XCHRX THE HALLA LIBERTY

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY JURISDICTION

Action No. HCAJ 46 of 1998

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J U D G M E N T

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1. This is an application by the Defendants for leave to go to the Court of Appeal on costs only, on an order relating to costs which I made on 15th October 1998. What happened was this in relation to this vessel. Some other people had arrested the vessel but there were a large number of claims against the vessels. I had been told the number of Writs in Rem issued against the vessel are in excess of 35.

2. The vessel was sold for some US$12 million. The total amounts of all the claims against the ship vastly exceed this sum and in fact Mr. Toms informed me today that just the claim of the mortgagee is in excess of the value of the vessel sold.

3. There is a also claim by this AJ Action by the crew. I gave judgment in favour of the crew and the amount of the judgment is not material. What is material is the amount of the costs of the crew's Action. Somewhat unusually the Defendants represented by Sinclair Roche have entered into the picture and apparently by correspondence, the solicitors for the crew that is Clyde and solicitors for the Defendants, Sinclair Roche had agreed a cost of the crews Action in the sum of HK$175,000.00. They sought the approval of the other claimants for that agreed costs. The other claimants including Deacons and Holmans objected and said the agreed cost amount was too high. They had entered caveats against the vessel.

4. When the matter came before me, it was sought from the court by the crew an order of high priority of the crew's claim and this of course presented no problem because the crew always enjoyed a very high priority. However, the costs order did present a problem. Having regard to the correspondence that was handed up to me from Holmans and from Deacons which indicated that $175,000.00 was too high, I had indicated that it was not appropriate in the particular circumstances to grant the order of agreed costs sought by Clyde for the Plaintiffs and Sinclair Roche for the Defendants. No one had asked me to make a gross sum order under Ord. 62 r. 9(4)(b) which is of course possible because then there would be an independent court's view of what is the proper costs figure, nor did anyone ask the matter to be adjourned. In the circumstances, having regard to the particular situation in the case, I therefore made the order I did, namely that the costs should be taxed and not in the agreed amount.

5. Now, there is an application by the Defendants, not by the Plaintiffs, to seek leave to appeal to the Court of Appeal. I emphasise this fact of application by the Defendants because in Admiralty it is most unusual for a defendant to be seeking to appeal in a situation such as this. The defendant usually would not be involved in the action, having regard to the high number of claims which would overtop the value of the vessel sold. However in this case, the Defendants and not the Plaintiffs are seeking leave to appeal and Mr. Toms explained to me the reasons for the Defendants having an interest in appealing is and this is convoluted, that at the end of day, when the total claims would vastly exceed the amount of the value of the ship sold, they the Defendants have interest in reducing the total amounts including costs (which is minimal) because then they would be pursued by the other claimants including the mortgagee in other proceedings.

6. None of this is on Affidavit and none of this material had been put before me and I indicated to Mr. Toms that when they are seeking leave to appeal from the Court of Appeal that all these materials should be put before the Court of Appeal. But that is only one of the difficulties of the Defendants.

7. The major difficulty as I see it is that the exercise of my discretion turned on the particular facts of the case and was a decision made in these circumstances that no general principle was involved and I hope no injustice was done to the parties at the at that time.

8. The application is now brought very much out of time , the order was made 2 months ago, and I can see no merit and no justification for the application of leave to appeal. I take it also from the Notice of Application that no notice had been given to any of the other interested parties such as the caveators. So I have not had the benefit of their views on the matter. Leave to appeal is refused with costs.