Re Official Solicitor

IN THE HIGH COURT OF JUSTICE

MISCELLANEOUS PROCEEDINGS

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Coram: The Honourable Mr. Justice Liu, the Honourable Mr. Justice Rhind and the Honourable Mr. Justice Kempster in the Full Bench.

Date of Hearing: 28th November, 1983.

Date of Ruling: 28th November, 1983.

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RULINGS

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Kempster J.

ONE

1. In relation to the withdrawal by the Registrar General, in his capacity as Official Solicitor, of an application for a writ of habeas corpus for the delivery from custody of Leung Kwok Chun a keen contest has arisen in relation to costs. The relevant circumstances would seem to be the following: On the 4th August of this year the Hong Kong and Shanghai Banking Corporation issued a writ against the debtor claiming a sum approaching $13,000,000 due under guarantee together with interest and, at the same time, applied ex-parte for his committal to prison before judgment pursuant to Order 44A. By consent, Mr. Justice Power made an order, purporting to follow the provisions of Order 44A, committing the potential debtor at that stage to prison until such time as he should deposit with the court the capital sum claimed by way of security or until further order. The learned judge also gave the plaintiffs, the Hong Kong and Shanghai Banking Corporation, liberty to enter judgment for the sum claimed with interest. Judgment was duly drawn up and entered and, prima facie, the order of Mr. Justice Power committing the debtor to prison remained valid until he deposited a sum by way of security or further order regardless of any execution of the judgment.

2. The bank, following the entry of judgment, apparently felt some reserve about the efficacy of this order because, on the 8th of August, they caused a writ of fieri facias to be issued and sealed in Form 53 of Appendix A of the rules, including the words in parenthesis, directed to the bailiff authorising or directing him to hail the debtor into prison should execution on his property prove inadequate.

3. The next thing that happened, chronologically, was the judgment of Mr. Justice Mantell in relation to imprisonment of debtors given, I think, on the 17th of this month following which he invited the Registrar General, in his capacity as Official Solicitor, to consider the interests of other persons committed to prison for debt. An application was made ex-parte to Mr. Justice O'Connor, then the duty judge, on the 18th of November and the application was supported by an affidavit, sworn by the Official Solicitor, paragraph 2 of which is, beyond a peradvanture, defective. It may be that the court would have paid no attention to that paragraph. On the other hand the court might have allowed it to be cured and still may allow it to be cured. That is a matter for our subsequent determination.

4. Still seeking to ensure that Mr. Leung Kwok Chun remained in detention and after the first day of hearing, though not the first day of hearing of the application in relation to this debtor because time was not abridged until today in his regard, on Saturday, 26th November, an application was made to the duty judge, Mr. Justice Addison, ex-parte on summons for an order of committal pursuant to Order 49B. Mr. Justice Addison made such an order and thereafter the detention of Leung Kwok Chun was unquestionably lawful unless the validity of the rules of court as a whole in relation to imprisonment for debt are seriously challenged.  But, as I have already indicated, the Official Solicitor has conceded this point to the extent of not pursuing the application for a writ of habeas corpus in relation to Leung Kwok Chun.

5. I do not think that it would be a reasonable exercise of the discretion as to costs residing in the Full Bench to award costs either against the Official Solicitor personally or against the relevant debtor in the circumstances outlined nor would I have thought it proper to have awarded costs against the Official Solicitor had the provisions of Order 62 rule 8(2) been complied with; which they have not. The Official Solicitor is not to be inhibited in the exercise of his functions when it is not suggested that he has acted irresponsibly albeit it is suggested that he has acted precipitately. As Lord Justice Watkins said in Enfield London Borough Council v. Mahoney ⁽¹⁾ :

"It would be a positive disservice to the outstanding services which the Official Solicitor can and does render to. the courts to bring any possible form of dissuasion to him from acting in cases of this and other similar kinds."

The case there in question related to a person imprisoned for contempt of court.

"If the Official Solicitor, acting of his own volition, as he very often feels called on to do, felt that at the end of the day his services in the public interest were going to be condemned in costs, then one can easily envisage that there would be a number of cases where he might be disinclined to act in pursuing some cause or other in the interests of justice.

And Lord Justice May in the same case to like effect at page 908, having agreed with Lord Justice Watkins:

"The Official Solicitor holds a very special office. He is a servant of the court and may at any time be called on by a judge to carry out an investigation and to assist the court to see that justice is done between the parties."

Here, the Official Solicitor was acting pursuant to an invitation to consider the case of Leung Kwok Chun and others extended to him by Mr. Justice Mantell. In the exercise of my discretion  I would make no order as to costs against him and, as it has been stated without objection that the debtor himself was not directly involved in this application, would make no order as against him either.

(1)    [1983] 2 All England Reports 901 at p.907

Rhind J.:

6. I agree both with the reasons and conclusion reached by Mr. Justice Kempster. I think it can be said without any disrespect to the Official Solicitor that, up till now, he has kept his light well hidden under a bushel, and I would be very reluctant, in view of what I regard as the reasonable behaviour that he has adopted in this particular matter, to do anything which would discourage any further foray that he sees fit to make on behalf of people in pursuit of matters where individual liberty is concerned.

7. At the time that the Official Solicitor took action on these matters, he obviously presumed that all judgment debtors fell into the same category, and that Mr. Justice Mantell's judgment would result in all of them being entitled to go free if habeas corpus were sought. On reflection, and in view of the matters which have been brought to the court's attention by Mr. Huggins and Mr. Chan, it appears that was, perhaps, a rather simplistic approach, and that judgment debtors do not form one undifferentiated mass, but they in fact fall into different categories. There are those who have just been put in prison under a simple writ of fi. fa.; there are others who were put there initially under Order 44A; and there are yet others who were put in prison under a writ of fi. fa. but have since then been before judges to seek release under Order 49B. It is only once the implications of Mr. Justice Mantell's judgment begin to sink in that one realises that the position was not quite as simple as the Official Solicitor initially assumed it to be. However, I think that, at the time the Official Solicitor acted and prepared his affidavit, he adopted what was a reasonable understanding of the position in the light of the material then available to him, and I do not think he is to be criticized for not having perfect foresight and total understanding of all the implications involved in this issue and, I think that, although his affidavit is far from perfect, it has not misled the judgment creditor in the instant matter of Leung Kwok Chun. I think that the question of the lawfulness of the detention of Leung Kwok Chun was one which was surrounded by considerable doubts. That there must have been doubt is shown by the fact that the solicitors and counsel acting for the bank were not content just to rest on the consent order they got from Mr. Justice Power on 4th August. After that, the bank's legal advisers took two further steps to try to reinforce their position. They took out a writ of fi. fa. and very recently, they have been before Mr. Justice Addison to obtain an order for committal under Order 49B, and as, obviously, the bank's advisers must have had doubts whether they had safely got this man into prison, I do not think it was so unreasonable for the Official Solicitor too to have thought that there might be scope for questioning the validity of this debtor's imprisonment. Certainly, I do not think the Official Solicitor can be said to have acted unreasonably. Nothing whatsoever has suggested that he has acted irresponsibly. I see no justification for calling upon him to show cause why he should not pay the costs personally, and I see no justification for ordering the judgment debtor to pay the costs either. I think the correct order is one of no order as to costs.

Liu J.:

8. In acceding to the invitation of Mr. Justice Mantell, in my view, the Official Solicitor must act with all reasonable care within the principles enunciated in Enfield London Borough Council. I am greatly impressed by the substance of Mr. Huggins' submissions. However, I have the misfortune of not being able to see eye-to-eye with my learned brothers. Obviously, there does not seem to be any justification for prolonging these arguments.  In the end, I am content to say that I am not prepared to elevate my disagreement with the views expressed by my brothers to a formal dissent.

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Kempster J.:

TWO

9. Again, with regard to six further debtors, the Official Solicitor does not pursue his applications, ostensibly on their behalf, for writs of habeas corpus. This is because on the 26th of November Mr. Justice Addison on a motion heard in chambers made orders committing all of them to prison for debt pursuant to Order 49B. And again the only question which arises, and that in respect of those other than Elizabeth King and Cheung Sih Ding Stanley, is whether any order should be made against the Official Solicitor or against the debtors for costs. As I understand it no application is made in relation to the debtors, but application is made against the Official Solicitor; this time on the footing that he is a principal and, therefore, a party. In my opinion he is not and at no time was a principal or a party. He intervenes in his official capacity for and on behalf of the debtors themselves. If I am right about that the provisions of Order 62 rule 8 have not been complied with. If I am wrong and in any event in the exercise of my discretion I would not make an order of costs against him; partly because I consider that, on the information available to him, he acted with appropriate expedition on such materials as he could gather and partly for the reasons which I gave in relation to an earlier application. It cannot be and is not suggested that he acted other than responsibly nor has it been suggested either that there was any impropriety in his conduct or that there was no point to argue and, therefore, that his intervention lacked justification. As already explained it would be wrong to discourage the Official Solicitor from the due performance of his functions. For all those reasons I would make no order as to costs in relation to the applications relating to any of these six persons.

Rhind J.:

10. I agree with what Mr. Justice Kempster has just said.

Liu J.:

11. I limit my previous observations to the technicality  concerning the Official Solicitor's attempt to introduce hearsay evidence. I hold the same view as I did in the earlier application of Mr. Huggins.

Representation:

Mr. Henry Litton, Q.C. with Mr. Lester Kwok on instructions of the Official Solicitor for the Judgment Debtors named in Exh. NG-1 to affidavit of N.M. Gleeson sworn on 18.11.83.

Mr. Adrian Huggins instructed by J.S.M. for Judgment Creditor in H. C. A.9979/83

Mr. Clayton/Mr. R. Kotewall instructed by Messrs. Deacons for Judgment Creditors in H. C. A.8131/83 9578/83, 1023/83, 5387/83, 10518/82, 870/83, 10462/83, 8566/83.