Yat Tung Investment Co Ltd and Another v. Dao Heng Bank Ltd

IN THE SUPREME COURT OF HONG KONG

APPEALLATE JURISDICTION

CIVIL APPEAL NO. 23 OF 1971

(On appeal from O.J. Action No. 969 of 1969)

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BETWEEN

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Coram: Blair-Kerr, S.P.J.

Date: 13 January 1972

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JUDGMENT

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1.  This appeal has been fixed for hearing on 3^rd, 4^th, 7^th 8^th, and 9^th February. This morning counsel for the appellants applied for an order that the hearing dates be vacated and that new dates be fixed in consultation with counsel for the parties.

2.  The grounds for the application were (1) that counsel for the respondent had been consulted by the Clerk of Court as to the suitability of these dates whereas counsel for the appellants had not; and (2) that the appellants had indicated to their solicitors that they wished counsel, as at present briefed, to conduct the appeal on their behalf.

3.  As I understood counsel for the appellants, the submission was, in effect, that every endeavour should be made to fix dates for hearing in such a way that a litigant would be able to have the services of counsel of his choice. As to that, I would say that no litigant is entitled to insist on a particular counsel appearing on his behalf. What he is entitled to is counsel of his choice from among those counsel available on the day fixed for hearing by the Court. If a litigant wishes to have the services of a particular counsel, there should really be an application to court so that the judge may direct the Registrar to fix dates either in consultation with counsel or, in very exceptional circumstances, in agreement with counsel. (vide Practice Direction of 29^th July 1963)

4.  In the present case, the Court was not aware that the appellants wished any particular counsel. Indeed, in October on the hearing of the respondent’s application for security for costs, a different counsel appeared on behalf of the appellants; and I was informed today by counsel for the respondent that the appellants have changed their solicitors on a number of occasions.

5.  Be that as it may, in this case the Registrar was simply directed to fix dates; and much and all as I would welcome having before me the very able and experienced counsel now briefed by the appellants, as the hearing of the appeal has been fixed on dates convenient to the court, I do not feel disposed to vacate those dates on the ground that the appellants have now indicated that they wish a particular counsel to argue the appeal.

6.  As regards the other points, I have spoken to the Clerk of Court. According to him he decided that these particular dates were suitable to the court (as indeed they are) and he spoke first to counsel for the respondent. The dates were suitable to him. The Clerk then spoke with counsel for the appellants who indicated that the dates were not suitable to him because he had been briefed in an original jurisdiction action.

7.  In Court today counsel for the appellants made reference to some changes in dates because certain magisterial appeals had been fixed for hearing. But I do not think I should be asked to adjudicate on matters of this sort. The point is simply this: In this case, no direction was given that counsel should be consulted before dates were fixed. Dates have been fixed which certainly are convenient to the court and it would be highly inconvenient to have to change them now. Therefore, I do not think that I would be justified in acceding to this application; and it is therefore dismissed with costs.

Jackson-Lipkin (D’Almada Remedios & co.) for 1^st and 2^nd Appellants.

Charles Ching (Patrick Poon & Co.) for Respondent.