Shulman Air Freight International (HK) Ltd v. Thomas Tsang
Read the full judgment text of CACV 51/1974 on BabelCite. This Court of Appeal judgment.
1. This is an appeal against an order for adjournment and against the consequential order for costs made upon the hearing of four consolidated actions. The order was in these terms:
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CACV000051/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 51 OF 1974 (On appeal from O.J. 1655/70, O.J. 1678/71, O.J. 3113/73, O.J. 272/74) -----------------
----------------- Coram: Huggins, McMullin & Pickering, JJ. Date of Judgment: 8th January 1975. ----------------- JUDGMENT ----------------- Huggins, J.: 1. This is an appeal against an order for adjournment and against the consequential order for costs made upon the hearing of four consolidated actions. The order was in these terms:
It was recognised by the Appellants that this was in substance an appeal against costs only and the leave of the trial judge was sought and obtained. 2. It is common ground that this Court should not interfere with a judicial exercise of the judge's discretion and that unless there was some manifest error the appeal should be dismissed. In my view this is a case where we must interfere. 3. In the first place I agree with Mr. Mills-Owens that in so far as the order requires the Appellants to pay costs not properly incurred by the Respondent it was wrong in principle. What happened was this. The case came on for hearing on 30th September 1974, the estimated length of the trial being 14 days. The first 3 days were taken up with an argument on behalf of the Respondent that the Appellants' Defence stood struck out on the ground of a failure to comply with an order to file an authenticated balance sheet, and with an application by the Appellants for an extension of time within which to comply with the order. Thereafter counsel for the respondent Plaintiff opened his case, which took more than 2 days. By 8th October it had become apparent that the case was likely to take more than the 14 days allotted and counsel for the Appellants applied in effect for an order that if the hearing had not been concluded by 18th October it should stand adjourned. The reason for this application was that the Appellants had two witnesses who were resident in the United States of America: there was Mr. Shulman, who was a director (and probably a major director) in the defendant Company, and there was Mr. Burstein, who was the legal adviser of the group of companies to which the defendant Company belonged. They were both witnesses for the Defendants and also it was desired that they should remain after they had given evidence to advise counsel and instructing solicitors during the course of the action. 4. The view of the judge was that it would prejudice the trial of the action if there was a long adjournment in the middle and, especially, that it would prejudice the Respondent. No doubt he thought that the prejudice to the Respondent would flow from the possibility that the judge would not recall all the details of his evidence when the trial was resumed or the manner in which it had been given. That is not, of course, to say that the hiatus would not also prejudice the Appellants to some extent. It was a difficult decision for the judge to make, particularly having regard to the number of days which still remained available up to 18th October: many things might have happened before that date arrived. Nevertheless, I would not myself criticise the learned judge for concluding that justice would best be done by an adjournment, although I might have taken a different course and in my view he should certainly have taken a different course and in my view he should certainly have consulted counsel and inform them of the course which he was proposing to take before he actually made his order. The immediate order for an adjournment saved the Respondent the costs which would have been incurred between 8th October and 18th October, yet the judge ordered that the Appellants should pay those costs. That in my view cannot be right. 5. But what of the rest of the order? The Respondent had indicated at the time of setting down that he would call 2 witnesses. At the trial his counsel indicated that he proposed to call 7 witnesses and no attempt had been made to revise the estimate of the length of the trial. Indeed, the learned judge in his ruling expressed the view that by 18th October the Plaintiff would have his evidence part heard. The position is not, therefore, as I originally understood it to be, that the Appellants' ...(illegible) experts would have given their evidence by the time that date arrived and that their continued presence was merely for the assistance of counsel and instructing solicitors: they would still have had to remain in their capacity as witnesses. They both had commitments in the United States of America - Mr. Burstein in cases fixed for trial in court in New York. 6. I agree with Mr. Eddis that an estimate of the length of a trial is not, at least in the normal course, a binding agreement as to its length and a considerable latitude may have to be given, but in the present case I think the Respondent was clearly at fault in not having revised his estimate. It is the duty of counsel and solicitors on both sides to keep under review the estimate of the length of trial. It is not for one side to estimate alone - it is for both sides to estimate and to keep the court informed of any change which may affect the estimated length of the trial. Of course, the judge might have insisted that the trial continue. In that case it may well be that the Appellants would have had to apply on 18th for an adjournment and the position could have been very different. Nevertheless, as things stood, I think the Respondent cannot avoid a large measure of blame for the costs which have been thrown away. 7. The Appellants were asking for a measure of grace: they wanted to have these witnesses here not only as witnesses but also to assist throughout the trial and the order which I would propose is that each party pay its own costs of and incidental to and thrown away by the adjournment. The Appellants should have the costs of the appeal. 8th January 1975. Representation: IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 51 OF 1974 (ON APPEAL FROM O.J. 1655/70, O.J. 1678/71 O.J. 3113/73, O.J. 272/74) -----------------
----------------- Coram: Full Court (Huggins, McMullin & Pickering, JJ.) Date of Judgment: 8th January 1975 ----------------- JUDGMENT ----------------- McMullin J.: 8. While I agree with the order proposed and in the main with the reasons advanced by the learned President for the conclusion to which he has come and upon which we are all agreed I think I should add that, for my part, I cannot regard the course taken in the court below as a proper one. While I have considerable sympathy with the learned judge, confronted as he was with the sudden prospect of having the trial of a complicated and difficult case further embarrassed by the prospect of an unexpected adjournment, I believe nevertheless that he was wrong in concluding that the interests of justice would be best served by giving an adjournment which had never been asked for and then penalizing the defendants in costs. I am far from saying that the course he took could never be justified but in the circumstances before him, with 9 clear days still available for the hearing, it was in my belief too early to conclude that the difficulties which he foresaw must inevitably arise, or, even if they were very likely to arise, that they were in themselves sufficient warrant for vacating the existing hearing dates in advance of any application by either party requesting him to do so. Representation: IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 51 OF 1974 (On appeal from O.J. 1655/70, O.J. 1678/71 O.J. 3113/73, O.J. 272/74) -----------------
----------------- Coram: Huggins, McMullin & Pickering, JJ. Date of Judgment: 8th January 1975. ----------------- JUDGMENT ----------------- Pickering, J.: 9. I am in agreement with the result arrived at in the judgment of the learned President and with the reasons therefor. At the same time I too, would be slightly more critical of the course adopted by the learned judge than was the President of this Court. 10. A refusal to be rushed into an immediate decision upon a snap application, where time is not of the essence, sometimes results in difficulties, allegedly insuperable, melting away before the date at which they were thought likely to be imminent. Certainly the course which the learned judge took, whilst supportable upon the ground that immediate adjournment would result in all the evidence being heard at one stretch, was taken without application in that behalf by either side and without consultation with counsel and it did result in the vacation of dates between the 9th and the 18th of October last. I take leave to doubt whether, in the absence of consultation, it was the most suitable course. But however that may be, it did not justify saddling the Appellants with all the costs thus thrown away and, to the extent that it imposed upon them counsel's fees which would not in the normal event become payable, it represented a penalty. 11. Having said that I would add I am not unappreciative of the difficulty confronting the learned judge in the face of a somewhat drastic and unexpected application. Representation: R. Mills-Owens (Wilkinson & Grist) for appellant F. Eddis (J.S.& M.) for respondent. |