Kbc Bank N.V. v. Brink’s, Incorporated and Others

CACV 282/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 282 OF 2012

(ON APPEAL FROM HCCL NO. 14 of 2010)

________________________

________________________

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon Lam VP (giving the Reasons for Judgment of the Court):

1.On 14 August 2015, we handed down our judgment on, amongst other things, costs. We held that notwithstanding the fact that the sanctioned offer of 8 July 2011 only reflected a miniscule discount to the full claim, the Plaintiff was entitled to rely on it to attract the consequences prescribed under Order 22. For the reasons explained in our judgment, we found that it was not a case where the offer could not be regarded as genuine such that it would be unjust to give rise to the sanctioned consequences.

2.The 3^rd Defendant, by a Notice of Motion of 14 October 2015, applied for leave to appeal against our costs judgment.  The court arranged for the expedited hearing of the motion in view of the pending application before the Appeal Committee regarding leave to appeal against our judgment of 17 July 2014 on the substantive merit of the case (leave was refused by us on 14 August 2015).  It is envisaged that if we shall refuse leave in the present application, the 3^rd Defendant could apply to the Appeal Committee for leave in respect of both judgments at the same time.

3.Three questions are set out in the Motion of 14 October 2015 as questions of great general or public importance:

“ 1. Whether O.22 Rules of the High Court (Cap 4A) regarding sanctioned offers was intended to operate in the manner as decided by the CA in the 2^nd CA Judgment, such that in cases concerning quantifiable loss a Plaintiff needs only to propose settlement at a derisory and negligible discount (therefore being of no genuine and realistic incentive for a Defendant to resolve a dispute by agreement) in order to be awarded indemnity costs if successful at trial;

2. Whether by reason of the Respondent’s equivocal pleadings (to which the CA made judicial comments at paragraph 16 of the 2^nd CA Judgment) the Respondent rendered the Applicant unable to assess whether the Respondent’s sanctioned offer accurately reflected the Respondent’s alleged legal rights or not; and

3. Whether, in the premises, the CA erred in criticising the Applicant for rejecting the Respondent’s sanctioned offer and consequently varying the Respondent’s costs of the trial to be awarded on an indemnity basis.”

4.In our costs judgment of 14 August 2015, we had not regarded the amount of the offer as wholly irrelevant in the exercise of discretion under Order 22 Rule 24(4).  Thus, at paragraph 22, we explicitly stated that we did not rule out there might be cases where offers were so disingenuous that they could not justly give rise to the sanctioned consequences.  However, as explained in our judgment, we did not find the present case to come within that category.  Order 22 Rule 24(5) set out the relevant circumstances and the terms of the offer is one of them.  But it is by no means the only factor.  It depends on the evaluation of the offer against the available information on the claim (and the defence).  Hence, it is clear that the discretion must be exercised by reference to the facts and circumstances of the case.

5.Question 1 as formulated only focus on the quantum of the offer.  That is plainly wrong.  Further, it should be clear from our judgment that we did have regard to the quantum.  But we also had regard to other relevant circumstances and on the facts of the case we concluded that it would not be unjust for the Plaintiff to rely on the offer to attract the sanctioned consequences.  It was very much a decision on the facts of this case.

6.On question 2, we disagreed with the 3^rd Defendant’s contention that the pleadings did not provide adequate information for the evaluation of the offer, see paragraph 16 of our costs judgment.  An appeal against that conclusion is an attempt to challenge our decision on the pleadings in this particular case.  No point of general public importance arises.

7.Question 3, by itself, is a non-point.  We did not criticize the 3^rd Defendant for not accepting the offer.  We only applied the law as stated in Order 22 Rule 24.

8.In the circumstances, we do not find the questions framed as raising genuine questions of great, general or public importance for the determination of the Court of Final Appeal.  The requirement of s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance is not satisfied.

9.For these reasons, we dismissed the Motion with costs, such costs are to be taxed if not agreed.

Mr Alan Kwong, instructed by Wong, Fung & Co., for the plaintiff

Mr Andrew Sheppard, instructed by Tanner De Witt, for the 3^rd defendant