Court of Appeal reminds practitioners and litigants of their duty to proceed promptly when making interlocutory applications in an appeal

In 鄧錦祥 v 鄭鄧錦容 , CACV 370/2019, the Hong Kong Court of Appeal exercised its discretion to dismiss the Respondent’s late application for security for costs and reminded litigants and their legal representatives of their duty to proceed promptly with making interlocutory applications in an appeal, as delay in making such applications can be a ground for the court to dismiss them, especially where a hearing date for the appeal has already been fixed.  The Court of Appeal referred to  Practice Direction 4.1 paragraph 33, which specifies that “interlocutory applications should be made promptly after an appeal has been brought” and confirmed that the Court has a discretion under common law to dismiss late applications solely on the ground of delay. 

Here, the Applicant brought an appeal against the lower Court’s decision dated 16 July 2019. The Applicant filed and served the Notice of Appeal on 9 August 2019. The parties then proceeded to prepare the appeal bundles and the appeal was fixed to be heard on 13 May 2020. By late December 2019, the Applicant had already done most of the preparation work for the appeal. The Court of Appeal specifically noted that during the course of the parties’ communications about the estimated length of appeal and potential hearing dates, there had been no indication by the Respondent about an intended application for security for costs and it was only raised in a letter dated 7 January 2020. The Respondent’s application for security for costs was eventually made on 20 January 2020. 

In exercising its discretion to dismiss the Respondent’s application for security for costs, the Court of Appeal considered the timing of the application important, as the Applicant had already incurred substantial time and costs preparing the appeal, which could have been avoided, if the application had been made earlier. Furthermore, allowing the late application would lead to the re-fixing of the appeal hearing date.

The Court of Appeal also commented that the Respondent’s solicitors should at the very least have alerted the Registrar about the intended interlocutory application when liaising with him to fix the hearing date for the appeal, and had failed to give an explanation for such “glaring omission”. Solicitors and litigants, the Court of Appeal said, owe a duty to the Court to provide information about outstanding and intended interlocutory applications when making applications to fix a date for an appeal or when asked to comment on such applications. The Registrar of Appeals, will be more robust, the Court of Appeal said, in procuring such information from the parties for effective case management of civil appeals and parties are obliged under Order 1A Rule 3 of the Rules of High Court to assist the court in such case management exercise.

Whilst the Court acknowledged that the time for filing evidence in respect of the interlocutory application had been prolonged due to the General Adjourned Period (GAP) of the Court occasioned by COVID-19, the Court did not accept this as a valid justification for the late application.

The Court of Appeal said that as general guidance, it is advisable for all interlocutory applications to be made (and preferably determined) before an application is made to a fix a date for an appeal. The robust attitude adopted by the Court of Appeal in this case is expected to be followed at all levels of Courts, particularly as the Courts and Registries are gradually resuming business and processing more matters than ever due to the backlog of pending proceedings due to the GAP.