Cheuk Shu Yin v Law Yeuk Kan
Court of Appeal
Civil Appeal No. 17 of 2013
Cheung and Chu JJA
28 July 2017

Case management – appeal – lengthy delay – Master should set and enforce timetable for preparation, particularly if litigants unrepresented – where party uncooperative, Registrar of Civil Appeals could place case before judge of Court of Appeal for possible dismissal of appeal

P was the ex-wife of X, the deceased. By his third will, X bequeathed his estate to his father (“D2”) and mother, and appointed his elder sister (“D1”) and D2 as executors (the “Will”). P’s probate action to challenge the validity of the Will failed at first instance. On 29 January 2013, P issued a notice of appeal. In October and November 2015, P made three applications seeking orders for discovery by third parties, namely: (a) D1’s movement records from the Immigration Department; (b) proof that P deposited a letter into the letter box of a specified flat on 10 September 2015 from the management office of the building (the “Two Applications”); and (c) an original letter in the name of X stating he was ill and could not attend a hearing from the Family Court, for forensic analysis to ascertain if X wrote it himself that day, before adducing it as fresh evidence in the appeal (the “Third Application”). The parties were unrepresented and no hearing date had been fixed due to disputes over the appeal bundles.

Held, dismissing the applications, that:

  • The Two Applications did not satisfy the requirements for discovery under O.24 rr.7, 7A or 8 of the Rules of the High Court (Cap. 4A, Sub. Leg.). The information being sought by P was not relevant to the only issue on appeal of whether the Judge was correct to find the Will was valid. Further, the gathering of evidence should be done before the trial, not on appeal.
  • The Third Application to obtain and adduce fresh evidence on appeal did not meet the conditions of Ladd v Marshall. X’s letter was admitted as evidence at trial, unopposed by P. More importantly, whether or not X wrote the letter was not related to the only question for determination.
  • It was most undesirable that the appeal had yet to be listed for hearing despite more than three years having lapsed since the appeal commenced. D2 was aged 87 and the appeal should proceed expeditiously and effectively with a view to an early resolution of the dispute. When managing appeals, particularly those involving unrepresented litigants, the Master should set a strict but reasonable and fair timetable for the compilation of appeal bundles and other preparatory work, enforce it effectively and review the overall progress from time to time. In future, if an appeal dragged on, the Registrar of Civil Appeals should consider placing the case before a Justice of Appeal for orders, including a dismissal of the appeal, on account of a party’s non-cooperation.

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