World Fuel Services (Singapore) Pte Ltd v. The Owners of the Ship or Vessel "M.V. Liberty Container" (Singapore Flag)

FAMV No. 24 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 24 OF 2006 (Civil)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACV No. 327 of 2005)

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Between:

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Appeal Committee: Mr Justice Chan Atg CJ, Mr Justice Bokhary PJ and Mr Justice Ribeiro PJ

Date of Hearing: 26 October 2006

Date of Determination:   26 October 2006

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D E T E R M I N A T I O N

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Mr Justice Ribeiro PJ:

1.We are satisfied that properly arguable questions of great general or public importance are involved in the appeal which may be stated as follows:

(a) Whether the court has jurisdiction under s 52A of the High Court Ordinance, Cap 4, to make a costs order against a person who, while a party of record in the action, was not a party to the applications giving rise to the costs orders in question on the ground that such person funded those applications for his own financial benefit.

(b) Where jurisdiction exists to make a costs order against a funder of relevant litigation, whether it is required to show that such person funded the litigation with a view to becoming the sole or substantial financial beneficiary of the litigation before the discretion can be exercised against him.

(c) Where jurisdiction to order costs to be paid by funders exists and the person in question is an unsecured creditor who has funded litigation in the name of a company in liquidation in the hope of recovering assets for the benefit of the body of unsecured creditors proving in the liquidation, whether s 265(5B) of the Companies Ordinance, Cap 32, or the legal policy which underlies that section, precludes the making of a costs order against such funder in the proper exercise of the court’s discretion.

2.We accordingly grant the plaintiff leave to appeal on those grounds.

3.The respondent has also submitted that if leave is granted, it would seek to raise a jurisdictional issue in the following terms, namely, whether any such jurisdiction possessed by the Court as aforesaid is exhausted where it has made orders for costs against the defendant who participated in the proceedings in question.

Mr Colin Wright (instructed by Messrs Johnson, Stokes & Master) for the applicants

Mr Clifford Smith SC (instructed by Messrs Holman, Fenwick & Willan) for the respondents