The Hong Kong Court of Appeal dismissed late interlocutory application in an appeal case

Legal representatives owed a duty to proceed timely in making interlocutory applications in an appeal

27 October 2020 | by LexisNexis Hong Kong

Introduction

In 鄧錦祥 v 鄭鄧錦容 [2020] 3 HKC 495, the Hong Kong Court of Appeal dismissed the respondent’s delayed application for security for costs. The court pointed out to both litigants and their legal representatives that they owed a duty to proceed timely in making interlocutory applications in an appeal. As such, failure to do so would disrupt and delay the hearing for the appeal, in which the court might dismiss the application, particularly where a hearing date had already been fixed.

Facts

The applicant appealed against the earlier decision handed down by the lower court on 16 July 2019 with a notice of appeal filed and served on 9 August 2019. In December 2019, the Registrar of Civil Appeals (“RCA”) gave directions to the parties to prepare the appeal bundles and the applicant had completed most of the preparation works for the appeal hearing fixed to be heard on 13 May 2020.

On 12 December, the respondent’s legal representative gave feedback in a letter to the RCA regarding the estimated length of the appeal and possible appeal hearing dates, but without specifying that the respondent intended to apply for security for costs. The respondent first raised the issue of security for costs in their correspondence with the applicant in early January 2020. The summons was made on 20 January 2020.

Judgment

The Court of Appeal dismissed the respondent’s application for security for costs based on delay. The court emphasized the importance in making a timely application. In this case, the applicant had already incurred significant time and costs in preparing for the appeal, which could have been avoided if the application was made promptly. Further, the original hearing date of an appeal would be rescheduled if the court were to permit the delayed application.

The legal representative for the respondent should at least notify the RCA that they intended to apply for security for costs when they wrote to the RCA back in December 2019 but they failed to explain for such “glaring omission”. The respondent put forward several excuses for the delay but they were not justification for the late application. Further, Practice Direction 4.1 paragraph 33 indicates that “interlocutory applications should be made promptly after an appeal has been brought” and affirmed that the court may exercise its discretion to dismiss late applications for delay.

Last but not least, although the court recognized that the time for filing evidence in respect of the application had been prolonged because of the General Adjournment Period (“GAP”) of the court amid the COVID-19 pandemic, the court did not accept this as a valid reason for a delayed application. Had the respondent made the application soon after the commencement of the appeal in August 2019, the court would not have fixed a date for the appeal hearing before the determination of the application.

It is preferable for all interlocutory applications to be made (and preferably determined) before an application is made to fix a date for the appeal hearing.

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