*Marol 29, 1902.
* Any application for a review of judgment or for a rebearing or new trial must be made on notice of motion filed not later than 14 days after such decision, or hearing, or verdict," Now "the Court" is defined to include "the Chief Justice and Puisne Judge sitting toge- ther or separately." So if the plaintiff had moyed the Full Court for a review of the judgment his notice of motion ought to have been filed within fourteen days. These pro- visions of section 68 are taken from Rules 100 and 101 of the Rules of the Supreme Court for China and Japan, dated 4th May, 8865. But I cannot find that the China and Japan Rules, commencing with Rule 153, under the heading of Appeal to the Supreme Court" have been incorporated in the 1873 Code of Procedure. I is rather strange that no time limit was specified expressly, because, in the Ordinance regulating the Summary jurisdiction of the Supreme Court, passed about the time, viz. September, 1873, section 41 provided that a party desiring to appeal had to apply to the Full Court, within 7 days from the date of judg- ment, for leave to appeal. In England, the practice under the Common Law Procedure Acts 1954 and 1860 required notice in writing of appeal to be given within 4 days. (Se section 37 UL P. Act 1854, and section 7 of the C.L.P. Act, 1860.) As to the Rules under the Judicature Act 1973-Order 58, Rule 15, gave (up to the year 1894) 21 days for appealing from interlocutory orders and one year for appealing in the case of final orders and, since 1st January, 1894, these periods have been reduced to 14 days and three months respectively, showing how necessary the Judges in Englan I deemed it to be, that appeals should be heard promptly, so that litigation might not be allowed to go on indefinitely. That was the state of things in Eugland in 1991, when the Ho gkong Code of 1873 was repealed by Ordinance 6 of 1901, and a new Code of Civil Procedure substi uted by Ordinance No. 5 of 1901. That new Code came into operation on 1st July, 1901 (section 711) und was made applicable, so far as might be practicable, to all proceedings taken, after it came into operation, in all causes and matters then pending (section 710) Beotion 606 is very explicit, and provides as follows:-"No appeal to the Full Court from
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after the expira'ion of 14 days, and no appeal to be harassed by further litigation.” - “-In to the Court of Appeal (other than an interlocu- England you would have had to appeal in tory order, etc.) shall, except by special leave of fourteen days." In Broom's Legal Maxims, the Court of Appeal, be brought after the expira- 4th Edition, p. 321, the learded writer
"If mistake in practice.or tion of three months." The Hongkong Code | says gives the liberal allowance of 6 months instead advertence furnishod reasons for a new trial of 14 days in one case and of 3 months in the it would encourage litigation and reward other. What are the principles on which the ignorance and carelessness at the
of the other party and, therefore, our Court of Appeal in England proceeds in con- sidering whether special leave should be law in such cases wisely acts upon the maxim granted? They seem to have altered somewhat, Interest reipublicae ut sit finis litium—it is for from time to time, and the chief oase; illustrat- the public good that there be an end to litiga. ing this seem to be as follows:-.D. 1880 tion. In the case of the International Financial Collins r. The vestry of Paddington L.R. 5. Society v. City of Moscow Gas Company, 7 At page 381, Lord Justice Chanc ry Division, page 241, it was held that Q.B.D., page 368,
When 3 judgment has the fact that an appellant had misconstrued a Thesiger says: been pronounced and the time fo: appeal somewhat ambiguous rule and by reason of such has elapsed without appl, the successful mistake had omitted to bring his appeal in party has a vested right to the judgment which time, was not a sufficient ground for enlarging anght, except under very special circumstances, the time for appes', and Lord Justice James to be mide effectual. And I think that the gives at page 247 his reasons very clearly. **The limitation Legislature intended that appeals from judg. There he says: (A. D. 1877). ments should be brought within the prescribed of time to appeal is a right given to the person time and that no extension of time should be in whose favour a Julge has decided. I think we ought not to enlarge that time unless under granted, except under very special circum-
He says
"that under the Common some very special circumstancas indeed, that is stances."
to say, if there has been any misleading through Law Procedure Act 1854 the practice as to refusing extension of time was stringent." any conduct of the other side," &c., &o. It is Then in 1882 we have Sir G. Jessel's view; in not alleged even that since the judgment sought to be appealed against there has been any case Curtis v. Sheffield, 21 Chancery Division, p. in which, reviewing the changes in opinion of decided by any high tribunal in England in the Courts as to appeal, he winds up by saying, any way militating against that judgment. of recent decisions: They all lay down this The only case I have been able to find desided by principle that, as a general rule, an appeal after the Privy Council, in any way relevant, is The Mayor and Councillora of East Freemantle the time will not be allowed unless the respon- equity
❤, Annois reported in Vol. 18 of the Times Law dent has done something to give a sort of to the appellant to go beyond the period." Can Reports, p. 199. There the plaintiff sought to it be said the respondent has done anything of obtain damages against a corporation which the kind here? In 1883, the osse In reacting under statutory powers had injured her Manchester Economic Building Society is property by lowering the level of the street reported in 24 Chancery Division. p. 488. There leaving her house with a drop of 6 to 8 feet Sir William Ba iol Brett, another Master of sheer to the stree, cutting off access, unless Rolls, states his view at p. 479 on this question she made steps which would cost £15 to make, Held that as the Act provided no remedy for to be this :-
:-" I know of no rule other than this that the Court has power to give the special this damage she could not maintain an action. leave, and exercising its judicial discretion is To sum up briefly; what are the grounds upon bound to give the special leave if justice which the Court is asked to grant a special requires that that leave should be given." indulgence in this case and allow an appeal some 15 months after the judgment appealed Lord Justios Cotton concurred in the view
from? The main ground is practically generally (see p. 499). That was however, a
the plaintiffs were advised by pealed from hal been obtained by suppression their counsel not to appeal but to take of material facts. Finally in 1891 Lord Esber another course. The answer is that if such an excuse is admitted you have only to go to a and Lord Justice Bowen in Cusack v. London and North Western Ry. Co. (1891), 1 Queen's lawyer who gives you bad advice and then you can sweep aside all the barriers erected by the Bench Division, page 347, dissented from the views expressed in Collins v. Vestry of Padding law for the prevention of undue delay and the ton and said the case belonged to a period în protection of a defendant from being harassed which stricter views on this point were held, year af er year by a litigious claimant. The reason alleged for the further delay after 20th So no hard and fast rule can be laid down and each case must be considered on its merits. January, 1902, when the plaintiffs knew the course they had taken was wrong, is that What then are the merits in this case? The judgment from which it is sought to obtain the plaintiffs had been in communication with the Colonial Secretary with a view to a leave to appeal was a judgment simply upon a question of law. For the particular purpose settlement of the matters in question. The of determining that question of law, certain Government sought no such communication allegations of the plaintiffs bad to be assumed and on 31st January the Colonial Secretary to be true. Whether those allegations are in informed the plaintiffs that His Excellency fact correct and fair, or whether they are regretted that he must decline to enter into any misleading, are matters which the Court has further discussion and declined to continue the neither investigated nor decided. The real correspondence. The writing of further letters question Sir John Carrington decided by his to the Government by the plaintiffs in spite of judgment was that the Court had no jurisdic. the full explanation of the Government's lion, having regard to the terms of the Praya position in the matter is surely no exonse for Reclamation Ordinance, to investigate in whit further delay in appealing. Why is the defen- manner the Officer Administering the Govern- dant 10 suffer because the plaintiffs will not take ment exercised the powera and discretion vested "No" for an answer. I submit the special in him by that Ordinance, at the time he made leave should be refused, because the plaintiffs the award. Except for the purpose of con- have shown no reasonable cause why a special sidering the legal question of jurisdiction, the indulgence should be shown them. Court ought not to and will not assume that, in point of fact, any hardship had been done to the plaintiffs. Some of the facts alleget in the petition are disputed in the answer. I submit that, if upon reading the judgment of the Chief Justice, it appeared to the Court to be on the face of it erroneous, the Court might feel that justice required that an appeal, after even so long a delay as in this case, should be allowed. If, however. the judgment commends itself to the Court as correct, or is not obviously incorrect, surely
any decision of the Curt shall, except by special | very exceptional case, in which the order an."/
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leave of the Fall Court, be brought after the expiration of 6 mouths calculated from the time when the decision was pronounced. That Ordinance was passed on 12th Marob, 1901, and did not come into operation till more than 3| months after it was passed, and so the plaintiffs must be taken to have had fall notice of the time limit it imposed. One of the plaintiffs is * lawyer practising here and the Code was fully discussed in the Colony before it was passed, and the plaintiffs might have appealed before it came into operation. They had 3 months to do so after it was passed, whereas, f England, they would only have had 14 days. According to the decisions, such as Salaman v. Warner (1891) Queen's Bench, 734, this order allowing the demurrer is an interlocutory and not a final order, because if the judgment had been for the plaintiff, the action would have had to proceed on the facts. If, indeed, the plaintiffs had appealed within 6 months after the tim the Ordinance actually came into operation, one might have felt some unwillingness to oppose special leave being granted. But they waited till March, 1902, before moving, i.e., nearly 15 months after the judgment. The reasons assigned for this delay are that they chose deliberately, after consult ing Mr. Francis, to take another method, and instead of appealing sent a petition to the King in Council, which they did not even forward till 14th September, 1901, ..., nine and a half months after the judgment was delivered And then when, on 20th January, 1902, they found they had taken the wrong steps, that the procedure was irregular and out of order, they delay again till 13th March, 1932, because they chose to write letters to the Colonial Government, wanting that Government to do what it had no “power to do, namely supersede the award of General Black made under the statutory power conferred upon him by the Praya Reclamation Ordinance 1889. Now section 606 of the Code taken from the present English rules and ́orders, namely order 58 rule 15. That English rule says: —*** No appeal to the Court of Appeal rom any interlocutory order shall, except by special leave of the Court of Appeal, be brought
that
Mr. Morgan Phillips, for the appellant, argued that, even if the Court held that the time within which an appeal should be brought in this cas was governed by the provisions of the New Code, yet there were special grounds in this case for the granting of leave to appeal; and it would be hardship on the appellants if such leave wer refused. He commented on the cases cited the Attorney-General, and quoted the Be New Collao, 22 Ch. Div. 484.
The Attorney-General was not called upon
the Court may say to reply. We have to consider the defendant as well as the plaintiffs. If you, the plain- tiffs, had appealed in time, you had a right to do so, but, as you are out of time and come to us for special indulgence, you must show some good reason why we should allow the defendant
The Court dismissed the application with The Acting Chief Justice said necessary to consider the point of law Sir John Carrington, the only qu to whether the application for was brought in time. Under the