CKW CO LTD v. SECRETARY FOR JUSTICE

CACV 17/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 17 OF 2005

(ON APPEAL FROM HCA NO.  1232 OF 2002)

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REASONS FOR JUDGMENT

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Hon Woo VP (giving the reasons for judgement of the Court):

1. This is an appeal against the order of Deputy High Court Judge To made on 10 January 2005 dismissing the plaintiff’s application for the issues of both liability and damages in this action, ie HCA 1232/2002 and another action, HCA 2293/2002, to be tried together. 

2. At the conclusion of the hearing on 14 January 2004, we dismissed the appeal with costs, to be taxed if not agreed.  Our reasons appear below.

Background

3. The dispute between the parties arose out of a tenancy agreement whereby the Government let a piece of land of an area of about 59,300 square metres that used to house the Kai Tak Amusement Park (“the premises”) to the plaintiff (“CKW”) for a term of two years from 1 June 2000 to 31 May 2002, terminable upon quarterly notice, at the rent of $816,000 per annum. 

4. HCA 1232/2002, the present action, is one brought by CKW against the Secretary for Justice representing the Government (“the Government”) for a declaration that despite the expiration or termination of the tenancy agreement, the Government is estopped from claiming possession of the premises until 2004/2005, by reason of the operation of proprietary estoppel, based on the representations made by a Mr Tin Siu Ki (“Mr Tin”), an Estate Manager of the Government.

5. HCA 2393/2002 is an action brought by the Government against CKW for possession of the premises by reason of the expiration of the tenancy agreement, in respect of which a notice to quit dated 1 February 2002 had been served by the Government on CKW to take effect on 31 May 2002, pursuant to the tenancy agreement.

6. In about March 2004, the trial of the two actions was fixed to commence on 10 January 2005, and seven days were reserved for the hearing.  At the pre-trial review on 10 December 2004, the judge, who was to hear the case on 10 January 2005, allowed the Government to file a supplemental witness statement of Mr Tin.

7. Upon the application of the Government, on 20 December 2004, the judge made a number of orders, namely,

(a)	leave to the Government to amend the Statement of Claim in HCA 2293/2002 increasing its claim for mesne profits from $68,000 to $1,493,774 per month, and CKW to have 14 days to file an amended defence;
(b)	leave to the Government to serve and file a witness statement of Tam Sin Hang, relating only to the question of quantum of damages, and leave to CKW to reply to it within 28 days;
(c)	leave to the Government to disclose expert valuation evidence that was filed by Chan Suet Ching on 18 November 2004, and CKW to have 60 days to disclose its expert valuation in reply; and
(d)	the issues of liability to be tried separately before the issues concerning the amount of mesne profits or damages, and the hearing dates already fixed be utilised for the trial on liability.

8. On 4 January 2005, CKW lodged a notice of appeal against the judge’s orders made on 20 December 2004, intituled CACV 5/2005.  That appeal is pending and no date yet has been fixed for its hearing.

9. On 6 January 2005, CKW made an urgent application before the judge, seeking to adjourn the trial of the issues of liability which was to commence on 10 January 2005, pending the disposal of CACV 5/2005.  The judge refused the application.

10. On 10 January 2005, at the commencement of the trial on liability, CKW sought leave to amend its Statement of Claim in HCA 1232/2002 and its Defence in HCA 2293/2002.  The judge allowed the amendments.  CKW again applied for the issues of both liability and quantum of mesne profits to be tried together in view of the new amendments and changed circumstances.  The judge refused the application. 

11. It is from this refusal to have the issues of liability and quantum tried together that CKW now appeals. 

12. The trial before the judge proceeded on the issues of liability and had been continuing, but it was adjourned at the end of the hearing on 13 January 2005 till 11:30 am on 14 January 2005, so that the parties’ counsel could appear in this appeal before us.

The judge’s reasons

13. The judge gave brief reasons for his refusal of the application for a merged trial, as follows:

“	What is framed up as a fresh application of merger today is in fact [in effect?] an application to invite me to revisit my earlier decision which is now formed the subject matter of an appeal.  I consider I have no jurisdiction to revisit that decision.
	I do not see any change of circumstances having been brought about by the amendments which I allowed this morning.  I could not see how Mr Tin’s evidence to be relevant to the question of quantum.I can envisage there is no danger of inconsistencies in findings.  In the circumstances, I refuse the application.	”

14. The grounds of appeal raised by Mr Alan Leong SC on behalf of CKW, can broadly be divided into three limbs, namely, (1) the judge erred in ruling that he had no jurisdiction to entertain the application by reason of his having ruled on the matter on 20 December 2004 and ordered a split of trial of liability and damages in both of the actions, (2) there was no change in the circumstances and (3) it was neither just nor convenient for the trial of liability and damages to be split.

15. The alleged change of circumstances as of 10 January 2005 are based on the amendments effected to the Statement of Claim in HCA 1232/2002 and to the Defence in HCA 2293/2002, which had been allowed by the judge on 10 January 2005. 

16. The amendments to both pleadings are the same.  The main amendments (demonstrated by deletion and underlining) are set out below:

“

8.

On divest occasions, the Government encouraged the Plaintiff to further incur substantial expenses to improve the facilities on the premises by representing to the Plaintiff that the Tenancy will would last until the Government would require the Premises for planned development in conjunction with the existing airport passenger terminal building and to build a railway depot thereon.  Such plan development was estimated not to take place at the earliest until 2004 to 2005 and, in view of the long duration of the tenancy, it was worthwhile for the Plaintiff to invest more money to improve the facilities on the Premises.

”

17. It is pleaded in paragraph 9 of the Statement of Claim that as a result of relying on the representations and the encouragement of Mr Tin, CKW had, to the knowledge of the Government, incurred further expenditure of about $4,178,852.70 for substantial improvements to the premises and the facilities therein. 

18. The consequence of the matters as pleaded is amended to read:

“

10.

In the premises, the Government is estopped from serving any notice as to quit to terminate the Tenancy at any time before the Government requires the Premises for planned development in conjunction with the existing Airport Passenger Terminal Building and to build a railway depot thereon, the end of 2004.

”

CKW’s arguments

19. On behalf of CKW, Mr Leong argues that by reason of the amendment to the Statement of Claim in HCA 1232/2002, if CKW succeeds in the amended claim, it will be entitled to remain in possession of the premises beyond 31 December 2004. 

20. Mr Leong also submits that that issues of liability and quantum of damages should be tried together is the norm; split trials are an exception.  Split trials are only justified if it is “just and convenient”.  Just and convenient means just and convenient to both parties.  This is in general agreement with the principles as summarised in paras 33/4/9 and 33/4/1 of Hong Kong Civil Procedure 2004, Vol 1.  Whether it is “just and convenient” depends on a number of factors, including the following:

(a)	whether a clear line of demarcation between the issues of liability and quantum can be drawn, as distinguished from where they interact upon each other;
(b)	whether deciding an issue will likely to be determinative of the litigation itself, thus producing a substantial saving of costs;
(c)	whether costs can be saved in other ways; and
(d)	whether it would be a more expeditious disposal of the litigation or whether the disposal would be delayed.

21. On these considerations, Mr Leong raises a number of matters to support his contention that it is not “just and convenient” for the trial of liability and quantum to be split. 

22. The main prank of his arguments, which he emphasised when addressing us, is that Mr Tin’s representations to CKW would entitle CKW to remain in possession until the Government repossesses the premises for the planned South Eastern Kowloon Development, but his witness statements also deal with matters relating to breaches of the user condition of the tenancy agreement.  Thus, his evidence would be relevant to both liability and quantum.  What is more important is that there is need to assess his credibility on both aspects of the issues.  The judge, in ordering a split trial, erred in holding that Mr Tin’s evidence was only relevant to liability and not to quantum, because (a) that evidence affects CKW’s right to set off compensation for works done on the land, and (b) Mr Tin’s credibility is relevant to both aspects.

23. Moreover, the determination based on the veracity, credibility and reliability of Mr Tin’s evidence might lead to inconsistent findings in a split trial where, for example, he might be believed on liability and disbelieved on quantum, or vice versa.  At any rate, Mr Tin’s credibility must be relevant on the issues both of liability and quantum.

24. Mr Leong also submits that the need for a split trial was given rise by the Government’s very late but significant amendment to plead the over 20 times of increase of mesne profits, from $68,000 to almost $1.5m per month. 

25. Based on all the above grounds, Mr Leong SC submits that split trials are gravely unjust and inconvenient to CKW.  

The Government’s arguments

26. On behalf of the Government, Mr Y C Mok complains that it is an abuse use of the expedited appeal procedure for CKW to have sought and obtained today for the hearing of an appeal launched only on 12 January 2005, just two days ago.  He submits that in the notice of appeal and skeleton submissions, CKW failed to give notice, adequately or at all, to the Court of Appeal that the trial of the two actions on the liability issues is proceeding or to draw attention to the line of cases that the hearing of an appeal against an interlocutory order during trial, like the present case, is inappropriate, and should be strongly discouraged (Lam Choi King v Yeung Fook On [1991] 1 HKC 219 (CA) and To Kam Chi v Pui Man Yau [1998] 2 HKC 371).  This is especially so when CKW has failed to advance any ground to show that this interlocutory appeal during trial is anything exceptional. 

27. Mr Mok draws our attention to the following facts to substantiate his complaint:

(a)	On 20 December 2004, when the judge heard the application by the Government for a split trial of liability and quantum, the judge did not only have all the trial bundles before him but CKW had filed an affirmation to oppose the application for a split trial.  That affirmation provides no evidence of any actual prejudice.
(b)	On 20 December 2004, the judge ruled that there was a clear demarcation between liability and quantum and it was just and convenient to order a split trial after hearing arguments, inter alia, on whether each party would suffer any prejudice.
(c)	No appeal was launched by CKW on the split trial ruling of 20 December 2004 until 4 January 2005 by CACV 5/2005, and no valid reason has been offered to explain why no expedited procedure was attempted for that appeal.
(d)	Instead, on 6 January 2005, CKW applied to the judge to vacate the trial dates, fixed from 10 to 18 January 2005, pending the hearing of CACV 5/2005.  The judge dismissed the application.
(e)	On the first day of trial on 10 January 2005, CKW applied to amend its pleadings to substitute the pleaded cut-off point of the effect of the proprietary estoppel from the end of 2004 to the time when the Government should commence the railway depot project.
(f)	When CKW was making the application to amend, it deliberately refrained from simultaneously making the application for an order to try liability and quantum together and suspending the trial or to inform the judge that the amendment, if granted, would be used as a platform for a merger application.  CKW merely argued, inter alia, that the application for amendment was bona fide and would not cause the Government any prejudice not compensable by costs.
(g)	It was after it had obtained leave to amend its pleadings to substitute the cut-off point of the proprietary estoppel that CKW launched its merger application before the judge.
(h)	After the refusal of its merger application on 10 January 2005, CKW commenced the attempt to expedite the appeal procedure, managing somehow to obtain the expedited hearing date of today after filing the notice of appeal in this appeal on 12 January 2005.
(i)	Mr Mok contends that CKW has been desperate to try everything, after the expiration of the notice to quit in May 2002 to prolong its possession of the premises on which it has been running a car parking business.  Such a business would bring the open market rental of the premises to 20 times that from the contractually permitted use.

28. Mr Mok submits, in any event, there is no merit in this appeal and that, the judge’s order of a split trial has not been affected by any changed circumstances or in any way unjustified, bearing in mind the consideration of “justice” and “convenience” to the parties.

29. Mr Mok informs us that on 20 December 2004, the judge had Mr Tin’s statements before him.  The judge had considered those statements and the substitution of the cut-off point for the operation of the proprietary estoppel, and came to the view that those were not relevant to the evaluation whether it was just and convenient to order a split trial or whether there was a clear line of demarcation between liability and quantum.  On 10 January 2005, since the judge had made the split trial order, it was for CKW to show that the order should be varied or set aside.

30. As before the judge, Mr Mok maintains that there has been no change of the basic situation as that before the judge on 20 December 2004.  He contends that in the assessment of damages, Mr Tin’s evidence (given on liability issues) that CKW was in breach of the permitted user by running a car parking business before the expiration of the notice to quit is absolutely irrelevant.  This is so for two reasons, namely,

(1)	The resurfacing and improvements of facilities (which might have the effect of enhancing the value of the premises) would not be breaches of the tenancy agreement, and only the car parking business could be, but the car parking business or its non-existence would only be a matter for quantum;
(2)	The only effect of the value enhancement point in McGregor on Damages is that the open market rental of the premises for a car parking use would be assessed at the “unimproved value”, ie, at the lower rate if the premises had not been surfaced and improved.  The sum that CKW put in for the resurfacing and improvements is neither relevant nor determinable of the assessment of quantum.  The major issue in quantum is, if the car parking business is proved as being the user, the valuation of the open market rental.  The improvements would only be relevant to the consideration of the open market rental of the premises in an unimproved state as opposed to the improved state.

31. Mr Mok argues that if the Government should win on liability, the Government would recover the possession of the premises and the parties would proceed to the trial of quantum.  Whether the quantum should be assessed on the basis of the contractual rate or open market rental would depend on whether the Government was correctly allowed to amend its Statement of Claim in HCA 2293/2002, which is subject to CKW’s appeal against the order for amendment in CACV 5/2005.  If, on the other hand, CKW should win on liability and establish the proprietary estoppel, there would be no need for assessment of damages, considering that there have been interim payments at the contractual rate, thus resulting in a saving of costs.

Jurisdiction

32. Whether the judge was correct in saying that he had no jurisdiction, in our judgment, depends on whether there had been a change of circumstances after he had made the order for a split trial on 20 December 2004.  He had considered the merits as presented by the parties on 20 December 2004, and if there was no change of circumstances, then the application of CKW on 10 January 2005 had the effect of asking the judge to review and set aside his order for split trial.  He had become functus and had no jurisdiction to entertain the application.  This lack of jurisdiction is well demonstrated by the appeal in CACV 5/2005.  His order of 20 December 2004 has been subject to that appeal, and if he had jurisdiction to set aside his order, there would have been no need for CKW to appeal, because it could simply go back to the judge to ask him to set aside the order.  On the other hand, if there had been a change of circumstances, then the judge would be asked to deal with an application for a trial of both sets of issues of liability and quantum under altered circumstances.  The judge would in that case have jurisdiction.  For comparison, see para 18/19/11, High Court Civil Procedure 2004, Vol 1.

33. It is therefore necessary for us to ascertain whether there was a change of circumstances in order to decide on the question of jurisdiction.  By “change”, we consider it to mean, in the context of this matter, “material and substantial change”.  For example, it cannot qualify if there were merely a change of legal representation, or a witness is too sick to attend court. 

34. In this appeal, the change that Mr Leong is able to identify is the amendments to CKW’s Statement of Claim in HCA 1232/2002 and Defence in HCA 2293/2002.  We have already set out the relevant amendments.  The amendments are to support CKW’s claim for a declaration that it is entitled to remain in possession for a date later than the end of 2004, and as Mr Mok puts it, a longer cut-off point for the operation of the proprietary estoppel.  The Government’s claim for possession of the premises by virtue of the expiration of the notice to quit in HCA 2293/2002 remains the same, but it now faces the challenge of a longer cut-off point as alleged in CKW’s Amended Defence in that action.  In our view, all these changes relate to liability and do not relate to quantum.  This does not qualify as a material and substantial change of circumstances for the judge to assume jurisdiction in reviewing his order of 20 December 2004 or setting it aside.

35. The appeal against the 20 December 2004 order for a split trial is pending, and this appeal before us is not from that order.  If the judge was correct in dismissing the identical application on 10 January 2005 on the ground of lack of jurisdiction, as we so consider, then this alone is sufficient to dispose of this appeal.

Merits or otherwise of a split trial

36. If we are wrong on the jurisdiction issue, we are of the opinion based on the merits or otherwise of this appeal that the judge was well justified in refusing to order a merged trial after his order of 20 December 2004 for splitting trial. 

37. We start with the hearing dates of both this action and HCA 2293/2002 having long ago been fixed to commence on 10 January 2005.  It is true that the first change of circumstance was the Government applying to amend its Statement of Claim in HCA 2293/2002 on 20 December 2004 and was allowed by the judge to do so.  That amendment was simply to increase the claim for mesne profits from $68,000 to about $1.5 million per month.  That purely relates to quantum of damages, and is entirely irrelevant to the question of liability.  The judge also allowed valuation expert evidence to be filed, and gave CKW 60 days to respond in expert evidence.  That also relates to quantum alone.  As the trial was due to start on 10 January 2005, on the application of the Government, the judge ordered the hearing dates already fixed to be utilised to hear the issues of liability.  That must be just and convenient to both parties, as an important portion of their litigation would be dealt with expeditiously and it would otherwise be difficult to get early days fixed for the hearing of that portion of their disputes.  Expedition of legal process is a well-recognised benefit for litigants. 

38. We are not oblivious of the possibility that costs might be increased when there are two trials instead of one, involving the same parties.  However, if two trials will altogether last one day longer than one trial of the disputes between the parties, as it appears to us to be the case here, the amount of increased costs thus incurred would not be too large.  Bearing in mind that seven court days from 10 to 18 January 2005 had been fixed altogether, one additional day would result in costs being increased by one-seventh.  But if liability were decided in favour of CKW, on the other hand, then the trial of the question of quantum would be rendered unnecessary, and both parties would be able to save the costs for the trial of quantum.  From the papers before us, it seems that the time required to determine liability would be less than that required for deciding on quantum.  Even if the amount of time required for each is the same, there would be a saving of at least three court days, and the costs for those days would be saved for both parties.

39. We now turn to the question of prejudice that Mr Leong submits that a split trial will cause to CKW.  His only arguments are that witnesses relevant to the trial of liability would have to return to court to deal with quantum separately and this also involves the credibility of such witnesses.  But that inconvenience is countered by their not having to stay in the witness box for as long as issues of both liability and quantum were to be dealt with together.  The time required for the returned battle, if necessary, would be compensated by their having only to stay shorter in the witness box on liability alone.  The more important issue is the increased costs on which we have already commented.

40. The argument on credibility is that the credibility of witnesses relating to issues of liability will have to be determined first in a split trial, and their credibility on the question of quantum is unable to be taken into account during the first trial. 

41. Mr Mok submits that the question of Mr Tin’s credibility on issues related to quantum does not arise in the present situation.  He tells us that Mr Tin’s evidence relates only to liability and he will not call Mr Tin on the trial of quantum.  We consider that whether and to what extent questions as to credit on matters unrelated to liability are allowed to be raised or otherwise is entirely a matter for the judge who is trying the issues of liability.  The judge well knows that there is a split trial, and he can consider the merits of the questioning accordingly.  If any party considers that the judge errs in that respect, the appeal avenue is always open.

42. Mr Leong also submits that a split trial may also lead to inconsistent determinations on credibility of witnesses.  He refers us to Wincheer Investments Ltd & Ors v Lobley Co Ltd & Anr, HCA 8145/1992 (23 February 1995, unreported), in which Findlay J observed:

“

5.

I doubt if in modern practice the test should be whether the matter to be tried first ‘will, when decided one way or the other, really be likely to dispose of the case.”  This would be a very limiting criterion; very few cases would fall into this category.  I also doubt if it is helpful to talk of whether allegations are distinguishable between issues of liability and issues of damages.  Usually, allegations will go to one or other, and not to both.  It is the evidence from witnesses, not allegations, that will frequently cross the dividing line between liability and damages, and, in this sort of case, it will usually be better for the same judge to hear that evidence.  This may be what Lord Justice Jenkins had in mind when using the words ‘a clear line of demarcation’.  Clearly it is embarrassing if different judges came to differing conclusions regarding the evidence of the same witness.

”

43. We do not think that Findlay J’s observations on “a clear line of demarcation” relates to credibility of witnesses.   He referred to allegations of witnesses that will frequently cross the dividing line between liability and damages.  That is very often the case, and is a relevant factor for deciding whether there is a clear line of demarcation between the two aspects of the litigation.  

44. While there may be circumstances where it would be embarrassing that different judges came to differing conclusions regarding the credibility and evidence of the same witness, we do not see those circumstances as being anything but rare.  A witness’s evidence, in totality or in part, can be believed or disbelieved, accepted or rejected.  That is always done and does not present a problem and it cannot be said that, in such a situation, the fact-finder makes inconsistent determinations.  It is very different from inconsistent findings made by the same tribunal.  The same situation obtains, if not with more force, to different determinations made by different tribunals of the credibility of the same witness.  In the circumstances of this case, where Mr Mok submits that Mr Tin’s evidence will only relate to liability and he will not be called for quantum, we do not see how Mr Tin’s credibility, one way or another, will come in play to prejudice CKW.

45. Mr Leong relies on paragraph 18 of Findlay J’s said judgment for the proposition that CKW would be prejudiced in its right to appeal to the Court of Final Appeal.  If CKW were to lose on liability, and the trial on quantum would be held in abeyance before the determination of the appeal on liability, CKW would face difficulty in obtaining leave to appeal to the Court of Final Appeal when it would be unable to rely on the provision of appeal as of right based on the decision appealed from as involving $1m or above. 

46. We consider that the case before us does not admit of this argument.  If CKW were to lose in the trial of liability before the judge, even before the determination of quantum, it is crystal clear from the Government’s amended pleading in HCA 2293/2002 that the mesne profits claimed are almost $1.5m per month, way above the monetary threshold required for an appeal as of right to the Final Court of Appeal.

47. Mr Leong has not addressed us on the question of the timing when possession of the premises should be given up by CKW in the context of a split trial.  Apparently, if CKW loses on liability, an order for possession would be made by the judge who is presently trying the question of liability.  If the hearing is adjourned because it is necessary to have a merged trial of issues of both liability and quantum, then the disputes between the parties will have to await whatever early date the court is able allot to the trial of all the issues in these two actions.  That would give the benefit to CKW of staying longer in the premises, which benefit had been taken away by the split trial.  However, this is not a benefit that should be recognised by the court, or else the court would grant licence to possible delaying tactics.

48. We are not persuaded that there is any substance to justify our reversing the discretion exercised by the judge in refusing CKW’s application for a merged trial of liability and quantum, on the merits and in all the circumstances of this case.

Appeal during trial

49. In Lam Choi King, which relates to the propriety of a trial judge’s ruling on the relevance of a witness’ evidence during trial, the Court of Appeal referred to para 20/5-8/12 of the Annual Practice regarding amendment of pleadings during trial, and stated at pp 226H-227B:

“

The commentary goes on that it is undesirable that there should be appeals to the Court of Appeal in the course of the trial of actions.  It suggests that it is altogether better that matters of an interlocutory nature should work themselves out in the course of the trial without interlocutory recourse to the Court of Appeal before the facts have been completely determined and the trial concluded.  We accept that the editors of the Annual Practice are there considering amendments to the pleadings in a system of litigation which envisages the grant or refusal of leave to bring interlocutory appeals.  Nevertheless, we think the views expressed as to the undesirability of interlocutory appeals are apposite to the situation here.

”

50. In To Kan Chi, during trial, the trial judge allowed to stand five writs of subpoena deuces tecum directed to five Government departments requiring them to produce 32 original files to which the Government as a defendant in its lists of documents referred.  Nazareth VP in the Court of Appeal stated at p 387F-H:

“	There remains to be dealt with Mr Barlow’s point that interlocutory appeals during trial should be discouraged (see Supreme Court Practice, 1997, Vol 1, para 20/5-8/15), also Lam Choi King v Yeung Fook Chi t/a Yeung Yat Fat Wood Co & Ors [1991] 1 HKC 219 at 226G-227D).
	That principle is not in doubt, and has been reinforced by the increasing emphasis by this court upon case management by the trial judge.  However, here it is a matter of non-parties being vexed and probably also oppressed by having to examine the massive files involved.  Moreover, it is not a question of the particular matter being capable of being remedied on appeal post trial, as is ordinarily possible in matters inter partes.  While not underrating the disruptive and potentially prejudicial effect of this appeal upon the plaintiffs, particularly in the context of prolonged hearings, I have no doubt that the non-party Government departments must be permitted to proceed with their appeal.	”

The Court of Final Appeal confirmed the rule and observed (p 390G-H):

“

Whilst interlocutory appeals of this nature are to be strongly discouraged – a point which the Court of Appeal recognized – where a trial judge has erred in principle it may be necessary for the Court of Appeal to intervene.  Section 13(2)(a) of Cap 4 empowers the Court of Appeal to do that.

”

51. The issue in our present appeal is a subject of case management that was dealt with by the judge, which is “pre-eminently a matter for the discretion of the judge” (see Cable & Wireless HKT Telephone Ltd & Anr v City Telecom (H.K.) Ltd, CACV 197/1999 (1 February 2000, per Ribeiro JA (as he then was)).  The refusal to order a merged trial after the order of 20 December 2004 to order a split trial was made at the first day of the hearing, and thereafter the trial of the liability issues has been continuing (until today).  No doubt, this appeal has a very disruptive effect on the trial which, we are told, having been proceeding since 10 January 2005, was adjourned for the parties’ counsel to appear before us.  The only pittance of merit in taking this interlocutory appeal during the course of the trial is identified as the little prejudice, if we may so call it, of a relatively slight increase of costs that may be caused by a split trial.  We are of the view that the possible slight increase of costs is not sufficient weighty for this appeal to have been brought with the consequential disruptive effect on the trial, and the course taken to have it heard as a matter of urgency is not warranted. 

52. The only substance worthy of consideration in requesting for an early date of hearing of this appeal is that the appeal may otherwise be rendered nugatory.  We accept that, but on all the points we have dealt with above, this appeal has no merit, and it has been shown that it should not have been brought in the first place.  By comparison, there has been delay in bringing forward the appeal in CACV 5/2005, which demonstrates that the urgency of the present appeal is self-creating.  It further shows that this appeal should not have been given an early hearing date.

Conclusion

53. For the above reasons, we dismissed this appeal with costs, to be taxed if not agreed.