Read the full judgment text of CACV 000157/1997 on BabelCite. This Court of Appeal judgment was delivered on 21 October 1997 before Nazareth V.-P., Godfrey J.A., Keith J..
Civil procedure – security for costs – extension of time – interlocutory appeal – plaintiff (French company) ordered in February 1994 to pay $65,000 into court as security for defendants' costs up to setting down for trial – defendants' solicitors informed plaintiff in July 1996 of intention to apply for further security – at hearing on 4 June 1997 judge ordered action to be set down within 56 days and fixed 4:00 p.m. on 4 July 1997 as deadline for any further security application – on 4 July 1997 solicitor swore affidavit at 3:30 p.m. and instructed filing clerk to file summons and affidavit, but clerk declined to file summons in three minutes list and neither document was filed – plaintiff set action down for trial on 19 July 1997 – judge refused extension of time on 23 July 1997 – defendants appealed – whether judge had power to limit time for security for costs applications – held, no; Rules of the High Court do not prescribe such time limit and authorities indicate applications may be made at any stage including after trial has commenced – whether discretion to refuse extension of time was properly exercised – held, no; judge failed to address question of prejudice to plaintiff, and a defendant should not normally be deprived of opportunity to apply for further security for procedural default without procedural abuse or uncompensable prejudice – approach to time limits and 'unless' orders – English guidance in Mortgage Corporation v. Sandoes (time limits are rules to be observed but justice is the overriding principle) and Hytec Information Systems v. Coventry City Council ('unless' orders are orders of last resort requiring compelling arguments to excuse non-compliance) suggested for adoption in Hong Kong, modified to suit local conditions – appeal allowed – order below set aside – defendants' time for applying for further security extended by 7 days from 21 October 1997 – costs of extension application to be paid by defendants – costs of appeal to be in the cause of the security for costs application, with liberty to apply if no further security application is made
Legal issues: Power to limit time for security for costs applications · Proper exercise of discretion in refusing extension of time for security for costs · Approach to failure to comply with time limits and 'unless' orders
Outcome: Appeal allowed; the judge's order refusing an extension of time was set aside, and a substituted order was made extending the defendants' time for applying for further security for costs by 7 days from 21 October 1997