Wmf v. Ty Aks Tly, The Executrix To the Estate of the Deceased

FCMP 24/2023

[2025] HKFC 114

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 24 OF 2023

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CASE MANAGEMENT DECISION

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Introduction

1.These proceedings involve a 80-year old widow (who should be 81 years by now) claiming financial reliefs against the estate of her late husband (“Deceased”) under Sections 3 to 5 of the Inheritance (Provision for Family and Dependents) Ordinance, Cap.481 (“IPFDO”).

2.The Respondent is the sole executrix of the Deceased. At the time of trial, the Respondent was aged 54 (who should be 55 by now).

3.After a 2-day trial on 5^th and 6^th June 2024 (which was over a year by now), I handed down my Judgment on 2 May 2025 (“Judgment”) whereby a sum of HK$3,078,720 (to include the sum of HK$685,000 which the Applicant had received by way of interim maintenance up until the date of trial)[1].

4.Suffice for me to say was that both parties were legally represented with Counsel engaged on both sides for the 2-day full blown trial. Background of the case had been set out in my Judgment dated 2 May 2025 which I do not intend to repeat here.

Statutory Provisions and Rules of procedure for Appeal

5.Section 63A of the District Court Ordinance, Cap.336 (“DCO”), provides the Court with jurisdiction to grant leave to appeal if the intended appeal has a reasonable prospect of success or that there are some other reason in the interests of justice why the appeal should be heard.

6.Order 59 rule 4(1)(c) of the Rules of the High Court, Cap.4A (“RHC”), provides that the time for seeking leave to appeal to the Court of Appeal is 28 days from the date of the judgment, order or decision concerned.

7.Rule 3 of the Matrimonial Causes Rules, Cap.179A (“MCR”) provides that the RHC are applicable with any necessary modifications in the practice and procedure in the Family Court.

8.On 13 August 2018, the then Acting Principal Family Court Judge C.K. Chan issued the “New Arrangement for Application for Leave to Appeal in the Family Court” (“New Arrangement”) setting out the steps that must be taken for pursuing appeal in the family court. The New Arrangement was to take immediate effect on 13 August 2018, that is, for 6 years and 9 months by now.

The Intended Appeal

9.On 30 May 2025 (which is the last day under the rules for seeking leave to appeal), the Respondent issued a Summons attached with a Draft Notice of Appeal against the Judgment. The Draft Notice of Appeal bears the name of the Counsel Chantel Lin who attended the trial and also the name of one additional Counsel by the name Axis Yu.

10.On 17 June 2025, a letter was received by this Court from the Applicant’s solicitors Messrs Freda Lim & Co (“FLC letter”), with the following contents :-

“We would like to draw the Court’s attention to the fact that the Respondent did not adhere to the ‘New Arrangement for Application for Leave to Appeal in the Family Court’ dated 13 August 2018 and unilaterally filed R’s Skeleton Submissions out of time and without proper explanation. Such a delay is inexcusable and demonstrates a lack of due diligence in prosecuting the Summons. In these circumstances, we respectfully invite the Court to consider striking out R’s Skeleton Submissions and to bear the Applicant’s costs.

The Applicant who has yet to receive any judgment awards, remains in a dire financial situation. To protect her interests, she has little choice but to resist all of the Respondent’s applications, including the Summons. We respectfully invite the Court to consider the Respondent’s impropriety to ensure fairness for the Applicant.”

11.On 18 June 2025, a letter was received by this Court from the Respondent’s solicitors Messrs. Kenneth C.C. Man & Co (“KCCM letter”), referring to FLC letter the day before and with the following contents :-

“We write to explain that upon the filing of the Respondent’s Summons dated 30^th May 2025 (the “Summons”) for leave to appeal on 30^th May 2025, we were provided with copy Court Note in which it came to our attention that our client was required to file and serve her Skeleton Submissions.

Instructions were given to Counsel to prepare the Respondent’s Submissions and List of Authorities which were filed and served on 16^th June 2025. We respectfully submitted that the Applicant has no intention not to comply with the directions of Court and all along intends to pursue her application with due diligence and that no prejudice shall cause to the Applicant by the late filing and service of the Applicant’s Skeleton Submissions.”

The New Arrangement

12.There are altogether 13 paragraphs in the New Arrangement issued by the then Acting Principal Family Court Judge C.K. Chan. Suffice for me to repeat saying here was that the New Arrangement had been in effect for 6 years and 9 months (counting up to June 2025) (my emphasis).

13.I would refer to those paragraphs of the New Arrangement for the purpose of this case management decision :-

“2. Every application for leave to appeal to the Family Court (“the Court”) must be made by way of summons, to be dealt with by the Judge who gave the judgment/decision (“the Trial Judge”). If the Trial Judge should be unavailable for any reason, such application shall be dealt with by a judge designated by the Principal Family Court Judge.

3. …………

4. Together with the summons, the applicant for leave to appeal (“the Applicant”) has to file :-

(1) A draft grounds of appeal which should be attached to the summons;

(2) Where appropriate, an affidavit explaining the reasons for any delay in support of an extension of time; and

(3) A written statement/skeleton submission in support (which should not be more than 5 pages on A4 paper (single side only) legibly printed in no less than 14 font size and 1.5 line spacing, unless otherwise directed by the Court) as to why leave should be granted.

5. All the above documents, together with a notice of this new arrangement in both English and Chinese language (a copy of which is available at the Family Court Registry) must be served on the other party or parties to the proceedings except for ex parte proceedings (unless specifically directed). An affidavit of service has to be filed within 3 days of service.

6. If the Applicant shall fail to comply with the above new arrangement, he/she may run the risk of having his/her application struck out and dismissed on the ground of failure to prosecute the application with due diligence.”

Civil Justice Reform and the underlying objectives

14.With the implement of the Civil Justice Reform in 2009, courts are now required to actively manage cases to further and enhance the underlying objectives set out under Order 1A rule 1 of the Rules of the District Court (“RDC”) which includes :-

-  To increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the Court;

-  To ensure that a case is dealt with as expeditiously as is reasonably practicable;

-  To promote sense of reasonable proportion and procedural economy in the conduct of proceedings;

-  To ensure fairness between the parties;

-  To facilitate the settlement of disputes; and

-  To ensure that the resources of the Court are distributed fairly.

15.Order 1A rule 3 of the RDC provides :-

“The parties to any proceedings and their legal representatives shall (my emphasis) assist the Court to further the underlying objectives of these Rules.”

16.Order 1A rule 4(1) of the RDC provides :-

“The Court shall (my emphasis) further the underlying objectives of these Rules by actively managing cases.”

Discussion

17.Undisputedly the Respondent’s Skeleton Submissions and List of Authorities was not filed together with the Summons dated 30 May 2025 seeking leave to appeal in compliance with paragraph 4 of the New Arrangement. They were only filed on 16 June 2025 (without leave) and thereby led to the FLC letter dated 17 June 2025. Apparently, the late filing without leave was taken up as an issue by FLC who, in their letter, seeks striking out Respondent’s Submissions on the ground of lack of due diligence to prosecute the intended appeal. It was said in FLC letter that the Respondent’s Skeleton Submissions was unilaterally filed out of time and without proper explanation.

18.In KCCM letter in reply, it appears that they were unware of the New Arrangement (which had been in place over 6 years since 2018) when I read the following sentence :

“….we were provided with copy Court Note in which it came to our attention that our client was required to file and serve (my emphasis) her Skeleton Submissions……”

19.This is astonishing and unbelievable. I have few observations to make.

20.First, the Draft Grounds of Appeal attached to the Summons dated 30 May 2025 was settled by 2 Counsel (including the Counsel who attended the trial and 1 additional Counsel). In my view and, without any disrespect, the need to have Skeleton Submissions to accompany (my emphasis) the Draft Grounds of Appeal would have been in the mind of 2 Counsel (my emphasis) since this was not something new or unheard of. It must be within the mind of experienced Counsel (2 Counsel in this case) when they were settling the Draft Grounds of Appeal unless they had limited and specific instructions to settle the Draft Grounds of Appeal only (my emphasis) and not anything further, which I would say is highly unlikely and rare.

21.That said, I noticed further down in KCCM letter in the next paragraph there was the paragraph beginning with : “…….Instructions were given to Counsel to prepare Respondent’s Submissions..…..”. This sentence came right after the paragraph where Respondent’s solicitors said it was after the copy Court Note was provided to them, they then came to the attention the need to file Skeleton Submissions.

22.I do not accept such explanation. I can hardly believe that family law practitioners would need the “Court Note” (which KCCM was referring to the New Arrangement) as “reminder” to bring them to the attention of the need to file Skeleton Submissions when seeking leave to appeal. The need of Skeleton Submissions was a long established litigation practice which requires no “reminders” for competent lawyers, let alone it was a designated procedural requirement under paragraph 4(3) of the New Arrangement which had been in force for 6 years and 9 months since 2018 (my emphasis).

23.On the facts which I outlined above, there was also the assistance of 2 Counsel to “remind”, if it so requires, KCCM the need of filing and service of Skeleton Submissions. The reason put forward in KCCM letter that their attention was brought by the Court Note and then instructions were given to Counsel to prepare Skeleton Submissions, in my view, suggests the 2 Counsel had not been instructed to prepare the drafting at the time when they were settling the Draft Grounds of Appeal. This is highly unsatisfactory from the perspective of competent litigation practice.

24.Secondly, I noticed that no application had ever been taken out by KCCM seeking time extension for the late filing of their Skeleton Submissions after their attention was brought by the Court Note (as they said so in their letter); nor was there any letter to seek indulgence from the Court for the non-compliance with paragraph 4(3) of the New Arrangement. Worst still, after the late filing of Skeleton Submissions without leave which had now been raised as an issue by FLC, there was still no application taken out seeking retrospective leave be granted for the late filing. The reason put forward in the KCCM letter only came along after FLC raised the issue of late filing and the reason provided was considered by me to be unacceptable.

25.In my decision, the non-compliance with paragraph 4(3) of the New Arrangement (so called “new” but actually it was no longer “new” given that it had been in force for over 6 years) without paying heed to the need to seek indulgence from the Court or to take remedial steps such as seeking retrospective leave must be deplored. No party would be allowed to take the law (including rules of procedure) to his/her own hands in complete defiance with established litigation practice and regulated procedure.

26.I have reminded myself that the wide and discretionary case management powers provided to the courts under Order 1B of the RDC must be carefully exercised with the aim to further or enhance the underlying objectives under Order 1A upholding the spirit of the Civil Justice Reform. The duties and roles of the courts is to secure the just and fair resolution of the parties’ disputes in accordance with their substantive rights, also taking into account other important factors such as procedural economy, costs effectiveness, expediency, fair distribution of court’s resources.

Concluding Views

27.First and foremost, I must emphasize that I am not deciding on the merits of the Respondent’s application for leave to appeal as per her Draft Grounds of Appeal; nor was I considering her Skeleton Submissions which was filed out of time and without leave. I also have not considered the Applicant’s Skeleton Submissions which was filed even 3 days before the Respondent’s Skeleton Submissions was filed without leave on 16 June 2025.

28.At this juncture, I am deciding from active case management perspective whether the Respondent’s non-compliance with paragraph 4(3) of the New Arrangement had exposed herself to the risk of her application for leave to appeal be struck out and dismissed on the ground of failure to prosecute with due diligence stipulated under paragraph 6 of the New Arrangement. Any striking out and dismissal decision would involve the exercise of case management powers under Order 1B of the RDC to carry into effect paragraph 6 of the New Arrangement.

29.A period of delay of 16 days to file and serve the Skeleton Submissions, in my view, may not be excessive viewing from the perspective of time. This is, however, only one of the many factors that need to be taken into account of in the balancing exercise of the parties’ respective substantive rights in the subject matter in question.

30.I am faced with the Respondent’s substantive rights to overturn the amount which I had awarded against the estate of the Deceased whereas the Applicant’s substantive rights are to receive the amount that I had awarded to her out of the estate.

31.Against the parties’ respective substantive rights, there are other factors which I believe are important which must be fully and carefully considered before exercising my discretionary case management powers. I have taken into account the following important factors :-

(a) The Applicant is now aged 81 whereas the Respondent is now aged 55;

(b) The Applicant was the surviving spouse of the Deceased with a marital relationship of 31 years (counting from the year of registration of the marriage in 1990) prior to the death of the Deceased in 2021;

(c) The amount of the Award was arrived at on a “needs” basis with life expectancy of the Applicant assessed at the age of 88, that is, only 7 more years from now on;

(d) The likely time span for the process of appeal (including the leave application and the appeal proper) could easily take up to 2 to 3 years on average, if not more and; even if it was successful, it remains uncertain as to the final amount allowed on appeal for the Award. A factor of procedural economy and proportionality, let alone the factor of court’s resources to be fairly distributed amongst all other court users.

(e) The likely inequality of arms (2 Counsel from Respondent side) and the Applicant’s financial ability to meet legal costs for defending Respondent’s intended appeal given her elderly age of 81, lack of financial resources and earning capacity. A factor of overall fairness.

32.I have also reminded myself of the impact upon the Respondent’s legitimate right to seek leave to appeal the Judgment. To this end, I have re-visited the Court of Appeal decision dated 25 July 2018 (comprising Lam VP (as he then was) and B Chu J) in the case of ZJ v XWN [2018] HKCA 436 upon which the New Arrangement was modelled and promulgated 2 weeks later on 13 August 2018 by the then Acting Principal Family Court Judge to regulate the appeal procedure with immediate effect.

33.The following sub-paragraphs of paragraph 66 of the Court of Appeal decision are illustrative and important :-

“66(c) Directions should be given for skeleton submissions to be lodged (with deadlines and page limits) and the judge shall read the same before deciding if oral hearing is necessary;

(d) Non-compliance with the directions to lodge skeleton submissions by an applicant should be sanctioned (my emphasis) by the striking-out and dismissal of the application on the ground of failure to prosecute the application with due diligence.

(i) This practice should equally be applicable to litigants in person. There is no reason why such litigants should have more claims on the use of court’s time and other judicial resources.”

34.Further, at paragraph 67 of the CA decision, it was said :-

“67.  These are offered by way of suggestion. Each family judge can modify or add to these suggestions in light of the special circumstances of the case before the court. After all, it is a matter of case management. The important thing is that leave application should be processed expeditiously and fairly in a proportionate manner (my emphasis).”

35.Finally, as I said earlier, FLC had submitted their Counsel’s Skeleton Submissions on 13 June 2025 (that is, 3 days before KCCM’s Counsel’s Skeleton Submissions on 16 June 2025). Needless to say, there was no question of delay or want of time extension on the part of FLC given that they are acting for the Applicant to oppose the Respondent’s intended appeal. Apparently, this was done by FLC for reason of good practice (even without the benefit of reading Respondent’s Skeleton Submissions or knowing when it would be filed). It was also said in the Applicant’s Skeleton Submissions that the Respondent was procedurally non-compliant.

36.To summarise, insofar as the Respondent’s inaction after becoming aware of the non-compliance with the New Arrangement was concerned, are as follows :-

(a) No application was taken out for time extension to file and serve her Skeleton Submission upon coming to the attention of the need to do so on 30 May 2025;

(b) No letter of explanation was produced to the Court seeking indulgence on their non-compliance of the New Arrangement after 30 May 2025 and to seek directions/reliefs;

(c) No remedial steps were taken after receiving Applicant’s Skeleton Submissions on 13 June 2025 and was aware of the contention as to their non-compliance with the New Arrangement;

(d) No application was taken out seeking retrospective leave be granted after their filing of the Skeleton Submissions on 16 June 2025 without leave; and

(e) The “reasons” were only provided by way of letter of reply on 18 June 2025 and the “reasons” were not accepted by the Court.

37.Putting all the above inactions and the factors which I set out under paragraph 31 above, considering them carefully in context, I come to the conclusion that the Respondent failed to prosecute her application for leave to appeal with due diligence.

38.For all the above reasons, I am satisfied that this is a proper case for striking out the Respondent’s application for leave to appeal.

39.And I will so order.

40.With my decision on striking out and dismissal, I decided that the Respondent should personally bear the Applicant’s costs of the application for leave to appeal, to be taxed if not agreed.

41.I will also grant Certificate for Counsel.

42.This is a costs order nisi which would become absolute if no application to vary the same was filed within 14 days of this case management decision.

Miss Vivien Leung instructed by Messrs. Freda Lim & Co., Solicitors for the Applicant

Miss Chantel Lin and Mr Axis Yu instructed by Messrs. Kenneth C.C. Man & Co., Solicitors for the Respondent