Orient Power Holdings Ltd (Receivers and Managers Appointed) (in Liquidation) and Others v. Ernst & Young

HCCL 14/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO 14 OF 2014

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D E C I S I O N

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1.By their Summons issued on 5 July 2017, the Plaintiffs seek leave to appeal against my Decision of 30 June 2017, refusing leave for the Plaintiffs to serve the witness statement of Mr Isherwood. That decision was made in exercise of my discretionary and case management powers for the trial scheduled to take place before this Court on 4 September 2017.

2.The test for granting leave to appeal in this type of situation was set out by the Chief Judge in 厦門新景地集團有限公司 v Eton Properties HCMP 13 of 2012, 14 Feb 2012, para 9,

“No leave to appeal should be granted unless the threshold test of reasonable prospect of success is satisfied, or (which is not relevant to the present case) there is some other reason in the interests of justice why the appeal should be heard: section 14AA(4), the High Court Ordinance (Cap 4). But the court still retains a discretion whether to grant leave even if the threshold test is satisfied. This is particularly so in relation to an intended appeal against a case management decision. In relation to such an intended appeal, this court rarely intervenes save in exceptional circumstances. As Kwan JA reiterated in the recent case of Mimi Kar Kee Wong Hung v Severn Villa Limited, HCMP 2192/2011, 12 January 2012, para 31, it need hardly be emphasized that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible. In relation to case management decisions, the intended appellant must show that the judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task”, or if the judge “erred in principle or the order was irrational having regard to the issues that had to be resolved”. It is of great importance that this court does not descend to micro-managing cases pending before the court below.”

3.Since the CJR, the courts have endeavoured to make it clear that parties are expected to carefully and thoroughly consider from an early stage all steps leading up to trial, and not to wait until the eve of trial before making last minute interlocutory applications.  I have in my Decision of 30 June 2017 referred to all the matters which I have taken into consideration in balancing the value of the Isherwood statement sought to be produced, the potential prejudice to the Plaintiffs and the Defendant, the explanation offered by the Plaintiffs for the late application, the disruptive effect on the trial and the preparations for trial, and the overall fairness and justice of the case.

4.Having considered the draft Grounds of Appeal, I am not persuaded that the Plaintiffs’ appeal against my exercise of discretion have reasonable prospects of success, in that it can be shown that I had exercised my discretion under wrong principles of law, or that I had failed to take into consideration relevant factors, or had taken into consideration irrelevant factors.  It is trite that an appellate court cannot interfere simply because its members consider that they would, if they themselves had sat at first instance, have reached a different conclusion.  The application for leave to appeal is accordingly dismissed, with costs and certificate for counsel.

Lipman Karas, for the 1^st to 4^th plaintiffs

Ms Roxanne Ismail SC and Ms Queenie Lau, instructed by Davis Polk & Wardwell, for the defendant