. It is the duty of the appellant's solicitors to ensure that any reference to the amount paid into court should be deleted from all papers submitted to the Court of Appeal. However it is not necessary for the fact of payment into court to be deleted from the formal order or from the written judgment. 14. This is a matter which should be dealt with at an early stage by the appellant's solicitors and not left to the last minute as happened here. Indeed, we are sure that if the documents had been prepared and submitted to the respondents some weeks before the date set for the hearing, the parties would have agreed on the necessary deletions between them. 15. Only if the parties are unable to agree as to the excisions which have to be made for the purposes we have mentioned, would it be necessary for the appellant to make an approach to the court to obtain directions as to what exactly is to be taken out. 16. It has been submitted to us on behalf of the respondents that it is desirable that we should not continue to hear this appeal, since we are in the possession of information which we ought not to have. 17. We were referred to Kemp & Kemp on the Quantum of Damages, Vol. I, 1975 edition at p. 27, in which there appears a footnote referring to a report in the Times in 1973. In that case, it was said the respondents asked the court to allow the appeal to be heard by another division, since the court had inadvertently become aware of the amount paid into court. The court decided in the circumstances to continue their hearing of the appeal, but emphasised that the proper procedure should be adopted by those preparing and presenting documents for the use of the Court of Appeal, stating that there might be cases where the consequences could be unfortunate if that sort of thing happened again. 18. We do not ourselves feel in any way embarrassed by the knowledge which we have and would have been perfectly prepared to continue with the hearing of the appeal if that were the only consideration. However, we take into account the fact that it might very well be that, if we continued to hear the appeal and ultimately decided against the respondents, they might feel that in some way they have been prejudiced by the fact that we knew the amount of the payment into court. 19. For this reason, and for this reason only, we accede to the request of counsel for the respondents that we should not proceed with the hearing today and that it should be adjourned for subsequent hearing before another division of this court. This is unfortunate, in that there may be a substantial delay before another division of this court can be formed to hear the appeal. 20. We have come to the conclusion that this unfortunate outcome is due to the failure of the appellant's solicitors to follow the instructions set out in the White Book or the respondents' request in the letter of 12th June 1978. 21. We think it would be wrong if the appellant, who is not personally at fault, were obliged to have to pay any costs himself because of the oversight of his solicitors. 22. We therefore order that the costs thrown away by reason of the adjournment of the hearing should be paid personally by the solicitors for the appellant. 23. The hearing of this appeal is adjourned to a date to be fixed. Representation: Patrick Woo (H.H. Lau & Co.) for appellant Bokhary & A. Ismail (H.A. Hoosenally & Co.) for respondent |
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