Lord Energy Ltd. v. Paul Chen and Another

CACV000128/2000

CACV 128/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 128 OF 2000

(ON APPEAL FROM HCA NO. 7124 OF 1991)

______________

______________

Coram: Mayo V-P, Keith JA and Stock JA in Court

Date of Hearing: 13 December 2000

Date of Ruling: 13 December 2000

___________

R U L I N G

___________

Keith JA (giving the ruling of the Court):

1. The Defendants apply for an adjournment of the appeal. They contend that they have been prejudiced by the admitted failure on the part of the Plaintiff's solicitors and counsel to comply with provisions relating to skeleton arguments and documentation in the Practice Direction relating to civil appeals to the Court of Appeal.

2. The Plaintiff's counsel accept that although their skeleton argument should have been with the Defendants' counsel by 2 December, he did not receive it until 6 December. In mitigation, they say that counsel originally instructed to represent the Plaintiff only knew on 1 December that he was unable to represent the Plaintiff on the appeal, as a trial which he had been engaged in had overrun unexpectedly, and they were therefore only instructed on 1 December. Due to their existing commitments, they could only begin their preparation of the appeal on 4 December. It is plain that no criticism can be attached to them personally, and to be fair Mr Kenneth Chow for the Defendants does not suggest otherwise.

3. As for the documents, the Plaintiff's solicitors accept that it was only on 6 December that they sent two additional bundles of documents to the Defendants' solicitors for inclusion in the bundles to be used on the appeal. Those documents should have been sent to the Defendants' solicitors no later than 29 November. In mitigation, the Plaintiff's solicitors say that when the Plaintiff's new counsel were instructed, it was they who advised that these documents would be needed.

4. But at the end of the day, the question is not whether the breaches of the Practice Direction were understandable or without fault. The question is whether, by not being given the documents and the skeleton argument until 6 December, Mr Chow has been prevented from being able to do justice to the Defendants' case. We do not think that he has been. The issue which the appeal raises, though not an easy one, is relatively crisp and to the point. In the normal course of events, we would not expect counsel who is new to the case (as Mr Chow is) to need a particularly long period of time to read himself into the case. Moreover, he has had six days (because he has been virtually free of other professional commitments since the afternoon of 7 December) to read the Plaintiff's counsel's skeleton argument and the two new bundles. On those documents, we make two comments. First, Mr Chow has had a chance to comment on the Plaintiff's counsel's skeleton argument in his own provisional skeleton argument. Secondly, the two new bundles are not voluminous. Speaking for myself, it did not take me long to read the second of the two bundles which was a transcript running to 61 pages of the hearing before the master. The first of the two bundles is 127 pages long, but much of it is immaterial, e.g. valuation reports, and we do not think that it would have taken the Defendants' counsel long to absorb the material. Since we do not think that Mr Chow has been prevented from being able to do justice to the Defendants' case, we have not thought it right to grant his application for an adjournment.

Representation:

Mr Patrick Fung SC and Mr Johnson Lam, instructed by Messrs Liu, Choi & Chan, for the Plaintiff.

Mr Kenneth C. K. Chow, instructed by Messrs Michael Cheuk, Wong & Kee, for the Defendants.