ASTRO NUSANTARA INTERNATIONAL B.V.AND OTHERS v. PT AYUNDA PRIMA MITRA AND OTHERS

HCCT 45/2010

CONSTRUCTION AND ARBITRATION PROCEEDINGS NO. 45 OF 2010

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D E C I S I O N
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INTRODUCTION

1.  On 17 February 2015, I handed down a judgment (“the Judgment”) dismissing the application of the 2^nd defendant (“First Media”) by summons dated 18 January 2012 seeking, inter alia:

(1) an extension of time to apply to set aside –

(a) two orders made by Mr Justice Saunders on 3 August 2010 and 20 September 2010 respectively (collectively “the Hong Kong Orders”) granting leave to the 1^st to 8^th applicants (hereinafter collectively referred to as “Astro”) to enforce five foreign arbitration awards (“the Awards”);

(b) the judgment of Mr Justice Saunders entered on 9 December 2010 (“the Hong Kong Judgment”) pursuant to the Hong Kong Orders;

(2) an order that the Hong Kong Orders and Hong Kong Judgment be set aside; and

(3) an order that the Garnishee Order to Show Cause (“the Garnishee Order Nisi”) made by Master Levy on 22 July 2011 be discharged.

2.  The basic facts of this case were set out in the Judgment.  I shall not repeat them here.

3.  I have now before me the following applications:-

(1) First Media’s summons dated 2 March 2015 (“the Leave Summons”) seeking a direction on whether the Judgment is one that is referred to in Order 59, rule 21(1)(a) of the Rules of the High Court and, if required, leave to appeal against the Judgment;

(2) First Media’s summons dated 2 March 2015 (“First Media’s Stay Summons”) seeking an extension of the order of Madam Justice Mimmie Chan dated 24 January 2014 (“the Stay Order”) staying the execution of the Garnishee Order Absolute made by Deputy High Court Judge Mayo on 31 October 2013 until the determination of First Media’s appeal against the Judgment;

(3) First Media’s summons dated 2 March 2015 (“the Costs Summons”) seeking a variation of the costs order nisi made by me on 17 February 2015 such that First Media shall pay 60% of Astro’s costs (or such other percentage as the court shall think fit) of First Media’s summons dated 18 January 2012 to be taxed if not agreed, with certificate for three counsel; and

(4) AAL (the garnishee)’s summons dated 4 March 2015 (“AAL’s Stay Summons”) seeking an extension of the Stay Order pending the final determination of AAL’s appeal in CACV 251/2013 against the Garnishee Order Absolute and/or the final determination of First Media’s appeal against the Judgment.

The Leave Summons

4.  Mr Mark Strachan SC (for First Media) submits that leave to appeal against the Judgment is not required either because it is a “final” judgement or order, or because, albeit interlocutory, it is one referred to in Order 59, rule 21(1)(a) of the Rules of the High Court (ie a judgment or order determining in a summary way the substantive rights of a party to an action).

5.  As I understand it, First Media’s contention is based on the fact that in the Judgment, I not only declined to grant an extension of time to First Media to apply to set aside the Hong Kong Orders and Hong Kong Judgment, but also made it clear that even if I were minded to grant an extension of time, I would still have refused First Media’s setting aside application on the ground that First Media’s conduct was not consonant with the “good faith” principle such that it was precluded from relying on section 44(2) of the Arbitration Ordinance, Cap 341 (“the Ordinance”) to resist enforcement of the Awards.

6.  For the present purpose, it seems to me to be important that once the extension of time sought was refused by the court, there was no question of the court granting any substantive order to set aside the Hong Kong Orders and Hong Kong Judgment. The substantive setting aside application would, strictly speaking, not arise for consideration.  That was why, at paragraph 132 of the Judgment, I stated that “… I decline to exercise my discretion to extend the time for First Media to apply to set aside the Hong Kong Orders, with the consequence that First Media’s summons dated 18 January 2010 shall be dismissed in its entirety”.  In my view, the decision refusing to grant an extension of time to First Media to apply to set aside the Hong Kong Orders and Hong Kong Judgment was determinative of the First Media’s setting aside application and, therefore, whether leave to appeal against the Judgment to the Court of Appeal is required should be tested by reference to that decision.

7.  On this basis, it seems to me clear that the Judgment cannot be regarded as being a final judgment or order, applying the well known “application test”.  See Hip Hing Timber Co Ltd v Tang Man Kit (2004) 7 HKCFAR 212, at paragraph 38, per Lord Millet NPJ –

“ … an order is a final order if, whatever the outcome of the application on which it is made, it is finally determinative of the entire cause or matter. An order is also regarded as a final order if, although not finally determinative of the entire cause or matter, it is finally determinative of a crucial or substantive issue in the cause or matter.”

8.  The cause of matter in these proceedings is the enforcement of the Awards.  It is plainly not correct to say that an order made on First Media’s application for an extension of time to apply to set aside the Hong Kong Orders and Hong Kong Judgment, whatever its outcome, would be finally determinative of whether the Awards ought to be permitted to be enforced in Hong Kong.  Neither would such an order be finally determinative of any crucial or substantive issue in the enforcement of the Awards.

9.  Further, and for the same reason, I do not consider the Judgment to be one determining in a summary way the “substantive rights” of a party to an action within the meaning of Order 59 rule 21(1)(a) of the Rules of the High Court.  I agree with the submission of Mr Bernard Man SC (for Astro) that the Judgment determines the “procedural”, as opposed to “substantive”, rights of First Media to apply to set aside the Hong Kong Orders and Hong Kong Judgment.  I therefore consider that leave to appeal against the Judgment is required under section 14AA(1) of the High Court Ordinance.

10.  On the question of whether leave to appeal ought to be given, under section 14AA(4) of the High Court Ordinance, leave to appeal from an interlocutory judgment or order of the Court of First Instance shall not be granted unless the court hearing the application for leave to appeal is satisfied that:-

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.

11.  The expression “reasonable prospect of success” for the purpose of section 14AA(4)(a) has been interpreted to mean that the prospects of success of the appeal are more than “fanciful” but do not have to be shown to be “probable”: see SMSE v KL [2009] 4 HKLRD 125, at paragraph 17 per Le Pichon JA.  This threshold is not a high one.

12.  I refer to the discussion of the various issues raised by the parties in the Judgment and do not propose to repeat them here.  Although I have reached certain conclusions on those issues, including in particular that time should not be extended to First Media to apply to set aside the Hong Kong Orders and Hong Kong Judgment, and also that, in any event, First Media should not be permitted to rely on section 44(2) of the Ordinance to resist enforcement of the Awards on the ground that it had acted in breach of the “good faith” principle, the contrary views are, in my view, reasonably arguable.

13.  I consider that First Media’s proposed appeal has a “reasonable prospect of success” within the meaning of section 14AA(4)(a).  Also, the proper scope of the “good faith” principle for the purpose of enforcement of a foreign arbitral award is, in my view, an issue of general or public importance.  I would therefore grant leave to appeal on both limbs under section 14AA(4).

14.  I shall deal with Astro’s argument that leave to appeal should only be granted on condition that First Media pays into court the amount of the granisheed debt and the costs incurred by Astro in these proceedings (“the Payment Condition”) later in this decision when I consider Astro’s further argument that, in the event of the court granting a stay of execution of the Garnishee Order Absolute under First Media’s Stay Summons and/or AAL’s Stay Summons, such stay should be subject to the same condition.

First Media and AAL’s Stay Summonses

15.  The principles governing an application for a stay of execution of a judgment pending appeal are well established.

(1) The applicant is required to demonstrate a “good reason” for a stay of execution.

(2) Generally speaking, the existence of merely an arguable appeal cannot by itself amount to a sufficient reason to justify a stay. It is the minimum requirement before a court would even begin to consider granting a stay.

(3) In other words, if the court is not convinced that there exist arguable grounds of appeal, no stay will be granted however exceptional the circumstances may otherwise be justifying a stay of execution.

(4) On the other hand, the existence of a strong appeal or a strong likelihood of success will usually by itself enable a stay to be granted because this would constitute a good reason for a stay.

(5) In most cases, where the court is faced with simply the existence of an arguable appeal, it becomes necessary for the applicant to provide additional reasons as to why a stay is justified.

(6) Commonly, this is done by demonstrating that without a stay the appeal would be rendered nugatory, for example, because of an appreciable risk that the respondent to the appeal would not be able to repay in the event of a successful appeal against a money judgment, or because the failure to grant a stay would have a serious deleterious effect on the applicant.  

(7) In considering an application for a stay pending appeal, it would be impractical and even undesirable for the court to go deeply into the merits or strengths of the appeal, although the court must still form a preliminary view of these aspects.

For the above principles, see the judgment of Ma J (as he then was) in Stay Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84.

16.  In the present case, I have already concluded that First Media’s appeal against the Judgment has a “reasonable prospect of success” for the purpose of leave to appeal.  For the same reason, I consider that First Media also has “arguable grounds of appeal” for the purpose of stay of execution.  I do not, however, consider that First Media has a strong appeal or a strong likelihood of success in its appeal.

17.  If the Court of Appeal should ultimately find that the Hong Kong Orders and Hong Kong Judgment should be set aside, it would follow that the Granishee Order Nisi should not be made absolute. Accordingly, AAL also has “arguable grounds of appeal” against the decision of Deputy High Court Judge Mayo given on 31 October 2013 ordering that the Granishee Order Nisi be made absolute.

18.  In passing, I should mention that AAL has advanced other grounds of appeal in its Supplementary (Amended) Notice of Appeal dated 3 March 2015 to challenge various findings and conclusions reached by the learned deputy judge, including (i) the situs of the debt (the subject matter of the garnishee order), (ii) anti-suit injunction, (iii) collusion, and (iv) double jeopardy.  I do not propose to examine the validity of these grounds of appeal separately because (for reasons which I shall come to later) I consider it clear that a stay of execution of the Garnishee Order Absolute ought to be granted even if one were to focus only on the question of whether the Hong Kong Orders and Hong Kong Judgment ought to be set aside.

19.  On the basis that both First Media and ALL have arguable grounds of appeal, it is still necessary for them to provide additional reasons as to why a stay is justified.

20.  It seems to me clear that a stay of execution ought to be granted in the present case because, in the absence of a stay, the proposed appeal may be rendered nugatory, Astro being a company resident out of the jurisdiction and there being no suggestion that it has any assets within the jurisdiction from which First Media and AAL could seek to recover the moneys paid to Astro in the event of their appeals being successful. In this regard, I note that in Mr Man’s skeleton submissions for Astro dated 16 October 2015, he argues that First Media and AAL’s respective stay applications ought to be dismissed, not because there is no risk of the appeals being rendered nugatory in the absence of any stay, but because of the “utter lack of merit” in both appeals (a submission which I am unable to accept).

Leave to appeal and stay of execution should not be subject to the payment condition

21.  On behalf of Astro, Mr Man has sought to achieve the result of compelling First Media and AAL to pay into court the amount of the granisheed debt and the costs incurred by Astro in these proceedings by two separate routes, either as a condition of the court granting to First Media leave to appeal or as a condition of the court granting to First Media and AAL a stay of execution pending appeal.

(i) Court has jurisdiction to grant leave to appeal conditional upon payment into court

22.  In relation to the former route, Mr Strachan submits that the court has no jurisdiction to require a prospective appellant to pay the judgment sum (or any part thereof) into court as a condition of granting leave to appeal.

23.  I am unable to accept Mr Strachan’s submission. In my view, the court’s jurisdiction to impose, as a condition of granting leave to appeal (where leave is required), a requirement on the appellant to pay the judgment sum (or any part thereof) into court can be found in:-

(1) section 14AA(3)(b) of the High Court Ordinance, which provides as follows: “Leave to appeal for the purpose of subsection (1) may be granted – subject to such conditions as the court hearing the application for leave considers necessary in order to secure the just, expeditious and economical disposal of the appeal”; and/or

(2) Order 1B, rule 1(3)(a) of the Rules of the High Court, which provides as follows: “Where the Court makes an order, it may – make it subject to conditions, including a condition to pay a sum of money into court”.

24.  In this regard, it is important to appreciate that by virtue of Order 1B, rule 1(1) of the Rules of the High Court, the list of powers in that rule is in addition to and not in substitution for any powers given to the Court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(ii) Court’s approach regarding the exercise of its discretion to grant leave to appeal conditional upon payment into court

25.  In so far as the court’s approach regarding the exercise of this jurisdiction is concerned, guidance can, in my view, be obtained from the way in which a similar jurisdiction is being exercised by the English courts.  In particular, CPR rule 52.9(2) provides that the court will only exercise its powers under paragraph (1), which expressly include the power to impose conditions upon which an appeal may be brought, where there is a “compelling reason” for doing so.

26.  The English jurisprudence suggests that:-

(1) it will be an unusual and perhaps rare case in which it will be appropriate to require payment into court of all or part of the judgment sum as a condition of permitting an appellant to proceed with an appeal;

(2) the court will adopt a cautious approach and will only impose such a condition for compelling reason; and

(3) the jurisdiction should not be imposed for disciplinary purposes to mark the court’s displeasure at, for example, the way in which the appellant behaved at the trial.

See Sebastian Holdings Inc v Deutsche Bank AG [2014] EWCA Civ 1100, at paragraphs 31 and 32 per Tomlinson LJ, citing the judgments of Clarke LJ in Dumford Trading AG v OAO Atlantrybflot [2004] EWCA Civ 1265, and of Moore-Bick LJ in Wittman (UK) Ltd v Willdav Engineering SA [2007] EWCA Civ 521.

27.  Also, as made clear in the judgment of the Appeal Committee of the Court of Final Appeal in Wang Ruiyun v Gem Global Yield Fund Ltd (2013) 16 HKCFAR 785, at paragraphs 27 per Ribeiro PJ, an order requiring a prospective appellant to make payment into court as a condition of granting leave to appeal should not be made where there is convincing evidence that it would have the consequence of stifling the appeal.

28.  Subject to the above general considerations, the Hong Kong rules do not prescribe any specific matters which the court ought to take into account when deciding whether to require payment of the judgment sum (or a part thereof) into court as a condition for granting leave to appeal.  The issue will have to be dealt with on a general basis having regard to the particular facts and circumstances of the case.

(iii) Court’s jurisdiction to grant a stay of execution conditional upon payment into court

29.  It is not in dispute that the court does have power to order an appellant to pay into court the judgment sum (or any part thereof) as a condition of granting a stay of execution pending appeal. Whether to impose such a condition involves an exercise of judicial discretion depending on all relevant circumstances of the case: see Hong Kong Civil Procedure 2016, paragraph 59/13/5.

(iv) Exercise of discretion in the present case

30.  In Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2002] CP Rep 21, at paragraph 41, Clarke LJ, giving the judgment on behalf of the English Court of Appeal, held that requiring the appellant in that case to pay the judgment amount into court as a condition of permitting it to proceed with the appeal was justified in view of the following circumstances:-

“ (1) The appellant is an entity against whom it will be difficult to exercise the normal mechanisms of enforcement. It is registered in the British Virgin Islands and has no assets in the United Kingdom. There is, accordingly, a very real risk that if the appeal fails, the respondents will be unable to recover the judgment debts and costs as ordered by Silber J. Given the attitude of the appellant to date, including that demonstrated on these applications, it is fanciful to think that the appellant will co-operate in the enforcement process.

(2) The appellant plainly either has the resources or has access to resources which enable it both to instruct solicitors and leading and junior counsel to prosecute its appeal and make an application to the court for a stay of execution and to provide a substantial sum by way of security for costs.

(3) There is no convincing evidence that the appellant does not either have the resources or have access to resources which would enable it to pay the judgment debt and costs as ordered. It has failed to do so. It is, accordingly, in breach of the orders made by Silber J on 12 July 2001.

(4) The discovery which the appellant has provided of its financial affairs is inadequate and gives the court no confidence that it has been shown anything near the truth. Moreover, as stated earlier, it has produced evidence (when it wanted to) that it was a thriving and profitable institution. It has wealthy owners and there is no evidence that, if they were minded to do so, they could not pay the judgment debt including the outstanding orders for costs.

(5) For the reasons we have already given we are not persuaded that this appeal will be stifled if we make the order sought.

(6) In these circumstances, we find it unacceptable that absent any other orders of the court the appellant is intending to prosecute the appeal (and is willing to put up security for costs in order to do so) whilst at the same time continuing to disobey the orders of the court to pay the judgment debt and costs, as well as seeking to persuade us that it cannot do so.”

31.  Mr Man submits that most, if not all, of the circumstances identified in Hammond are satisfied in the present case.  Mr Man says, in particular, that the Payment Condition should be imposed for the following reasons:-

(1) There is very substantial evidence and findings of the Hong Kong courts that First Media and AAL have acted in collusion to present a false picture of the debt between the two entities so as to defeat the garnishee proceedings and frustrate Astro’s enforcement efforts.

(2) Astro has already, on previous occasions, sought and obtained orders for payment into court against First Media/AAL.  Although the orders have never been successfully challenged, they have never been complied with.

(3) There is no prejudice which can be occasioned to First Media/AAL as a result of being required to make payment into court, because (a) there is no evidence that First Media has insufficient funds or would be incapable of paying the amounts in question into court, and (b) in the event that First Media/AAL should be successful in their respective appeals, they would have no difficulty in recovering the payments made.

(4) The proposed condition would not result in the respective appeals of First Media and AAL being stifled.

32.  Mr Man places particular emphasis on the first complaint, namely, the alleged collusion of First Media and AAL to present a false picture of the debt between the two entities so as to defeat the garnishee proceedings and frustrate Astro’s enforcement efforts.  This complaint is supported by the findings made by Deputy High Court Judge Mayo in his written decision dated 31 October 2013 referred to in paragraph 50 of the Judgment, as well as various observations made by Deputy High Court Judge Lok (as he then was) in paragraphs 20 to 24, 49 to 52 and 58 of his written decision dated 7 March 2013 and in paragraphs 7 to 9 and 12 of his written decision dated 13 May 2013.  In respect of the second complaint, Mr Man accepts that neither First Media nor AAL is in breach of any court order.  The third and fourth complaints are “negative” points and could not, by themselves, justify the court imposing the Payment Condition.  In any event, they are strongly disputed by Mr Strachan (for First Media) and Mr Barrie Barlow SC (for AAL). 

33.  As I see it, Astro main’s ground in support of the contention that the court should impose the Payment Condition lies in the allegation of collusive conduct by First Media and AAL.  Madam Justice Mimmie Chan would have been aware of this allegation, but the learned Judge nevertheless granted the Stay Order, and the Court of Appeal refused Astro’s application for leave to appeal against the Stay Order.

34.  Mr Man submits that the position is now different, because First Media’s setting aside application has been heard and dismissed.  That is correct so far as it goes.  For this reason, I do not accept AAL’s argument that Astro is barred by any “interlocutory issue estoppel” from seeking an order that, should the court be minded to grant to AAL a stay of execution pending appeal, such stay should be subject to the Payment Condition.

35.  This having been said, I remind myself that Madam Justice Mimmie Chan expressed the view, at paragraph 8 of her written decision dated 24 January 2014 when granting an unconditional stay of execution of the Garnishee Order Absolute, that “[First Media] has good prospects of success in its application to set aside” (even though such view would obviously be a provisional one only) and, more significantly, the Court of Appeal stated, at paragraph 13 of its written decision dated 25 June 2014 (in HCMP 835/2014) when refusing Astro’s application for leave to appeal against the Stay Order, that “it will indeed be remarkable if, despite the Singapore Court of Appeal judgment on the invalidity of arbitration awards, Astro will still be able to enforce a judgment here based on the same arbitration awards that were made without jurisdiction.”

36.  Although I ultimately reached a conclusion which the Court of Appeal considered to be “remarkable”, I must recognize and accept that my decision is indeed exceptional.  I believe that First Media and AAL ought to be entitled to have the various legal issues considered in the Judgment fully ventilated before the Court of Appeal without being required to bring into court the amount of the granisheed debt and the costs incurred by Astro in these proceedings.  For this reason, I would grant leave to appeal (to First Media) and a stay of execution pending appeal (to both First Media and AAL) without imposing the Payment Condition sought by Astro.

The Costs Summons

37.  The relevant principles governing the court’s exercise of discretion regarding costs are not in dispute.  After the CJR, the general rule that costs should follow the event, while still of significance, is only the starting point: see Wong Kam Tong v Ting Shing Court, Yuen Long (IO) (No 2) [2012] 2 HKLRD 1128, at paragraph 13 per Cheung JA; Swiss Singapore Overseas Enterprises Pte Ltd v China Citic Bank Corporation Limited, Xiamen Branch, CACV 197/2013, at paragraph 9 per Kwan JA.  See also Pong HK World v Vand Petro-Chemicals (BVI) Co Ltd, FACV 4/2013 (18 March 2014), at paragraph 4.

38.  In Wong Kam Tong, Cheung JA stated (at paragraph 13) that the starting point is one from which the court “can depart”, and in Swiss Singapore Overseas Enterprises Pte Ltd, Kwan JA stated (at paragraph 9) that it is a starting point from which the court “can readily depart”.  It is unlikely that Cheung JA and Kwan JA intended to say anything different because both referred to the judgment of Lord Woolf MR in AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 WLR 1507 in which the approach that the court “can readily depart” from the starting point was mentioned at page 1522 of the report.

39.  In any event, I would fully endorse the position that the court can readily depart, and should be ready to depart, from the starting point of costs following the event and adopt an issue based approach when exercising its discretion on costs in order to promote the underlying objectives of the CJR: see Order 62, rule 5(1)(aa) of the Rules of the High Court.  As is well known, the underlying objectives include, amongst other things, increasing the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the court, ensuring that a case is dealt with as expeditiously as is reasonably practicable, promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings, ensuring fairness between the parties, and ensuring that the resources of the court are distributed fairly.  Having regard to the increasing complexity of cases and, consequently, length of hearings in general and the spiralling of legal costs in Hong Kong, the court should not, in my view, hesitate about disallowing costs incurred by a winning party (overall) on discrete issues which he has failed or even, in appropriate cases, ordering him to pay the costs incurred by the opposite party on such issues.

40.  Generally speaking, it is entirely a matter for a litigant to decide what issues to raise in legal proceedings.  If he pursues an unsuccessful issue which lengthens the hearing or increases the costs to any extent which cannot be regarded as being insignificant, it would, prima facie, be unfair that the consequent increase in the costs should be borne by the opposite party.  This having been said, there may be other relevant considerations in the overall exercise of the court’s discretion on costs, and it would not be appropriate to lay down or adopt any rigid rule.

41.  In the present case, I dealt with a total of seven main issues raised by the parties in the Judgment, namely:-

(1) whether the Awards could be challenged other than by way of an appeal to the Court of Appeal;

(2) whether time ought to be extended to permit First Media to apply to set aside the Hong Kong Orders and Hong Kong Judgment;

(3) whether First Media’s setting aside application should be refused on the ground that its conduct was not consonant with the principle of good faith;

(4) whether the Tribunal’s decision on jurisdiction was correct and the Hong Kong court was not bound by the decision of the Singapore Court of Appeal on that issue;

(5) whether First Media’s setting aside application was precluded by the Tribunal’s finding that First Media had made a further binding submission to arbitration by signing the Memorandum of Issues;

(6) whether First Media was entitled to re-open the argument that Astro failed to comply with the “multi-tier” dispute resolution mechanism; and

(7) stage 1 versus stage 2 enforcement.

42.  I found in favour of Astro on issues (2), (3), (6) and (7) above, and in favour First Media on issues (1), (4) and (5) above.

43.  The above issues are mostly discrete issues.  On any view of the matter, the costs incurred by the parties on those issues would be substantial.  I consider it fair and reasonable in all the circumstances of this case that Astro should not be awarded costs on issues which it has failed, but I would not, in this case, go so far as to order Astro to pay First Media’s costs in respect of them.

44.  In relation to the time spent on those issues, based on the transcript (as analysed by Mr Strachan in paragraphs 120 to 121 of his reply submissions) and my recollection of the hearing, the issues which occupied most of the hearing time were issues (2) and (3) above, followed by issue (1).  The other four issues took up relatively less time.

45.  I bear in mind the fact that the costs incurred by the parties on any issue are not necessarily reflected by the length of time spent by counsel in oral submissions on that issue.  I also take into account the costs involved in preparing the relevant documentary evidence.  Some of the issues, for example, issues (1) and (7), could be, and were, dealt with mostly by way of legal submissions without the need to refer to much documentary evidence.

46.  An assessment of the costs by adopting an issue based approach is not a scientific exercise.  It can only be carried out on a broad brush basis.  Taking everything into account, I consider that the fair course to take would be to order First Media to pay 80% of Astro’s costs.

Disposition

47.  In relation to the Leave Summons, I would answer the question posed in paragraph 1 thereof in the negative, and grant leave to appeal under paragraph 2 thereof.

48.  In relation to First Media’s Stay Summons, I shall make an order in terms of paragraph 1 of that summons.

49.  In relation to AAL’s Stay Summons, I shall likewise make an order in terms of paragraph 1 of that summons.

50.  I order that the costs of each of the Leave Summons, First Media’s Stay Summons, and AAL’s Stay Summons be in the cause of the respective appeals, with certificate for two counsel (where applicable).

51.  In relation to the Costs Summons, I vary the costs order nisi made on 17 February 2015 such that First Media shall pay 80% of Astro’s costs, with certificate for 3 counsel.

52.  As regards the costs of the Costs Summons, First Media has succeeded in obtaining a variation of the costs order nisi to a significant extent, and shall have the costs of that application, with certificate for two counsel.

53.  Finally, it remains for me to thank counsel for the helpful assistance that they have rendered to the court.