Read the full judgment text of CACV 85/2005 on BabelCite. This 高等法院上訴法庭 judgment was delivered on 5 October 2005 before Hon Tang JA, Sakhrani J.
Civil procedure — Service out of jurisdiction — Order 11 rule 1(1)(c) — Whether leave to serve out of jurisdiction requires cause of action against foreign party — Section 52A High Court Ordinance — Costs orders against non-parties prohibited — Necessity of joinder for costs purposes — Distinction between 2-party cases raising ancillary relief claims without substantive local cause of action and 3-party cases where relief against foreign party is ancillary to valid local cause of action — Plaintiff succeeded in joinder of 4th defendant AXA to enable costs recovery — Appeal dismissed. The plaintiff brought a successful claim against B+B Construction Ltd and sought to join AXA, their insurer, for costs. The court held that under Order 11 r.1(1)(c), the plaintiff need not assert a cause of action against AXA but must show AXA is a necessary or proper party with a real issue to be tried. Unlike English law where costs orders can be made against non-parties under section 51 of the Supreme Court Act, in Hong Kong section 52A prohibits costs orders against non-parties, necessitating joinder. The court found there was a serious question to be tried on the merits concerning AXA’s liability for costs and that Hong Kong was the appropriate forum. The appeal against joinder and service out of jurisdiction was dismissed and costs against AXA ordered.
Legal issues: Whether O.11 r.1(1)(c) requires a cause of action against the foreign party · Whether a party can be joined solely for costs liability under section 52A
Outcome: Appeal dismissed; leave to serve 4th defendant out of jurisdiction affirmed
Cites 1 case