Insights

CIVIL PROCEDURE – Court of Appeal clarifies principles on service of Notice of Appeal where parties were represented in the court below

Are solicitors for the respondent in lower court proceedings to be automatically regarded as solicitors for the respondent on appeal? This question arose in the recent case of FNG v BCJ [2021] HKCA 160, in which the Court of Appeal clarified the principles on service of the Notice of Appeal where both parties to the appeal were represented by solicitors in the court below. Ahead of their full legal analysis to be published in Hong Kong Lawyer, Henry Cheng and Jasper Wong summarise the 5 takeaways.

 

 

Key Takeaways from the Court of Appeal’s decision

1. An appeal is to be regarded as a separate matter from the proceedings in the court below. Thus, solicitors on record for the intended respondent in the court below should not be automatically regarded as solicitors for the intended respondent in the appeal.

2. The common practice of serving the notice of appeal on the solicitors acting for the intended respondent in the court below should be considered as a matter of conventional goodwill only. If an 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 of the notice of appeal on the solicitors would not be valid service.

3. The intended appellant would then have to effect service by other means, one of which would be to serve the notice of appeal on the intended respondent in person.

4. To avoid potential problems with service and to ensure that the appeal is brought within time, practitioners acting for an intended appellant should carefully consider if any steps need to be taken in advance. Applications for extension of time, service out of jurisdiction, or even substituted service may be required.

5. Practitioners acting for intended respondents will also have to take express instructions as to acceptance of service of the notice of appeal. Further, once the appeal is commenced, a Notice to Act would also have to be filed so as to become as the solicitors on record for the respondent.

In a forthcoming article in Hong Kong Lawyer, Henry Cheng and Jasper Wong shall explore these and other implications of FNG v BCJ in further detail.  Stay tuned.

 

 

Henry Cheng

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 Wong

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 and has recently appeared as sole advocate in a conveyancing trial before the District Court.