Fg Hemisphere Associates Llc v. Democratic Republic of the Congo and Others
Read the full judgment text of CACV 373/2008 on BabelCite. This Court of Appeal judgment was delivered on 19 March 2010 before Stock VP, Yeung JA and Yuen JA.
Civil appeal – costs – order nisi – summonses to vary – whether costs of appeals reserved to first instance judge undertaking inquiry – whether Intervener (Secretary for Justice) liable for costs of appeal – whether plaintiff entitled to taxation forthwith – arbitration awards – sovereign immunity – constitutional issues – intervention in public interest – O.62 r.9D – appeal allowed by majority – Court of Final Appeal proceedings pending – court below set aside injunctions and refused leave to enforce arbitration awards – plaintiff succeeded in reversing those orders – participation of Secretary for Justice in appeal substantial – intervention to bring to Court's attention stance of Central Government on sovereign immunity and to assist court on complex constitutional issues under new constitutional order – intervention plainly in public interest – exceptional circumstances do not arise to depart from general rule – Intervener not liable for costs – costs order against defendants excluding Intervener – taxation of costs of appeals to await determination of forthcoming appeals to Court of Final Appeal – plaintiff to pay Intervener's costs of the day.
Legal issues: Whether costs of appeals should be reserved to the CFI judge undertaking the inquiry · Whether the Intervener (Secretary for Justice) should be liable for the plaintiff's costs of the appeal · Whether the plaintiff is entitled to taxation of its costs of the appeals forthwith
Outcome: The first defendant's summons was dismissed. The plaintiff's summons was allowed to the extent that the order nisi was varied to make clear that the costs of the appeals and respondent notices be paid by the defendants (excluding the Intervener) to the plaintiff, but the plaintiff's request for forthwith taxation was refused. The plaintiff was ordered to pay the Intervener's costs of the day.
Cites 3 cases
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CACV 373/2008 & IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 373OF 2008 & NO. 43 OF 2009 (ON APPEAL FROM HCMP NO. 928 OF 2008) ___________________________ BETWEEN
___________________________ Before: Hon Stock VP, Yeung JA and Yuen JA in Court Date of Hearing: 19 March 2010 Date of Judgment: 19 March 2010 ___________________________ J U D G M E N T ___________________________ Hon Stock VP: 1.On 10 February 2010 we handed down judgment by which the appeals were, by a majority, allowed. We made a costs order nisi that the costs of the appeals and the respondent notices be paid by the defendants to the plaintiff, and that the costs of the originating summons and of the defendants’ summonses be reserved pending determination of an inquiry which we directed to be carried out by the Court of First Instance. 2.We have two summonses to vary the order nisi as to costs:
3.We need first to deal with the summons by the first defendant for if it succeeds, its success would effectively decide the plaintiff’s summons. The first defendant argues that since the answers to the inquiry at first instance will determine the outcome of this litigation, a final order as to costs of the appeals at this stage might be regarded as premature. 4.I do not agree. The appeal was from an order by the court below which set aside a series of injunctions and refused leave to enforce arbitration awards. The plaintiff succeeded by appeal in reversing those orders, this Court holding that in the court below the plaintiff was not accorded an examination of facts on the basis of appropriate principles. To secure such an examination, the plaintiff was obliged to come to this Court and has succeeded. In my judgment, an order as to the costs of the appeals (other than one merely reserving costs) is not premature. 5.As for the plaintiff’s summons, the first question is whether the order nisi was intended to embrace the Intervener as a party required to pay the plaintiff’s costs of the appeals. As we have informed the parties in correspondence pursuant to questions raised by them, that was not intended by the Court and, that being so, the plaintiff seeks a variation of the order. 6.There is no question but that the Secretary for Justice is a party against whom a costs order may be made. The plaintiff’s argument is that the participation of the Secretary for Justice in the appeal was substantial, that the Secretary chose to and applied to intervene in the proceedings and that the Secretary’s submissions in the appeal considerably lengthened the appeal and therefore added to the plaintiff’s costs. 7.The appropriate approach is that stated in Solicitor v Law Society of Hong Kong & Secretary for Justice (Intervener)(No. 2) [2004] 2 HKLRD 754, namely, that as a general rule an intervener who appears in constitutional cases is not liable for costs since the intervener, usually in Hong Kong the Secretary for Justice, “is there to assist the court on important public issues” and that “an order to award costs against the Intervener [Secretary for Justice] acting in the public interest in favour of the party who raises the constitutionality of a statute is highly unusual and should only be permitted in very rare cases.”: see para. 10. It was noted that the Intervener in that case was not interested in the outcome of the appeal. 8.In the instant appeal, the intervention was clearly one made in order to bring to the Court’s attention the stance of the Central Government on the question of sovereign immunity and to assist the court in addressing complex constitutional issues in the light of the new constitutional order. It was, in my opinion, obviously an intervention in the public interest. In my judgment, exceptional circumstances do not arise to justify a departure from the general rule to which I have referred. The length of the submissions made on behalf of the Secretary was not disproportionate to the complexity of the issues that had to be addressed. Accordingly, the costs order which in my opinion should be made is an order against the defendants which does not include the Intervener. 9.The plaintiff seeks an express order that it is entitled to taxation of its costs forthwith. The suggestion is that by reason of O.62 r.9D(1) and (2) as analysed by Registrar Au-Yeung in Big Boss Investment v So Lai Kei (HCA 2184/2009, 29 January 2010, unreported)if it is the court’s intention that costs be paid forthwith, an express order to the effect sought by the plaintiff is required. There is a question whether O.62 r.9D applies to costs of an appeal but, given the view I shall shortly express, it is not necessary to decide that issue. 10.The first defendant opposes this aspect of the application on the basis that the evidence shows that other than its claim to entitlement to enforce the awards against assets of the first defendant within the jurisdiction (the extent of which has yet to be determined) the plaintiff has no assets, so that such costs as are paid now may be irrecoverable should the inquiry go against the plaintiff or more particularly should the Court of First Appeal – to which the issues in the recent appeals are destined for determination, appropriate notices having been filed – find against the plaintiff. I think there is merit in this argument and it seems to me in all the circumstances that taxation of the costs of these appeals should await determination of the forthcoming appeals to the Court of Final Appeal. Hon Yeung JA: 11.I agree with the judgment of Stock VP and have nothing to add. Hon Yuen JA: 12.I agree. Hon Stock VP: 13.There will be orders accordingly. The plaintiff is to pay the Intervener’s costs of today.
Mr Russell Coleman, SC & Ms Zabrina Lau, instructed by Sidley Austin for the Appellant/Plaintiff Mr Barrie Barlow, SC, instructed by Messrs. Fried, Frank, Harris, Shriver & Jacobson, for the 1st Respondent/1st Defendant Mr Richard Zimmern, instructed by DLA Piper Hong Kong for the 2nd to 5th Respondents/2nd to 5th Defendants Ms Teresa Cheng, SC & Mr Adrian Lai, instructed by Department of Justice for Secretary for Justice (Intervener)/6th Respondent |
Cases cited in this judgment
Further hearings and rulings under CACV 373/2008