BOUYGUES S. A. and Others v. RED SEA INSURANCE CO. LTD.

IN THE COURT OF APPEAL

1992, No. 3
(Civil)

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J U D G M E N T

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Sir Derek Cons, V.-P., delivered the judgment of the Court:

1. We have before us two notices of motion, both seeking leave to appeal the decision of this Court to Her Majesty in Council under rule 2(b) of the appropriate Order In Council, that is to say, it is suggested that both raise a question or questions of great general and public importance or otherwise ought to be submitted to Her Majesty in Council for decision.

2. The first is by the party who is defendant in the proceedings below and suggests as an alternative that the application be deferred until after the trial of the action herein or until further order. That alternative has not been pursued before us and in any event we do not think it would have been appropriate.

3. The background to the applications is contained in our judgment given on the 14th of July last year and we need not to rehearse it again.

4. The first two questions raised by the defendant may be paraphrased as "whether sub-rule (2) of rule 205, to be found in the ninth edition of Dicey and Morris on Conflict of Laws, correctly expresses the law of Hong Kong". The third and fourth questions as "whether this Court was right in 1981, by the decision in Ng Yuen Sui v AG [1981] HKLR 352, to bind itself to its previous decisions, save where excepted by virtue of Young v. Bristol Aeroplane Co. [1944] KB 718"; and if so "whether the exceptions set out in Young v. Bristol Aeroplane Co. should be further extended".

5. The second application by the 4th to 13th plaintiffs is brought with apologies for two very obvious drafting errors and is contingent upon leave being given to the defendants. It seeks to raise the question "whether, where in the court below a counterclaim is defective as currently pleaded, but is curable by amendment, leave to so amend can be given after the relevant period of limitation has expired".

6. Mr. Ma for the plaintiffs concedes that this is not a question of great general and public importance but seeks leave under the "or otherwise" provision of the rule. Basically his submission, as we understand it, is, if we may use his own words, if the plaintiffs are dragged to the Privy Council then it is right that their complaints should be dealt with as well. In our view that is not a sufficient ground to bring it within the "or otherwise" provision. Our attention has been drawn to Hui Shiu Wing v. Cheung Yuk Wing [1968] HKLR 176, which has been recently approved by another division of this Court, and in particular to the words of Blair Kerr J. at p. 188, "obviously the circumstances must be exceptional". We do not see anything exceptional in, if we may use the phrase again, being "dragged to the Privy Council".

7. We are satisfied that the first two questions are of great general and public importance and for that reason we give leave to appeal. We are not persuaded that the third and fourth questions are of a kind for which leave should be given. They may be of interest to the legal profession generally but, with respect, they cannot be of the slightest interest to the parties themselves. Their dispute will inevitably be resolved one way or the other by the decision on the first two questions and we do not think it appropriate that the ambit of the appeal of their Lordships should be unnecessarily expanded.

8. For these reasons we give leave to appeal and will now consider the questions of security and time for the record to be prepared.