TANG MAN KIT AND ANOTHER v. HIP HING TIMBER CO LTD

A8000/1990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 8000 OF 1990

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REASONS FOR DECISION

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1. This was an application by the Defendant for leave to appeal against my order of 8 March 2002 dismissing its summons under Order 62 rule 8 and the inherent jurisdiction of the Court for two firms of solicitors to be ordered to pay its costs of the action. At the end of the application, I refused leave and said that I would reduce the reasons into writing to be handed down.

Principles

2. It is common ground that leave is required under s.14(3)(e) High Court Ordinance for this intended appeal on costs. It is also not disputed that the purpose of the leave requirement in the High Court Ordinance is to act as a "filtering process" to protect persons from the burden of costs where the proposed appeal itself is only on the question of costs (Ho Lee Man v Wong Wai Kai [1993] 1 HKC 183, 189.

3. Applying those principles and the principles as to solicitors' liability for costs set out in Nelson v Nelson [1997] 1 WLR 233, discussed in my decision of 8 March 2002, I found the issue to be clearly in the two firms' favour such that the "filtering process" should operate to protect them from the burden of costs in the intended appeal.

Application of principles

4. The history of the litigation and the background for the Defendant's application that the two firms be ordered to pay costs appear in my written decision of 8 March 2002 and I shall not repeat them here.

5. This is not a case where solicitors were acting for non-existent clients, or where the clients were incompetent by reason of minority or mental incapacity, or where existent, competent clients had not in fact authorized the proceedings. This was a case where solicitors were acting for Mr Tang and Mr Foo, who were sui juris and who had in fact authorized the solicitors to bring the proceedings.

6. The fact that Mr Tang and Mr Foo purported to act only as purportedly registered managers for what they claimed was a t'ong within the meaning of s.15 New Territories Ordinance, when, as I have found, they were not so, cannot absolve themselves from liability for costs. Indeed, it is not the Defendant's case that Mr Tang and Mr Foo are not liable for costs. The Defendant had sought, and has been given, an order for costs against them. No one has appealed that order.

7. The Defendant submitted that Mr Tang and Mr Foo were only named as plaintiffs as a matter of technicality, to comply with the procedure set out in Tang Yau Yi Tong v Tang Mou Shan Tso [1996] 2 HKLR 213, 219. However, the very rationale for that part of the Court of Appeal's decision was that a t'ong is not a legal entity (at 219E). Therefore, the solicitors here were not purporting to act for a legal entity which turned out to be non-existent, but for Mr Tang and Mr Foo, who were individual plaintiffs purporting to act in a certain capacity.

8. As a matter of completeness, I would only add that although Mr Chong submitted that there is no question of the Defendant's costs not being met, I do not in any event consider that relevant to the issue before me.

9. In light of the matters set out in paragraphs 5-7, I could not see how the solicitors could also be held liable for costs when the principles stated in Nelson v Nelson are applied. Accordingly, I dismissed the Defendant's summons and gave an order nisi that the costs of the summons for leave to appeal be paid by the Defendant to the two firms.