In Re Philip Nicholls

CACV000124/1995

IN THE COURT OF APPEAL

1995, No. 124
(Civil)

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Coram: Hon Nazareth, V.-P., Liu, J.A. and Leong, J.

Date of hearing: 22 June 1995

Date of handing judgment: 7 July 1995

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. This is an appeal against the order of Jerome Chan J refusing the appellant leave to apply for judicial review of certain decisions of committees of the Law Society made between September 1994 and January 1995.

2. The appellant is a solicitor. He disputed the fee notes of a barrister he had briefed to act for one of his clients. They were unable to resolve the dispute and ultimately on non-payment by him of even the minimum payable, the barrister complained to the Law Society. This led to the decisions of the committees mentioned, including the referral of the fees dispute to a solicitor's disciplinary tribunal. The appellant instructed solicitors to apply for judicial review of the committees' decisions. The solicitors in consultation with counsel prepared a notice of application in Form 86A and lodged it in the High Court on 11th April 1995. It came before Jerome Chan J on 3rd May 1995. He discovered that page 8 of the notice of application was missing, and immediately caused the solicitors to be informed of the deficiency. A copy of the missing page 8 was delivered to his chambers on 8th May 1995.

3. Order 53 rule 3 requires inter alia the grounds relied upon to be specified in the notice of application. The application submitted does appear to incorporate grounds of a minimal and superficial sort. Mr Dykes who appears for the appellant concedes that, rightly in my view.

4. When Jerome Chan J received the missing page 8 of the notice of application, he proceeded to address the entire application and not being satisfied that there were sufficient grounds refused leave to apply.

5. The general ground of appeal pursued before us by Mr Dykes is that the judge erred in refusing leave when it should have been plain to him that application for leave was manifestly corrupt and did not comply with RSC O53 r2(a)(ii). He should not have dismissed the application, Mr Dykes submits, but should have given the appellant an opportunity to amend his Form 86A notice so as to comply with RSC O53 r2(a)(ii).

6. It transpires from affidavits filed on behalf of the appellant following the judge's refusal of leave, that counsel sent his draft of the notice of application by means of a word processing or computer disc, from which the wrong draft appears to have been drawn. Following the judge's order, the appellant sought to persuade the judge to review his decision or to allow amendment of the notice of application for leave. He submitted a fresh draft with a large number of additional grounds. However, the judge considered himself functus officio once he had made his order refusing leave. In that view, he was clearly right. There is in Hong Kong no provision for review comparable to O53 r2(4) of the English RSC. That omission could only have been a conscious decision in Hong Kong, and read in the light of the provision for appeal, the judge was clearly functus officio and therefore could not extend time under O2 r1 or grant leave to amend the notice of application under O20 r8; by the time he was invited to do so, the application for leave was no longer before him.

7. As to the submission that it should have been plain to the judge that the application for leave was manifestly incomplete, it is apparent from the judge's reasons that he did not realise this. However, as we have already said, the notice was not devoid of reasons, as was conceded. The judge cannot be faulted in concluding those reasons were wholly inadequate; it is not suggested otherwise. Neither can he be faulted for having refused the application for leave to apply for judicial review. So far as this Court is concerned, the confusion or mistake of the appellant's solicitors does not entitle us to intervene.

8. Mr Dykes also submitted that the requirement for the notice of application for leave to specify the grounds relied upon are an absolute requirement of the application, and that without them the court is not in a position to address the application for leave. The absence of grounds, he submits, gives the High Court nothing to bite on under RSC O53 r3(3) and so constitutes a fundamental defect. The aspect he seeks to draw to this Court's attention is that while the remedial scope of RSC O2 r1(2) and of O20 r8 may not be available, the nullity that results in that situation could also mean that there has in fact not been any proper application for leave which would enable this Court to at least give an indication to the High Court that there was no bar to a fresh application. The authorities he relies upon show that such an approach could be right in appropriate circumstances (see In re Pritchard, decd [1963] Ch 502 per Upjohn LJ at pp 523-524; and Harkness v Bells Asbestos Engineering Ltd [1972]2 QB 729 per Lord Denning at p 735 C-E). It is not necessary, however, to canvass those dicta for the simple fact is that here quite plainly the notice of application and therefore the judge's determination upon it was simply not a nullity. In essence, there was no absence of grounds in the notice.

9. In the result, there is no reason or justification for interfering with the judge's determination of the matter. We feel bound to say that this is not a result that can be regarded with satisfaction. The grounds sought to be advanced following the refusal of leave prima facie demonstrate an arguable case for the grant of relief, or to put it in terms that may better manifest the lower threshold applicable, the new grounds disclose matters which might, on further consideration, demonstrate an arguable case for the grant of the relief claimed. However that may be, the requirements pertaining to applications for leave to apply for judicial review are clear, as are the other provisions of O53.

10. In dismissing the appeal, we have to acknowledge the assistance we received from Mr Dykes upon the relevant law and principles, and the due regard he has had to both his duty to his client and to this Court.

Representation:

Mr Philip Dykes (M/s Robin Bridge & John Liu) for Appellant