Alan Soh v. The Owners of the Vessel "Columbus Caravelle"

HCAJ000282A/2000

HCAJ282/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO.282 OF 2000

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Admiralty Action in rem against the ship or vessel M.V.
"COLUMBUS CARAVELLE"

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Coram: Hon Waung J in Chambers

Date of Hearing: 6 November 2003

Date of Judgment: 6 November 2003

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J U D G M E N T

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1.I have an application before me by the defendants for leave to appeal against my Judgment handed down on 15 October whereby the defendants were ordered to pay the costs of the AJ Action to the plaintiff as part and parcel of my order granting to the plaintiff leave to discontinue that AJ Action.

2.The history of this matter is long and complex. I have been dealing this for a long, long time. The reasons for my order on costs appear in my Judgment of 15 October 2003. Ms Wee for the defendants, who did not appear on the argument resulting in my Judgment of 15 October but who appears for the first time today has persuasively argued for a case of court granting leave to appeal. Leave, of course, is required because it was an order on costs only based on an exercise of discretion.

3.A large number of grounds have now been put in the proposed grounds of appeal and I do not need to go into them in detail. Suffice it to say that the principle grounds seems to be :

(1)	that the court has no jurisdiction to make an order against the defendants in relation to a discontinued action application by the plaintiff;
(2)	that in any event there is a fetter on that jurisdiction; and
(3)	there are other subsidiary objections to the way that discretion was exercised.

4.On jurisdiction, it is sufficient for me to say that having regard to the terms of the Order 21, rule 3(1) where the statutory words "on such terms as to costs" are in the widest possible terms, as indicated in my judgment and as reflected by the view of Lord Justice Potter in the case of RTZ Pension v. ARC [1999] 1 AER 532, there is no doubt in my mind that the court has jurisdiction. So on the question of jurisdiction, I believe, there is no prospect of success on appeal.

5.On the question that there is fetter on the jurisdiction by reason of case law and that the discretion can only be exercised in a very limited way and certainly not in the way of requiring all costs to be paid by the defendants, I have expressed in my Judgment the reasons why I believe there is no such fetter and I remain unrepentant and take the view that there is no prospect of success on appeal.

6.The remaining question is whether there are other subsidiary grounds where there is a prospect of success on appeal. Some of the grounds now in the draft grounds of appeal were not even argued before me. Other grounds turn on findings of facts and on the exercise of discretion based on the special circumstances of this case.

7.The court has a very wide range of discretion on costs and unless it can be clearly shown that the court has acted outside that range of discretion or acted under a wrong principle, then I believe there is no prospect of success on appeal and that is why it is so difficult and so rare for pure costs appeals to be successful and that is also the reason why leave to appeal against costs is required. I do not believe that this is an exceptional case where I had erred outside that range. I have looked at the Judgment again. The only error I can see is perhaps an unfortunate reference to the Hong Kong taxpayers but it makes no difference to the outcome if I substitute the plaintiff for the Hong Kong taxpayers. The result will be the same. It seems to me, therefore, that there is no prospect of success on appeal.

8.I am, of course, comforted by the fact that this is not the end of the road for the defendants and that the defendants can apply again to the Court of Appeal and they may take a different view.

9.So far as the final complaint made about gross sum assessment is concerned, it seems to me that gross sum assessment in the way which have been practiced in my court for many years is generally considered to be a formula for saving costs and not a formula for causing delay, expense or extra costs.

10.I am therefore, of the view that the application for leave to appeal should be dismissed with costs.

Representation:

Mr Martin Heath of Messrs Clyde & Co., for the Plaintiff

Ms June Wee, instructed by Messrs Johnson Stokes & Master, for the Defendants