Hong Kong Barrister James H M McGowan of Admiralty Chambers Ordered to Pay Wasted Costs in HKSAR v Apelete [2019] 5 HKLRD 574 [2019] HKCA 1189

Wasted Costs Order Against Hong Kong Barrister James H M McGowan of Admiralty Chambers - HKSAR v Apelete [2019] 5 HKLRD 574 [2019] HKCA 1189

https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=125051&currpage=T

36. Before us, Mr McGowan candidly admitted that his actions (or lack thereof) were such as to bring him within the meaning of s.18 of the CCCO. In particular, he accepted that on his part there had been undue delay as well as a repeated failure to comply with the Court's directions, which amounted to serious professional misconduct.

47. Whatever the position may have been in respect of funding, the applicant was legally aided as from 17 August 2018. There can be no excuse for either Mr Mohnani or Mr McGowan failing to comply with the Court's directions thereafter and no conceivable justification for allowing 7 months to go by from 12 September 2018 (the granting of yet another 21-day extension) until Mr McGowan's plea to be allowed to argue Ground 5 of 17 April 2019. Even then, the documents were not properly signed and filed.

48. The result of this astonishing and repeated failure to comply with the orders of the Court is that the appeal was left languishing in the listing office until, pursuant to a direction from the Vice President of the Court of Appeal on 7 November 2018, the appeal was ordered to be listed, which it was a week later. Even then, nothing was forthcoming from the solicitors or counsel until 5 months later, with 2 months to go before the hearing of the appeal, when the Vice President directed that, the required documents having not been filed despite repeated and persistent directions and extensions, the applicant was prohibited from arguing Ground 5 at the application for leave to appeal.

49. The ultimate consequences of this catalogue of defiance and delay in repeatedly failing to comply with the directions and orders of the Court are that the appeal fixed for 13 June 2019 could not take place; the appeal had to be refixed to a date more than 4 months later; and the respondent's submissions will have had to be redrafted to meet a rather different appeal. Moreover, the respondent will now have to deal with Ground 5 in its new incarnation, the ground of appeal having been substantially amended by new counsel assigned by the Director of Legal Aid. Considerable costs have thereby been wasted.

50. On these facts alone, and even without the candid acceptance by Mr McGowan and Mr Mohnani before the Court that they were each liable to a wasted costs order being made, we were satisfied that an order under s.18 of the CCCO should be made against each of them.