CHINA GOLD FINANCE LTD v. CIL HOLDINGS LTD AND OTHERS

CACV 11/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 11 OF 2015

(ON APPEAL FROM HCA NO. 2900 of 2001)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1. We handed down our judgment in this appeal on 27 November 2015. In that judgment, we made an order nisi for costs with directions on the lodging of submissions on whether costs should be taxed on a higher basis.

2. Pursuant to our directions, the parties lodged their respective submissions on 10 December 2015 and 18 December 2015.

3. We did not make any order for costs in respect of the Respondents’ Notice as we did not find it necessary to deal with the same. Mr Lam SC properly accepted that our order for costs did not give the 1^st and 3^rd Defendants the right to recover costs for the Respondents’ Notice and he indicated on behalf of such defendants that they would not do so.  Insofar as Mr Wong SC sought costs on the Respondents’ Notice on behalf of the Plaintiff, we reject the application. 

4. The next issue we need to decide is whether these defendants should get costs of the appeal on a higher basis.  Whilst we would not go so far as condemning the whole appeal as an abuse of process, we are firmly of the view that the way in which the appeal had been conducted was a misuse of the appeal process.  As Mr Lam submitted, the notice of appeal and the skeleton submissions filed on behalf of the Plaintiff were wholly unhelpful.  These documents, together with the voluminous appeal bundles, show that the preparation of the appeal was not done with proper focus on the permissible scope of challenge to factual findings as explained in a long line of cases.  The conduct of appeal in such a manner inevitably increases substantially the costs and time for preparation on the part of those acting for the Defendants.  Such a practice also increases the workload of the court and it is not conducive to the efficient deployment of limited judicial resources.  In light of the underlying objectives in Order 1A, the court should exercise its discretion on costs bearing these in mind, see Order 62 Rule 5(1)(aa) and (e) and Rule 5(2)(b) and (d).

5. It is high time that such improper practice should be visited with costs sanction.  In the present appeal, since Mr Wong had the good sense of cutting down the length of the oral hearing by focusing on proper arguments, we shall not make an order for indemnity costs.  However, as Mr Lam submitted, substantial costs had already been incurred by that stage.  We shall order the Plaintiff to pay the costs of the 1^st and 3^rd Defendants in the appeal on common fund basis. 

6. This should serve as a reminder to those coming before this court that misuse of the appellate process would be visited by costs sanction and, in an appropriate case, we would not hesitate to order costs on indemnity basis though, for the reasons given, we decide not to do so on this occasion.