Man Cheung International Traders Ltd and Another v. Clsa Ltd

DCCJ 6778/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6778 OF 2002

BETWEEN

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Coram: Deputy District Judge Anthony Chow in Chambers (open to public)

Date of Hearing: 23^rd March 2007

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DECISION

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1.This is an application by the defendant for leave to appeal against my decision dismissing it’s appeal of Master T Chen’s dismissal of the defendant’s summons for specific discovery under Order 24 r.7, rules of the District court.

2.The applicable test is set out in Smith v Cosworth Casting Processes Limited [1997] 1 WLR 1538. Lord Woolf, MR stated the relevant principles as follows:

“ i)   The court will only refuse leave if satisfied that applicant has no realistic prospect of succeeding on the appeal. The test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why however this court has decided to adopt the former phase is because the use of the word “realistic” makes it clear that a fanciful prospect or an unrealistic argument is not sufficient.

ii)    The court can grant the application even if it is not satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying.”

3.Clearly the test has a low threshold, the defendant is only required to show an arguable case.

4.In his skeleton arguments filed for this application, Mr. Beresford, counsel for the defendant, listed seven draft grounds of appeal.

5.I am not going to list out the grounds of appeal here, but having read Mr. Beresford’s skeleton arguments, I am not satisfied that there is no realistic prospect of success. Accordingly, leave of appeal should be given.

6.Costs of and incidental to this application be costs in the cause of the appeal, with certificate for counsel.

Representation:

Mr. Simon Westbrook SC, instructed by Messrs. Robertsons, for the Plaintiffs

Mr. Rogers Beresford, instructed by Messrs. Jones Day, for the Defendant