Citibank N.A. v. Days Properties Ltd

HCMP 477/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 477 OF 2012

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J U D G M E N T

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1.This is an application for leave to appeal against the order I made in respect of the defendant’s summons for specific discovery.

2.In the substantive hearing on 18 June 2013, I first dismissed the defendant’s summons for specific discovery.  After that, the court proceeded with the substantive hearing and handed down the final judgment of this case on 26 August 2013.

3.The defendant now seeks leave to appeal against my order on the defendant’s summons for specific discovery.  After considering the defendant’s arguments, I take the view that there is no reasonable prospect of success in respect of the intended appeal.  The decision I made is very much a case management decision, and there have already been established cases to show that the appellate court is very reluctant to interfere with the exercise of discretion by the judge of the first instance in relation to such kind of case management decisions.  In particular, the court took into account delay as a ground for refusing the application.

4.Despite that, I did take into account the overall merits of the claim in the exercise of my discretion in respect of the specific discovery application.  I understand from the defendant that it is going to lodge an appeal against my final Order 88 judgment.  As the Court of Appeal will have to hear this appeal in any event, I take the view that it would be rather inconvenient if the Court of Appeal is not able to review my decision on the specific discovery application if necessary.

5.Further, if the Court of Appeal takes a different view about the merits of the case, that may be a ground for the defendant to challenge my exercise of discretion in respect of the defendant’s application for specific discovery.  Hence, although I take the view that the defendant’s intended appeal has no reasonable prospect of success, I grant leave to the defendant to appeal my decision on the specific discovery application under the second limb that there is some other good reason for the appeal to be heard.  Such leave to appeal is therefore only granted on the condition that the defendant is going to pursue the appeal against the final Order 88 judgment.

Mr Victor Dawes, instructed by Baker & McKenzie, for the plaintiff

Mr Andrew Sheppard, instructed by Kennedys, for the defendant

Please refer to CACV192/2013 for the relevant appeal(s) to the Court of Appeal.