YUEN OI YEE LISA v. HEATH CO LTD

CACV 272/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL No.272 of 2005

(ON APPEAL FROM DCEO No. 18 of 2004)

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REASONS FOR DECISION

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Hon.  Yuen JA:

1.This is an application by the Defendant (Respondent) for security for costs of the Plaintiff’s appeal.  The application was fixed to be heard at 9:30 a.m. on 29 November 2005.  The Plaintiff (Appellant) did not appear.  After an allowance of 10 minutes was given in case the Plaintiff was late, the hearing commenced.

2.The Defendant’s solicitors handed up to the Court two copies of e-mails sent by the Plaintiff to the Defendant’s solicitors. 

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One e-mail (28 November 2005, 7:35 p.m.) stated that the Plaintiff was "feeling sick after a day’s hearing with Long Hair Leung" and said, amongst other things, that she would not turn up for the hearing of CACV 272/2005 the next day (29 November 2005).

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The other e-mail (29 November 2005, 2:37 a.m.) from the Plaintiff’s e-mail address was not directed to the Defendant’s solicitors but had apparently been copied to them.  The e-mail was sent to longhairlongmarch@yahoo.com.hk and it appeared to be a message of support.  In the last paragraph, the Plaintiff said "see you tomorrow again at 9:45 A.M.  I have to get up early with 3 alarm clocks next to me if you see the time of this email done after my happy hours".

3.It would appear from that second e-mail that the Plaintiff was not ill as she felt well enough to intend to attend court at the hearing of another case, one in which she was not personally involved. 

4.Accordingly, as the Plaintiff was not absent through illness, I considered that the hearing before me should proceed, albeit in her absence. 

5.After hearing the Defendant’s application and considering the matters before me, I made an order that the Plaintiff do within 28 days from 29 November 2005 give security in the sum of HK$206,575 for the costs of and occasioned by the appeal from the Orders of Judge Mary Yuen dated 27 May 2005 and 4 August 2005 and that until such security be given the said appeal be stayed and that in default of such security being given within the time aforesaid, the said appeal do stand dismissed without further order with costs to be taxed and paid by the Plaintiff to the Defendant, and that the costs of the application for security for costs be paid by the Plaintiff to the Defendant.  The reasons for the order are set out below.

Proceedings

6.In DCEO 18/2004, the Plaintiff had sued the Defendant for various relief under the Sex Discrimination Ordinance Cap. 480.  The Defendant applied to strike out the action.  The application was heard by Judge Mary Yuen in the District Court.

7.In a judgment handed down on 27 May 2005, Judge Yuen struck out the action on the ground that the claim disclosed no reasonable cause of action, and gave costs of the action to the Defendant. 

8.The Plaintiff sought leave to appeal against the order but was late in lodging her application.  Judge Yuen dismissed her application for an extension of time to apply for leave to appeal, but Rogers V-P gave leave to appeal on 19 August 2005.

Defendant’s application for security for costs of appeal

9.The appeal gave rise to the Defendant’s application by summons for security for costs of the appeal ("the Summons").  The Summons and the Defendant’s affirmation in support were filed on 31 October 2005 and were served on the Plaintiff on the same day. 

Plaintiff’s position on the Summons

10.The Plaintiff did not take any steps to oppose the Summons for 4 weeks until 28 November 2005, the day before the hearing, when she filed an affirmation asking:

(1)	for leave to file and serve an affirmation in opposition to the Summons within 28 days after the determination of HCMP 1087/2005, and
(2)	that the hearing of the Summons be adjourned to a date to be fixed for argument and "consideration for validity" before Rogers V-P with half a day reserved "taken into account of the following arguments and letters",  being correspondence between the Defendant, the Plaintiff and Rogers V-P’s clerk dated 30 August 2005, 1 September 20056, 5 September 2005 and 20 September 2005 respectively.

(1)  Adjournment pending determination of Vexatious Litigant proceedings

11.HCMP 1087/2005, the proceeding referred to by the Plaintiff in her affirmation, is an application on behalf of the Secretary for Justice for an order to be made against the Plaintiff under s.27 of the High Court Ordinance, Cap. 4 ("the Vexatious Litigant proceedings") .  It is due to be heard before Lam J. on 20-21 December 2005.

12.I considered whether it would be appropriate to adjourn the Summons pending Lam J.’s determination of the Vexatious Litigant proceedings.  I decided not to do so in the exercise of my discretion because the Vexatious Litigant proceedings are not determinative of the parties’ positions in the appeal (CACV 272/2005) to which this Summons is related. 

13. In other words,

-	if Lam J. were to dismiss the Vexatious Litigant proceedings, then this appeal would proceed;
-	or Lam J. might decide, instead of making a Vexatious Litigant order, to make a Restricted Proceedings Order, in which case this appeal would still proceed;
-	and even if Lam J. were to make a Vexatious Litigant order, it would still be open to the Plaintiff under s.27 High Court Ordinance to ask the judge for leave to proceed with this appeal.

Accordingly, I did not see what purpose would be served by adjourning this Summons pending the determination of the Vexatious Litigant proceedings.

14.I considered the Plaintiff’s request for time to file her affirmation in opposition, but the fact of the matter is that the Summons and supporting affirmation had been served on her more than 4 weeks ago.   She has had sufficient time to respond if she had wished to do so.

(2)  Refixing of hearing of Summons

15.As for the Plaintiff’s application in her affirmation that the Summons be refixed to be heard before Rogers V-P., I have read the correspondence exhibited to the affirmation.  They do not contain any orders to the effect that this Summons should be heard by the Vice-President.  The workload of this court is shared by all judges, and it would not be right for a judge to adjourn a matter before him/her for hearing before another judge simply because a litigant wishes it.

16.Accordingly, I did not adjourn the hearing of the Summons on the second ground advanced by the Plaintiff in her affirmation.  

Security for Costs

17.The application for security for costs was based on the grounds of abuse of process and difficulty or expense in enforcing costs orders.  Both are generally recognized as “special circumstances” under Order 59 rule 10(5) of the Rules of the High Court. 

18. In the Defendant’s affirmation supporting the Summons, there are exhibited e-mail messages from the Plaintiff in which she has said that she could not pay the Defendant’s costs and that she was prepared to be bankrupted.  Previous costs orders made against the Plaintiff have not been satisfied.

19. I do not think it is necessary to determine whether there has been an abuse of process.  The Plaintiff’s admissions in her e-mail show that she is unable or unwilling to pay the Defendant’s costs, and so if the Plaintiff were to fail on appeal, it is unlikely that the Defendant would be able to recover its costs of the appeal.  An appellant’s impecuniosity or a respondent’s difficulty in enforcing costs orders are well-established grounds for an order for security for costs of an appeal  (Hong Kong Civil Procedure 2004 Vol. 1 paras. 59/10/29 and 59/10/30).

20. The Plaintiff has not sought to advance any countervailing factors which would militate against an order for security being made. I have considered the grounds of appeal set out in the Notice of Appeal.  At this stage a detailed examination of the merits is not necessary or desirable and suffice it for me to say that it appeared from the Notice of Appeal that the Plaintiff’s case is not that strong that I should exercise my discretion against security for costs. 

Estimate of costs

21. As for the estimate of costs, I have read the Defendant’s skeleton bill and I considered that certain reductions in solicitors’ time could be made for items 4, 7 and 9.  Taking those reductions into account, in my view $206,575 was a reasonable estimate of the costs involved for this appeal, which the Plaintiff has estimated would take 2 days.

Order

22. For these reasons, I made the order set out in para. 5 above.