Yim Chun Wah v. Chow Shek Fong and Another
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) MISCELLANEOUS PROCEEDINGS NO. 70 OF 1972 ----------------- BETWEEN
----------------- Coram : Blair-Kerr, S.P.J. & Huggins, J. Date: 24 March 1972 ------------------------ J U D G M E N T ------------------------ Huggins, J.: 1. This is an application for an extension of time for serving and filing notice of appeal. The Applicant was legally aided in the court below. Counsel who there represented him considered that the damages awarded in his favour were unreasonably low and on the day judgment was delivered his instructing solicitors wrote to the Director of Legal Aid informing him of the advice counsel had given. A fortnight later the solicitors wrote to the Applicant for his instructions to lodge an appeal. It does not appear from the papers before us when those instructions were given but two days before the expiry of the time allowed for serving notice of appeal the solicitors sent a certificate for appeal, duly signed by counsel, to the Director with a request that it be filed and that they be informed when that had been done. The certificate had been sent to the solicitors only two days before that for the purpose of obtaining counsel’s signature. The reason for requesting that they be informed when the certificate had been filed was indicated to be that by s.16 of the Legal Aid Ordinance the Applicant could not proceed with an appeal as an aided person until the certificate had been filed. (I emphasise the words “as an aided person”). The Director was apparently not able to file a certificate for appeal and to issue a Legal Aid Certificate within the two days then remaining and in the event the solicitors did not receive the Legal Aid Certificate until four days after the time for appeal had expired. 2. It is submitted on behalf of the Applicant that no blame attaches to him or to his advisers. Certainly I agree that if one accepts the premiss that there was no duty to serve and file notice of appeal until a Legal Aid Certificate had been issued they cannot be blamed: the application for that certificate could not have been made any quicker than it was. However, O.59 r.4 is designed to warn the opposing party of an intended appeal and his need to be so warned is in no way affected by the Appellant’s negotiations for legal aid. It is prejudice enough for any litigant that he is opposed by a legally aided person and I see no reason why he should be further prejudiced by prolonged uncertainty whether he is to be allowed to enjoy the fruits of his judgment. There seems to me no sufficient reason why a party who wishes to appeal should not personally incur the small cost of serving and filing notice of appeal. If solicitors are employed for this purpose and a Legal Aid Certificate is subsequently issued notice can be served by the solicitors on the Director under Reg. 10(2) of the Legal Aid Regulations and payment for the work done may in some circumstances be obtained from the Director. 3. We have been referred to no reported case in Hong Kong where this situation has arisen before and we are told there has been doubt what was the proper course for a solicitor to adopt. I would have thought that reference to the practice in England would have dispelled any doubt, but it would be unfair in the present case to refuse the short extension which is sought. A similar problem arose in England and was decided in Addison v. Addison & Holden(1), but in that case the appellant had served a notice on his opponent: what he failed to do was to file it. The appellant there had, therefore, a stronger case than has the present Applicant but I am still reluctant that the present Applicant should suffer. Nevertheless I would draw attention to the observations of Hodson, L.J., which I think are no less relevant to Hong Kong. In the course of the argument I pointed out that under our legislation where an appeal has been lodged then if a memorandum is filed under s.15 of the Legal Aid Ordinance there is an automatic stay of proceedings and the risk of incurring further cost is minimal. If the would be appellant takes the precaution when serving the notice of appeal upon his opponent of asking the opponent whether he will consent to an extension of time for filing for, say, seven days beyond the date on which notice of the decision of the Director of Legal Aid is given, the expense of an application to this Court can usually be avoided: upon production to the Registrar of a letter of consent the appeal will be set down without requiring a formal application to the court for an extension of time. Failure to take the steps indicated in this judgment may in future cases result in the refusal of an extension of time. 3. The Respondents offered only token resistence to the present application. They wish now to cross appeal and have themselves applied for leave to appeal out of time. We are told that they wish to challenge the finding that there was no contributory negligence. Although we grant that application I do not think it is strictly necessary, since that point could be taken upon a respondent’s notice without leave of the court. In my view the Respondents should not have to bear the costs incurred in appearing upon this application and I would order the Applicant to pay their costs of today. F. Eddis (Hastings & Co.) for Applicant. M. Asome (Johnson Stokes & Master) for Respondents, (1) 1960 1 W.L.R. 1088. |