In Li v Gao & Anor,(1) a judge of the High Court allowed the plaintiff's application for a new trial (a trial de novo or retrial) of a trial that had been adjourned part-heard in July 2008, just before the court's summer vacation that year. The case involves numerous witnesses and experts and arose out of a substantial commercial dispute between the parties. The adjourned part-heard trial lasted 21 days during July 2008 and not much appears have happened during the 10 years after the adjournment until the plaintiff decided to proceed in July 2018 and applied for a new trial in November 2020. The court heard the application in May 2021 and recently handed down its written decision allowing a new trial. This represents a quite remarkable outcome. Assuming that the case does not settle, a new trial is unlikely to be heard for a couple of years and, when it is heard, the retrial is likely to be at least 15 years after the proceedings were commenced and some 20 years after the facts in dispute. This raises an issue as to whether a new trial is the most desirable outcome from a case management point of view.
In 2007 the plaintiff commenced proceedings against two defendants. In brief, the plaintiff alleged (among other things) that in February 2004 the first defendant obtained a transfer and an allotment of shares in the second defendant, which was the holding company for a group of companies through which an expensive property was owned in Shenzhen, China. It was alleged that the transfer and allotment of the shares was obtained using forged documents. The value of the property and assets in dispute appears to have been considerable and the court's decision suggested that "a lot is at stake".(2) The first defendant denied that the transactions in dispute had resulted from the use of forged documents – rather, she claimed that the transactions had been agreed by the plaintiff as a consequence of their romantic relationship (and alleged "love and affection") at the time.(3)
The original trial commenced on 2 July 2008 and lasted for 21 days until it was adjourned part-heard on 29 July 2008 – just before the courts' summer vacation in August. Twenty-two witnesses were due to be called at trial – 13 for the plaintiff and nine for the defendant. There also appear to have been six expert witnesses, including handwriting experts.
Not much progress appears to have been made during the part-heard trial. Neither of the most important witnesses (the plaintiff and the first defendant) had given their testimony. Of the other witnesses, only three had been called and two of those had not completed their testimony and did not appear to have been discharged from their subpoena (witness summons). Two of the handwriting experts had not completed giving their evidence on material aspects that would be of "critical importance".(4) Two expert witnesses had not commenced giving evidence.
The plaintiff appears to have been unwell for some time and nothing much happened in the case until July 2018 when the plaintiff gave notice of his intention to proceed. In the intervening 10 years, neither party had applied to restore the part-heard trial. The plaintiff amended his pleading in late 2020 and, in November 2020, he applied for a new trial.
The issue for determination by the court, exercising its case management powers, was whether to allow a retrial or order that the part-heard trial be resumed. The first defendant opposed a new trial and appears to have argued that if the case were to proceed to trial, it should be resumed, with allowance being made for the evidence that had already been given at the part-heard trial by reviewing the court transcript. The judge determining the plaintiff's application had himself come out of retirement to sit as a deputy judge and, therefore, was unlikely to be available to hear a new trial.
The court allowed the plaintiff's application for a new trial (a trial de novo). It appears to have been accepted that, where an original trial has been adjourned part-heard, a new trial would generally be allowed only in exceptional circumstances – for example, where a trial judge has retired, died or recused themselves.
In allowing a new trial, the court appears to have been influenced by the following factors.
- Little progress appears to have been made during the original part-heard trial – therefore, it was better to order a new trial.
- Such was the passage of time, there did not appear to be any prejudice or tactical advantage to either party whether the court ordered a resumption of the part-heard trial or a new trial. However, in the exercise of the court's case management powers and having regard to the interests of justice, it would be better for the evidence to be repeated and considered afresh in its totality at a new trial.
- There did not appear to be any saving in time or costs in ordering a resumption of the part-heard trial (which would also involve reviewing the court transcript) compared with ordering a new trial (and hearing the evidence afresh). Indeed, much of the crucial evidence had not been presented during the part-heard trial and, with respect to the evidence that had been given, it would be difficult for a trial judge to assess its impact based only on the transcript.
The court ordered that there be a new trial to be fixed before a new judge. The court decided that the costs of the adjourned trial were a matter for the judge hearing the new trial.
The facts of the case are unusual and views are likely to differ considerably as to the outcome. On one view, the interests of justice (the litmus test for the court) are best served by having a new trial. On another view, questions may be asked about the desirability of allowing a new trial in circumstances where neither party applied to restore the part-heard trial for some 10 years. Assuming that the case does not settle and it proceeds to a new trial, the witnesses and handwriting experts face the prospect of giving evidence with respect to events that took place some 20 years ago. With that in mind, one could make an argument that it would have been better for the case to have been dismissed (with an appropriate order for costs in the circumstances).
It is also interesting that the plaintiff applied to proceed with the case after so many years – there is likely to be an explanation for this that is not immediately obvious from the court's written decision or the parties' legal submissions.
Thus far, the case does not appear to have been a particularly good advertisement for case management and it illustrates the desirability of having a rigorous "docket system" whereby commercial disputes – in particular, long and complex cases – are assigned to a permanent judge from the time of the first case management conference through to trial (as opposed to being dealt with by a deputy judge or other judicial officer sitting on a temporary basis).(5) This raises issues of judicial resources, which is not a new point for practitioners and clients involved with High Court litigation in Hong Kong.
For further information on this topic please contact Antony Sassi, Samuel Hung or David Smyth at RPC by telephone (+852 2216 7000) or email ([email protected], [email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
(1)  HKCFI 1946, HCA 276/2007, 12 July 2021.
(5) Practice Direction 5.7, "Long Cases" (15 days or longer).