B + B CONSTRUCTION LTD. v. SUN ALLIANCE AND LONDON INSURANCE plc

CACV 18/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 18 OF 2000

(ON APPEAL FROM HCA 11977/1999)

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J U D G M E N T

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Hon Godfrey VP :

1. This is an application for leave to appeal to the Court of Final Appeal under section 22 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 ("the Ordinance"). Section 22 is in the following terms :-

"22. Civil appeals

(1) An appeal shall lie to the Court in any civil cause or matter-

(a) as of right, from any final judgment of the Court of Appeal, where the matter in dispute on the appeal amounts to or is of the value of $1,000,000 or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more; and

(b) at the discretion of the Court of Appeal or the Court [of Final Appeal], from any other judgment of the Court of Appeal, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court [of Final Appeal] as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision."

2. The proceedings which gave rise to the order which this court made on 3 May 2000 and leave to appeal against which is now sought were proceedings in an action brought by the plaintiff against the defendant by way of a claim on a policy of insurance.

3. In that action, the plaintiff took out a summons under Order 14 for summary judgment, and the defendant took out a summons under Order 18 rule 19 to strike out the action. Both summonses came before Yam J. It was agreed that the question which divided the parties was a question as to the true construction of the policy of insurance upon which the plaintiff relied. The parties further agreed that the decision of the court on that question of construction would be dispositive of the action. They made no further or other agreement. The judge decided the question of construction in favour of the plaintiff. On appeal to this court, this court decided the question of construction in favour of the defendant and set aside the judgment below.

4. At no stage in the proceedings did the parties apply to the judge or to this court to treat the parties' interlocutory summonses as summonses for judgment, as they could have done. In the result, all that was before the judge, and this court, were the two interlocutory summonses to which I have referred. That may be unfortunate (as is the fact that in the form of order eventually approved by this court, there was inserted, on the initiative of the court, a declaration as to the rights of the parties for which neither party had in fact asked). So the order which was made by the judge, and the order which this court made on the appeal from him, was an order made only in relation to the two interlocutory summonses which were before the judge and which, on appeal, were before this court.

5. In these circumstances, we are not satisfied that the order made by this court on 3 May 2000 was a "final" order for the purposes of section 22 of the Ordinance.

6. We were pressed to hold that, even if we were of that view (so that no appeal would lie to the Court of Final Appeal from this court as of right) nevertheless, we should, as a matter of discretion, give leave to appeal. We do not think it just to exercise our discretion in that way. There is here, in our view, no matter of great general or public importance, or otherwise, which ought to be submitted to the Court of Final Appeal for decision.

7. So we do not think it right to exercise our discretion in favour of the applicant. We will accordingly dismiss this application, with costs. Of course, the applicant has a right to apply to the Court of Final Appeal for the leave which we have refused.