Yang Foo-oi By Leung Ping Chiu, Roy Her Next Friend v. Wai Wai Chen and Another

CAMP 150/2018

[2019] HKCA 49

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 150 OF 2018

(ON AN INTENDED APPEAL FROM HCA 1739/2010)

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J U D G M E N T

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

1.This is an application for leave to appeal against the decision of A Chan J on 2 August 2018. Though the draft notice of appeal attached to the summons of the Defendants of 22 October 2018 purported to state that the judge had adjudged on certain arguments and made certain order, the Defendants have not produced a copy of the sealed order made by the judge at that hearing.

2.Based on the written ruling of the judge of 2 August 2018, the Defendants put forward 3 proposals to the judge and the judge rejected two of them and ruled that the remaining one was to be determined on merits upon the determination of the Locus Summons, a summons issued in light of the development before this Court when the original appeal against the judgment of 29 November 2016 came before us on 21 October 2017.  The Locus Summons is to be heard by the judge (together with a Joinder Summons and a Rectification Summons) on 20 November 2019 (with 10 days reserved).

3.The Defendants applied for leave to appeal before the judge.  The judge refused to grant leave on 8 October 2018.

4.By a summons of 22 October 2018, the Defendants renewed the application for leave before us.

5.Having read the written submissions of Mr Strachan SC (with Mr Dawes SC, Mr Chau and Mr Man) for the Defendants and the written submissions of Mr Yu SC (with Mr Man SC, Mr Lam) for the Plaintiff, we came to the clear and firm view that the intended appeal is totally without merit and leave should not be granted. 

6.As the judge said in his Decision of 8 October 2018, the ruling in question is a case management decision.  The threshold for disturbing a decision of this nature is very high.  This is recognized by Mr Strachan.  He however submitted that the ruling was clearly wrong and that it was tainted by errors in principle.  He cited 厦門新景地集團v Eton Properties Ltd HCMP 13/2012, 14 December 2012, to support his invitation to this Court to interfere with the decision of the judge.

7.Counsel principally relied on Aldi Stores Ltd v WSP Group plc [2008] 1 WLR 748 and submitted that the judge erred in not following the guidelines set out at [30] and [31].

8.However, Aldi Stores Ltd v WSP Group plc, supra, itself was concerned with a striking out application and the relevant guidelines were basically directed towards litigants and their legal advisors that should they harbour any intention to pursue other claims related to existing proceedings, they should alert the court seised of the latter proceedings.  The rationale is that the court could then examine how the matters should be managed having regard to the proper use of judicial resources and the efficient and economical conduct of the litigation.

9.Similar observations were made by Kitchin LJ in Clutterbuck v Cleghorn [2017] EWCA Civ 137 at [74] to [81], another case relied upon by Mr Strachan.  That was another appeal against a striking out decision. 

10.There is nothing in those judgments laying down how a judge should exercise the case management power in the existing proceedings.  More relevantly for present purposes, there is nothing in those judgments prescribing that the judge had to adopt measures which would give a litigant a pre-emptive (whether procedural or substantive) assurance that the subsequent proceedings would not be regarded as an abuse of process.

11.Yet, this appears to us to be what the Defendants were actually complaining about: the judge did not adopt a course which would give them such assurance.

12.In principle, it would not be appropriate for such pre-emptive assurance to be given.  In determining if a subsequent piece of litigation is an abuse of process, the court has to engage in a broad-merits based balancing assessment instead of adopting a mechanistic approach, see Johnson v Gorewood [2002] 2 AC 1; Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72; Ho Kin Man v Commissioner of Police [2014] 3 HKLRD 478. 

13.Actually, the judge did not brush the concerns of the Defendants aside.  Instead he ruled that the matter should be addressed on its merits upon the determination of the Locus Summons.  We cannot see how it could be said that the judge erred in principle in adopting such a course by way of case management.

14.In respect of the so-called “conundrum” faced by the Defendants, we agree with the following observations of the judge at [16] of the Ruling of 2 August 2018:

“ … No doubt they [meaning the Defendants, with the benefit of the legal advice available to them] would conduct their case as they see fit, but they must accept the legal consequences which flow from their conduct. It is not the function of the court to preserve their options.”

15.In our judgment, the observations by Thomas LJ in Aldi Stores Ltd v WSP Group plc, supra at [30] and [31] only reminded litigants and those representing them to provide the courts with relevant information to facilitate the courts in the exercise of case management power. It would be wrong to read such observations as prescribing that the courts must resolve whatever “conundrum” a litigant perceived as facing.  There is nothing in those observations which undermine the fundamental precept in the administration of civil justice as set out in [14] above.

16.In light of the judge’s indication that the merit of a conditional determination be given shall be reserved for consideration at the hearing in November 2019, we cannot see any mileage to be gained by the Defendants by reference to Twinsectra Ltd v Lloyds Bank plc [2018] EWHC 672 (Ch).

17.For these reasons, we refuse to grant leave and dismiss the summons of 22 October 2018.   We also order the Defendants to pay the costs of the Plaintiff.  Having considered the Statement of Costs of the Plaintiff, we fix such costs at $128,763.

18.Further, we are of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination to be reconsidered at an oral hearing inter partes.

Mr Benjamin Yu SC, Mr Bernard Man SC and Mr Keith Lam, instructed by Clifford Chance, for the plaintiff

Mr Mark Strachan SC, Mr Victor Dawes SC, Mr Jeffrey Chau and Mr James Man, instructed by Mayer Brown, for the 1^st and 2^nd defendants