CHAN TAT MAN AND OTHERS v. TSOI YUK MING AND OTHERS

cacv 122/2008

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 122 of 2008

(on appeal from HCA NO. 2028 of 2007)

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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 judgment of Deputy High Court Judge Carlson given on 18 April on an application by the parties, who I shall call the 1st and 2nd Interveners, that they should be given leave to intervene in proceedings which are proceedings between the 1st Plaintiff and his camp and the 1st Defendant and his camp, as to whether the 1st Plaintiff should be entitled to represent the company in arbitration proceedings.

2.  The judge refused leave to intervene because he said, in effect, that this was an internal matter in respect of the company and an internal matter as to who would be entitled to represent the company between, as I say, the two camps.

3.  Following that, on 26 May, the same judge made the following order on the application of the Plaintiffs and the 1st and 2nd Defendants; the order made was:

“Upon the parties having come to an agreement in relation to, inter alia, the conduct of the arbitration as defined in paragraph 11(c) of the amended statement of claim filed herein, the Plaintiffs do have leave to withdraw their claims against the Defendants in this action.”

Then certain ancillary orders were made in respect of the summonses; they were vacated, and the question of costs was dealt with.

4.  Following that, a notice of discontinuance has been served in respect of the 3rd and 4th Defendants, who had not entered appearance in this case and therefore were not bound by and not parties to the order made on 26 May.

5.  So in effect, this action is dead.  I do not see how this court could possibly make an order allowing intervention in a case where the action is dead.

6.  Mr Strachan, who has manfully dealt with the objections raised by the court right from the beginning on this application, has argued that this court should hear this appeal as an academic appeal, because otherwise his clients might be in trouble in the arbitration.

7.  I do not see, on the basis of this judgment, why his clients should be in trouble in raising any points they want to in the arbitration, but be that as it may, this court is very reluctant to entertain academic appeals, as has already been made clear in other cases, and I do not consider that this is a case where an academic appeal should be allowed to continue.

8.  In those circumstances, I regret that the only alternative I can see in this case is for this court to dismiss this appeal.

Hon Le Pichon JA:

9.  I agree.