To Pui Kui, The Administratrix of the Estate of Ng Po Sum, Deceased v. Ng Kwok Piu and Others

CACV 281/2012&

CACV 1/2013

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 281 OF 2012 AND 1 OF 2013

(ON APPEAL FROM HCA NO. 523 of 2008)

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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):

1.This judgment deals with the following matters:

(a) The summons of 11 March 2015 taken out by the Plaintiff seeking leave to file and serve a Notice of Motion for leave to appeal against our judgment of 21 August 2014 out of time;

(b) The outstanding issue in respect of costs below as identified at paras 21 to 23 of our judgment on 29 January 2015.

Leave to seek leave to appeal out of time

2.Though the discretion to extend time to appeal is a broad one, the usual factors which should guide the court in the exercise of such discretion are:

(a) Length of delay;

(b) The reasons for the delay;

(c) The chances of the appeal succeeding if extension of time is granted;

(d) Prejudice to the respondent if the application is granted.

3.In the present context, we do not see any reason why these usual factors should not guide this court in deciding whether we should grant the extension which the Plaintiff sought.

4.The length of delay is substantial: our judgment was handed down on 21 August 2014 and there was another application for leave to appeal by the 6^th Defendant (dismissed by us on 29 January 2015) before the Plaintiff made her application.  In the context of an application for leave to appeal to the Court of Final Appeal, a delay of almost 7 months is plainly substantial.

5.With respect, notwithstanding the submissions of Ms Ng (who had said everything she possibly can for the Plaintiff in this application), we do not accept that the Plaintiff had a reasonable explanation for such a long delay.  It should be noted that she was legally represented all along. Her old age and residence out of Hong Kong are not good reasons for her not being properly and adequately informed of our judgment of 21 August 2014. Further, because she all along had the benefit of legal advice, there was no reason why she should have laboured under the misapprehension that the application by the 6^th Defendant was as good as an application by her.

6.Further, we did not dismiss the application by the 6^th Defendant simply on the ground that he had no locus to appeal.  As it should be crystal clear from our judgment of 29 January 2015, we also found the intended grounds of appeal to be without merit, see paragraph 30 of our judgment.  If the Plaintiff was contented to leave it to the 6^th Defendant to handle the application for leave to appeal, there is no reason why she should not accept the outcome in that application.

7.In the present application, the Plaintiff relied on the same grounds to seek leave.  Ms Ng did not advance any additional arguments other than those previously rejected by us.  No submission was advanced to challenge what we said at paragraph 30 of the judgment of 29 January 2015.

8.Delay in achieving finality is a prejudice.  In any event, bearing in mind the above considerations, we do not think the absence of prejudice can take the Plaintiff’s application further.

9.It follows that, in our view, the intended appeal is not meritorious and we have no hesitation in dismissing the summons of 11 March 2015 with costs.  In view of what we said above, we are of the view that the application by the Plaintiff is an abuse of process.  We cannot understand why the Plaintiff did not pay heed to what we said in our judgment of 29 January 2015 on the lack of merit of the intended grounds of appeal.  In the circumstances, we order the Plaintiff to pay the costs of the 1^st, 4^th, 5^th, 7^th and 9^th Defendants on indemnity basis. Having considered the statement of costs prepared by their solicitors on 25 August 2015, we find the fees of some of the items charged by the solicitor to be unreasonably high (taking more than reasonable time to deal with the matter).  We would fix the costs at $100,914 of which $40,000 is counsel fees.

Costs below

10.In our judgment of 29 January 2015, we said we need to hear from the parties as regards the submission on the costs below in the following respects identified at paragraphs 21 (b) to (e):

“ (b) At the trial, those defendants spent much time on cross-examining the plaintiff’s witnesses on issues not directly related to HCA 523 of 2008;

(c) Those defendants took out interlocutory applications in the course of the trial which were unsuccessful;

(d) The judge rejected the evidence of all the successful defendants and the records produced by them as genuine contemporaneous documents (when in fact they were reconstruction); and

(e) Several days of trial time were taken up by negotiations in which there was no genuine offers from the successful defendants.”

11.Parties have placed before the court some proposed directions for the lodging of written submissions on these matters. On 11 May 2015, Lam VP directed that the court would review the written submissions before deciding whether an oral hearing is required.  Written submissions were lodged by the parties accordingly. 

12.Having considered the written submissions, we can now conclude that of those four matters, (b) should not have any bearing as to the proper order for costs below in light of the circumstances in which those other issues were canvassed at the trial as outlined by Mr Lai in his submission of 2 June 2015.  We are however of the view that (c) to (e) are relevant and in light of those factors the successful defendants should not have the full costs of the action below. 

13.Mr Lai accepted (c) should be relevant though he said a separate costs order could be made for those interlocutory applications.  On (d) and (e), we do not accept Mr Lai’s submissions that we should not place regard to the Judge’s findings on those matters.  In allowing the appeal, we did not disturb the Judge’s assessment of the evidence of successful defendants and his comments about the lack of proper effort to settle on their part.  The authority cited by Mr Lai, Bower & Handley Res Judicata 4^th Edn (2009) §2.33 is not on point. 

14.The difficult task is to set the appropriate discount in terms of costs of the action below to be awarded to the successful defendants in light of these factors.  We are mindful that we are not the trial judge and to that extent we are handicapped in making a global assessment.  We did not have much assistance in this respect in the submissions lodged before us.  One option is to remit the matter to the Judge for his assessment but that would entail further delay in the final resolution of the matter and further costs to be incurred.

15.In the end, we think the better course is to list the matter for a 30 minute hearing before us to hear submissions strictly restricted to the question of this global assessment.  If parties can agree on that assessment between themselves, so much the better.  

Written submissions by MsSenia Ng, instructed by Khoo & Co, for the plaintiff

Written submissions by Mr Adrian Lai, instructed by S Cheng & Yeung, for the 1^st, 4^th, 5^th, 7^th and 9^th defendants

No written submissions from the 2^nd, 3^rd, 6^th and 8^th defendants