TO KWAN HO AND ANOTHER v. DEPUTY REGISTRAR OF THE HIGH COURT

TO KWAN HO AND ANOTHER v. DEPUTY REGISTRAR OF THE HIGH COURT

The Deputy Registrar’s LAA Decision was Wednesbury unreasonable because he materially erred by failing to take into account (or to give adequate reasons that he had taken into account) the usual practice that a defendant who successfully sets aside an irregular default judgment will likely be awarded costs and by failing to consider the Applicants’ realistic prospect of resisting any extension/renewal of the writ (and related limitation issues); those omissions rendered the decision one no reasonable decision‑maker could reach. The LAA Decision was quashed and the appeals remitted for fresh determination.

Citation
[2021] HKCFI 874
Parties
1st Applicant: TO Kwan Ho; 2nd Applicant: LI Kwok Hoi; Putative Respondent: Deputy Registrar of the High Court; Putative Interested Party: Director of Legal Aid
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
31 March 2021
Case Number
HCAL895/2019
Procedural Posture
Judicial Review (leave to Apply) Challenging Legal Aid Appeal Decision / Rolled Up Hearing of Leave and Substantive Judicial Review; Judgment Granting Leave and Quashing Appeal Decision
Outcome
Application for leave granted; judicial review allowed; LAA Decision quashed; appeals remitted for fresh determination
Legal Topics
Wednesbury Unreasonableness, Refusal of Legal Aid (s.10(3)(c) Legal Aid Ordinance), Costs Orders on Setting Aside Default Judgment, Extension/renewal of Writs and Limitation Defences, Undue Influence Defence
Source Language
EN
Administrative Law Civil Procedure Legal Aid Law Constitutional Law Wednesbury Unreasonableness Refusal of Legal Aid (s.10(3)(c) Legal Aid Ordinance) Costs Orders on Setting Aside Default Judgment Extension/renewal of Writs and Limitation Defences +1 more

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Parties

TO Kwan Ho

1st Applicant

LI Kwok Hoi

2nd Applicant

Deputy Registrar of the High Court

Putative Respondent

Director of Legal Aid

Putative Interested Party

Procedural Posture

Judicial Review (leave to Apply) Challenging Legal Aid Appeal Decision / Rolled Up Hearing of Leave and Substantive Judicial Review; Judgment Granting Leave and Quashing Appeal Decision

Legal Issues

  1. 1 Whether the Deputy Registrar’s dismissal of the legal aid appeals was Wednesbury unreasonable
  2. 2 Whether the Deputy Registrar failed to take into account the usual practice on costs when setting aside default judgment
  3. 3 Whether the Deputy Registrar failed to consider the Applicants’ prospects of resisting renewal/extension of the writ and limitation defences

Ratio Decidendi

The Deputy Registrar’s LAA Decision was Wednesbury unreasonable because he materially erred by failing to take into account (or to give adequate reasons that he had taken into account) the usual practice that a defendant who successfully sets aside an irregular default judgment will likely be awarded costs and by failing to consider the Applicants’ realistic prospect of resisting any extension/renewal of the writ (and related limitation issues); those omissions rendered the decision one no reasonable decision‑maker could reach. The LAA Decision was quashed and the appeals remitted for fresh determination.

Court Disposition

Application for leave granted; judicial review allowed; LAA Decision quashed; appeals remitted for fresh determination

Orders

  • Order of certiorari quashing the Deputy Registrar’s LAA Decision dated 4 January 2019
  • Applicants’ legal aid appeals remitted to a different Master for fresh determination in accordance with judgment