Guess ? Inc. and Others v. Lee Seck Mon and Others

IN THE COURT OF APPEAL

1987, No. 135
(Civil)

BETWEEN

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Coram: Hon. Cons, V.-P., Fuad & Clough, JJ.A.

Dates of hearing: 17^th and 18^th December, 1987

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DECISION

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Cons, V.-P.:

1. It will come as no surprise to counsel, in view of the anxiety which we expressed yesterday, that we have to say we are very concerned with the position into which we feel we are being forced with regard to the additional evidence that counsel seeks to place before us. We have not had the opportunity thoroughly to peruse the evidence offered, but we feel that it must inevitably involve the prolonged and detailed consideration of opposing contentions. Matters of that kind are generally more suitable for a single judge than they are for this Court. Although undoubtedly this Court will from time to time assume responsibility for the exercise of what should had been the judge’s duty below, we are at the moment inclined to think that it would not be desirable in the present instance.

2. During the overnight adjournment we have been able to obtain the notebook of the judge below. It is clear from his notes that objection was taken to his dealing with the application for what were at the time called “directions” in so far as they related to the matter now before us, namely the production of the books of account, and that an adjournment was requested. It does not seem to have been expressly refused, but by then carrying on with the application the judge gave the Defendants no opportunity to meet the evidence offered against them in the Plaintiffs’ affidavits, and opportunity which natural fairness alone would seem to demand and which in any event does appear to be required by authority.

3. We appreciate that counsel for the Defendants had no need to take the point as such in his Notice of Appeal. It is only the contentions in the Respondents’ Notices that require the introduction of the further evidence at this stage.

4. This Court has an inherent power to regulate its own procedure, both as a matter of general practice and in relation to individual cases. It is a power that we feel ought to be invoked if particular circumstances make it desirable so to do. That is the view we are inclined to take in the present instance, and subject of course to submissions from counsel, we would like to deal first with the question of whether the judge ought to have proceeded immediately, as he did, to a consideration of the directions with respect to the accounts books.

5. We shall therefore adjourn for a short while for counsel to consider how they wish to approach this matter. We will resume to hear them when they let us know they are ready. In the meantime some photostats of passages from Halsbury, which my Lord Mr. Justice Glough has been kind enough to prepare, may be found helpful. He would particularly draw attention to paragraph 47.

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JUDGMENT

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6. Earlier this morning we indicated a provisional view that in the absence of an opportunity for the Defendants to answer affidavits that had been placed before him the judge should not have proceeded further with the application by the Plaintiffs for the unedited production of the Defendants’ books of account. We also indicated why we were minded to take the point of our own motion.

7. We have now had the benefit of submissions from counsel and we are agreed that our views should be maintained.

8. We therefore propose to allow the appeal on that point alone, for once that decision is made the matters raised in the Notice of Appeal and the Respondents’ Notices do not fall for consideration. We should interpose for the sake of the record that the appeal in relation to the order that Mrs Lee attend for cross-examination has been abandoned.

9. Mr. Aldous, in his submission for the Plaintiffs, indicted that if we were to adhere to our provisional views he would be seeking directions with regard to how the matter should proceed further below. In our judgment we should give no such directions. If the Plaintiffs wish to renew their application below they should do so, in our view, by the appropriate procedure on notice. The parties may then make such representations as they think fit as to when and in which order the various proceedings should be taken.

10. For these reasons we allow the appeal and set aside paragraph (3) of the order made on the 2^nd October, that is in so far as the order relates to the Defendant Companies’ books of account and profit and loss accounts.

David Donaldson, Q.C., Ronny Wong, Felix Pao & Miss Juliana Chow (M/s Iu, Lai & Li) for 1^st to 6^th Defendants/Appellants

Charles Aldous, Q.C., Aarif Barma (M/s Herbert Smith) for Plaintiffs/Respondents