Baker & Mckenzie (A Firm) v. The Grande Holdings Ltd and Others

HCMP1971/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1971 OF 2010

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Before : Deputy High Court Judge Au-Yeung in Court

Date of Hearing : 7 June 2011

Date of Handing Down Judgment : 7 June 2011

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REASONS FOR DECISION

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1.On 17 May 2011, I gave an order for the Plaintiff’s bills to be taxed and dismissed the Defendants’ summons for directions to convert the originating summons into a writ action (“the Order”).

2.This application is by the Defendants for, insofar as is necessary, leave to appeal from the Order.  In the supporting affirmation, the Defendants’ solicitor stated that notwithstanding the Defendants’ belief that leave to appeal was not required, to adopt a prudent approach, the Defendants sought leave.

3.The application is opposed by the Plaintiff who says that the Order was to give case management directions.

4.Order 59, rule 21(1) (a) provides that leave is not required and accordingly an appeal lies as of right from a judgment or order determining in a summary way the substantive rights of a party to an action.

5.Without affecting the generality of paragraph (1)(a), Rule 21(2) gives summary judgment under Order 14 as an example of a judgment determining in a summary way the substantive rights of a party.

6.Mr Beresford, counsel for the Plaintiff, refers to the “application test” for the determination of whether leave to appeal is required.

“Where it is required to determine whether a judgment or order is or is not interlocutory in a case where such judgment or order does not fall into one of the classes referred to in r.21 (similarly O.58 r.4 RDC), the test to be applied is still the “application test”, namely, that the determination of the application must finally dispose of the action or finally determine the relevant issue, whichever party succeeds on the application (See B+B Construction Ltd v. Sun Aliance and London Insurance Plc (2000) 3 HKCFAR 503; Shell Hong Kong Ltd v. Yeung Wai Man Kiu Yip Co Ltd (2003) 6 HKCFAR 222; Sam Woo Bore Pile Foundation Ltd v. China Overseas Fondation Engineering Ltd, unrep., FAMV 21/2007, June 8 2007).” Hong Kong Civil Procedure 2011, para 59/21/4.

7.The originating summons sought for orders (i) for the bills to be taxed by a taxing master; (ii) for interim payment of 50% of the billed amount; and (iii) for payment of the balance of 50% of the billed amount into court.  The Order granted the Plaintiff the reliefs under (i) and (ii) but dismissed (iii).  It also dismissed the Defendants’ summons for directions.  Accordingly, the Order has disposed of the substantive rights of the parties as prayed for under the originating summons. 

8.The Order was not given in the sake of case management because the issue of liability of the Defendants to pay the bills has been finally determined.  The taxing master will have no power to overturn that determination at the taxation or make decisions on liability inconsistent with the Order.  His/her power will be limited to taxing the bill and ascertaining the quantum to be paid by the Defendants.  Applying the “application test”, my conclusion is no different.

9.I hold that the Defendant has a right to appeal against my Order and no leave is required.  Assuming that leave is required, I will give it.  The draft grounds of appeal put forth are reasonable and more than fanciful: SMSE v. KL [2009] 4 HKLRD 125.

10.Mr Beresford submits that the intended appeal is based on a claim of negligence against the Plaintiff and that cause belongs to D1 (which is now under liquidation and proceedings against it have been stayed) but not other Defendants.  I do not need to express a view on whether those Defendants have grounds to appeal.  Suffice to say that a right to appeal will not be lost merely because a party does not put forth grounds or meritorious grounds before me now.

11.The Defendants would not have asked for costs but for the opposition of the Plaintiff to the Summons.  Having failed in its opposition, costs should thus be borne by the Plaintiff with certificate for one counsel. 

12.It was not necessary to prepare a new document bundle for use today.  Attendance by litigation clerk was beyond the appropriate scale fee.  Solicitors’ costs were clearly excessive given counsel’s heavy involvement.

13.I summarily assess costs at $160,000.

14.To sum up, no order is made under paragraph 1 of the Summons.   Costs of $160,000 are to be borne by the Plaintiff.

15.I thank counsel for their assistance.

Mr. Roger Beresford instructed by Messrs. Baker & McKenzie for the Plaintiff

Mr. Edward Chan SC leading Mr. Liu Man Kin instructed by Messrs. Wong & Fok for the 2^nd to 11^th Defendants

Messrs Wilkinson & Grist for the 1^st Defendant absent