The Hongkong Electric Co Ltd v. Commissioner of Rating and Valuation

FACV No. 12 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 12 OF 2010 (CIVIL)

(ON APPEAL FROM CACV NO. 27 OF 2010)

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Between:

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D EC I S I O N

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Mr Justice Bokhary PJ :

1.This is an application for leave to intervene, by way of presenting written and oral arguments, in an appeal to the Court of Final Appeal on the ground that many of the points of law which the Court will decide also arise in litigation to which the applicant is a party, and the applicant wishes to address the Court on those points with a view to having them decided in a manner favourable to it.  I will refer to the applicant as “CLP”, to the appellant as “Electric” and to the respondent as “the Commissioner”.  The litigation between CLP and the Commissioner is of the same nature as the litigation between Electric and the Commissioner.  But the litigation between Electric and the Commissioner has been through the Lands Tribunal and the Court of Appeal, and is now in the form an appeal deal to commence before the Court of Final Appeal on 17 May this year.  The litigation between CLP and the Commissioner, on the other hand, is still awaiting the Lands Tribunal’s judgment.

2.Electric is agreeable to, indeed supports, CLP coming into the appeal as an intervener.  But the Commissioner opposes that course.  I can understand why CLP wishes to intervene in the appeal.  But it is often the case that parties to pending litigation will be affected by the result of other litigation pending at a higher level.  If intervention were available merely for the asking in such a situation, interventions would likely become the norm and soon flood the legal system.  I do not say that intervention of the kind which CLP proposes can never be permitted.  But if such intervention is to be permitted, it would have to be in exceptional circumstances, which circumstances are likely to be rare.  And I am not persuaded that any such circumstances exist here.  Electric has legal advice and representation of a high quality.  If CLP nevertheless wishes its lawyers to offer Electric’s lawyers ideas that may prove helpful, that is something which CLP is of course free to instruct its lawyers to do.  But I do not feel able to accede to this application for leave to intervene. Accordingly, it is dismissed.

[Argument on Costs]

3.I accede to the Commissioner’s application for costs against CLP, which CLP does not oppose.  But I do not accede to Electric’s application for costs against CLP.  It was open to Electric simply to have indicated by letter that it supported CLP’s application to intervene.

Mr Clifford Smith SC (instructed by Messrs Holman Fenwick Willan) for the applicant, CLP the proposed intervener

Mr Godfrey Lam SC (instructed by Messrs Mayer Brown JSM) for the appellant, Electric

Mr Bernard Man (instructed by Department of Justice) for the respondent, the Commissioner