1999, No. CT 30 & 31
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
Coram: The Hon Mr Justice Findlay, in Chambers
Date of hearing: 26 April 1999
Date of handing down of judgment: 4 May 1999
1. After I had handed down my judgment in this matter on 30 April 1999, I realised that I had not included in it my decision and reasonson the point raised by Mr Tracy that the application for leave to appeal was out of time. While considering the matter, I had decidedthis point, but I omitted to deal with it in my written judgment. I now remedy this.
2. Mr Tracy says that the arbitrator published his award on 17 December 1998, but the application for leave to appeal was not made until17 March 1999; well outside the 21 day time limit. It is so that the arbitrator made known to the parties that his award was readyon 17 December 1998, and it has been accepted for a long time that this is the date of publication of the award. The plaintiff wasthe claimant in the arbitration, and, in the ordinary course of events, one would expect the claimant to do what is necessary touplift the award. The claimant did not do so until 12 March 1999. Only then were the parties able to know what the arbitrator haddecided, and be in a position to consider the merits of his decision. Of course, the defendant could have uplifted the award itself,but that would not be usual for obvious reasons; the defendant had no expectation of an award in its favour, other than in relationto costs, and, therefore, no pressing reason to obtain the award so that it could enforce it. I have already found that the defendanthas succeeded in showing that it is likely that the arbitrator was wrong in his construction of the policy. To refuse to allow thedefendant to proceed with an appeal would mean that the plaintiff will keep an award that, probably, she should not have obtained.That would not be just. The conclusion to be drawn from these circumstances is that, although the defendant might have put itselfin a position to be able to apply for leave within the time limit, its failure to do so was not so unreasonable as to justify a refusalto condone the late filing of the application for leave where the result of this would be to allow an award that is probably wrongto remain undisturbed.
3. In these circumstances, I exercise my discretion to condone the late filing of the application.
Mr MP Tracy, instructed by Messrs Lousich & Co, for the plaintiff.
Mr Neal Clough, instructed by Messrs Henry HC Wong & Co, for the defendant.