On 6 October 2010, Master de Souza made an order allowing the Plaintiff to join the 5th and 6th Defendants as parties to the proceedings and this was an application by the 5th and 6th Defendants for an extension of time for filing and serving their Defence and Counterclaim within 28 days after the determination of their appeal against Master de Souza’s order. The appeal was to be heard on 11 January 2011.

Having considered the parties’ affidavit evidence and written submissions, Registrar Lung dismissed the 5th and 6th Defendants’ application with costs to the Plaintiff. While the matter was argued before Master de Souza, the Defendants merely submitted that the matter should be adjourned for argument and did not put forward any grounds to object against leave for joining them. In their application for extension of time before Registrar Lung, the Defendants had also elected not to disclose their reasons for opposition against the granting of leave to join them as parties to the proceedings. Given that there were no materials before the Court that could show that the Defendants’ appeal would stand a good chance of success, Registrar Lung held that there was no reason for the matter to be stayed as proposed by the 5th and 6th Defendants.

The Plaintiff was awarded with costs of the application which were summarily assessed. That said, on the basis that this was a simple application, Registrar Lung disallowed the Plaintiff’s fees for counsel’s attendance and for solicitor attending counsel. 

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This article is available in [2010] 17 HKDRB.

After the case was set down for hearing, the Defendant applied for leave for the parties to obtain a supplemental joint psychological report from the parties’ experts to address the surveillance reports which sought to undermine the Plaintiff’s credibility. Leave was also sought to adduce the expert evidence contained in the supplemental report at the assessment of damages in the action.

After forming the view that the benefit to the court of the additional expert evidence outweighed the cost considerations, the Honourable Mr Justice Bharwaney granted the Defendant’s application with costs to follow the event.

In passing, the Court sounded a caution to practitioners that the time was fast approaching when interlocutory applications made after setting down were unlikely to be acceded to, absent very cogent reasons or exceptional circumstances, even if granting them would not affect milestone dates.

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The Honourable Mr Justice Fok granted leave for the first two summons. As regards the third summons, the Honourable Mr Justice Fok considered the rule governing consolidation of actions and held that the issues and the questions of law and fact arising from these two actions were sufficiently distinct, rendering them inappropriate to be tried together. The 2nd Defendant’s summons under Rules of the High Court (Cap.4A, Sub.Leg.), O.4, r.9 was dismissed.

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Deputy Judge Carlson considered the principles governing the Court’s granting of leave to appeal and dismissed the Defendant’s application after the Deputy Judge compared the risk of the subject estate being bankrupt if no stay of execution is granted, to the prejudice imposed on the Plaintiff by the grant of a stay of execution. Nonetheless, the Deputy Judge granted a temporary stay for 21 days for the Defendant to file a notice of appeal and to apply for a stay until the disposal of her appeal in front of a single judge.

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The hearing on 16 August 2010 concerned a garnishee order absolute which overstated the amount owed by the garnishee to the judgement debtor. A summons was issued by the judgment creditors to amend the order absolute and a cross-summons was issued by the garnishee to set aside the order absolute. The Court granted the order to amend the summons so as to correct the mistake and dismiss the garnishee’s summons.  For this occasion, the Court held that both parties should bear their own costs as both parties were in error.

At the hearing on 12 October 2010, an interested party, another judgment creditor of the judgment debtors, was directed by the Court to show cause why the garnishee should not pay out the payment to the judgement creditors. The interested party explained that she had extant bankruptcy proceedings against the judgment debt and that a payment out to the judgment creditors would amount to a preference over her and other judgment creditors. So far as the guarantee and the judgment creditors are concerned, the Court made no order for costs. There was no order for costs of the interested party. 

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In view of the Civil Justice Reform, Mr Recorder Patrick Fung SC did not consider that the case was ready for trial and granted the application for an adjournment.

The Recorder was of the view that the Court’s practice has been for a number of years, especially after commencement of the Civil Justice Reform, for parties in a trial simply to ask their own witnesses to adopt the witness statements already filed as evidence-in-chief.  Such a practice is necessarily based on the premise that the witness statement of a party would contain all materials sufficient to enable the party to prove his case.

The Recorder was also of the view that it would not be in the interest of justice for the Counsel for the Plaintiffs to be allowed to lead the 1st Plaintiff in-chief and ask him to give evidence on matters which were not contained in his witness statement. The process would be time-consuming and not in line with the spirit of the Civil Justice Reform.

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In the present case, the parties filed and served a Timetabling Questionnaire for the Case Management Summons hearing and a Listing Questionnaire, purportedly in compliance with O.25 r.1 and Practice Direction 5.2.

Mr. Registrar Lung held that the parties’ solicitors had not, in substance, observed O.25 r.1 and Practice Direction 5.2. He adjourned the Case Management Summons hearing to another date, and disallowed the costs between the parties and their respective clients.

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Mr. Registrar Lung adjourned the Case Management Summons hearing to another date and disallowed all costs between the parties and their respective clients.

In his judgment, Mr. Registrar Lung commented on the current approach of the court in the Case Management Summons hearing.

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Hong Kong Dispute Resolution Bulletin: For full analysis of this case subscribe to the Sweet & Maxwell HKDRB, produced in association with Clifford Chance.

This article is available in [2010] 14 HKDRB.

This was an application by the Respondent to vacate the hearing date of 11 and 12 October 2010, which have been reserved for the continuation of the trial which had been part-heard, pending her appeal against the decision of the Director of Legal Aid in refusing her application for legal aid in relation to the proceedings before the Court. The trial was adjourned because of the Respondent’s last minute legal aid application.

In dismissing the Respondent’s application to vacate the hearing dates, the Honourable Madam Justice Chu held that a pending legal aid appeal is by itself not a good reason to adjourn or vacate a hearing. In exercising the Court’s discretion, the Court also took into account the fact that the Respondent did not appear to have much prospect of a successful appeal against the Director of Legal Aid’s refusal of legal aid. While it is important for a litigant’s right to legal representation to be respected, the Court also had a duty to ensure fairness between the parties and to avoid undue delay in legal proceedings. Further, the trial dates were fixed in her presence and it was not open to the Respondent to complain and it was incumbent upon her to act promptly to seek legal representation. The Respondent was further ordered to pay the Applicant the costs of the application.

The Court also refused the Respondent’s oral application for leave to appeal to the Court of Appeal against the dismissal of her application to vacate the hearing dates.

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This article is available in [2010] 13 HKDRB.