The Owners and/or Demise Charterers of the Ship or Vessel “Oocl China” v. The Owners and/or Demise Charterers of the Ship or Vessel “Darya Bhakti”

HCAJ 218/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO 218 OF 2009

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Admiralty action in rem against: The Ship or Vessel Darya Bhakti
of the port of Hong Kong

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J U D G M E N T

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1.It seems to me that the summons must be dismissed and I have dismissed the summons.

2.By the plaintiffs’ summons dated 21 December 2012 (“the summons”) the plaintiffs asked for an order that the plaintiffs do have leave to appeal against my judgment given on 10 December 2012 as set out in the summons.

3.At the outset, I must say that, in my view, the summons is misconceived.

4.As I said in my judgment given on 10 December 2012 (“the judgment”) at paragraph 5, the parties had agreed to deal with the assessment of the claims of the OOCL China in the reference before me and then to separately address the issues of liability with which I was not concerned.  What I was concerned with was the trial of the assessment of the OOCL China’s claims in this reference. 

5.The judgment was given after a trial lasting two days on the issue of the quantum of the OOCL China’s claims as a result of the collision.  The trial was conducted in open court with oral evidence being adduced which was tested by cross-examination.  It cannot possibly be said that the judgment was an interlocutory judgment.  It was a final judgment.  It was clearly a final determination of the issue of the quantum of the OOCL China’s claim subject, of course, to any valid appeal.

6.Section 14(1) of the High Court Ordinance, Cap 4, provides that subject to subsection (3) and section 14AA, an appeal shall lie as of right to the Court of Appeal from every judgment or order of the Court of First Instance in any civil cause or matter.

7.Therefore, subject to the provisions of subsection (3) and section 14AA of the High Court Ordinance, the plaintiffs had a right of appeal to the Court of Appeal.  They were not required to obtain leave to appeal.  The restrictions to a right to appeal as contained in subsection (3) of section 14 have no application here.  They are not relevant.

8.In my view, section 14AA of the High Court Ordinance has no application here.  That section is only concerned with leave to appeal from an interlocutory judgment or order of the Court of First Instance.  As I have said, the judgment was not an interlocutory judgment or order of the Court of First Instance.  It was clearly a final judgment after a trial of the issue of the quantum of the OOCL China’s claims in the reference before me.  Section 14AA(1) of the High Court Ordinance clearly has no application here.

9.The time limit for appealing is provided for in Order 59, r 4 of the Rules of the High Court. It is clear from r 4(1)(c) that the time limit for appealing was 28 days from the date of the judgment.  The plaintiffs have not served any notice of appeal within the time limit prescribed.

10.As I mentioned to Mr Scott SC, I have no power to extend time in the light of the provisions of Order 59, r 15.  Any application for extension of time to the court below must be made before the expiration of the period for appealing. 

11.In the circumstances, there was no other option but to dismiss the summons. 

12.For those reasons, I have dismissed the summons.

Mr John Scott SC, instructed by Ince & Co, for the plaintiffs

Mr Nick Luxton, of Holman Fenwick Willan, for the defendants

Please refer to HMP403/2013 for the relevant appeal(s) to the Court of Appeal.