The Prudential Enterprise Ltd and Another v. P.H. Shek Ltd and Another

Case No.

Court

Date02 Oct 1990

Judge—

Case Document

100%

CACV000179A/1989

IN THE COURT OF APPEAL

1989, No. 179
(Civil)

BETWEEN

	THE PRUDENTIAL ENTERPRISE LIMITED	1st Plaintiff
	THE PRUDENTIAL MALL LIMITED	2nd Plaintiff
	AND
	P.H. SHEK LIMITED	1st Defendant
	PIREST LIMITED	2nd Defendant

----------

Coram: Hon. Sir Derek Cons, V.P., Clough & Macdougall, JJ.A.

Date of hearing: 2 October 1990

Date of delivery of judgment: 2 October 1990

-----------------

JUDGMENT

-----------------

Sir Derek Cons, V.P. :

1. This is an application for leave to appeal to Her Majesty in Council a decision given by this Court on the 1st March whereby we reversed an order as to costs made by Liu J. in favour of the Plaintiff in the litigation below and substituted therefore an order in favour of the Defendant. The amount involved by the order is probably in the region of HK$1 million.

2. Section 14 of the Supreme Court Ordinance, Cap. 4 provides that no appeal shall lie to this Court

"without the leave of the court or tribunal in question or of the Court of Appeal, from an order of the High Court ... relating only to costs which are by law left to the discretion of the court of tribunal ...''

No leave to bring the appeal was obtained from Liu J. and no application was made to this Court. Reliance was placed instead upon Scherer v. Counting Instruments Limited [1986] 1 WLR 615, a reliance we concluded to be well founded, being satisfied that the judge had not judicially exercised his discretion. That decision of necessity involved a question of law.

3. The Order in Council which regulates appeals from this Court to Her Majesty in Council provides by Rule 2 that:

"an Appeal shall lie

(a)

as of right, from any final judgment of the Court, where the matter in dispute on the Appeal amounts to or is of the value of $500,000 or upwards, or where the Appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $500,000 or upwards; and

(b)

at the discretion of the Court, from any other judgment of the Court, whether final or interlocutory, if, in the opinion of the Court, the question involved in the Appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to Her Majesty in Council for decision."

The Notice of Motion relied upon both paragraphs of the rule. Mr. Tang, who appears today for the Plaintiff for the first time in this litigation, has not pursued any application under paragraph (a). He accepts very sensibly that the authorities are too much against him. He has supported the application under paragraph (b) on the ground that it involves a question of great general or public importance but, with every respect to him, I am unable to accept that any of the questions suggested, whether in the Notice of Motion or in the course of argument, fall within that definition.

4. His main argument has been premised on the "or otherwise" limb of paragraph (b). He has drawn our attention to Donald Campbell and Company Limited v. Pollak [1927] AC 732. In that appeal to the House of Lords approval was given to the words of Sir Joseph Napier sitting in the Judicial Committee of the Privy Council in the case of Yeo v. Tatem (1871) LR 3 PC 696 @ 702:

"Their Lordships do not mean to question or recede from the decisions that have been pronounced regarding not allowing an appeal for costs, but where there has been a mistake upon some matter of law that governs or affects costs - some matter that involves the due application of principles of law - the party prejudiced was entitled to have the benefit of correction by appeal."

The position was stated generally by Viscount Cave, the Lord Chancellor, at p. 747:

"My Lords, I have gone through this long succession of cases only for the purpose of ascertaining what is the precise rule which has been laid down by this House; for I agree that, if a rule of practice exists, it ought not now to be disturbed, and that the rule (whatever it may be) was not abrogated by s. 3 of the Judicature Act, 1876. The result of my examination appears to me to be (1.) that there is no universal rule that an appeal as to costs only will not be entertained by this House, but the true rule is as stated by Lord Northington in Cowper v. Scott, by Lord Eldon in Tod v. Tod, and by Lord Selborne in Metropolitan Asylum District Managers v. Hill, as well as by Sir Joseph Napier in the Judicial Committee and by Lord St. Leonards and Lord Cranworth in the Appeal Committee; and accordingly (2.) that in this House, as in the Court of Appeal, an appeal from a discretionary order as to costs will not be received, except, perhaps, in cases where there is also a bona fide appeal on merits; but (3.) that when it is alleged that the Court of Appeal in dealing with costs has fallen into error on a point of law which governs or affects costs, an appeal on that question will be heard."

5. In his turn Viscount Dunedin, at p. 757, affirmatively setting out three rules as to when an appeal would lie, said:

"3. If the Court of Appeal has based its judgment on a point of law which may or may not be erroneous. Illustration: the present case.

In all other cases no appeal will lie.

I do not fancy there is any controversy as to the soundness of my first two rules. It is the third that is controverted. My Lords, I confess I think the justification of the third is that without it there would be grave injustice done."

Mr. Tang relies very strongly upon these words as being apt in the present instance. He also refers us to an illustration given by Viscount Haldane at p. 751:

"Speaking for myself, after examination of the authorities, I do not think that they establish the list of exceptions collected above as an exhaustive list. If an order as to costs were, for example, made without jurisdiction, I do not think that they show that there could be no appeal to get rid of the illegality committed."

Mr. Tang suggests that if we were wrong about the judge below, then we too acted without jurisdiction.

6. Mr. Mills-Owens, for the Defendants, observes that if that be so, whenever the Court of Appeal interferes upon Scnerer principles the losing party automatically obtains an appeal as of right. If so, then, for my part, and for the reason given by Viscount Dunedin, I would think the submission no worse.

7. But I do not take the view that an appeal would automatically become as of right, for I apprehend that this Court would not give leave, even then, unless satisfied that the Plaintiff had an arguable case to put before Their Lordships. To that end we eventually requested Mr. Tang to address us on that aspect and we gave Mr. Mills-Owens the opportunity to reply. I do not think it is necessary or desirable to comment on the arguments then put forward. It is sufficient to say that, for my part, on consideration of the reasons given on the last occasion I am not satisfied that the case which the Plaintiff wishes to pursue is unarguable.

8. I accept that the point is not of great general or public importance. It arises from a situation which, although it has occurred at least once before, does not seem to me to be likely to occur often because of the difference between the English and the Hong Kong legislation as to the need for leave to appeal as to costs. I am satisfied the point falls within the "or otherwise" provision of paragraph (b) of the Order in Council.

9. I accept also that Their Lordships have indicated clearly that they do not wish to be troubled by questions of costs alone except in very exceptional circumstances. But for the reasons which Their Lordships gave in Donald Campbell and Company Limited v. Pollak the circumstances are in my view sufficiently exceptional and I would give leave to appeal.

Clough, J.A. :

10. I agree that, for the reasons just given by My Lord, the Vice President, leave should be granted to the Applicant.

Macdougall, J. A. :

11. I also agree that leave should be granted to the Applicant.

(Sir Derek Cons)
Vice President

(P.G. Clough)
Justice of Appeal

(N. Macdougall)
Justice of Appeal

Representation:

Robert TANG, Q.C., and Geoffrey T.L. MA (M/s. Tai, Ho & Chan) for 2nd Plaintiff/Applicant.

Richard Mills-Owens, Q.C. & Ronny WONG (M/s. Deacons) for the Defendants/Respondents.