Lee Kwok Ning, Lobo and Another v. Emcom International Ltd and Others
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HCA 1338/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 1338 OF 2008 ---------------------- BETWEEN
---------------------- Before: Madam Registrar Au-Yeung in Chambers (Open to public) Date of Hearing: 25th May 2009 Date of Decision: 26th May 2009 -------------------------- J U D G M E N T ------------------------ 1.I have refused to adjourn a special chambers hearing set down on the coming Friday notwithstanding the parties have consented to the adjournment. These are my reasons. 2.Below is a short chronology of events:
3.I approached the question of adjournment by asking 2 questions:
What was the reason for the adjournment? 4.The affidavit in support of the adjournment clearly showed that as early as 4 May 2009, D10’s solicitors has, on counsel’s advice,indicated that 3 hours were not sufficient for arguments and proposed to reserve one day. The Plaintiff’s solicitors readily agreed 2 days later, as the Court granted leave to D10 to file the affirmation in reply by 20 May 2009, leaving the parties with only about a week to deal with all outstanding matters before the Hearing. 5.The need to reserve one day for argument was not unreasonable in my view, given the issues raised in various affirmations. Was the application for adjournment made promptly? 6.Paragraph 17 of PD 5.4 on Preparation of Interlocutory Summonses and Appeals to Judge in Chambers for Hearing provides as follows:
The duty is on both parties to notify the Court. 7.Unfortunately, the 2 firms of solicitors engaged in argument until 7 May as to whether the costs of the application for adjournment should be “costs in the cause” or “costs of and incidental to this application be to the Plaintiff”. Two valuable weeks elapsed when neither party did anything to bring the intended adjournment to the court’s notice. 8.Both parties were at fault. D10 eventually took out this application only 7 days ahead of the Hearing, which was clearly insufficient. (Comparison should be made with paragraph 16 of the same PD where not less than 14 days should be allowed to refix a hearing before a master to before a judge.) The Plaintiff, on the other hand, consented to the adjournment and just assumed that the Court would grant it. 9.The application for adjournment was not made promptly. Other relevant circumstances 10.One can see from the above chronology that if the timetable laid down by the Master at the call-over hearing had been adhered to, there would have been about 3 months (“buffer time”) for parties to agree upon extension of non-milestone dates, consider the affirmations and prepare skeleton submissions. As it turned out, each party failed to adhere to the timetable but only filed affirmations under compulsion of unless orders, the last affirmationbeing filed only 9 days before the Hearing. 11.Further, as disclosed from correspondence in the month of February 2009, the parties foresaw the risk of fixing a hearing date before affirmations in opposition defining what were expected to be complicated issues were filed. They knew the busyness of the Court’s diary. They have taken into account the possibility of the need to extend time to file affirmations when determining on the Hearing date. They foresaw the need to ask for more time for argument on the substantive issues but spent time unwisely on argument of costs, which could have been left to the special chambers hearing. 12.The consent summons was tantamount to forcing an adjournment upon the Court. With only 4 more working days to go before the special chambers hearing, there is little chance that the Court can find an alternative matter to fill up the 3 hours. 13.In my view, in laying the timetable and fixing the Hearing, the Court has sufficiently taken into account the wishes of the parties and accommodated their needs. The parties should be held to their bargain. Any lack of time for preparation of the Hearing was of their own making – in failure to properly manage the time given and to notify the Court sufficiently in advance of the need for a longer hearing time. 14.One of the underlying objectives of the Civil Justice Reform is to ensure that a case is dealt with as expeditiously as is reasonably practicable; and to ensure that the resources of the Court are distributed fairly: Order 1A, rule 1(b) and (f). To adjourn the Hearing will be another 11 weeks’ wait given the present state of the Court’s diary. Each adjournment of a substantive hearing means that the court’s time could not be used on another case which has real urgent issues waiting for adjudication. It is also undesirable to leave a default judgment under challenge for over 7 months. Conclusion 15.Having considered all the circumstances, I therefore refused the application for adjournment and directed that the Hearing do proceed. It is for the parties to make full use of the 3 hours by presenting more detailed written submission. It will be up to the learned Master to decide whether to continue the hearing in the afternoon. 16.Notwithstanding the parties’ consent as to costs, I make no order as to the costs of and incidental to this application for adjournment. Each party should bear the consequence of its own fault.
Mr. S. Tang of Messrs. P.C. Woo & Co. for 10th Defendant. Mr. K.M. Liew of Messrs. DLA Piper HK for Plaintiffs. |