Pacific Electric Wire & Cable Co Ltd v. Texan Management Ltd and Others
Read the full judgment text of FAMV 5/2014 on BabelCite. This FAMV judgment was delivered on 27 February 2015 before Chief Justice Ma, Mr Justice Ribeiro PJ and Mr Justice Tang PJ.
Civil procedure – Court of Final Appeal – leave to appeal – application dismissed – costs – number of counsel for which a costs certificate should be granted – three actions of great factual complexity – whether a certificate for four counsel is justified where the leave application involved extensive expert evidence on share valuation – whether two counsel sufficed to analyse the evidence and arguments – whether the discretionary application based on the alleged Takeover Arrangement required more than two counsel – test for leave to appeal on the as of right basis laid down in Chinachem Charitable Foundation Ltd v Chan Chun Chuen (2011) 14 HKCFAR 798 – the Appeal Committee dismissed the leave applications of Top Selection Co Ltd and Hu Hung Chiu, made an order nisi for costs, and the respondent sought a certificate for four counsel – the Appeal Committee held that a certificate for two counsel only was appropriate, as the losing parties should not be required to pay for the luxury of four counsel – the leave argument involved identifying what needed to be done before any value of the Blinco BVI and Patagonia shares could be established, and the discretionary application involved fact-sensitive questions of law based on the pleadings and burden of proof that were readily refuted – counsel were well-versed in the case from long involvement – no order as to costs in respect of the costs ruling.
Legal issues: Number of counsel for which a costs certificate should be granted on a dismissed leave application
Outcome: Certificate for two counsel only granted; no order as to costs in respect of this ruling.
Cites 3 cases
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FAMV Nos. 5, 6, 7 & 8 of 2014 FAMV Nos. 5, 6, 7 of 2014 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NOS 5, 6 AND 7 OF 2014 (CIVIL) (ON APPLICATIONS FOR LEAVE TO APPEAL FROM ________________________
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________________________ FAMV No. 8 of 2014 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 8 OF 2014 (CIVIL) (ON APPLICATION FOR LEAVE TO APPEAL FROM ________________________
________________________ Heard together
________________________ DECISION ON COSTS ________________________ Mr Justice Ribeiro PJ : 1.On 14 October 2014, the Appeal Committee[1] dismissed the application of Top Selection Co Ltd (“Top Selection”) and Hu Hung Chiu (“Hu”) for leave to appeal. An order nisi was made requiring the two applicants to pay the costs of and occasioned by the application. The respondent (“PEWC”), who had been represented at the leave application by two senior and two junior counsel, lodged submissions seeking a certificate for four counsel. That was opposed by both applicants. 2.Top Selection had sought leave on the “as of right” and the discretionary “question of law” bases while Hu’s application was only on the discretionary basis. The applications were heard together and PEWC obviously had to deal with the arguments advanced on both bases. 3.PEWC submits that a certificate for four counsel is justified because it was an unusual application supported by substantial expert evidence[2] aimed at establishing the value of the shares in Blinco BVI and Patagonia which were at stake, against the background of three actions which the Appeal Committee described as being “of great factual complexity”.[3] 4.Resisting the certificate, Top Selection and Hu point out that counsel involved were well-versed in the facts and issues from long involvement in the case and argue that there was no need for any complex legal analysis for the purposes of the leave application. 5.We accept that this was a somewhat exceptional leave application involving extensive evidence, but we do not think that the losing parties should not be required to pay for the luxury of four counsel. It was well within the competence of two counsel to analyse the evidence and make the arguments canvassed. As was pointed out in the Determination, it was neither possible nor necessary for the Appeal Committee actually to value the shares. The argument, applying the well-established criteria for leave to appeal on the as of right basis,[4] involved identifying what needed to be done before such value could be established. 6.Similarly, the application made on the discretionary basis faced the obvious obstacle of concurrent findings that the Takeover Arrangement did not exist. This necessitated resort to purported questions of law which were fact sensitive and unpromising arguments based on the pleadings and burden of proof which were readily refuted. 7.We conclude that there should be a certificate for two counsel only. We make no order as to costs in respect of this ruling.
Mr Robert WhiteheadSC, Mr Steven Kwan and Mr Vincent Chen, instructed by Haldanes, for the applicant in FAMV Nos 5-7/2014 Mr Benjamin Yu SC, and Ms Rachel Lam, instructed by Munros, for the applicant in FAMV 8/2014 Mr Anthony Neoh SC, Mr Eugene Fung SC, Ms Barbara Wong and Mr Jonathan Chang, instructed by Lo & Lo, for the respondent in FAMV Nos 5‑8/2014 |
Cases cited in this judgment
Further hearings and rulings under FAMV 5/2014