Total Lubricants Hong Kong Ltd and Others v. Christophe De La Cropte De Chanterac and Others

CACV 37/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 37 OF 2012

(ON APPEAL FROM HCA NO. 1694 OF 2008)

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BETWEEN

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the Court):

1.This is the application of the 5^th and 6^th defendants for leave to appeal to the Court of Final Appeal against a judgment we handed down on 15 March 2013, in which we dismissed their appeal against the decision of Poon J in 2012 giving leave to the plaintiffs to amend the statement of claim.  It was contended before the judge and before us that leave to amend should have been refused on the grounds of res judicata and functus officio.

2.These defendants seek leave to appeal to the Court of Final Appeal to raise the same grounds of appeal.  The two questions framed in the Notice of Motion are as follows:

“(A) Does the dismissal of an Action, pursuant to RHC O. 18 r 19, by a judge of the Court of First Instance, due to the plaintiff’s inability to plead a single asserted cause of action, by a final judgment on the merits between parties to the Action, which is not appealed by the plaintiffs, confer upon the successful defendants, under the doctrine of res judicata, an absolute right not again to be sued by the same plaintiffs in the same Action for the same asserted single cause of action?

(B) In the same circumstances, once the time for appealing the aforementioned final judgment has expired, is the Court of First Instance functus officio in relation to any application by the same plaintiffs to re-introduce, within the same Action, a plea of the same cause of action against the same former defendants?”

3.Mr Barlow, SC submitted on behalf of the defendants that these are questions of law of great general or public importance in that they go to the subject of finality in civil litigation and there is no decision of the Court of Final Appeal on these questions.  He contended that in our judgment, we have incorrectly elided the principles of res judicata by issue estoppel with the principles of res judicata by cause of action estoppel and that we have misconstrued Order 18 rule 19(1) as permitting Poon J who had dismissed the action against the 5^th and 6^th defendants in his earlier judgments in 2009 and 2010 (and from which the plaintiffs did not appeal) to give leave to amend the statement of claim in 2012 to advance a re-formulated claim against these defendants.

4.We decline to grant leave to appeal as we do not think the issues raised in the proposed appeal are of great general or public importance.  The arguments advanced by Mr Barlow really concern how the well established principles of res judicata should be applied to the facts of the present case.  For the reasons given in our judgment in dismissing the appeal, it does not appear to us that his contentions are reasonably arguable.

5.We therefore dismiss this application with costs to the plaintiffs.

Mr Barrie Barlow SC, instructed by Mayer Brown JSM, for the 1^st & 2^nd Appellants/5^th & 6^th Defendants

Ms Roxanne Ismail SC, instructed by Minter Ellison, for the 1^st to 3^rd Respondents/1^st to 3^rd Plaintiffs