Ip Man Shan, Henry v. Ching Hing Construction Co Ltd

cacv 183/2003 & CACV 184/2003

cacv 183/2003

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 183 of 2003

(on appeal from HCA NO. 3675 of 1985)

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BETWEEN

AND BETWEEN

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cacv 184/2003

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 184 of 2003

(on appeal from HCA NO. 11768 of 1995)

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BETWEEN

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Before : Hon Rogers VP, Le Pichon JA and Sakhrani J in Court

Dates of Hearing : 29 June 2005

Date of Judgment : 29 June 2005

Date of Handing Down Reasons for Judgment : 8 July 2005

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This was an application by Ip Man Shan, Henry for extension of time within which he was required to give notice of intention to make an application for leave to appeal to the Court of Final Appeal and for making that application, as well as for leave to appeal.  For convenience he will be referred to as the applicant.  At the conclusion of the hearing this court refused the applications for extension of time and thus refused leave to appeal, with the reasons to be given in writing.

Background

2.The history of this action is set out in the Reasons for Judgment handed down on 4 February 2005.  The appeal in respect of which leave is sought was heard on 18 and 19 January 2005.  The respondents to the appeal were not called upon except on marginal matters and judgment was given on 19 January 2005.  The order was sealed on 31 January 2005 and, as already stated, the Reasons for Judgment were handed down on 4 February 2005.  As such, the time for filing an application for leave to appeal and giving notice of such intended application expired on 16 February 2005.  The notice of Intended Application for Leave to Appeal was given to the respondents on 17 February and served on 18 February 2005.  The Notice of Motion for leave to appeal is dated 22 February 2005.

3.The history of the matter following the judgment is set out in the affidavits of Lee Ying Biu, Andrew.  It would appear that immediately after the Reasons for Judgment were handed down on Friday 4 February there was a meeting that afternoon at counsel’s chambers with leading and junior counsel.  Instructions to appeal were given at the beginning of the following week, which therefore must have been on 7 or 8 February.  On 8 February there was a meeting in the chambers of junior counsel which was attended by the applicant’s mother, Madam Cecilia Chan, at which junior counsel provided a table setting out the steps which were required; later that evening junior counsel sent the solicitors an amended version of that table by fax.  Unfortunately, counsel erroneously considered that the period of 28 days would run from the date of sealing of the order of this court.

4.On this application Mr Warren Chan SC, who appeared on behalf of the applicant, argued strongly that there was only a few days delay, which was not caused by the applicant and which was not his fault since he relied on the advice of his lawyers and he would otherwise have been entitled to appeal as of right.

5.All the points made by Mr Chan are no doubt valid.  But the question remains as to whether it is correct for this court to exercise its discretion to grant an extension of time to the applicant.  Such an extension of time would be an indulgence.

6.The first point to be made is that it cannot be a matter of course that if an error is made by a litigant’s lawyers then the discretion to extend time or otherwise permit the error to be overlooked would automatically be exercised.  No doubt everybody, including the courts, will have sympathy for lay clients who suffer because of bad advice given by their lawyers.  Nevertheless, the other side of the coin is, perhaps, that the opposing party also has rights which are dependent upon the time limits being observed. 

7.A number of cases were cited to us where courts have exercised their discretion to extend time in cases where the delay has been minimal.  But each case must depend on its facts.  In this regard one observation which is pertinent to some of the authorities which have been cited is that if it is a situation where a litigant has been deprived of having a trial because of a mistake on the part of the lawyers, the court will be more inclined to rectify the situation.  In this case it must be borne in mind that the applicant has already had a trial and an appeal.  As Lord Donaldson of Lymington MR said in the case of Norwich & Peterborough Building Society v Steed [1991] 1 WLR 449 at 454G:

“Once the time for appealing has elapsed, the respondent who was successful in the court below is entitled to regard the judgment in his favour as being final.  If he is to be deprived of this entitlement, it can only be on the basis of a discretionary balancing exercise, however blameless may be the delay on the part of the would-be appellant.  The classic statement of the elements of this equation is to be found in the judgment of Griffiths L.J. in C.M. Van Stillevoldt B.V. v. E.L. Carriers Inc. [1983] 1 W.L.R. 207, which are set out in The Supreme Court Practice 1991, vol. 1 (1st supplement), note 59/4/4 and are, as McCowan L.J. has set them out, namely (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if an extension of time is granted; and (4) the degree of prejudice to the respondent if the application is granted.”

8.In my view a very important factor in this case is the merits of the appeal.  Mr Chan eloquently pointed out that it is perhaps, invidious for a court to consider the merits of an appeal from its own decision.  That may or may not be the case.  Sometimes the court is well aware that a decision is a fine one which could go either way.  In other situations the court may not consider that there are any merits in the grounds of appeal which have been put forward. 

9.In this case the applicant does not seek to challenge any of the findings of fact but seeks the Court of Final Appeal to draw different inferences from those drawn by the courts below in respect of matters which have been already fully considered in those judgments.  Suffice it to say that if application had to be made in this case under section 22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484, I would have had no hesitation in concluding that leave should not be granted.

10.In view of the lack of merits, it appears to me that this court should not exercise the discretion to extend time.  This was a case such as was referred to by Ackner LJ in a passage in the case of Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 947 where the merits of the appeal must be taken into account in exercising the discretion.

Hon Le Pichon JA:

11.I agree.

Hon Sakhrani J:

12.I also agree.

Mr Benjamin Yu SC and Mr Eugene Fung, instructed by Messrs Lo & Lo, for the Defendant (By Original Action) and the Plaintiff (By Counterclaim) in CACV 183/2003 and the 1^st and 2^nd Defendants in CACV 184/2003/Respondents

Mr Warren Chan SC and Mr Rimsky Yuen SC, instructed by Messrs Robertsons, for the 2^nd Defendant (By Counterclaim) in CACV 183/2003 and the Plaintiff in CACV 184/2003/Applicants