Insurance Co of the State of Pennsylvania v. Grand Union Insurance Co Ltd and Another

CACV000008/1989

BETWEEN

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Coram: Hon Fuad, V-P, Hunter, JA and Liu, J

Date of Hearing: 9 February 1990

Date of Judgment: 9 February 1990

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JUDGMENT

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Hunter, JA :

1. On 16th June 1989 this Court dismissed an appeal brought by the appellant Grand Union Insurance Company Limited against a decision of Mortimer J. On 5th July, my Lord the Vice-President granted provisional leave to appeal that decision to the Privy Council on two conditions : first, that security in the sum of HK$200,000 was put up within three months; and secondly, that the appellant "doprepare and despatch the Records to London within three months of the date of this Order". We now have before us an application taken out on 6th February 1990 which asks for an extension of two months for the time to prepare and despatch the record to London. In argument we have been invited to extend the time for two and a half months in order to give the printer time to do his work.

2. What happened after my Lord the Vice-President's order can be summarised in this way. At that time the appellants had retained the services of a firm of London solicitors, which I will call "firm 1", and through them had obtained advice from Mr Collins, the leading counsel who conducted the appellant's appeal, not only on the merits of the appeal but upon the contents of the record. That advice was transmitted to the Hong Kong solicitors at the end of June.

3. In early July the Order was made but nothing else seems to have happened. On 4th August, the Hong Kong solicitors wrote to the respondent's solicitors, passing on the substance of the advice they received from London a month before. No follow-up letter was written as far as we know. It was not until 25th September that the respondent's solicitors answered, saying that in their view the suggestions were quite inadequate and that a greater number of documents needed to be included in the record. By this time the three months period had almost expired. In fact, on the last day, the security in the required sum was put up. As far as the record was concerned, nothing seems to have happened effectively since September to agree the contents of that record, nor has any application been made to court under rule 6 to settle the issues between the parties as to that record.

4. It appears that the Hong Kong solicitors wrote to the respondent's solicitors on 3rd October, in terms unknown. We have the answer dated 19th October, in which the respondents inquired when they were going to get the record.

5. On 20th October the Hong Kong solicitors applied for instructions to the vice-president of the appellant company who resides in Hong Kong. He gave them no instructions as he admits on oath in an affidavit. He asserts that the reason why he gave them no instructions was because he could not get advice from leading counsel in London, since he was then in dispute with firm l as to the size of their bill. One only has to consider that reason for a moment to see that it is totally inadequate. This was a Hong Kong appeal, being conducted from Hong Kong and the record was being prepared in Hong Kong. If the Hong Kong solicitors required further advice from Mr Collins in London, they could have got it direct without any difficulty whatever.

6. The net result of the Hong Kong solicitors receiving no instructions on 20th October is that nothing happened at all. Steps were taken in London between the appellant company and the London firm 1. That firm was discharged in December, and a second firm appointed. That firm only lasted about a month. Then in January they left the scene and a third firm was appointed; Counsel tells us on instructions that by the time they had got used to the files, something would have been done in Hong Kong to deal with the preparation of this record.

7. That inactivity was overtaken by the respondents themselves. They, on 9th January, took out an application before this court for an unless order in the terms that unless the record was despatched on or before Friday, 16th February, the leave should be revoked. That application came before us last Friday. It seemed to us that this was putting the cart before the horse. The question here was whether it was proper for this court to extend the applicant's time, and that the party to be applying for that application should be the applicants. That produced the application which is before us today.

8. The history I have recited shows that the time expired under the original order on 5th October. Very little indeed happened in that time and certainly nothing effective. At the expiration of that time, almost coincidentally on 20th, the Hong Kong solicitors were denied further instructions by their client. That situation would have continued, as far as I can see, but for the respondent's intervention. The only reason for that situation is said to be the inability to give instructions because of the London difficulties. That does not bear examination for a moment.

9. It is well known that these timetables must be followed. In Ratnam v Cumarasamy [1965] 1 WLR 8, 12, Lord Guest in the Privy Council said this : -

In identical circumstances to those before us, namely an application to extend the time of the preparation of the record, this court in the Adhiquna Meranti [1988] 1 HKLR 410 applied Lord Guest's dictum. Mr Justice Cons, V-P, added : -

10. That is precisely the position here. The court laid down a timetable in July of three months. Seven months have passed, and the progress that has been made is almost non-existent. The applicants really have to start again now and ask for another two and a half months. In my judgment this will not do, and this is an application which in no circumstances can this court entertain. In my judgment it should be dismissed.

Fuad, V-P :

11. I agree.

Liu, J:

12. I also agree.

Representation:

Ashok Sakhrani (M/s Ng, Lie, Lai & Chan) for 1st Defendant/Appellant

Barry Barlow (M/s Robert Lee & Fong) for Plaintiff/Respondent