BRIAN NICOLAS GAY v. YIP SHUT YUEN

CACV 47/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 47 OF 2003

(ON APPEAL FROM HCA 3064/2002)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal from a decision of Seagroatt J which was given on 6 January of this year. The matter before Seagroatt J was an appeal from the Master. The application before the Master had been an application for security for costs by the defendant. The security for costs were for the trial of the action. By that time the date for the trial had not been fixed. That date was fixed in April of this year.

2. Following that, on 3 April, the solicitors for the defendant wrote to the Registrar of Civil Appeals saying that the appeal against the order or Seagroatt J had been fixed for hearing on 18 July, that is today, and that they had been informed on the previous Tuesday that the trial of the High Court Action was fixed for hearing on 20 and 21 May of this year and since the trial is to be heard earlier than the appeal, the outcome of the appeal may not be able to serve its purpose. The letter continues, "Therefore our client will be substantially prejudiced if the appeal is successful. By reason of the matters aforesaid, we humbly request the honourable court for re-listing the appeal hearing in order that it can be heard before the trial date, i.e. 20 May."

3. There are notes on the court file to indicate that the clerk in charge of the appeal lists offered the defendants the dates of 16 and 17 April, but that was refused by Mr Yuen, who this court is now informed is a paralegal in the employ of the defendant's solicitors. That offer of the early dates for the hearing of appeal was refused on the basis that their counsel was involved in a trial. That refusal seems to me to have been wrong in any event, since any counsel could have taken this appeal up and, indeed, the counsel who appears today was not the counsel who appeared before Seagroatt J.

4. Subsequently, the note on the court file shows that the clerk in charge of the Court of Appeal lists had spoken to Mr Yuen who indicated that the defendant then withdrew the request for an early hearing. That matter has now been confirmed by counsel who has appeared in this court, having taken instructions from Mr Yuen who is sitting behind him. The trial of this action did indeed take place before Deputy Judge Lam in May of this year and judgment was given on 30 June.

5. So this appeal comes to this court for security for costs in respect of the trial of the action which has now already taken place. In those circumstances, the appeal is, in my view, entirely academic. This court should not entertain appeals of this nature. They serve absolutely no purpose. The only thing that counsel has argued in front of us as a reason for bring this appeal is that if he were to succeed his client would benefit perhaps from an order as to costs.

6. In this respect, I would refer to a decision of the House of Lords in the case of Ainsbury v Millington [1987] 1 WLR 379. It is sufficient to read the headnote:

"It has always been a fundamental feature of the judicial system that the courts decide disputes between the parties before them and do not pronounce on abstract questions of law where there is no dispute to be resolved even though the question of law raised might be one of general importance the resolution of which may have been left in doubt by different decisions of the Court of Appeal.

Where, therefore, a party had been refused an injunction requiring the other part to vacate a council house and by the time the case was called on for hearing before the Appeal Committee, the parties' tenancy of the council house had been terminated.

Held, that there would be no hearing on the merits and the appeal would be dismissed."

7. In my view, that approach is the same approach as this court should take to appeals. If the order sought on the appeal would be, by the time the appeal comes to be heard, purely academic and of no assistance to the parties, this court should not entertain those appeals.

8. It is important for the administration of justice that that be so. If such appeals were allowed to be brought, any party who had an interlocutory decision against it of which it was dissatisfied could bring appeals and have them heard at any time after the action, even though they would serve no purpose other than to benefit them from an order as to costs. The due administration of justice would be hampered by such conduct and the time of the courts would be wasted in hearing appeals of this nature. I would add that I can see little benefit to clients from appeals of this nature being brought.

9. In my view, this appeal must be dismissed.

Hon Le Pichon JA:

10. I agree.