THE BANK OF CHINA v. XINYUAN TRADING CO. LTD.

CACV 276/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 276 OF 1998

(ON APPEAL FROM HCA 18159/1998)

----------------------

J U D G M E N T

----------------------

Hon Godfrey VP :

Introduction

1. This is an application under Order 20 rule 11 of the Rules of the High Court ("the slip rule") for an amendment of an order of this court made on 5 March 1999. The amendment sought relates to the order as to costs which this court then made, that the costs of the appeal and of the application below should be to the appellant. The appellant now applies for the inclusion in the order of a certificate or direction to the taxing master to the effect that the appeal was fit for the attendance of two counsel for the appellant.

Background

2. The appellant was represented at the hearing of the appeal by two counsel. No application was made to this court for a certificate that the case was fit for the attendance of two counsel. This is not surprising. In my experience, both in England and Wales and in Hong Kong, it is not the practice to ask for such a certificate at the conclusion of the hearing of an appeal. The reason is that the taxing master will normally allow the fees of two counsel on the hearing of an appeal to this court when the bill of costs for the successful party includes that item.

3. However, in the present case, the taxing master refused to allow the appellant the fees of two counsel. This is surprising. Be that as it may, the appellant, aggrieved by this, applied for a review of the taxation. The decision upon that review is still awaited. Meanwhile, the appellant, having had second thoughts about its position, has decided to try and improve it by coming back to this court under the slip rule for inclusion in the original order of a certificate that the case was indeed fit for the employment of two counsel.

The relevant considerations

4. If we were to grant such a certificate, that would take the matter out of the hands of the taxing master altogether. He would be bound to give effect to the directions of this court in relation to the taxation. This application has been described in the course of argument in this court as "jumping the gun". It is worse than that. It is an attempt to go back to the armoury, select a gun, and fire it after the war is over. What is now sought to be done is to use the slip rule to insert, into this court's original order as to costs, a provision which is not there, not because of any slip in expressing the court's intention but because it was not originally asked for. It is asked for now only because it would assist the appellant in the prosecution of its application for a review of the master's decision on the taxation. This seems to me to be a course both misconceived and improper. The purpose of the slip rule is to enable the court to correct an error or omission made in an order "in expressing the manifest intention of the court", as the editors of the Supreme Court Practice 1999, Vol. 1, point out at 20/11/1. There was here no error "in expressing the manifest intention of the court".

5. If the appellant had originally applied for the certificate for which it now applies, the other side's counsel might have objected to the grant of such a certificate, and we might have acceded to that objection, saying that that was a matter which should be left to the taxing master; I simply do not know. What I do know is that there was certainly no error here "in expressing the manifest intention of the court". In those circumstances, this attempt to employ the slip rule to improve the appellant's position is, as I have said, both misconceived and improper.

6. I accept that this court has jurisdiction, if it sees fit and is asked to do so, to direct the taxing master to allow fees for two counsel on the taxation of the costs of the successful party in an appeal to the Court of Appeal. It is however unusual, to say the least, for it to exercise that jurisdiction. If there is to be a change in the practice, so that in every case in the Court of Appeal which is attended by two counsel for the successful party, that party will have to apply for such a direction if the fees of two counsel are to be allowed on taxation, that is a change which should be introduced only after careful consideration and by amendment to the rules. It may be that, on the review of taxation in this case, if the matter gets before a judge (and perhaps an assessor), some guidance might be given on the point. But, certainly, this is not the right time for a consideration of that wider and more general issue.

7. For the reasons I have given, I would dismiss this application.

Hon Rogers JA :

8. I agree and I have nothing to add.

Hon Ribeiro JA :

9. I also agree.

Hon Godfrey VP :

10. The application will accordingly be dismissed. It was misconceived and improper and the respondents will have their costs of the application, taxed on the basis of an indemnity.