TAI HING COTTON MILL LTD. v. GLENCORE GRAIN ROTTERDAM BV and Another

IN THE COURT OF APPEAL

1995, No. 143
(Civil)

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J U D G M E N T

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Bokhary, J.A.:

1. This is the judgment of the Court. The plaintiff was wholly successful before Findlay J and wholly unsuccessful in the appeal before us.

2. Plainly, the defendants must have the costs before Findlay J and of the appeal before us.

3. We do not think that, as things stand, we should order that any of those costs be taxed on any basis other than the usual party and party basis.

4. A number of suggested reasons why we ought to direct costs to be taxed on a common fund or even indemnity basis have been ably advanced by Mr Scott for the defendants. We reject all of those reasons; and there is only one which we think requires specific mention. Mr Scott submits that indemnity costs or at least common fund costs should he ordered as a deterrence against - and we take this from his skeleton argument - "opportunistic attempts to circumvent the parties' chosen method of dispute resolution".

5. That would be an extension of the established general practice. And we do not think that such an extension ought to be made - at least not in the present case. But there may come a time when that extension ought to be followed. Indeed, the next case of this kind may be an occasion for such a step, given our decision of November 24, 1995. But we do not feel able to say that the position was so clear prior to that decision as to justify indemnity or even common fund costs being ordered in the present case.

6. In the present case, therefore, the defendants must be left to, if so advised, pursue an arbitration award representing the difference between taxed and actual court costs.

7. That leaves, apart from the costs of today to which we will come after hearing counsel on it separately, the $287,009 paid into court by the defendants pursuant to the Order of Mayo JA dated September 27, 1995, as security for the plaintiff's costs of this appeal. For some unexplainable reason, the plaintiff refused to join in with the defendants in securing the release to the defendants' solicitors of the money in court.

8. Such refusal is wholly inexplicable; and counsel for the plaintiff was unable to offer any argument even to explain, let alone justify, it. Apparently those were his instructions. How it was thought appropriate by his solicitors, they being officers of the court, to pass on to counsel such instructions is a mystery. Anyway, we move on from that in the hope and expectation of better things in future.

9. All we need to say is that the money in court and interest thereon shall be released to the defendants' solicitors forthwith.

10. It remains only to hear counsel on the question of the costs of this morning.

[Counsel address the Court]

11. There is no opposition to Mr Scott's application for the costs of today; and those we award to the defendants, also to be taxed on a party and party basis.