Case Detail

IN THE COURT OF APPEAL

1987 No. 101
(Civil)

BETWEEN

	LAI KIN WAH trading as SUIFAN'S MEDICINE COMPANY	Plaintiff (Respondent)
	and
	TAI CHUNG MEDICINE COMPANY trading as PO TO DEPARTMENT STORE	1^st Defendant (Appellant)
	YING WAH MEDICINE COMPANY (a firm)	2^nd Defendant

___________

Coram: Hon. Silke, V.-P. & Hunter, J.A.

Dates of Hearing : 23^rd October & 4^th December 1987

Date of Judgment: 4^th December 1987

___________

JUDGMENT

___________

Silke, V.-P.:

1. This appeal was adjourned on 23^rd October because of the total lack of compliance with O.59 r.9 and was re-listed for this morning. We are now informed by Miss Wong, who now appears for the Appellant, that the Appellant wishes to abandon his appeal.

2. We are not particularly surprised that that course has been taken. So far as the bundle which has been produced for this hearing is concerned it is totally deficient. It does not contain the pleadings; it does not contain any part of the transcript of evidence, if there were any evidence taken orally, in the Court below; it does not contain any list of exhibits and it does not contain any of the affidavits which were relied upon in the Court below and which are referred to in the Notice of Appeal. If those concerned with the preparation of the appeal had read their own notice they would have seen quite clearly that these matters were necessary to be placed before the Court before the Court could even consider the appeal itself.

3. But we are told that the Appellant has abandoned his appeal and that, of course, is accepted. The issue is now the costs.

4. Mr Garland who appears for the Respondent suggested that these costs should be on an indemnity basis because the Respondent should not be out of pocket at all in relation to these proceedings. The Appellant, through counsel, has accepted that the costs should be on a common fund basis. We will not derogate from that acceptance and the order will be that the appeal is dismissed with costs on a common fund basis.

5. We direct that a copy of that which we have just said, together with the copy of the judgment of 23^rd October 1987, be served personally on the lay Appellant, Tai Chung Medicine Company trading as Po To Department Store.

Miss Jean Wong (C.W. Leung & Co.) for Appellant/1^st Defendant

Peter Garland, Esq. (Deacons) for Respondent/Plaintiff

IN THE COURT OF APPEAL

1987, No. 101
(Civil)

BETWEEN

	LAI KIN WAH trading as SUIFAN'S MEDICINE CO.	Plaintiff (Respondent)
	and
	TAI CHUNG MEDICINE CO. trading as PO TO DEPARTMENT STORE ( a firm)	1^st Defendant (Appellant)
	YING WAH MEDICINE CO. (a firm)	2^nd Defendant

_____________

Coram: Silke, V.-P. & Hunter, J.A.

Dated of Hearing: 23th October 1987

Dated of Judgment: 23th October 1987

Headnote: Appeal: Bundles: failure to observe O.59, r.9.

_____________

JUDGMENT

_____________

Silke, V.-P.:

1. This is an appeal from an Order of Mayo J. of 25^th June 1987.

2. The matter was set down in the Appeal Lists on 27^th July 1987 as an Interlocutory Appeal. This was after an application dated the same day. There is a Respondent’s Notice and a Notice of Appeal. The Respondent’s Notice was filed on 28^th July 1987

3. On 5^th August, the hearing date was fixed for today, 23^rd October, again on foot of an application made on that same day, setting out the time as being agreed at one day.

4. We know these facts from our own perusal of the actual Appeal file for there has been a total failure by the solicitors concerned to observe the provisions of O.59, r.9.

5. On Monday last, I had caused my Clerk to make enquiries as to when the Bundle would arrive. I was told that it would be lodged on Tuesday morning. In fact, on Tuesday evening there was received a stapled together pair of affidavits – and that is all. We have been informed today that solicitors for the Respondent have also made representations in relation to a bundle, drawing attention to O.59, r.9, which were equally fruitless.

6. The Order which has been appealed from states that counsel for the Plaintiff and the 1^st Defendant were both heard. It then goes on:

“AND UPON reading the various pleadings, affirmations and affidavits and orders filed in this action and in High court Action No. A800 of 1987 …”

and then proceeds to set out the terms. This, of course, is a quite incorrect form of order. It is not sufficient to refer to the “various pleadings, affirmations and affidavits”. They should be specified individually – but that is by the way.

7. O.59, r.9 reads:

“Not less than 7 days before the appeal is likely to be listed for hearing the appellant must cause to be lodged with the Registrar the number of copies for which paragraph (2) provides of each of the following documents, namely –

(a) the notice of appeal;

(b) the respondent’s notice;

(c) any supplementary notice served under rule 7.

(d) the judgment or order of the court below;

(e) the pleadings (including particulars), if any, and , in the case of an appeal in an Admiralty cause or matter, the preliminary acts, if any;

(f) the transcript of the official shorthand note, if any, of the judgment or order of the court below or, in the absence of such a note, the judge’s note of his reasons for giving the judgment or making the order;

(g) such parts of the transcript of the official shorthand note, if any, of the evidence given in the court below as are relevant to any question at issue on the appeal or, in the absence of such a note, such parts of the judge’s note of the evidence as are relevant to any such question;

(h) any list of exhibits made under Order 35, rule 11, or the schedule of evidence, as the case may be;

(f) such affidavits, exhibits, or parts of exhibits, as were in evidence in the court below and as are relevant to any question at issue on the appeal.”

8. At first blush, “not less than 7 days before the appeal is likely to be listed for hearing” suggests a certain prescience on the part of the solicitors having conduct of the appeal but they are fully aware of when they are going to ask for a hearing listing.

9. In a number of cases in recent weeks there has either been no bundle at all before the Court or a defective one. It seems to us that the time provisions in O.59, r.9 are being totally ignored and, in a great many cases, the other provisions as well.

10. There is, in the English jurisdiction, a practice whereby if bundles are not lodged, or are defective, then, their having been scrutinized and reference made to the solicitors concerned, if proper action is not taken the matter is listed in a Dismissal List. We do not have a similar procedure here. It might well be time for us to consider the creation of it but this Court does have, in itself, power to dismiss in circumstances such was this – that is the sanction against waste of time.

11. We have had no real explanation for any delay. Counsel does not seem to be in a position to assist us on that. We have been asked to adjourn and that application has been opposed.

12. This, as far as I am aware other than one reference earlier this month, is the first time that this Court has considered these matters in the circumstances such as here. We are prepared in this instance to adjourn but it should be made clear that indulgence of this kind is not something which will be granted as of course.

13. We would forebear from comment on the admission of fresh evidence which apparently will be sought at the adjourned hearing save to draw attention to Langdale v. Danby(1).

14. The matter will be adjourned to a date to be fixed. The Respondent will have its costs of today. We have been told, in answer to a question from the Court, that the Appellant’s solicitors are willing to pay the costs of today. We certainly would have asked them to show cause why they should not do so if that willingness had not been expressed.

15. The order will be then: the appeal is adjourned; Costs of today to the respondent to be paid by the Appellant’s solicitors personally.

Anthony K.K. Chan, Esq. (C.W. Leung & Co.) for D1/Appellant

Peter Garland, Esq. (Deacons) for Plaintiff/Respondent

(1) [1982] 1 W.L.R. 1123 (H.L.)

LAI KIN WAH t/a SUIFAN\'S MEDICINE CO v. TAI CHUNG MEDICINE CO t/a PO TO DEPARTMENT STORE AND ANOTHER

Files (2)