Read the full judgment text of CACV 82/2011 on BabelCite. This Court of Appeal judgment was delivered on 18 January 2012 before Fok JA, Lam J.
Civil procedure – costs – interlocutory appeal – variation of costs order nisi – amendment of statement of claim – whether costs should be in the cause of the remitted amendment application or follow the event of the appeal – whether costs taxable and payable forthwith – whether certificate for two counsel should be granted – relation back rule – RHC O.20 r.5 – s.26 Limitation Ordinance – amendment application remitted to Court of First Instance. The plaintiff, Sun Focus Investment Limited, brought an action in HCA 538/2007 against Tang Shing Bor and Liu Su Kei and applied to amend its statement of claim. The Judge granted leave to amend and the defendants appealed. On 23 December 2011, the Court of Appeal allowed the appeal in part, setting aside the grant of leave to amend and remitting the amendment question to the Court of First Instance, holding that the Judge should not have granted leave without determining that the plaintiff could show the defendants did not have a reasonably arguable case on limitation that would be prejudiced, or that the plaintiff could bring itself within RHC O.20 r.5. The Court made an order nisi that the plaintiff pay the defendants' costs of the appeal. Held, refusing the plaintiff's application: the costs of the appeal should follow the event of the appeal itself, not be deferred as costs in the cause of the remitted amendment application. Departing from the normal rule that costs follow the event is an exceptional course (Mariner International Hotels Ltd v Atlas Ltd (No. 2) (2007) 10 HKCFAR 246 at §18). The present case was distinguishable from Kee Shing Industrial Products Ltd v Wah Lai Metal Artificial Jewellery Factory CACV 224/2004 because this Court made a specific ruling in favour of the defendants on the principal issue of the relation back rule. Held, granting the defendants' application: the costs of the appeal should be taxed and paid forthwith. There was no good reason to delay payment in respect of a discrete and concluded interlocutory appeal, and ordering payment forthwith was not tantamount to ordering security for costs. Held, granting the defendants' application: a certificate for two counsel was granted, following the practice in Dr Chan Hei Ling Helen v The Medical Council of Hong Kong CACV 403/2006, unrep., 21.7.09 at §9, that a party coming to the Court of Appeal is entitled to have leading counsel. The costs of the submissions to vary the costs order nisi were also awarded to the defendants, to be taxed and paid forthwith.
Legal issues: Whether costs of the appeal should be costs in the cause of the remitted amendment application · Whether costs of the appeal should be taxed and payable forthwith · Whether the appeal was suitable for two counsel
Outcome: Plaintiff's application to vary the costs order nisi refused; defendants' variation application granted. The costs order was varied to provide that the plaintiff pay the defendants the costs of the appeal, to be taxed forthwith if not agreed, and paid forthwith, with a certificate for two counsel, and that the costs below be costs in the amendment application. The costs of the submissions to vary the costs order nisi were also awarded to the defendants, to be taxed and paid forthwith.
Cited by 2 cases · Cites 2 cases