Wgl v. Asb

HCMP 489/2013

[2018] HKCFI 519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 489 OF 2013

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D E C I S I O N
(Litigation Funding – Leave to Appeal)

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Introduction

1.This is an application by the Mother for leave to appeal against this Court’s decision on 30 November 2017 (“30.11.17 Decision”).  This Court dismissed the Mother’s application for a sum of HKD2,200,000 to be paid to her solicitors for funding her litigation in the forthcoming 3 day trial commencing on 2 May 2018.

2.In this decision, save where otherwise indicated, this Court will adopt the abbreviations in the Judgment given by this Court on 28 June 2013 and also previous decisions of this Court.  The background and history of this litigation has been set out in the Judgment and those decisions.

3.The forthcoming trial is in relation to 3 applications, one by the Mother for the Father to pay her the differences between the ordered amounts and the index-linked amounts, and two by the Father, one for downward variation of the periodical payments for their daughter ILB of HKD290,000 per month[1] to HKD80,000 per month, and another one for reimbursements of amounts said to be overpaid by the Father to the Mother.  These have been collectively referred to as Variation Summonses.

4.In the 30.11.17 Decision, this Court followed the Currey principles and dismissed the Mother’s application essentially due to the Mother’s lack of disclosure at the time of her application as to (i) the whereabouts of a sum of about HKD13.7m and (ii) lack of supporting documentation in relation to her own financial resources.  Further, her estimate of costs was too high.

5.There was an argument by Mr Todd for the Mother that the summons was for the benefit of ILB and that the Mother was acting in a representative capacity in that the Mother was not the applicant and that the Court should not be considering her own financial resources.  This Court came to the view that the Mother was the applicant following the approach of Cobb J in BC and DE [2016] EWHC 1806(Fam) and that the Court should consider the Mother’s own financial resources.

Grounds of appeal 

6.There are 9 grounds of appeal.  Briefly, they are:

(1)   This Court erred by treating the application as one by the Mother when the summons was for the benefit of the child and that the Mother was acting in a representative capacity;

(2)   This Court erred in holding that the applicant of the application was clearly the Mother;

(3)   There was a huge and obvious disparity inequality of arms;

(4)   The Court’s approach to quantification of costs was also in error;

(5)   The Court erred to hold that in this “high conflict” case the Mother’s case could be contained within a future budget of HKD1.2m;

(6)   This Court erred to ascribe to the Mother funds which she had borrowed and then repaid for the 28 month period when the Father was in contumelious breach of this Court’s orders in respect of child maintenance;

(7)   The application should have been dealt with on a “broad brush” approach;

(8)   This Court erred in holding that HKD750,000 which the Father had overpaid was available;

(9)   This appeal raises substantial points of general public importance.

Discussion

7.Grounds (1) – (2) and (9) are all in relation to “points of law” raised by the Mother.  First of all, to clarify, when the Court referred to the Mother being “the applicant of the application” in paragraph 25 of the 18.11.17 Decision, this Court was referring to the Mother’s application for litigation funding. The applicants in the Variation Summonses had been set out in paragraph 4 of the 18.11.17 Decision.  The present submissions of Mr Todd are mainly those made by him in November 2017.  I agree with Mr Chan, the “legal position” advocated by the Mother appears to go against all the authorities both in Hong Kong as well as in England, and that even in England, the Currey principles are applicable.  This Court followed the Currey principles.

8.As for Ground (3), that there was inequality of arms.  I think the fact speaks for itself, that so far the Mother has been represented by a well-known firm in family disputes and also Mr Todd since 7 August 2017.  In 2013, she was represented by the same firm and further both senior and junior counsel.  In any event, the Mother’s application failed mainly due to her lack of disclosure of her own financial resources.

9.As for Grounds (4) and (5) in relation to quantification of costs, HKD1.2m was this Court’s forward looking estimate at the time of the hearing in November 2017.  It is not clear on what basis Mr Todd made the submission that “the conventional approach being that costs tend to double between financial directions and the final hearing”.  This Court is not aware of such conventional approach.

10.As for Grounds (6) – (8), the submissions made by Mr Todd was essentially those in the November 2017 hearing.

Conclusion

11.Essentially, the 30.11.17 Decision was based on this Court’s exercise of discretion, and the Mother has to demonstrate that this Court was plainly wrong in the exercise of discretion.

12.Under s14AA (4), leave to appeal shall not be granted unless the court hearing the application for leave is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard.

13.Having considered the Mother’s intended grounds of appeal, this Court is not satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interest of justice that the appeal should be heard. 

14.In the above circumstances, the Mother’s summons issued on 13 December 2017 for leave to appeal is dismissed.  I order the Mother to pay the costs of this application.

Mr Jeremy S K Chan, instructed by Chaine Chow & Barbara Hung, for the applicant

Mr Richard Todd, instructed by Withers, for the respondent