Civil Procedure — Court of Appeal clarifies that appeals are a separate matter from proceedings in the court below
In light of this ruling, solicitors on record for the respondent in the court below should not be automatically regarded as solicitors for the respondent in the appeal. A respondent is therefore entitled to withhold instructions to his solicitors in the court below to accept service of the notice of appeal on his behalf.
FNG v BCJ
|Reference:|| HKCA 160|
|Court:||Court of Appeal|
|Before:||Hon Lam VP, Cheung and Chu JJA in Court|
|Date of Decision:||8 February 2021|
|Appearance:||Jeremy S. K. Chan, instructed by Withers, for the plaintiff|
The Court of Appeal clarified that an appeal should be regarded as a separate matter from the proceedings in the court below. Thus, solicitors on record for the respondent in the court below should not be automatically regarded as solicitors for the respondent in the appeal. A respondent is therefore entitled to withhold instructions to his solicitors in the court below to accept service of the notice of appeal on his behalf, and the appellant would then have to effect service by another means.
This commentary explores the implications of the decision in FNG v BCJ, and what it would mean for practitioners acting for intended appellants and respondents in the future.
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Overview — What constitutes valid service of notice of appeal
An appeal to the Court of Appeal is commenced by the service of a notice of motion in writing known as a “notice of appeal” on the intended respondent. There is no need for, and indeed no such process as, the “issue”, “sealing” or other prior authentication of the notice of appeal by the Appeals Registry (Law Bing Kee v Persons in occupation of RP and Anor, HCMP 672/2013 at -).
Thus, until a notice of appeal has been validly served, the Court of Appeal cannot even entertain an appeal. Moreover, for the purpose of reckoning if an appeal is brought within time, such time only stops to run upon service of the notice of appeal (AVC Property Development Company Ltd v Joyful Grace Trading Ltd & Anor, CACV 208/2016 at -). Appeals brought out of time without first obtaining an extension of time are incompetent and could be struck out on this ground alone (Chee Fei Ming v Director of Food and Environmental Hygiene  2 HKLRD 906 at ).
In common practice, where both parties are legally represented in the court below, the solicitors acting for the intended appellant would serve the notice of appeal on those acting for the intended respondent in the court below, and in most cases such service would be accepted as adequate service. However, in FNG v BCJ, the Court of Appeal (per Lam VP, at ) clarified that on proper analysis, such common practice can only be based on conventional goodwill amongst solicitors. If the intended respondent takes the stance that the appeal is a new matter and that he has not given instructions to the same solicitors to act for him in the appeal (including the acceptance of service of the notice of appeal on his behalf), service on the solicitors would not be regarded as valid service.
Background and reasoning of the Court of Appeal in FNG v BCJ
In gist, FNG v BCJ is a dispute concerning the production of audited accounts under s.11(1)(a) of the Enduring Powers of Attorney Ordinance. The substantive merits of the case are not relevant for the present purposes, suffice it to say that the plaintiff and the defendant were both legally represented in the court below, and the defendant succeeded in the first instance. The plaintiff brought an appeal against the first instance decision, but the appeal was eventually dismissed by the Court of Appeal.
The issue as to the service of the notice of appeal arose when the Court of Appeal dealt with the costs of the appeal. In essence, when the appeal was commenced, the plaintiff’s solicitors (“W”) purported to serve the notice of appeal by leaving it with the solicitors acting for the defendant in the court below (“HG”). However, HG at the time indicated to W that they had no instruction to accept service on behalf of the defendant. HG nonetheless forwarded the notice of appeal (along with other documents in the appeal) to the defendant, who later wrote from England (where she resided) informing the Court that she was acting in person and she had not given instructions to HG to act for her in the appeal.
In contending that the service was valid, the plaintiff argued that since HG were the solicitors on the record acting for the defendant in the court below, by reason of RHC O.67, r.1(1), HG should be “considered the solicitor of the party until the final conclusion of the cause or matter”, and therefore service of the notice of appeal on HG was good service. The Registrar of Civil Appeals, having received arguments from both parties, agreed with the plaintiff, and the parties were directed to and did proceed with the appeal on the basis that the notice of appeal had been validly served. HG eventually also went on record as the defendant’s solicitors in the appeal. At the conclusion of the appeal, the plaintiff asked the Court of Appeal to make an order that the costs of the defendant’s attempt to suggest the notice of appeal was improperly served be segregated from the general costs of the appeal and paid by the defendant personally.
In deciding on this issue, the Court of Appeal disagreed with the plaintiff’s interpretation of RHC O.67, r.1(1). The Court referred to the definitions under s.2 of the High Court Ordinance and held that a civil appeal is not a “cause” since it is not an action but rather an application to set aside a judgment in any cause or matter in the Court of First Instance; and whilst a civil appeal can be a “matter”, it is not the same matter as the action below, and the cause or matter in the Court of First Instance is concluded by the judgment in the action. RHC O.67, r.1(1) only applied in respect of the same cause or matter, and a solicitor on the record would not automatically be regarded as the solicitor acting for the same party in another cause or matter (at -).
With regards to the common practice of service of the notice of appeal on those acting for the other party in the court below, the Court of Appeal said that on proper analysis this cannot prevent a party from taking the stance that the appeal is a new matter and he has not given instructions in the appeal to the solicitors in the court below. It was also held that once a party intimated that the solicitor did not have instructions to act in the appeal, the appellant has to effect service by another means instead of relying on the common practice. The Court of Appeal therefore found that it was within the right of the defendant to withhold instructions to accept service of the notice of appeal, and HG acted properly in intimating to W that they had no instructions to accept service (at -).
Implications for practitioners
Going forward, practitioners acting for intended appellants would be well advised to make enquiries sufficiently in advance with the solicitors acting for intended respondent in the court below to confirm whether they have instructions to accept service of the notice of appeal on behalf of the intended respondent. If a negative or no response is received, the intended appellant will have to take steps to effect service of the notice of appeal by means other than the conventional practice. In such a case, there are some important considerations to bear in mind.
Firstly, the notice of appeal would likely have to be served on the intended respondent in person. This is to be distinguished from “personal service” as provided under RHC O.10, r.1 or O.65, rr.1 to 3, since it has been held that the notice of appeal is not a document which required personal service, and that the provisions of RHC O.65, r.5 regarding ordinary service applied (Law Bing Kee, at ). The Court of Appeal’s decision in FNG v BCJ does not appear to have altered this position. In any event, as opposed to service on a firm of solicitors, service on the intended respondent in person may require more time, and intended appellants should leave sufficient time for effecting service and for taking out an application for extension of time if necessary.
Secondly, if the intended respondent resides outside of Hong Kong, service of the notice of appeal by ordinary post would be irregular (notwithstanding RHC O.65, r.5(1)(b)), and an application under RHC O.11 for leave to serve the notice of appeal out of the jurisdiction would be necessary (LKW v KY  5 HKLRD 33 at ).
Thirdly, an intended respondent may also unreasonably refrain from giving instructions to his solicitors, and thereby delay or even evade service of the notice of appeal for a considerable period of time. However, in this connection, the Court of Appeal emphasised (at ) that its analysis of RHC O.67, r.1 should not be taken as encouragement to a litigant to evade service. If there is evidence of such evasion, the Court has power to make an order for substituted service including a mode of service within jurisdiction which the Court has reason to believe will be effective for bringing the appeal to the attention of the party. The Court can also make an adverse costs order against the respondent for increased or wasted costs. Intended appellants should therefore bear in mind that they have these counter-measures at their disposal.
For respondents, practitioners would be well advised to confirm in advance that they have instructions from their clients in the court below, before they proceed to accept service of a notice of appeal on their behalf.
Further, even after service of the notice of appeal has been duly effected (whether on the solicitors or on the respondent in person), since the solicitors on record in the court below would not automatically be regarded as the solicitors on record in the appeal, there would arguably be no solicitors on the Court’s record as acting for the respondent in the appeal. As such, it would be necessary for the respondent or his solicitors to file and serve a notice of appointment of solicitor under RHC O.67, r.3.
Finally, practitioners acting for intended respondents should also bear in mind the warning given by the Court of Appeal against evasion of service of the notice of appeal or unreasonable conduct leading to the increase in costs for service of the notice of appeal. Any such behaviour is unlikely to be taken kindly by the Court.
Potential wider implications?
Apart from the implications as aforesaid, there may also be potentially wider implications from the Court of Appeal’s decision, which may require further guidance from the Court in the future.
For instance, while an appeal is a separate “matter” to the cause or matter in the court below, the position as to applications for leave to appeal is not entirely clear: would a respondent’s solicitors on record in the court below automatically be regarded as the respondent’s solicitors on record for the application for leave to appeal (in particular, when leave is refused by the court below and a further application has to be made to Court of Appeal, which would be assigned a different case number)? Further, in relation to interlocutory appeals to the Court of Appeal, given that the “final conclusion of the cause or matter” in the court below is still pending, does this mean that the parties’ solicitors on record in the ongoing proceedings in court below should be regarded as the solicitors on record for the respective parties in the interlocutory appeal?
The Court of Appeal was not asked to decide on these questions in FNG v BCJ. However, if similar disputes were to come before the Court in the future, any further guidance from the Court would prove to be invaluable.
This article originally appeared in the August 2021 edition of Hong Kong Lawyer.
Henry obtained his LLB at the University of Hong Kong and was called to the Bar in 2010. Since his admission, Henry has developed a well-regarded practice in commercial and civil litigation, appearing in cases involving land, conveyancing disputes and buildings management.
He has also provided legal opinions on Hong Kong law in a number of listing applications to The Hong Kong Stock Exchange Limited, including on the compliance with the Companies Ordinance and the Competition Ordinance. His practice also includes other areas of civil matters such as personal injuries litigation, insurance disputes, defamation disputes, and disputes involving equity and trusts.
Jasper was called to the Bar in 2019. He studied at Peterhouse, Cambridge University, where he graduated with a Double First in Law, and served as Judicial Assistant at the Court of Final Appeal from 2017 to 2018. Jasper is developing a broad civil practice.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.