Lam and Lai Solicitors v. Ho Chun Yan Albert

HCMP 555/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 555 OF 2015

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DECISION

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1.On 5 July 2017, I allowed an application by Mr Ho, the defendant, for review of a bill of costs that had been taxed by the master. The plaintiffs (“the solicitors”) are dissatisfied with my decision and wish to appeal.

2.They have raised an issue before me as to whether or not the decision was final, as opposed to interlocutory in nature. If final, an appeal lies as of right.  If the decision is interlocutory, leave to appeal is required.  In order to resolve this issue the solicitors have, quite properly, applied for a direction pursuant to Order 59, rule 21(3) which enables the judge to give a direction as to whether or not the decision was final or interlocutory.

3.In the alternative, if leave is required, the solicitors seek leave to appeal.

4.Section 14(1) of the High Court Ordinance (“HCO”) provides as follows:

“ Subject to subsection (3) and section 14AA, an appeal shall lie as of right to the Court of Appeal from every judgment or order of the Court of First Instance in any civil cause or matter.”

Subsection (3) provides certain exceptions to that rule, including subsection 14(3)(e) which provides:

“ (3) No appeal shall lie–

…

(e) without the leave of the court or tribunal in question or of the Court of Appeal, from an order of the Court of First Instance or any other court or tribunal made with the consent of the parties or relating only to costs which are by law left to the discretion of the court or tribunal;”

Section 14AA(1) provides:

“ Except as provided by rules of court, no appeal lies to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted by the Court of First Instance or the Court of Appeal.”

5.I have no doubt at all that the decision against which leave to appeal is sought is a final decision, and is clearly not within the scope of HCO section 14(3)(e) or section 14AA(1).

6.The decision of the Court of Appeal in Jora Sisi Omar v Jora Harmidar Omar (unreported, HCMP 3129/2015, 19 August 2016) was an attempt by the plaintiff to appeal against a decision dismissing a review of a taxation of a bill of costs by a judge, pursuant to Order 62, rule 35, the very issue dealt with in my original decision.  Unfortunately the decision of the Court of Appeal did not resolve the issue, as the “interlocutory/final decision” issue point was not taken.  The plaintiff was unrepresented and did not appear.  The defendant also did not appear. 

7.The Court of Appeal found simply that there was no merit at all in the substance of the appeal, and dismissed the appeal without considering whether the correct procedure had been followed.

8.It is right that the issue between the parties in the present case involved a costs issue, but it was not, in the proceedings before me, an interlocutory issue of costs. 

9.The case before me was a substantive taxation case in which the question was whether or not the master had erred in principle, had taken into account irrelevant matters, or failed to take into account relevant matters.  The judgment made, from which an appeal must lie as of right, was that the master had erred in principle, that he had taken into account irrelevant matters, and that he had failed to take into account relevant matters.  That judgment was a final disposition of the issue between the parties.

10.The “costs” order that would require leave to appeal was the order nisi made that the solicitors must pay Mr Ho’s costs on the application for review. That order is not the subject of any application for appeal.

11.There will accordingly be a direction pursuant to Order 59, rule 21(3) that the judgment of 5 July 2017, is not a judgment or order to which section 14AA(1) of the HCO applies.  Consequently, leave to appeal against that judgment is not required, and the application for leave to appeal must be dismissed. 

12.Having heard the parties on costs, I made an order that costs on the application for the direction should be in the cause in the appeal, but that costs on the application for leave to appeal should be to the defendant. 

13.The solicitors had elected to take a “braces and belt” approach, and apply for both the direction and leave to appeal.  Mr Chiu said that they had to do that because of time restrictions. 

14.It was open to the solicitors to have made application for the direction earlier, leaving sufficient time to seek leave in the event that leave was required.  They left the matter to such a time where they were under time pressure, and so sought leave to appeal in addition to the direction. 

15.Consequently it was necessary for Mr Chow to prepare his argument on the application for leave to appeal, which ultimately did not require to be considered.  The work was done, so Mr Ho must be entitled to his costs on the application for leave, even though leave was not required.

16.I ordered that there should be a summary assessment of those costs.

Mr Byron Chiu, instructed by Lam & Lai, for the plaintiff

Mr Leonard Chow, instructed by Chui & Lau, for the defendant