LO KAI SHUI v. HSBC INTERNATIONAL TRUSTEE LTD AND OTHERS

CAMP 137 & 182/2022

[2022] HKCA 1363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 137 AND 182 OF 2022

(ON AN INTENDED APPEAL FROM HCA NO 404 OF 2018)

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D E C I S I O N

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Hon G Lam JA (giving the Decision of the Court):

Background

1.  There are two summonses taken out by the plaintiff before this court (in CAMP 137/2022 and CAMP 182/2022 respectively), both arising from the action below (HCA 404/2018). That action is a claim by the plaintiff alleging breaches of trust by the 1^st defendant, who is the trustee of a trust established for the benefit of members of the family of the late Mr Lo Ying Shek.

2.  The action was brought in February 2018. On 19 August 2019, the plaintiff issued a summons for leave to amend his Statement of Claim in the manner shown in the draft attached to the summons. On 30 September 2019, the 1^st and 2^nd defendants each issued a summons to strike out various parts of the plaintiff’s Statement of Claim on the ground, amongst others, that the plaintiff was estopped from, or was acting abusively in, advancing the relevant claims, having regard to the fact that similar claims brought by the plaintiff’s mother, Madam Lo, in her actions, namely HCA 3246/2016 and HCA 355/2018, had been rejected by the Court of First Instance in its judgment after trial dated 22 May 2019.[1] For his part, on 29 July 2020, the plaintiff took out a summons under Order 15 rule 14 of the Rules of the High Court (Cap 4A) (“RHC”) for an order that any judgment or order in Madam Lo’s actions shall not be binding on him in his action.

3.  The three applications mentioned in the preceding paragraph were determined by Wilson Chan J (“Judge”) in his Judgment dated 1 June 2021.[2] The Judge (1) allowed the 1^st and 2^nd defendants’ strike-out applications; (2) gave leave to amend for some of the amendments proposed by the plaintiff but refused to allow other parts which (other than those relating to the paragraphs struck out) mainly concern the allegation that certain individuals and entities were “allies” of the 2^nd defendant; and (3) dismissed the plaintiff’s Order 15 rule 14 summons.

4.  On 29 June 2021, the plaintiff lodged an appeal, as of right, against the Judge’s strike-out order. This is now listed as CACV 329/2021.

5.  The plaintiff had also issued on 15 June 2021 a summons for a direction from the Judge as to whether his orders dismissing the plaintiff’s Order 15 rule 14 application and application for leave to amend are orders determining in a summary way the substantive rights of a party to an action, in which case leave would not be required for an appeal. The plaintiff also sought, in the alternative, leave to appeal against those orders. For their part, the 1^st and 5^th defendants and 2^nd and 4^th defendants issued applications to vary the costs order nisi to an order that, inter alia, their costs be taxed on the indemnity basis.

6.  These subsequent applications were heard together by the Judge. By a further decision dated 19 April 2022,[3] the Judge held that leave to appeal was required. He granted leave in relation to the proposed amendments that overlapped with the struck out parts of the pleading (the appeal has now been lodged and is listed as CACV 181/2022), but refused leave to appeal in relation to the other proposed amendments and the Order 15 rule 14 application. The Judge accepted the defendants’ proposed variation on costs, and made an order that the costs of the strike-out applications, the Order 15 rule 14 application, and the application for leave to amend, be paid by the plaintiff on the indemnity basis.

7.  By summons in CAMP 137/2022, the plaintiff makes a renewed application to this court for leave to appeal in relation to his amendment application and his Order 15 rule 14 application. The plaintiff also seeks, direct from this court and without a prior application to the Judge, leave to appeal against the order for indemnity costs.

8.  Separately, while the defendants’ strike-out applications were pending in the court below, the plaintiff had on 16 January 2020 issued a summons (“Exclusion Summons”) to expunge one paragraph and certain parts of an exhibit from an affidavit filed by the 1^st defendant for its strike-out application. Subsequently the parties took out further summonses ancillary to the Exclusion Summons. These applications, which are described in greater detail below, were eventually disposed of by consent on 22 September 2020, except for the question of costs, which was left for determination by the Judge based on written submissions. By his Decision on Costs dated 29 December 2021,[4] the Judge awarded the costs of these applications to the 1^st and 2^nd defendants. The plaintiff sought leave from the Judge to appeal, which the Judge refused in his decision dated 23 May 2022.[5] The plaintiff has now issued a summons dated 6 June 2022 in this court in CAMP 182/2022 seeking again leave to appeal against that costs decision.

9.  We deal with the summonses in CAMP 137/2022 and CAMP 182/2022 in turn below.

CAMP 137/2022

10.  Having regard to the existence of CACV 329/2021 and CACV 181/2022 which will in any event require to be heard by this court, as a matter of case management we consider it desirable to direct a rolled-up hearing of paragraph 1 of the summons in CAMP 137/2022 which seeks leave to appeal in relation to the plaintiff’s amendment application and Order 15 rule 14 application, and of the appeal if leave be granted. This should be fixed to be heard together with the appeals in CACV 329/2021 and CACV 181/2022. The parties should seek to agree directions on the length of the combined hearing and the length of combined skeleton arguments for the court’s approval. The contents of the composite appeal bundles should be proposed for the Registrar’s approval.

11.  Insofar as paragraph 2 of the summons in CAMP 137/2022 is concerned, which seeks leave to appeal against the indemnity costs order made by the Judge on 19 April 2022, we take the view that it is appropriate to determine it on the basis of the written materials already submitted by the parties, pursuant to Order 59 rule 2A(5)(a).

12.  If the plaintiff succeeds in reversing the substantive orders made by the Judge, the costs order would automatically be re-opened for debate. We are here therefore only concerned with the situation where the plaintiff’s substantive appeals fail, leaving a “costs-only” appeal. Such an appeal can only be brought with leave: section 14(3)(e) of the High Court Ordinance (Cap 4). By Order 59 rule 2B(1)(b), an application for leave may only be made to the court in the first instance within 14 days of the order.

13.  Order 59 rule 2B provides:

“ (2) So far as is practicable, the application must be made to the judge or master against whose judgment or order leave to appeal is sought.”

“ (4) If the Court of Appeal allows, the application may be made direct to the Court of Appeal within 14 days from the date of the judgment or order.”

As pointed out by counsel for the 2^nd and 4^th defendants, it has been held by this court[6] in Singh Arjun v Secretary for Justice [2014] 2 HKLRD 678 at §5, that the power under rule 2B(4) to permit an application direct to the Court of Appeal for leave to appeal “must be confined to … very exceptional cases”.

14.  The plaintiff here has not even attempted to show any exceptional circumstances. All that is said is that his application below for leave to appeal (on the substantive orders) was issued and heard before the Judge acceded to the defendants’ variation application and ordered indemnity costs, and that in the “interests of procedural economy” the Court of Appeal is invited directly to grant leave under rule 2B(4). In our view, this is plainly not an exceptional case that warrants this course notwithstanding the rationales of having a first-tier application as discussed in Singh Arjun at §§6-10. The application should be dismissed for this reason alone. As stated in Singh Arjun at §12:

“ Unjustified attempt to sidestep the first-tier stage will not be entertained and this Court will dismiss an application which should be brought in the first instance to the court below.”

15.  In any event, we are satisfied that the application has no merit. It has been repeatedly emphasised that costs is very much a matter of the discretion of the primary court and that an appellate court should be circumspect in intervening. The established approach is that the Court of Appeal will only interfere when it is satisfied that the decision of the judge is either wrong in principle or plainly wrong. In the absence of such a palpable error, the mere fact that the appellate judges might have exercised the discretion in a different manner if they were the primary judge does not warrant interference with the decision below: Ho Shu Kwong v Chiang Chun Yuan [2002] 3 HKLRD 419; Poon Ching Man v Lam Hoi Pun [2016] 3 HKLRD 815, §34; Chan Shun Kei v Hong Kong Construction (Hong Kong) Ltd (CACV 192/2014, 7 March 2016), §22.

16.  In the present case, the Judge decided that costs of the strike-out application and of the claims which had been struck out should be ordered on the indemnity basis. He gave four reasons: (1) the plaintiff was found to have abused the court’s process by re-litigating matters raised in decided in Madam Lo’s actions and mounting a collateral attack on the court’s findings on those matters; (2) the plaintiff knowingly chose to risk abusing the process by maintaining the overlapping claims and “taking every conceivable point” in opposing the strike-out applications; (3) the plaintiff’s stance was wholly without merit and the arguments he deployed “clear non-starters”; and (4) the plaintiff’s abuse of process caused the defendants substantial prejudice and wasted the court’s time and resources. The Judge was clearly entitled, based on these reasons, to award costs on a higher basis. The plaintiff does not seek to appeal against this aspect of the indemnity costs order.

17.  In relation to the costs of the Order 15 rule 14 application and the amendment application, the Judge took the view that they were incidental to the strike-out applications and the struck out claims, stating as follows (footnotes omitted):[7]

“ (1) [The plaintiff] took out the O15 r14 Application in an attempt to circumvent the common law doctrines of res judicata and abuse of process which formed the basis of the 1^st defendant’s application to strike out the Overlapping Claims.

  (2) The primary aim of the Amendment Application was to expand upon and refine the Overlapping Claims.”

18.  The plaintiff contends that the Judge was plainly wrong because the Order 15 rule 14 application and the amendment application were conducted by the plaintiff as ordinary interlocutory applications without any special features to justify indemnity costs. It is also contended that the Judge erred in principle if and insofar as he failed to distinguish between the plaintiff’s conduct of the underlying action (which was found abusive) and his conduct of these two interlocutory applications.[8]

19.  We see no ground for interfering with the Judge’s exercise of discretion. The Judge considered, and the plaintiff does not deny, that the Order 15 rule 14 application was bound up with, and raised in opposition to, the defendants’ arguments on estoppel and abuse of process for their strike-out applications. This is a rational basis on which it was open to the Judge to order costs on the same basis as the strike-out applications.

20.  As for the amendment application, there is nothing to impugn the Judge’s view that the proposed amendments were intended to expand upon and refine the overlapping claims. From the table at §209 and §212 of the Judge’s judgment dated 1 June 2021, it can be seen that a great many proposed amendments related to the claims that were struck out. The proposed amendments which are the subject matter of the application to this court for leave to appeal were also closely related to the struck out claims: see §219 of the same judgment.

21.  Further, we agree with the submissions made on behalf of the 1^st and 5^th defendants that there is no principle or rule of law to prevent the Judge from looking at the plaintiff’s litigation conduct as a whole on the basis that the applications were part of an overall strategy of expanding upon and defending his claims which the Judge found to be abusive.

22.  For all these reasons, this part of the plaintiff’s summons must be dismissed with costs. We consider that costs should be ordered on the indemnity basis given that the application was brought direct in this court against the rules and was wholly without merits.

Conclusion

23.  Accordingly, on the plaintiff’s summons in CAMP 137/2022, we make the following orders:

(1)  There be a rolled-up hearing of the application for leave to appeal contained in paragraph 1 of the plaintiff’s summons dated 3 May 2022, and of the appeal itself if leave be granted. The rolled-up hearing be fixed to be heard together with the appeals in CACV 329/2021 and CACV 181/2022.

(2)  Paragraph 2 of the summons be dismissed. We further make an order under Order 59 rule 2A(8) that no party may request reconsideration of the determination at an oral hearing. Costs of paragraph 2 of the summons be paid by the plaintiff to the 1^st and 5^th defendants and the 2^nd and 4^th defendants, to be taxed on the indemnity basis if not agreed, with a certificate for two counsel in the case of the 1^st and 5^th defendants.

CAMP 182/2022

Background

24.  As mentioned above, by the Exclusion Summons dated 16 January 2020, the plaintiff applied for an order that Tabs G-1 and G-2 (“Tabs”) of Exhibit YSYS-1 to the affidavit of Yiu Susan Yuen Shan dated 30 September 2019 (“Affidavit”), which had been filed by the 1^st defendant in support of its application to strike out parts of the Statement of Claim, “be excluded as evidence in this action” and that paragraph 18 of the Affidavit “be struck out or expunged”. The Exclusion Summons was returnable before the court on 24 September 2020.

25.  The Tabs are respectively an audio recording of a conversation between the plaintiff and his mother recorded by her maid apparently without their knowledge (“Recording”) and the transcript of parts of that recording (“Transcript”). The plaintiff objected to “the admission into evidence” of the Recording and the Transcript on the grounds that (a) no leave was obtained by the 1^st defendant for utilising the Recording, contrary to an order made in Madam Lo’s actions; and (b) the Recording and the Transcript are hearsay evidence, the exclusion of which is not prejudicial to the administration of justice.

26.  After the Exclusion Summons was issued, there was a series of correspondence between the parties’ solicitors on the scope of the Exclusion Summons and the possibility of disposing of it by consent. Nevertheless, the parties failed to reach an agreement.

27.  Three further summonses were in due course taken out:

(1)  On 24 July 2020, the plaintiff took out a summons (“Amendment Summons”) returnable before the Judge on 24 September 2020 for leave to amend the Exclusion Summons with a view to adding a relief that “no party be entitled to rely on or adduce the material contained in the Tabs” for the purposes of or at the hearing of the 1^st and 2^nd defendants’ strike-out summonses.

(2)  On the same date (i.e. 24 July 2020), the plaintiff also took out a summons returnable before the Judge on 3 September 2020 (“Directions Summons”) for directions for the filing of evidence and submissions in respect of the Exclusion Summons and the Amendment Summons.

(3)  On 4 August 2020, the 1^st defendant took out a summons returnable before the Judge on 3 September 2020 (“Withdrawal Summons”) for an order that the 1^st defendant be given leave to withdraw the Tabs and paragraph 18 of the Affidavit and that the same be expunged from the Court’s record.

28.  At the hearing on 3 September 2020, the Judge made an order in terms of the Withdrawal Summons and reserved the question of costs to the hearing on 24 September 2020. The Judge also gave directions for the filing of evidence in respect of the Exclusion Summons and the Amendment Summons.

29.  On 18 September 2020, the parties filed a consent summons (“Consent Summons”) for an order that (a) the plaintiff be given leave to withdraw the Exclusion Summons and the Amendment Summons; (b) the hearing on 24 September 2020 be vacated; and (c) the issue of costs of the Exclusion Summons, Amendment Summons, Withdrawal Summons, Directions Summons and Consent Summons (collectively “Summonses”) be disposed of on paper. The Judge made an order in terms on 22 September 2020.

30.  It was against the above background that the costs of the Summonses fell to be determined by the Judge.

The Judge’s decision on costs

31.  In his Decision on Costs dated 29 December 2021 (“Decision on Costs”), after examining the positions adopted by the parties in correspondence and at the 3 September 2020 hearing, the Judge ordered the plaintiff to pay the costs of each of the Summonses to the 1^st and 2^nd defendants. As far as the 1^st defendant was concerned, the Judge held that:[9]

(1)  The core dispute between the parties was whether the plaintiff is entitled to exclude the use of the Recording and the Transcript not just for the purposes of the 1^st defendant’s strike-out application, but also at trial and more generally in the action.

(2)  The 1^st defendant’s position was that it was willing not to rely on the Recording and Transcript for the purposes of the strike-out application, but was entitled to reserve its right to make use of them at some other point in time in the action. The plaintiff unreasonably failed to accept this proposal, which necessitated the Withdrawal Summons.

(3)  This core dispute was ultimately resolved in the 1^st defendant’s favour. Notwithstanding the plaintiff’s active opposition,[10] an order was made in terms of the Withdrawal Summons on 3 September 2020, following which the plaintiff withdrew his Exclusion Summons and Amendment Summons.

(4)  In these circumstances, the plaintiff should pay the 1^st defendant’s costs as (a) the plaintiff was not the “effective winner”, and (b) the plaintiff’s conduct was unreasonable, resulting in substantial wastage of time and costs.

32.  As far as the 2^nd defendant was concerned, the Judge noted that the Affidavit and Tabs were filed by the 1^st defendant and that the 2^nd defendant had filed his own evidence in support of his strike-out application and had not at any point sought to rely on the Recording in his strike-out application.[11] As to the confirmation sought by the plaintiff to the effect that the 2^nd defendant would not seek to reintroduce the Recording and Transcript into the evidence in support of his strike-out application,[12] the Judge was of the view that such confirmation would impermissibly restrict the 2^nd defendant’s right to file his evidence in reply to the plaintiff’s evidence in opposition, though the 2^nd defendant did eventually provide the confirmation by affirmation on 14 September 2020 after reviewing the plaintiff’s evidence in opposition on 11 September 2020. The Judge ordered the plaintiff to pay the 2^nd defendant’s costs of the Summonses in the light of the plaintiff’s unreasonable conduct “in seeking to involve the 2^nd defendant in what was entirely a dispute between the plaintiff and the 1^st defendant as to the evidence filed by the 1^st defendant’s strike-out application”.[13]

33.  The plaintiff applied for leave to appeal, but leave was refused by the Judge on 23 May 2022. The Judge considered that the plaintiff’s proposed grounds of appeal are no more than a rehash of the rejected arguments. The Judge also held that the core dispute was ultimately resolved in the 1^st defendant’s favour and that the 2^nd defendant’s initial refusal to provide the confirmation sought was reasonable. The Judge was not satisfied that the plaintiff’s intended appeal had any reasonable prospect of success.

The intended grounds of appeal

34.  The plaintiff now renews his leave application in this court. The four intended grounds of appeal as set out in the draft Notice of Appeal are broadly as follows:

(1)  The plaintiff achieved substantially what he sought against the 1^st defendant.

(2)  The plaintiff’s conduct was not unreasonable as against the 1^st defendant.

(3)  The plaintiff achieved substantially what he sought and was not unreasonable against the 2^nd defendant.

(4)  The Judge did not apply an independent mind by reproducing substantial portions of the submissions on costs of the 1^st and 2^nd defendants. In the plaintiff’s written statement in support of its application for leave to appeal, however, this ground is not advanced as a separate ground, though complaints are made in the context of Ground 2 that the Judge was wrong in adopting verbatim certain submissions of the 1^st defendant.

35.  According to the draft Notice of Appeal, the plaintiff wishes to seek an order that the 1^st defendant and/or the 2^nd defendant do pay the costs of the Summonses, or alternatively an order that the 1^st defendant do pay the costs of the plaintiff up to the date of the Withdrawal Summons (i.e. 4 August 2020) and the 2^nd defendant do pay the costs of the plaintiff thereafter.

Discussion

36.  The principles concerning a costs-only appeal such as this one have been referred to in §15 above. In the circumstances of this application, the institutional disadvantage of this court in re-assessing the question of costs is particularly relevant. The Judge’s decision concerns the liability of costs in respect of 5 interlocutory summonses. Because of the way in which the matter had developed in the court below (including the withdrawal of the Exclusion Summons and the Amendment Summons such that no order was actually made on those summonses), we did not have the benefit of a reasoned judgment by the Judge on the substantive merits of the Summonses. Insofar as the plaintiff sought to justify his position with reference to what happened at the 3 September 2020 hearing (when the Withdrawal Summons was disposed of), there was no transcript of that hearing before us. The plaintiff’s selective inclusion of, and reference to, the inter partes correspondence in this application do not vouchsafe a holistic view of the matter. This court is far from being as well placed as the Judge in assessing the reasonableness or otherwise of the positions adopted by the parties in respect of the Summonses, or the burden of costs associated with particular steps or events.

37.  With these observations in mind, we now address each of the intended grounds of appeal in turn.

38.  Under Ground 1, the plaintiff submits that the Judge erred in failing to have regard to the principles set out in Perrine Chamonix Ltd v Star League Ltd & another (HCA 1139/2017, 13 September 2017) at §§23-28, and that the plaintiff could not have obtained the reliefs eventually embodied in the Withdrawal Summons but for the Exclusion Summons and the Amendment Summons. The plaintiff contends that the outcome was a substantial success for him, even though he did not obtain an order in exactly the same terms as he had sought in those two summonses.

39.  Perrine Chamonix does not lay down any hard and fast rule on costs. As acknowledged in §25 of Perrine Chamonix itself, the court does not adopt a mechanical approach, but looks into the substance and merits of an application. It was also acknowledged in §28 of Perrine Chamonix that the court has a full discretion after taking all the circumstances of the case into consideration. If anything, the holding of the Judge in §23(4) of the Decision on Costs that the plaintiff was not the “effective winner”, dispels any suggestion that the Judge merely looked at the outcome of the Summonses without any regard to the substance.

40.  What has been asserted to be the “substantial success” by the plaintiff cannot be considered in isolation without regard to the underlying dispute between the parties.

(1)  The Withdrawal Summons was preceded by a dispute between the plaintiff and the 1^st defendant over the scope of the Exclusion Summons. By way of the Exclusion Summons, the plaintiff sought to exclude the Tabs as evidence in the action, and not merely for the purpose of the strike-out applications. The intention of the plaintiff in seeking a broader exclusion was evident from the wording of the Exclusion Summons itself and the supporting affirmation filed in support.

(2)  Contrary to the submission made in §6 of the plaintiff’s written statement, we do not accept that the matter had been subsequently “clarified” by the plaintiff. First, the letter from the plaintiff’s solicitors dated 31 March 2020 maintained the position that an order in terms of the Exclusion Summons would mean that no party would be able to rely on the Tabs “whether in the strike-out applications or at any other stage in the action (including at trial)” (italics added). Secondly, the plaintiff still sought to exclude the Tabs “as evidence in this action” when he took out the Amendment Summons on 24 July 2020. Thirdly, as shown in §10 of his written submissions filed for the 3 September 2020 hearing, the plaintiff’s position remained that he was entitled to seek “broader relief” than that provided by the 1^st defendant in the Withdrawal Summons.

(3)  In light of these positions adopted by the plaintiff, we are unable to see how the Judge could be said to be plainly wrong in his identification of the “core dispute” between the parties in §23(1) of the Decision on Costs. We are also not satisfied that the Judge was plainly wrong or wrong in principle in holding that the core dispute was ultimately resolved in the 1^st defendant’s favour and in concluding that the plaintiff was not the “effective winner”.

41.  For the above reasons, there is in our view no reasonable prospect of success under Ground 1.

42.  Ground 2 concerns the reasonableness of the plaintiff’s conduct as against the 1^st defendant and is directed at §23(2) and §23(4)(b) of the Decision on Costs. The plaintiff submitted that he had not “simplistically opposed” the Withdrawal Summons because his primary position was that the Withdrawal Summons should be adjourned and heard together with the Exclusion Summons.[14]

43.  In our view, there is no substance in Ground 2. If the plaintiff truly had no objection to the Withdrawal Summons, he could have easily agreed to an order being made in terms prior to the 3 September 2020 hearing. In fact the 1^st defendant had offered that it would not adduce or otherwise rely on the materials in question for the purposes of the strike-out applications as early as 8 July 2020. The plaintiff however wished to preclude any use of those materials in the proceedings more generally (including the trial). Even after the Withdrawal Summons was issued by the 1^st defendant. the plaintiff’s written submissions filed for 3 September 2020 hearing (at §§11-12) made it clear that his “non-opposition” to the Withdrawal Summons was loaded with conditions. We do not consider that the Judge committed any error of principle or was otherwise plainly wrong in his assessment of the reasonableness of the plaintiff’s conduct as against the 1^st defendant. As to the complaint under Ground 2 that the Judge adopted verbatim certain submissions of the 1^st defendant on costs, we do not think that this in itself gives any support for Ground 2. We are satisfied that no leave should be given under Ground 2.

44.  Ground 3 concerns the plaintiff’s position vis-à-vis the 2^nd defendant. In essence, the plaintiff submitted that the Amendment Summons was taken out in light of the 2^nd defendant’s reluctance to give the confirmation sought and that the plaintiff achieved substantially what he sought when the 2^nd defendant eventually provided it.[15]

45.  We are not satisfied that there is any reasonable prospect of success under Ground 3. The Tabs were part of the exhibit to the Affidavit, which was filed by the 1^st defendant and not by the 2^nd defendant. Neither the Exclusion Summons nor the Amendment Summons sought to exclude any evidence filed by the 2^nd defendant in support of his strike-out application. In the premises, the Judge was entitled to take the view that the matter was essentially a dispute between the plaintiff and the 1^st defendant and that the plaintiff’s persistence in seeking the confirmation from the 2^nd defendant was unreasonable. The Judge was also entitled to take the view that the 2^nd defendant was entitled to wait and see the plaintiff’s evidence before deciding what evidence to file in reply and that the 2^nd defendant therefore could not be said to have unreasonably failed to confirm his position earlier. It is difficult to see any basis for the plaintiff’s stance that the 2^nd defendant should be required to pay the plaintiff’s costs of all the Summonses or the costs after the Withdrawal Summons was issued.

46.  As regards Ground 4, which is not advanced in the plaintiff’s written statement, we may deal with it briefly. The real point arising from copying a party’s submissions is whether the Judge had, and could be seen to have, brought an independent mind to his judicial function: Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, §§448-455. Having considered the 1^st defendant’s written submissions on costs,[16] we are not satisfied that in the context of the Decision on Costs the degree or manner of verbatim reproduction is such that it is reasonably arguable the Judge had failed to apply his independent mind to the question before him. We therefore refused to grant leave under Ground 4.

Conclusion

47.  For the above reasons, we are not satisfied that the intended appeal has a reasonable prospect of success or that there is any other reason in the interests of justice why the appeal should be heard. The plaintiff’s summons is therefore dismissed with costs to the 1^st and 2^nd defendants.

48.  Since the application is in our view totally without merit, we further make an order under Order 59 rule 2A(8) that no party may request the determination be reconsidered at an oral hearing inter partes.

49.  Both the 1^st and 2^nd defendants invited us to award costs on the indemnity basis. In our view, there are no such special or unusual features in this case as to call for a higher scale of costs. We therefore order costs on the party and party basis. Having considered the statements of costs filed by the 1^st and 2^nd defendants, we summarily assess the costs of the 1^st defendant in the sum of $73,000 and the costs of the 2^nd defendant in the sum of $78,000.