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CACV000079/1996
IN THE COURT OF APPEAL
1996, Nos. 79, 80, 81
(Civil)
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THE ATTORNEY GENERAL |
Appellant(Respondent in Arbitration) |
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and
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SHIMIZU CORPORATION(formerly known as Shimizu Corporation Co. Ltd.) |
Respondent(Claimant in Arbitration) |
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Coram: Hon Litton V-P, Liu & Mayo JJ.A. in Court
Date of hearing: 12 February 1997
Date of judgment: 12 February 1997
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J U D G M E N T
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Mayo JA (giving the judgment of the Court):
1. Shimizu are seeking leave to appeal to the Privy Council from the judgment of a differently constituted division of this court.
2. The litigation centres around arbitration proceedings relating to construction work they performed for the Hong Kong Government.
3. In a judgment delivered on 17 January the Court allowed the Attorney General's appeal on the four issues referred to in the notice of motion. They can conveniently be categorised as follows:
1. The decision to remit the rubbish removal claims.
2. The decision to allow an appeal against Shimizu's remission items.
3. Grant of leave to appeal in respect of contract clause 73.
4. Grant of leave to appeal in respect of compound interest discretion.
4. On the basis of the decision in Re Croasdell v. Cammell Laird [1906] 2 KB 569 Shimizu accept that issues 3 and 4 were interlocutory decisions. This being the case for these issues this court has to exercise its discretion under r2(b) of the 1909 Privy Council Rules whether or not to grant leave to appeal.
5. As to the first two issues Shimizu contends that as the Attorney General placed reliance upon an agreement struck between the parties as to how the arbitration should be conducted the judgment which was finally entered did not fall within the purview of Croasdell v. Cammell Laird. This being the case the application came within r2(a) and they had a right of appeal as of right.
6. We do not think that this is right. The procedural agreement which was referred to in the judgment was an integral part of the arbitration and it would be artificial to attempt to argue that separate principles apply simply on account of the fact that the parties had seen fit to agree upon how the arbitration should proceed.
7. That then leaves the question as to whether the issues arising on this appeal are ones of great general and public importance or there is any other reason why leave should be granted.
8. Mr Goldblatt QC for Shimizu submits that the question of the extent to which an agreement concluded by the parties can restrict an arbitrator in the conduct of an interim award is a matter of considerable importance and that there were wide international implications. Closely associated with this was the question of how Crosby should be interpreted in circumstances such as arose in the present case.
9. Mr Goldblatt went on to argue that so far as all of the issues were concerned it was undoubtedly the case that it was of public interest to determine the extent to which it was proper for the court to interfere in arbitration proceedings and the extent to which the principle of finality in arbitrations could properly be eroded.
10. Mr Fernyhough QC for the Attorney General argued that Shimizu had not sufficiently identified points of law which were of great general and public importance. It was also the case that such a right of appeal was not available in England.
11. In particular he placed reliance upon the decision of the Court of Appeal in P.T. Dover case CA 155/89 (unreported 27 July 1990) where it declined to grant leave under r2(b) in similar circumstances.
12. In addition to this the matters arising under issues 3 and 4 would in any event be ventilated by the courts in Hong Kong as a consequence of leave having been granted for these appeals to proceed.
13. This would lead to what could be described as a shadow boxing exercise with these issues being ventilated both in the Hong Kong Courts and the Privy Council.
14. Mr Fernyhough further submitted that on issue 1 it was almost entirely an issue of fact involving very little law. As to issue 2 he argued that it was only the application of the principles referred to in Crosby which raised problems in this case.
15. There is considerable merit in the contentions advanced by Mr Fernyhough.
16. Having regard to the high threshold which must be surmounted before leave should be granted under r2(b) we do not consider that this is a case where leave should be granted.
17. The application is accordingly dismissed.
| (Henry Litton) |
(B. Liu) |
(Simon Mayo) |
| Vice President |
Justice of Appeal |
Justice of Appeal |
Representation:
Mr Richard Fernyhough QC and Ms Teresa Cheng (M/S Denton Hall) for the Appellant
Mr Simon Goldblatt QC and Mr Peter Clayton (M/S Malleson Stephen Jaques) for the Respondent
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