Muhammad Asghar v. Kwok Kong Moon t/a Makos Engineering

DCEC 330/2021

[2022] HKDC 163

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 330 OF 2021

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IN THE MATTER OF AN APPLICATION BETWEEN

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Before: Her Honour Judge Levy in Chambers (Open to Public)

Date of Hearing: 17 January 2022

Date of Decision: 21 February 2022

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DECISION

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A. Background

1.Muhammad Asghar (“Asghar”) alleged that on 22 May 2016 he met an accident (“Accident”) arising out of and in the course of employment while working in a restaurant called Casa 338 (“Casa Restaurant”) and suffered a personal injury.

2.On 13 February 2017, Asghar’s private solicitors, Messrs WT Law Offices (“1^st Lawyers”) filed an employees’ compensation application, DCEC 288/2017 (“1^st Application”), for employees’ compensation pursuant to the Employees’ Compensation Ordinance[1] against his alleged employer, Makos Engineering Limited (“Makos Ltd”).

3.On 23 April 2018, the 1^st Lawyers, on Asghar’s behalf, commenced a parallel common law personal injuries claim, DCPI 855/2018 (“PI Action”), against Makos Ltd (1^st defendant) and Casa 338 Catering Limited (“Casa Ltd”) (2^nd defendant), which operated the Casa Restaurant. On 8 November 2018, default judgment was entered against the 2^nd defendant.

4.Upon discovering that Makos Ltd only came into existence after the Accident, Asghar applied by a summons on 25 October 2018 (which summons was later withdrawn due to a mistake having been made in the draft application), and then by another summons on 27 December 2018 (“Amendment Summons”) to amend the name of the respondent in the 1^st Application to Kwok Kong Moon (“Kwok”) trading as Makos Engineering (“Makos Engineering”). Kwok was the sole-proprietor of Makos Engineering, which commenced business on 21 October 2005.[2]

5.At the hearing of the Amendment Summons on 17 April 2019, the handling solicitor of the 1^st Lawyers, Mr Tsui, applied to withdraw the Amendment Summons when he was unable to provide an explanation to this court as to why the 1^st Lawyers would have brought a claim against a company that did not exist at the time of the Accident. Upon leave having been granted to withdraw the Amendment Summons, the 1^st Application clearly did not contain any cause of action against Makos Ltd. This court therefore dismissed it.

6.On 16 February 2021, Asghar commenced through Messrs Burke & Company (“2^nd Lawyers”) the present employees’ compensation application (“2^nd Application”) relating to the same Accident. The named respondent was Makos Engineering, the same named company that Asghar had sought to substitute for Makos Ltd in the withdrawn Amendment Summons in the 1^st Application (see §4 above).

7.On 29 April and 5 May 2021, Legal Aid Certificates were issued to Asghar for the respective PI Action and the 2^nd Application. Mr David Brettell of the 2^nd Lawyers is his assigned solicitor in both cases.

B. The Summonses

8.Undisputedly, the 2^nd Application was late as it was only filed after the two-years’ limitation (as prescribed by s 14) had expired by 2 years and 9 months. According to the provisions of s 14(4), Asghar can only proceed with the 2^nd Application if the leave of the court is obtained.

9.Pursuant to s 14(4), Asghar filed a summons (“Leave Summons”) on 21 July 2021 together with a supporting affirmation (“Supporting Affirmation”) for leave to commence the 2^nd Application out of time.

10.On 26 July 2021, the legally unrepresented Makos Engineering countered the Leave Summons with the issuing of a summons (“Strike Out Summons”), pursuant to O 18, r 19 of the Rules of the District Court and s 27 of the Limitation Ordinance, to strike out the 2^nd Application. Apart from alleging that the 2^nd Application was vexatious for duplicating the 1^st Application, Makos Engineering’s principal ground of complaint was one of lateness.

11.At the hearing of the Summonses, Asghar was represented by Mr Burke (instead of Mr Brettell, the assigned solicitor), and Kwok appeared in person.

12.The issues of these Summonses clearly overlap. As the Strike Out Summons will largely hinge upon the disposition of the Leave Summons, I consider it convenient to deal with the Leave Summons first.

C. The Legal Principles

13.Pursuant to s 14(4), Asghar will be granted leave to issue the 2^nd Application if he is able to prove to the court’s satisfaction with credible evidence the existence of “reasonable excuse”.

14.The criteria for the determination as to what constitutes “reasonable excuse” are authoritatively laid down in the Court of Appeal decision of Tsang Loi Fat v Sun Fook Kong (formerly known as Sung Foo Kee Ltd).[3] The relevant criteria are:-

(a) The reasons for delay;

(b) The length of delay;

(c) Whether there is sufficient ground to support an award; and

(d) Prejudice to a respondent.

15.It is trite that the consideration of these criteria depends on the facts of each case. The relevance and prominence of each of the criteria will differ and vary from case to case. In the circumstances, I do not think that the 5 additional authorities Mr Burke cited,[4] including two of the decisions of this court, are of much assistance to me. Without disrespect to Mr Burke’s diligence, and for the sake of brevity, I do not intend to discuss these five authorities in this Decision but will take them into consideration in my deliberations.

D. “Reasonable excuse - Name of the Respondent”

D.1 Fault of the 1^st Lawyers

16.I begin with the discussion of Asghar’s excuse in this Section by extracting it from the heading of Mr Burke’s Written Submissions (“Written Submissions”) because it underlines the fundamental flaw of the 1^st Application, and underpins one of Asghar’s principal excuses – the fault of the 1^st Lawyers in the 1^st Application in having wrongly sued Makos Ltd, which was only incorporated 3 months after the Accident.

17.According to the incorporation documents[5] of Makos Ltd, Makos Ltd was only incorporated and commenced business on 22 August 2016, three months after the Accident. Kwok was its founding member and the sole director.

18.The validity of the 1^st Application against Makos Ltd was clearly nullified by the information disclosed in the latter’s incorporation documents. The Amendment Summons referred to in §4 was therefore brought.

19.By the time of the Amendment Summons, the two-years’ limitation period pursuant to s 14 had already expired, and “reasonable excuse” would have been required to be provided. According to the evidence Asghar adduced[6] in support of the Amendment Summons, Kwok had allegedly instructed Asghar to carry out renovation work at Casa Restaurant when the latter met the Accident there. Asghar stated that this led him to believe that Casa Restaurant was his employer, and he therefore named Casa Restaurant as his employer when reporting the Accident to the Labour Department (“LD”).

20.However, the information Asghar later received from the LD contradicted what he had reported to the latter. In a letter dated 23 September 2016 (“Letter”)[7] Asghar received from the LD, Asghar was told that Casa Restaurant denied having any alleged employment relationship, but stated that the renovation work of Casa Restaurant was provided by a company called “Makos Engineering Co Ltd” (“Misnomer Makos”).

21.Based on the information disclosed in the Letter, the 1^st Lawyers had conducted searches on Misnomer Makos but with nil result. Instead, Makos Ltd was found. Hence, the 1^st Application was brought against Makos Ltd.[8]

22.It was only after the commencement of the 1^st Application that the 1^st Lawyers conducted a company search of Makos Ltd and discovered that it had not yet been incorporated when the Accident occurred. Asghar stated that he was fully aware of the risks and the costs consequences of suing a wrong party. Nonetheless, he had instructed the 1^st Lawyers to sue Makos Ltd because he had tremendous difficulty in identifying his employer.

23.In his evidence in support of the Amendment Summons, Asghar was apparently at pains to bear responsibility for the suing of the wrong party in the 1^st Application. At that time, he did not put any blame on the 1^st Lawyers.

24.In the Supporting Affirmation, Asghar has now changed tack by instead blaming the 1^st Lawyers in having sued the wrong party in the 1^st Application. He even denied having instructed the 1^st Lawyers to withdraw the Amendment Summons,[9] and even alleged (through the 2^nd Lawyers) that the witness statements served in the PI Action were not read to him.[10]

25.The 1^st Lawyers denied all the allegations.[11]

26.The correspondence exchanged between the 1^st Lawyers and the 2^nd Lawyers before the commencement of the 2^nd Application shows that Asghar and the 1^st Lawyers were accusing each other for the blunder that had occurred. As discussed in §22 above, Asghar had admitted in the evidence he adduced in the Amendment Summons that despite having been advised by his “solicitors of the risks of suing the wrong party”, he had decided to sue Makos Ltd because he was worried that his employees’ compensation claim would be time-barred.[12]

27.Given the cross-accusations that Asghar and the 1^st Lawyers have made against each other, and Asghar’s changed evidence, I am unable to accept from the documents disclosed in this interlocutory application that only the 1^st Lawyers were at fault. I’m more inclined to believe that both Asghar and the 1^st Lawyers were to be blamed.

28.The 1^st Lawyers were undeniably at fault in having failed to conduct a company search of Makos Ltd before they filed the 1^st Application. It has now transpired from the 1^st Lawyers’ letter dated 12 March 2021[13] to the 2^nd Lawyers and its enclosed documents, that the related searches were only done around 23 July 2018[14] (which was after the filing of the 1^st Application). When the 1^st Application was commenced, the two-year limitation period still had more than one year to run. Thus, Asghar’s explanation of his concern about the expiry of the time-limit (see §26 above) is certainly not valid. The 1^st Lawyers thus had sufficient time to conduct proper inquiries in establishing a correct party to sue. They were therefore at fault in having failed to carry one of the most fundamental tasks when suing a limited company – conducting a company search. Had this been done, the error would have most likely been avoided.

29.From the disclosure by the 1^st Lawyers in their recent correspondence, it is evident that they only conducted the company search on Makos Ltd after the 1^st Application was filed (see §28 above). In plain contradiction to the above evidence, Mr Burke tried to rely on the service address of Makos Ltd provided in the 1^st Application in suggesting that the court could infer that the 1^st Lawyers must have conducted the relevant searches as the address was indeed the registered office address of Makos Ltd. This is a bold assertion, which completely runs contrary to the evidence Mr Burke was aware of (see §28 above). According to the evidence filed in support of the Amendment Summons, Asghar remembered Kwok’s vehicle number when he had previously allegedly worked for Kwok. The address for service as stated in the 1^st Application must have in fact been the address obtained from the Certificate of Particulars of Kwok’s vehicle.[15] Incidentally, Kwok had provided to the Transport Department the same address as Makos Ltd’s registered office address. Thus, I do not accept Mr Burke’s submission that such an inference could be drawn that as it is more likely than not that the address was not obtained from the company search but from the vehicle search. I believe this baseless submission is an attempt to dress up Asghar’s excuse of exonerating himself by entirely shifting the blame on the 1^st Lawyers.

30.Whilst the 1^st Lawyers were definitely blameworthy, Asghar did not appear to have entirely been blameless either. As noted above (see §24), Asghar had, in his explanation for the delay, given conflicting excuses in the evidence in support of the Amendment Summons and in the Supporting Affirmation. Asghar’s credibility has therefore been seriously undermined. Given the further fact that Asghar had signed the Statement of Truth verifying the truthfulness of the 1^st Application against Makos Ltd, I am not satisfied that Asghar has given a credible explanation of his excuse for the delay being the fault of the 1^st Lawyers.

D.2 Fault of Kwok

31.Apart from faulting the 1^st Lawyers, Asghar also sought to excuse himself for the delay by accusing Kwok of having misled the 1^st Lawyers/him. It was alleged that Kwok:-

(a) Deliberately incorporated Makos Ltd after the Accident.

(b) Wrongly provided to Casa Restaurant a company name, Misnomer Makos, that in fact did not exist.

(c) Misled the court in a Checklist Review hearing of the PI Action on 10 October 2018 (“CLR”) by stating that he was representing Casa Restaurant/Casa Ltd, and liability would be admitted.[16]

D.2.1 Deliberately incorporated Makos Ltd after the Accident

32.In the Written Submissions, Mr Burke contended that Kwok’s “sudden need to” incorporate Makos Ltd after the Accident without any explanation was a deliberate attempt to avoid liability. This was particularly evident, Mr Burke alleged, as Makos Engineering had been in business for over 10 years before the Accident.

33.When putting forth these allegations, Mr Burke admitted that Asghar did not have any direct evidence in support. However, he suggested that this court should draw inference by Kwok’s incorporation of Makos Ltd only after the Accident.

34.I do not think that there is any reasonable basis for this court to draw an inference in the way Mr Burke suggested. In my view, the fact that Kwok has continued with the business of Makos Engineering after the Accident and also after the incorporation of Makos Ltd goes to undermine Asghar’s allegations that Kwok tried to avoid liability. The blunder that was made in the 1^st Application clearly has nothing to do with Kwok’s incorporation of Makos Ltd after the Accident. The error lay with the 1^st Lawyers and/or Asghar in having failed to conduct searches of the companies. Thus, I reject these baseless allegations.

D.2.2 Misrepresentation to Casa Restaurant/Casa Ltd

35.This allegation is mainly based on the Letter in relation to the name of Misnomer Makos, which was allegedly provided by Casa Restaurant to the LD (see §20). Asghar in his evidence in support of the Amendment Summons in the 1^st Application (as discussed above in §21) had referred to the Letter and the reason why Makos Ltd was named as the respondent in the 1^st Application. Notably, no allegations of Kwok’s misleading of Casa Restaurant were then made.

36.Yet, in the Supporting Affirmation for the Leave Summons, Asghar accused Kwok of having allegedly given the name of the company, Misnomer Makos, to Casa Restaurant when there was absolutely no evidence to support such allegation.[17]

37.Despite the complete lack of evidence in support of this allegation, Mr Burke, in the Written Submissions, even stepped up the allegations by suggesting that Kwok had in fact deliberately misled the LD by the giving of a (wrong) name of the company, Misnomer Makos, to them.[18]

38.These allegations by Asghar and Mr Burke are wholly unsubstantiated, and I believe they were made in an attempt to ameliorate the seriousness of the error made in the 1^st Application. These allegations are therefore rejected.

D.2.3 Misled the court at the CLR

39.In order to properly understand this allegation, it is necessary to set out the relevant portions of the transcript[19] of the CLR (“Transcript”), which was conducted in punti. By that time, Asghar had not yet applied to amend the name of the 1^st defendant of Makos Ltd. According to the Transcript, the CLR was attended by Ms Hui of the 1^st Lawyers for Asghar, and the 1^st and 2^nd defendants were recorded as “absent” despite Kwok’s attendance.

D.2.3.1 Any admission of liability as alleged?

40.According to the Transcript, Kwok hardly said anything at the CLR. In fact, it was Ms Hui who reported to the PI Master the conversations she had with Kwok prior to the CLR. The relevant parts of the Transcript are as follows:-

“Ms Hui: ……因為根據今日呢位郭先生同我講，佢話今日就佢話呢間Casa 338就而家就由--就即係推翻咗之前即係我--以勞工處話畀我聽，我信嗰個講法喇，咁就話承認佢係佢--原告人嘅僱主喇。咁郭先生就話畀我聽，佢係呢間Casa 338嘅持牌人嚟。[20]

官 (Court): ……問一問你，到底剛才許律師佢講到話你--話係Casa 338先係僱主呢樣嘢，係唔係真係你有咁講過㗎？

郭江滿 (Kwok): 係有嘅。

官 (Court): 咁關於勞工處嗰啲提交嘅資料，話Casa 338唔係僱主呢啲，你有冇咩嘢資料提供呀？

郭江滿 (Kwok): 因為我間餐廳有幾個股東嘅。

官 (Court): 係。

郭江滿 (Kwok): 咁就呢--佢寫呢封信嘅時候我係唔知道嘅。”[21]

41.From the above extract of the Transcript, I am unable to find any admission of liability made by Kwok. There was only a reference by Ms Hui about having completely reversed (推翻咗) what the 1^st Lawyers had previously learnt from the LD regarding Asghar’s employer (after her conversation with Kwok). At the highest, Kwok seemed to have accepted that he was a licence holder of the Casa Restaurant (咁郭先生就話畀我聽，佢係呢間Casa 338嘅持牌人嚟). Apart from Kwok’s telling the court that he had no knowledge of the matters stated in the Letter (佢寫呢封信嘅時候我係唔知道嘅), and that Casa Restaurant/Casa Ltd had several shareholders (我間餐廳有幾個股東嘅), Kwok did not appear to have made any admission of liability.

42.After having considered the contents of the Transcript, I am not satisfied that there is any basis for Asghar to have alleged that Kwok misled the PI Master in the admission of liability. The default judgment Asghar later obtained on 18 September 2019 against the 1^st defendant (see §49 below) is quite a separate matter.

D.2.3.2 Did Kwok mislead the Court about his representing Casa Ltd?

43.According to the brief exchanges set out in the Transcript below between Kwok and the court at the CLR, it appears that Kwok had intimated to the court that he wished to represent Casa Ltd. However, the Court did not allow Kwok to represent Casa Ltd because he had failed to comply with the requisite procedural requirements.

“官 (Court): 郭生，咁就你今日嚟咗法庭喇。

郭江滿 (Kwok): 係。

官 (Court): 咁就話想去代表第二被告人嘅。

郭江滿 (Kwok): 係。

官 (Court): 咁但係我諗書記都已經同你解釋咗喇，因為你冇符合到區域法院規則第5A號第2條嘅命令嗰啲嘅要求，咁就書記會畀一份嗰個--係，而家畀，係，係。畀一份文件你睇睇喇，裡面講咗啲要求係點㗎喇。你自己睇清楚，簡單嚟講，就係需要公司嗰個議決喇，去到去授權畀你代表公司喇。

郭江滿 (Kwok): 唔。

官 (Court): 亦都需要有個誓章去到夾附啲議決呀，解釋番係真係授權咗畀你代表公司先得嘅。

郭江滿 (Kwok): 係。

官 (Court): 咁所以嚴格嚟講，今日你就唔係第二被告人嘅代表人士，咁就我--法庭就係會當第二被告人缺席嘅……”[22]

44.Based on the above exchanges between the court and Kwok, I fail to see on what basis Asghar and Mr Burke could allege that Kwok had misled the court at the CLR.

D.2.4 Conclusion

45.From the above analysis, I do not think the allegations against Kwok can be made out. I am not satisfied that Asghar can rely on this allegation against Kwok as a reasonable excuse.

E. Excuse for the delay in the issue of the 2^nd Application - fault of the 1^st Lawyers

46.Admittedly, Asghar did not issue the 2^nd Application promptly, and only did so 22 months after the dismissal of the 1^st Application. Asghar also faulted the 1^st Lawyers for having caused the said delay, alleging that they had failed to (1) advise him of the importance of maintaining an employee’s compensation (“EC”) claim; and (2) promptly provide the documents requested by the 2^nd Lawyers.

E.1 Failed to advise on the importance of maintaining an employee’s compensation claim

47.Asghar alleged that after the 1^st Application was dismissed, the 1^st Lawyers did not advise him that in order to preserve his right to obtain payment of costs from the Employees Compensation Assistance Fund Board (“Fund Board”), he would need to commence another fresh EC claim. Due to the different treatment in relation to the payment for costs in respect of personal injuries and EC claims under the Employees Compensation Assistance Ordinance (“ECAO”), Asghar stated that he has since been advised by the 2^nd Lawyers (around the end of 2020) that his legal costs will not be paid by the Fund Board in the PI Action if he later needed to apply to them for payment of any unsatisfied final judgment against the defendants. As legal costs incurred in an EC claim will however be paid by the Fund Board upon a successful application for payment pursuant to the ECAO, he has since realized the importance of resurrecting the claim.

48.Accordingly, Asghar’s main reason for commencing this 2^nd Application seems to have been a desire to get the Fund Board to pay his legal costs in the event of an empty judgment. In determining whether this reason for doing so is reasonable, I should examine the developments of the PI Action after the 1^st Application was dismissed. In my view, the more the PI Action has progressed, the less cogent will be the need for instituting a fresh EC claim.

49.Based on the chronology of the PI Action, I note that Asghar actively continued with the prosecution of the PI Action after the disposal of the 1^st Application. On 4 February 2019, he obtained leave from a PI Master to amend the name of the 1^st defendant from Makos Ltd to Makos Engineering. By 18 September 2019, upon Asghar’s obtaining a default judgment against Makos Engineering, the issue of liability in the PI Action was already disposed of as default judgment against the 2^nd defendant (Casa Ltd) had been entered much earlier (on 8 November 2018). The only outstanding matter by that time was the quantification of the amount of Asghar’s damages.

50.The PI Action having reached this advanced stage, Asghar certainly cannot justify a late commencement of a fresh EC claim for the sake of obtaining early compensation as enshrined in the statutory objectives. Unless the amount of Asghar’s compensation will exceed the amount of damages in the PI Action, Asghar will (leaving aside the costs issue under the ECAO, which will be considered in the paragraph below) virtually have no additional financial benefit by commencing this 2^nd Application. By virtue of s 26(1), Asghar shall be required to give credit for any amount of employees’ compensation that he has been paid or is payable against the damages that he would be awarded in the PI Action. In the absence of evidence that Asghar’s employees’ compensation will likely exceed the amount of damages that he will be awarded in the PI Action, I consider that there is no reasonable justification for Asghar to have continued to purse an EC claim.

51.This leaves the last consideration about different costs treatment under ss 20B and 23 of the ECAO.[23] I consider there is no reasonable justification for Asghar to incur legal costs in the 2^nd Application for the pure purpose of looking to the Fund Board for reimbursement in the future. I consider that the motive for instituting this fresh 2^nd Application is unreasonable.

52.The recent development in the PI Action involving the joinder of the Fund Board in the PI Action further fortifies my view that it has now become undesirable to allow Asghar to maintain a fresh EC claim.

53.After the Fund Board was granted leave to join in the PI Action as the 3^rd defendant on 8 September 2021, a single joint orthopaedic medical report (“SJOR”) of Dr Danny Tsoi, the single joint expert appointed by Asghar and the Fund Board, had already been filed on 12 November 2021. The PI Action is now ready to be set down for trial for the assessment of damages in the forthcoming Checklist Review hearing to be held on 30 March 2022. I believe that Asghar will likely obtain final judgment in the PI Action by the middle or towards the end of 2022.

54.By contrast, the 2^nd Application has just been commenced. Even assuming that Asghar will obtain judgment very quickly, there may be an issue of medical expert evidence. I do not agree with Mr Burke’s submissions that the same SJOR adduced in the PI Action can be relied on. This is for the very simple reason that the SJOR involves the engagement of the single joint expert by Asghar and the Fund Board, the latter of which is currently not a party to the 2^nd Application. Mr Burke’s submissions that the same SJOR could be adduced are therefore incorrect. Thus, allowing the 2^nd Application will provide no benefit to Asghar at all but only escalate unnecessary legal costs, and be against the underlying objective of procedural economy.

E.2 The 1^st Lawyers’ delay in providing documents

55.Referring to the correspondence exchanged between the 2^nd Lawyers and the 1^st Lawyers,[24] Asghar alleged that the 1^st Lawyers had failed to promptly respond to the 2^nd Lawyers’ requests for documents.

56.According to the dates of the correspondence exchanged, it is observed that in fact the requests for documents were only made by the 2^nd Lawyers around December 2020, which was around 20 months after the dismissal of the 1^st Application.

57.I’m instead inclined to the view that Asghar, probably due to the concern for costs, had decided not to commence a fresh EC claim deliberately. His decision to resurrect another EC claim was likely to have been due to the assistance he received from the 2^nd Lawyers around December 2020.

58.Needless to say, the private legal costs Asghar had incurred in the 1^st Application and the PI Action would have been considerable. For reasons unknown, Asghar only made an application for Legal Aid as late as 4 December 2020,[25] and had continued with the private engagement of the 1^st Lawyers to actively prosecute the PI Action even after the dismissal of the 1^st Application.

59.In the circumstances, the question of the delay in providing documents by the 1^st Lawyers is only a red-herring.

F. Whether the fault of the 1^st Lawyers could be a reasonable excuse

60.After the hearing, Mr Burke on 25 January 2022 faxed a letter to this court, enclosing 3 authorities – Chung Sau Ling v Million Join Ltd,[26] Limbu Netrakumar v Yau Lee Construction Co Ltd & Anor[27] and Lau Chi Chai v Ng Fung Slaughterhouse (HK) Co Ltd[28] – which cases are not pursuant to s 14 but s 18, applications for leave to appeal out of time against the Employees’ Compensation (Ordinary Assessment) Board assessment. Mr Burke referred to these authorities to advance his arguments that the fault of the 1^st Lawyers should be regarded as a reasonable excuse for the delay.

61.Apart from the case of Chung Sau Ling, which is the decision of the Court of Appeal, the other two authorities are decisions of co-ordinate jurisdiction of the District Court and thus lack binding effect. One common fact of these three cases was the applying parties’ attribution of the delay to the oversight of their solicitors. I do not think that these authorities are of much value as none of these has provided any authoritative guiding principle concerning the fault of the legal advisers. The main ratio in Chung Sau Ling involved a statement by the Court of Appeal that an explanation for delay should be provided (for a s 18(2) appeal) before a court could consider whether a time extension should be granted.

62.Pertinently, the facts in these cited authorities seem to be that the fault was only on the solicitors while the applying party did not seem to have been at fault. By contrast, as the discussions above show, this court has formed the view that Asghar was also to be blamed for the delay.

G. Conclusion on the reasonable excuse

63.For the reasons stated above, I am not satisfied that Asghar has given reasonable excuse for the 22-months’ delay for the commencement of the 2^nd Application. The Leave Summons should be dismissed, and the 2^nd Application falls to be dismissed. There is no need to consider the question of prejudice or the merits of the 2^nd Application.

H. The Strike Out Summons

64.Upon the dismissal of the 2^nd Application, it is otiose to determine the Strike Out Summons. I therefore make no order on that summons.

I. Orders

65.(1) The Leave Summons is dismissed. The 2^nd Application is dismissed;

(2) No order on the Strike Out Summons;

(3) Costs order nisi that the Applicant shall pay the Respondent’s costs of the Leave Summons as well as the costs of the 2^nd Application, which costs are to be taxed if not agreed;

(4) Costs order nisi that there shall be no order as to costs on the Strike Out Summons;

(5) Should no application be made to vary the above nisi orders within 14 days of the handing down of this Decision, the nisi orders will become absolute orders; and

(6) The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

66.Lastly, I further direct my clerk to provide a copy of this Decision to the Director of Legal Aid, whose attention should be drawn to §§7, 11 and 48-54.

Mr Patrick Burke, of Burke & Company, assigned by the Director of Legal Aid, for the applicant

The respondent appeared in person