Esquire (Electronics) Ltd v. The Hongkong and Shanghai Banking Corporation Ltd and Another

CACV 241/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CACV NO. 241 OF 2006

(ON APPEAL FROM HCA NO. 11077 OF 1994)

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BETWEEN

AND BETWEEN

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Before:  Hon Rogers VP in Chambers

Date of Hearing: 14 July 2006

Date of Decision: 14 July 2006

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D E C I S I O N

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1.This is a twofold application.  The application, first of all, is that the appeal in CACV241 of 2006 which was an interlocutory appeal following a decision by the judge on the inquiry for damages should come on at the end of the hearing of the appeal in CACV312 of 2005. 

2.Dealing with that to start with, what I would say about that is this:  that the trial of that action was a heavy trial.  It took six weeks before the judge below.  Unfortunately, it took another 16 months or so for the judgment.  Since then, I do not consider there has been any further delay which could be said to be unnecessary at all because the appeal was originally estimated by both parties to last 10 days and, as far as I know, that assessment still stands.  The court’s time was allotted and it included time for this court to read the papers and also a few days for the judgment.

3.However, slightly earlier this year, the appellants wrote to the court and informed it that they thought that the case might take longer than 10 days, namely, 12 days and so in reassessing the case, a directions hearing was held and it is now back to 10 days’ estimate.  The appellants have provided their skeleton argument and I can see the issues that are there.  They are set out.  There are at least three major issues as well as a number of other ones.  But there are three major categories of issue which are listed.  How long it will take in this court, I am not sure.  But one thing I am certain about is that to have the interlocutory appeal come on at the same time, or immediately afterwards, would serve no purpose whatsoever.  It would be a great distraction to the main appeal.  There is no likelihood that the judgment in the main appeal would have been given by the end of the case so that the interlocutory appeal could be argued in the light of that judgment and, from what I can see, it may be necessary for that to happen. 

4.As far as I am concerned, the application to have the interlocutory appeal heard immediately after the end of the hearing of the liability appeal is simply a non-starter.  I have to say that I tried to indicate, both in letters from the court and in things that have been said in the past hearing, that that was likely to be my view and I certainly gave no encouragement to the plaintiffs to try and make this application. 

5.The second part of the application is that the appeal in the interlocutory appeal should be expedited.  To start with, dates have been thrown out as possible dates which might be convenient to the plaintiff, but no inquiry has been made of the Clerk of the Court as to whether there is any possibility of any of those dates being available and, indeed, the contrary indication would seem to have been given.  I have been told that the clerk has indicated that it is unlikely that if this appeal were fixed in the normal way, it could come on before February or March of next year which is probably about right.  Given the long vacation now, about six months’ waiting time is about normal, unfortunately, in this court.  I have to say that appeals do not normally overrun in this court and this court cannot normally be blamed for being dilatory in the matter, but there we are.  That is the state of the lists. 

6.As far as the interlocutory appeal is concerned, the application is put on two bases.  First of all, that there will have been a three-year delay between the hearing of the liability case and the hearing of the remedies.  But that quite often happens in cases and, in fact, the heavier the case, the longer it takes.  It just happens that way. 

7.In any event, the remedies hearing can probably be postponed and I have no doubt that dates can be probably found towards the middle or certainly the end of next year in the High Court.  It is now a year away.  I would be very surprised if new dates cannot be arranged.  That would enable the interlocutory appeal to be heard in its usual way and the parties to be able to prepare for the remedies hearing in the usual way.  I cannot see my way to granting an expedited hearing for that appeal, so the application will be dismissed. 

(Submissions on costs)

8.Costs to the defendant.

Mr Paul Harris SC, instructed by Messrs Ho, Tse, Wai & Partners, for the Plaintiff/Appellant

Mr John Jarvis QC and Mr Joseph Fok SC, instructed by Messrs Johnson, Stokes & Master, for the 1st Defendant/Respondent