Kouk Chung Fai and Another v. Global Ltd and Another

HCLA 1/2019

[2019] HKCFI 2350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 1 OF 2019

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 1664 OF 2018)

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D E C I S I O N

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I. INTRODUCTION

1.The 1^st and 2^nd claimants (“C1” and “C2”, collectively “Cs”) are husband and wife who use to work for the 1^st defendant (“D1”) and/or the 2^nd defendant (“D2”) (collectively, “Ds”). On 6 June 2018, Cs commenced LBTC1664/2018 at the Labour Tribunal (“Tribunal”) against Ds for arrears of wages, end of year payments and life insurance allowances in the sums of $626,822.09 (C1) and $2,212,130.63 (C2).

2.Ds denied liability save for the life insurance allowance claims which were agreed and awarded at $300 to each of Cs. Ds further alleged that Cs wrongfully and in breach of fiduciary duties misappropriated D1’s funds to (a) pay themselves housing allowances to which they were not entitled, (b) pay themselves salary to which they were not entitled, (c) reimburse themselves for inflated and unapproved expenses many of which were unrelated to D1’s business, and (d) make a series of as yet unexplained further payments to their personal joint account.

3.Such allegations were made with various degrees of particularity in (a) the statement of defence by Ds dated 29 June 2016 (“Defence”) which alluded to inter alia Cs’ misconduct and C2’s breach of fiduciary duties, (b) supplemental statement of Michael Gamper (“M Gamper”) on behalf of Ds dated 27 July 2018 (“1^st Supp Stmt”), and (c) D1’s counterclaim against Cs filed on 7 December 2018 (“Counterclaim”) that consisted mainly of claims for “misused company funds for operating another company and overpaid payments in the amount of $580,286.91” and “expenses misused or claimed without proper approval and overpayment in the amount of $149,877.87” (see paragraph 16 of the Reasons referred to in paragraph 8 below). By the Counterclaim, Ds additionally sought injunctions/orders for delivery up of various items of company property.

4.As early as the Defence (see paragraphs 27-30 therein) and the 1^st Supp Stmt (see paragraphs 40-45 therein), Ds alluded to their intent to file counterclaim in addition to their defence. In paragraph 43 of the 1^st Supp Stmt, D1 said as follows:

“[D1] reserves its right to set-off any such unauthorised payments against any amounts owing to [Cs] and to counterclaim for all such unauthorized payments once a full investigation has been undertaken.”

5.By letter dated 3 August 2018, Ds informed the court that D1 intended to file a counterclaim against Cs on matters in paragraphs 40-45 of the 1^st Supp Stmt (“3/8/18 Letter”). On 7 December 2018, D1’s Counterclaim was filed with an annexed statement and supporting documents (“Dec Documents”), but without any schedule of calculation or particulars as to how the Dec Documents corresponded to the various sums stated in the Counterclaim.

6.In paragraph 43 of the Counterclaim, Ds requested the Tribunal to decline jurisdiction and transfer Cs’ claims and D1’s counterclaim in LBTC1664/2018 to the District Court. On 22 January 2019, Ds submitted a 3^rd supplemental statement of M Gamper on behalf of Ds (“3^rd Supp Stmt”), which again requested the Tribunal to transfer LBTC1664/2018 to the District Court (“Last Transfer Application”).

7.On 29 January 2019, Deputy Presiding Officer Jo Siu (“DPO”) refused the Last Transfer Application (“Refusal Order”), and granted an order as follows (“Order”):

“1. [Ds’] transfer application be refused.

2. Leave for [Cs] to file and serve further evidence and serve a copy on [Ds] on or before 30^th day of January 2019, 09:00am.

3. Trial be adjourned to 30^th day of January 2019 at 9:30am at Court 10 for part heard. Parties shall bring along all their witness statements and original documents to attend.

4. Costs be reserved with costs of today’s hearing in relation to [Ds’] transfer application be to [Cs] in any event (15 minutes).”

8.On 29 January 2019, the DPO gave oral decision for the Refusal Order. On 10 April 2019, the DPO handed down written Reasons for Decision (“Reasons”).

II.  PROCEDURAL HISTORY

9.The Order referred to the trial in LBTC1664/2018 having commenced and adjourned part-heard, so it would be useful to turn to the procedural history of such litigation to put the Refusal Order in context, which procedural history the DPO summarised in paragraphs 7-22 of the Reasons.

10.On 29 June 2018, Ds filed their Defence. At the call-over hearing on 4 July 2018, the parties were directed to file/serve witness statements and supporting documents on/before 18 July 2018. At the 1^st mention hearing on 20 July 2018, Ds sought extension of time to comply with the order made at the call-over hearing, and on the basis of an intended counterclaim applied to transfer the case. The deputy presiding officer considered the application premature, and adjourned such application to a 2^nd mention hearing pending lodgment of further documents and submissions.

11.On 27 July 2018, Ds filed the 1^st Supp Stmt which reserved D1’s right to set-off and to counterclaim in respect of Cs’ breach of fiduciary duties as director and/or duties as employee. By the 3/8/18 Letter, Ds requested the Tribunal to consider declining jurisdiction and to transfer LBTC1664/2018 to the Court of First Instance pursuant to section 10 of the Labour Tribunal Ordinance Cap 25 (“LTO”). By a letter dated 7 September 2018 to the Tribunal, Ds applied for an adjournment of 6 weeks to investigate into accounting records, but indicated readiness to file a counterclaim by 3 October 2018, and also maintained their transfer application (but to the District Court given the then imminent increase of jurisdiction of that court to deal with claims up to $3,000,000).

12.At the 2^nd mention hearing on 10 September 2018, D1 still had not filed any counterclaim or any supporting documents. At such hearing, Ds applied to the deputy presiding officer for transfer of LBTC1664/2018 to the District Court, but such application was dismissed. Upon dismissal of such application, Cs/Ds confirmed they did not need to file further statements, so the deputy presiding officer set LBTC1664/ 2018 down for trial on 25 and 28-30 January 2019.

13.On 7 December 2018, Ds filed D1’s Counterclaim. Then on 22 January 2019 (ie 3 days before the scheduled trial), Ds submitted the 3^rd Supp Stmt with another bundle of documents (“Jan Documents”). The DPO noted the 3^rd Supp Stmt raised new matters as well as uncertainty as to whether D2 also counterclaimed against Cs, but it did narrow down the reliefs sought under the Counterclaim. Anyway, the 3^rd Supp Stmt made the Last Transfer Application.

14.The trial in LBTC1664/2018 commenced on 28 January 2019. For convenience, I set out below the DPO’s record in the Reasons as to what happened at the trial:

“19. The trial of the case commenced on 28 January 2019 (instead of 25 January 2019) due to exceptional urgent circumstances of this Tribunal. Before the parties started giving evidence, on the 1^st and 2^nd day of the trial, [DPO] has spent some time with the parties to deal with the quantum issue and some other preliminary matters. On the 2^nd day of the trial ie 29 January 2019, [DPO] has raised a concern that [DPO] appears do not have jurisdiction to deal with the [Counterclaim]. Accordingly, [DPO] and the parties re-visited the Dec and Jan Documents and the [DPO] indicated to parties, which at that juncture they also accepted, not to spend extensive time on matters that fall outside the jurisdiction of the [Tribunal]. Notwithstanding the aforesaid, [DPO] allowed the parties to file all documents they have submitted, irrespective the documents may relate to matters that fall outside the jurisdiction of the [Tribunal].

20. After settling all the preliminary issues, on about the 2^nd day of the trial ie 29 January 2019, [DPO] enquired, as repeated in their Dec and Jan Documents, if Ds still intended to apply to transfer the case to District Court under s 10 of the LTO and Ds answered in the affirmative (‘the 2^nd Application’). Ds basically reiterated the reasons they put forth in their statements eg the [Counterclaim] involves complicated facts and law etc. Cs objected the 2^nd Application, essentially repeating the grounds of opposition as set out in their statements eg their claims are straightforward, they had a valid employment contract etc…

21. After considering the parties’ verbal submissions and also taken into account the parties’ written submissions advanced in their respective statements filed with this Tribunal, [DPO] dismissed the 2^nd Application verbally and the detailed reasons are set out below.

22. After dealing with the 2^nd Application, Cs started giving evidence. This Tribunal has heard Cs’ case on 29 January (half day) and 30 January 2019. As Cs have yet completed their evidence by 30 January 2019, further having considered the Jan Documents were filed by Ds at a very late stage being just before the trial, parties were given opportunity to submit further evidence and to call additional witnesses relating to Cs’ claim. In the result, the case was adjourned to be part heard for another four days on 12‑14 and 17 June 2019. There is no stay application.”

III.  DPO’s REASONS FOR DECISION

15.As seen above, the DPO made the Refusal Order in respect of the Last Transfer Application. The DPO noted the Tribunal has a wide and unfettered discretion under section 10 of the LTO whether to decline jurisdiction. The DPO held that Cs’ claims fell within the jurisdiction of the Tribunal, which was therefore entitled to hear such claims. It was said Cs’ claims were straightforward and did not involve any complex issues of fact and law, so it would be in line with the underlying objectives of the CJR (ie being more cost- and time-effective) to deal with Cs’ claims at the Tribunal.

16.The DPO noted “that by filing the CC [ie the Counterclaim], it is self-evident that Ds are not merely raising a set-off but also to seek to recover overpayments allegedly made to Cs due to their misappropriation or mishandling of company resources” (see paragraph 44 of the Reasons). The DPO took the view that certain heads of claim under the Counterclaim fell outside the jurisdiction of the Tribunal (to which Ds agreed – see paragraph 20 below), and the DPO “declined jurisdiction to adjudicate the CC claims [ie the Counterclaim] as founded in tort and other areas of law” (see paragraph 45 of the Reasons).

17.The DPO further noted D1 had not commenced any claim in the District Court on the basis of the subject matter of the Counterclaim, so there was no parallel litigation against Cs in any other courts in Hong Kong even though even before D1 filed the Counterclaim Ds in their statements repeatedly urged for LTBC1664/2018 to be transferred and tried in the District Court.

18.The DPO then went on to say as follows:

“64. More importantly, whilst theoretically there could be a possibility of two sets of proceedings carrying on in parallel if Ds will file a claim in the District Court based on the [Counterclaim], it is however considered the issues and the relevant facts of Cs’ claims and the [Counterclaim] claims are not in common. As stated above, Cs’ claims are about wages arrears and some other alleged entitlements based on their Contracts and other employment documents, whereas the [Counterclaim] claims concern with recovering expenses and payments that Ds said Cs have been wrongfully overpaid, essentially based upon some bank statements and receipts. Hence, the facts where Cs’ claims rely upon are independent of the facts that the [Counterclaim] claims are based upon……Accordingly, it is considered the chance of having an undesirable situation arising from the same set of factual evidence in two jurisdictions and the risk of having two inconsistent judgments is relatively low insofar as Cs’ claims and the [Counterclaim] claims are concerned.

65.     Further, even if Ds do subsequently file a claim in the District Court and it is considered there could be a risk of having two inconsistent judgments with common issues and facts being tried in two different courts, subject to court’s approval, there is nothing to bar Cs and Ds to agree transferring the entire case to another court if they consider appropriate.”

IV.  APPLICATION FOR LEAVE TO APPEAL

19.On 19 February 2019, Ds filed an ex parte Application for Leave to Appeal on Point of Law against the Refusal Order (“Application”). Ds’ draft grounds of appeal (“Draft Grounds”) ran to 5 pages. It is perhaps more useful to see how the submissions by Mr Hughes, counsel for Ds, explained Ds’ case for transfer and D’s intended grounds of appeal against the Refusal Order.

20.Mr Hughes summarised the reasons for transfer as follows:

“(1) Commonality and duplicity. [LBTC1664/2018] give rise to viable mixed claims against Cs for inter alia breach of fiduciary duties and for injunctive relief that falls outside the Tribunal’s jurisdiction. Ds are at liberty to and will issue proceedings in the District Court, at which point common issues of fact will be determined by it and the Tribunal which will risk inconsistent judgments.

(2)     Complexity and gravity. Voluminous documents have been filed in support of such accusations and in reply to Ds’ fiduciary claims. There is complexity. The parties’ accuse each other of professional impropriety, dishonesty and perjury likely to damage their reputations. The claims are unsuitable for informal and speedy determination, and representation and adversarial process is in the parties’ best interests.”

21.Mr Hughes explained that Ds intended to rely on 4 grounds of appeal:

(a)     misdirection of law regarding commonality in the Reasons (see paragraphs 1(c), 2(c) and 2(e) of the Draft Grounds);

(b)     misdirection of law regarding complexity (and consequent need for formal and adversarial process) (see paragraphs 1(a), (b), (d) and (e) of the Draft Grounds);

(c)     misdirection of law and failure to make relevant considerations re cost- and time-effectiveness under the CJR (see paragraphs 1(e) and 2(d) of the Draft Grounds);

(d)     failure to consider gravity of the allegations (and consequent need for formal and adversarial process).

It is evident from the above that Mr Hughes in his submissions did not rely on paragraphs 2(a)-(b) of the Draft Grounds, and I will return to this below.

V.  LEGAL PRINCIPLES

22.Leave to appeal The onus is on the Ds to show that the intended appeal has arguable grounds (see Chan Kwok Hung v Hotel Panorama Company Ltd HCLA30/2009, Chu J (as she then was) (unreported, 19 November 2009)). Whilst an appeal against a determination by the Tribunal is on point of law (see section 32(1) of the LTO), leave to appeal will also be granted if the determination was made without regard to relevant factors, was made without evidence, or there was failure to discharge the statutory duty to investigate and such failure has given rise to injustice, in that a fair and proper determination of the claim cannot be attained (see Wai Mei Lai Stella v Viya Pramita HCLA3/2010, Au J (as he then was) (unreported, 28 June 2011)).

23.Section 10 of the LTO Section 10 of the LTO provides as follows:

“(1) The tribunal may, at any stage of proceedings, if it is of the opinion that for any reason the claim should not be heard and determined by it, decline jurisdiction.

(2)     The tribunal may, when it declines jurisdiction under subsection (1), transfer the claim to the …… District Court …… in such manner as may be prescribed.”

24.Mr Hughes referred to a number of authorities, but at this stage (bearing in mind the threshold test for leave to appeal as explained in paragraph 22 above), I need only refer to Harold Dean Archer v The Hong Kong Channel Ltd HCLA12/1996, Jerome Chan J (unreported, 19 April 1996) where the claimant appealed against the decision by the presiding officer to transfer the proceedings in the Tribunal to the High Court:

“3. The reason for declining jurisdiction, as set out by the learned presiding officer in his reasons, was that the nature of the defence and the legal issues involved rendered the matter inappropriate for a resolution in the Labour Tribunal; and more appropriate to be dealt with in the High Court.

4. The appellant’s claim is, of course, a straightforward claim for arrears of salary, bonus and other matters. It is the defence raised by the respondent that gave rise to the order for transfer. The defence raised by the respondent is that the appellant was guilty of breaches of duty as managing director of the company, that he had been guilty of wrongful manipulation of his said position as managing director for personal and private gains against the interest of the company.

5. All these allegations go direct to the amount of the claim made by the claimant. It was alleged by the respondent that the allowances and bonuses were not authorised. It is the respondent’s contention that the defence and the allegations they entailed require investigation of the company accounts as well as other company documents, including the auditors’ report, the annual report and the board minutes. The defence raises legal issues which are by no means simple according to the respondent.

6. It is admitted that the nature of the dispute in the defence involved serious allegations and will not be appropriate subject matters for an informal summary form of adjudication. The allegations raised in the defence go direct to the appellant’s reputation and it is his reputation that is at stake here. ……

7. In the premises, the Labour Tribunal is not designed to cater for disputes that would require a detailed analysis of voluminous and complicated documentation, or that would involve complex issues of facts or law. ……. The matter is indeed of a complicated and complex nature. ……

……

9. There is in law, no need for the learned presiding officer to conduct a full‑scale investigation of the nature suggested by the appellant in deciding the issue at hand.

10. I am satisfied that there is sufficient prima facie material before the learned presiding officer for him to come to the conclusion that there is a bona fide defence and/or …… counterclaim; as well as a set off as alleged by the respondent. It is only encumbered upon the respondent to raise a bona fide defence to entitle him to request the Court to transfer the matter to the High Court. …….

11. I cannot find fault at all with the way the learned presiding officer exercised his discretion. I endorse his view that the defence is of such a nature that required proceedings in the High Court. It is impossible for the claim to be severed from the defence and/or counter-claim, as the defence raised goes direct to the claim of the appellant in that the defence is one of a set-off, and counterclaim against the appellant’s claim. It is the defence and/or counter-claim that the amount claimed arose out of the alleged breach of duty of the appellant, that the amount claimed are unauthorised remuneration’s arising out of a breach of duty of the appellant as the managing director.

12. Therefore, there is no alternative but to transfer the whole action to the High Court. ……” (my emphasis)

VI.  DISCUSSION

25.In my view, there was a clearly arguable case that the DPO had committed error of law in granting the Refusal Order, which was  made in the context of her decision to decline jurisdiction over the Counterclaim.

26.First, although there was some debate at the Hearing over whether Ds raised a defence of set-off against Cs’ claims on the basis of the subject matters of the Counterclaim, Mr Hughes assured this court Ds did raise such defence. In any event, on further review of the Reasons, at the very least it appeared the DPO proceeded on the basis there was such defence of set-off. As explained in paragraph 16 above, the DPO stated in paragraph 44 of the Reasons “that by filing the CC [ie the Counterclaim], it is self-evident that Ds are not merely raising a set-off but also to seek to recover overpayments allegedly made to Cs due to their misappropriation or mishandling of company resources”. This is reinforced in paragraph 60 of the Reasons in which the DPO said “…… the claims put forward by D1 and/or D2 under the CC [ie the Counterclaim], which involves alleged misappropriation and misapplication of company fund and expenses by D1 and/or C2, are not simply defence, …… it is considered that those causes of action formulated as claims rather than defence fall outside the jurisdiction of the Labour Tribunal” (my emphasis). Thus, the DPO proceeded on the basis that the subject matters of the Counterclaim were both shield and sword, ie Ds relied on a defence of set-off, but not “merely” or “simply” that because D1 “also” positively raised the Counterclaim against Cs on the same subject matters.

27.Even if there was any uncertainty over whether there was any defence of set-off, D1 by paragraph 43 of the 1^st Supp Stmt “…… reserves its right to set-off any such unauthorised payments against any amounts owing to [Cs] and to counterclaim for all such unauthorised payments once a full investigation has been undertaken” (see paragraph 4 above), so it was arguably incumbent on the DPO to enquire whether Ds would rely on any defence of set-off in order to discharge her statutory duty to investigate. There is therefore an arguable contention that the existence and vitality of the defence of set-off could not be brushed aside.

28.The DPO took the view Cs’ claims were simple and straightforward, but as observed by Jerome Chan J said in Harold Dean Archer, it was the defence rather than the claim that arguably would give rise to any order for transfer. In the absence of any order for transfer, the DPO would arguably have to hear and adjudicate on the defence of set-off (based on the same subject matters of the Counterclaim including legal issues, factual allegations and volume of documents, which to some extent had been canvassed by the DPO in paragraphs 46-61 of the Reasons) before her determination on Cs’ claims. The defence of set-off with presently quantified aspects of over $700,000 arguably could not be said to be insignificant when viewed against the quantum of Cs’ claim.

29.But the DPO declined jurisdiction over the entirety of the Counterclaim, and considered Ds’ claims against Cs under the Counterclaim should be litigated (if the parties so wished) in another court with jurisdiction over the entirety of such Counterclaim. In my view, it was arguable that in such context the DPO in coming to her conclusion that “the chance of having an undesirable situation arising from the same factual evidence in two jurisdictions and the risk of having inconsistent judgments is relatively low insofar as Cs’ claims and the CC claims [ie the Counterclaim] are concerned” (see paragraph 64 of the Reasons) narrowly focused on Cs’ claims alone without taking into account the extent/scope of the defence of set-off which arguably would require the Tribunal in adjudicating Cs’ claims to canvass the same factual evidence and legal issues as for the Counterclaim which must now be pursued in another court as the DPO declined jurisdiction.

30.Secondly, the DPO found some heads of claim under the Counterclaim were within the jurisdiction of the Tribunal, and the rest was outside the jurisdiction of the Tribunal (see paragraph 44 of the Reasons). However, the DPO declined jurisdiction over the entirety of the Counterclaim including those heads of claim within the jurisdiction of the Tribunal (see paragraph 45 of the Reasons), but at the same time refused to transfer the proceedings (including the Counterclaim) to the District Court (ie the Refusal Order). This arguably meant that Ds could not proceed in the Tribunal for those heads of claim under the Counterclaim that were within the jurisdiction of the Tribunal (since the DPO declined jurisdiction), but at the same time Ds could not commence such claims in any other court (since they fall within the exclusive jurisdiction of the Tribunal). In my view, there was an arguable case that the DPO failed to take into account or failed to sufficiently take into account such factor and the consequent arguable injustice to Ds of not being able to pursue some of its claims under the Counterclaim either at the Tribunal or (in the absence of a transfer order) in other courts of law. I take note here that it was the DPO’s view that the entirety of the Counterclaim should be heard together, and consequently there would be a respectable argument that the aforesaid arguable case for transfer would not be limited to heads of claim under the Counterclaim within the jurisdiction of the Tribunal, but might extend to the entire Counterclaim and also Cs’ claim given the arguable overlap by the defence of set-off.

31.Thirdly, Ds criticised the DPO for failing to give due regard/weight to the complexity and gravity of the claim. I note that in paragraph 19 of the Reasons the DPO stated that given the concern that some of the heads of claim in the Counterclaim were outside the jurisdiction of the Tribunal, on the 2^nd day of the trial the DPO and the parties “re-visited the Dec and Jan Documents and then [the DPO] indicated to the parties, which at that juncture they also accepted, not to spend extensive time on matters that fall outside the jurisdiction of the [Tribunal]. Notwithstanding the aforesaid, [the DPO] allowed the parties to file all documents they have submitted, irrespective the documents may relate to matters that fall outside the jurisdiction of the [Tribunal]”. Then in light of the Jan Documents directions were given for the parties to submit further evidence and to call additional witnesses relating to Cs’ claims (see paragraph 22 and 41 of the Reasons).

32.In my view, it was arguable that in considering the impact of the Dec and Jan Documents and also the 3^rd Supp Stmt (all of which were allowed to be filed in LBTC1644/2018) and imposing case management measures to deal with such additional documents/information for the purpose of Cs’ claims and not “spend extensive time on matters that fall outside the jurisdiction of the [Tribunal]”, the DPO discounted their complexity and gravity by viewing them through the prism of Cs’ claims without taking into account Ds’ defence of set-off which arguably would bring into the proceedings the factual/legal issues raised by the subject matters of the Counterclaim.

33.In my view, all of the above matters were arguable grounds of appeal on point of law, and hence leave to appeal should be granted.

34.I now return to preamble and paragraphs 2(a)-(c) of the Draft Grounds. In a nutshell, such intended grounds of appeal suggested the DPO erred in law by failing to discharge her duty to investigate into and/or to take into account matters in the Counterclaim “despite having refused to transfer the claim and [D1’s Counterclaim] to the District Court”. It was said that upon declining jurisdiction over the Counterclaim the DPO indicated she was not prepared to hear and investigate claims made in the Counterclaim even though some aspects of such Counterclaim fell within the Tribunal’s jurisdiction.

35.I am unable to see how this would be an arguable ground of appeal. The Application did not challenge the DPO’s decision to decline jurisdiction over the entire Counterclaim, so Ds could not be heard to complain about the DPO’s reluctance to investigate and enquire into particular heads of claim under the Counterclaim that were within the jurisdiction of the Tribunal for the purpose of adjudication of the Counterclaim. The issue of whether the DPO did or would have to properly consider the factual/legal issues raised by the defence of set-off and the consequent need to investigate into and take into account evidence/documents in relation to such issues for the purpose of adjudicating Cs’ claims (which must include any defences raised thereto) was a separate matter for which leave to appeal ought to be granted. I decline to grant leave to appeal for the intended grounds of appeal in the preamble and paragraphs 2(a)-(c) of the Draft Grounds.

VII. CONCLUSION

36.I consider the proposed Draft Grounds (except the preamble and paragraphs 2(a)-(c) thereof) (“Permitted Grounds”) to be at least arguable. I therefore grant leave for Ds to appeal against the Refusal Order on the Permitted Grounds. I note the Draft Grounds were prepared before Ds had the benefit of sighting the Reasons. I trust that Ds, having that benefit now, will be able to refine and tighten the Permitted Grounds to focus on the core objections to the Refusal Order. Further, more thought should be given to the hearing bundle for the appeal so that unnecessary documents would be excluded. The idea of including everything that was available from the substantive proceedings in LBTC1644/2018 in the appeal bundle would go against the goals of being effective and/or cost-saving. Only documents that are directly relevant to the disputed case management question on appeal should be included in the hearing bundle.

37.As for costs, I also make an order that costs of the Application be costs in the cause of the appeal.

Mr Sebastian Hughes, instructed by Tanner De Witt, for the applicants