POOSAALA RAM PRASAD v. THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD

CACV 466/2021

[2025] HKCA 789

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 466 OF 2021

(ON APPEAL FROM HCA NO 279 OF 2021)

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BETWEEN

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D E C I S I O N

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INTRODUCTION

1.  This is the decision in relation to a summons taken out by the Plaintiff (“P”) on 27 January 2025 (“P’s Summons”) for leave to appeal against the decision I made on 14 January 2025 (“the Decision”) under Order 59 rule 2B of the Rules of the High Court (“RHC”) (“Leave Application”).

2.  In the Decision, I dismissed P’s application for a review of the Taxation Review Decision and Certificate issued by Master S P Yip (“the Master”) dated 12 August 2024 (“the Review Application”).

BACKGROUND

3.  To briefly recap, the taxation of the present proceedings was first heard by the Master on 3 June 2024. Upon P’s application, the Master reviewed his decision on 10 July 2024 and issued the Taxation Review Decision and Certificate on 12 August 2024. P then took out the Review Application on 26 August 2024, which was heard before me on 30 October 2024. I subsequently handed down the Decision on 14 January 2025.

4.  As stated in §30 of the Decision, I (i) found that P’s Review Application had no merits; and (ii) upheld the Taxation Review Decision and Certificate.

5.  P now seeks leave to appeal against the Decision.

6.  In the supporting affirmation of P filed on the same day as P’s Summons, P simply enclosed a copy of the Decision as exhibit “A”. No draft grounds of appeal or explanation as to why leave should be granted have been put forward.

7.  The Defendant (“D”) also had not been served any substantive documents or skeleton submissions by P in support of his Leave Application prior to the hearing scheduled on 9 May 2025.

8.  The hearing of the Leave Application was originally fixed for 6 March 2025. At P’s request (by reason of his health condition) through his letter dated 24 February 2025, the hearing was adjourned to 9 May 2025 (“9 May hearing”).

9.  At the 9 May hearing, the court noted that P (i) had failed to enclose any draft grounds of appeal with P’s Summons; (ii) P only lodged his skeleton with the court in the afternoon of 7 May 2025 (“P’s Skeleton”), which was more than a day late and after D had already filed its skeleton; and; (iii) P further lodged an “Oral Submissions of the Plaintiff (Appellant)” (“P’s Oral Submissions”) with the court in the afternoon of 8 May 2025, less than 24 hours before the 9 May hearing, without leave and without serving the same on D.

10.  As a result of the above, the court was not able to fully consider and digest the grounds of appeal relied on by P ahead of the 9 May hearing. D was also deprived of the chance to address the grounds of appeal and to respond to P’s submissions.

11.  It was under those circumstances that the court made an order to further adjourn the hearing of the Leave Application and to allow D to lodge its revised skeleton submissions in response to P’s Skeleton and P’s Oral Submissions. The court also ordered that costs of the 9 May hearing be paid by P to D, to be summarily assessed together with the costs of the Leave Application.

DISCUSSION

Whether leave is required?

12.  In Lam and Lai Solicitors v Ho Chun Yan Albert (unrep, HCMP 555/2015, 27 July 2017), Deputy High Court Judge Saunders (as he then was) held that the decision of a judge on a review of a taxing master’s decision did not fall within section 14AA(1) of the High Court Ordinance (“HCO”) and hence leave to appeal was not required.

13.  The above case bears a lot of similarity as our present case and is therefore worth exploring a little more.

14.  In that case, the learned judge had previously allowed an application by the defendant for review of a bill of costs that had been taxed by the master. The plaintiff, the defendant’s former solicitors, was dissatisfied with the decision and wished to appeal. The plaintiff raised an issue before the judge as to whether or not the decision was final, as opposed to interlocutory in nature. If final, an appeal lies as of right. If the decision is interlocutory, leave to appeal is required. They sought direction from the court pursuant to Order 59 rule 21(3) which enables the judge to give a direction as to whether or not the decision was final or interlocutory.

15.  Section 14(1) of the HCO provides as follows:

“ Subject to subsection (3) and section 14AA, an appeal shall lie as of right to the Court of Appeal from every judgment or order of the Court of First Instance in any civil cause or matter.”

16.  Subsection (3) provides certain exceptions to that rule, including subsection 14(3)(e) which provides:

“(3) No appeal shall lie–

…

(e) without the leave of the court or tribunal in question or of the Court of Appeal, from an order of the Court of First Instance or any other court or tribunal made with the consent of the parties or relating only to costs which are by law left to the discretion of the court or tribunal;”

17.  Section 14AA(1) provides:

“ Except as provided by rules of court, no appeal lies to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted by the Court of First Instance or the Court of Appeal.”

18.  The learned judge was in no doubt that the decision against which leave of appeal was sought was a final decision, and was clearly not within section 14 (3)(e) or section 14AA (1) of the HCO.

19.  In his decision, the learned judge also cited the Court of Appeal’s decision in Jora Sisi Omar v Jora Harmidar Omar (unreported, HCMP 3129/2015, 19 August 2016) where the plaintiff tried to appeal against a decision dismissing a review of a taxation of a bill of costs by a judge, pursuant to Order 62 rule 35. Unfortunately as stated by the learned judge, the decision of the Court of Appeal did not resolve the issue, as the “interlocutory/final decision” issue point was not taken. The plaintiff was unrepresented and did not appear. The defendant also did not appear in that case.

20.  Further, the issue of whether leave is required was also not subsequently discussed in the Court of Appeal when Lam and Lai Solicitors went on appeal: (See Lam and Lai Solicitors v Ho Chun Yan Albert [2018] 2 HKLRD 127; cited in Lam Ar Fu Peter v Building Authority [2023] HKCA 1315 at §10).

21.  In Lam Ar Fu Peter, supra, the applicant who lost a judicial review of the decisions of the Appeal Tribunal (Buildings) was ordered by the Court of First Instance (“CFI”) to pay costs under two separate costs orders. The applicant subsequently appealed and sought leave to appeal, unsuccessfully, against the CFI’s decisions. The costs orders were not disturbed by the Court of Appeal. Subsequently, a master taxed the respondent’s costs under the costs orders. Later on, the same master rejected the applicant’s application for a review of his decision under Order 62 rule 34 of the RHC. The applicant applied for a further review of the master’s decision on review to a judge pursuant to Order 62 rule 35 of the RHC.

22.  On 19 December 2022, the CFI judge gave his decision to reject the applicant’s application for review. On 1 August 2023, the CFI judge rejected the applicant’s application for leave to appeal against his decision. The CFI judge held that (i) the decision was final in nature, and thus the applicant was entitled to appeal against the decision to the CA as of right and did not require leave to appeal; and (ii) in any event, the applicant’s intended appeal had no reasonable prospect of success and there was no other reason in the interests of justice why the appeal should be heard, and this leave to appeal would be refused had the applicant required leave to appeal.

23.  In the appeal (which was dealt with on paper without an oral hearing), the Court of Appeal noted that the respondent maintained that leave to appeal against the judge’s decision was not required. The applicant was also prepared to treat the application as an application for an extension of time to appeal as if the judge was correct in holding that he was entitled to appeal as of right. The respondent was content for that course of action to be followed. In the circumstances, the Court of Appeal proceeded on the basis that leave to appeal against the decision was not required. In other words, the Court of Appeal did not rule on the issue of whether leave was required.

Ruling on whether leave is required in the present case

24.  In my judgment, the Decision I made on 14 January 2025 under Order 62 rule 35(1) of the RHC was final and not interlocutory. Therefore, leave to appeal is not required: See Lam and Lai Solicitors, supra at §§8-9 and 11-12 per DHCJ Saunders.

25.  Thus, I am of the view that P’s application for leave to appeal is misconceived and should be dismissed with costs to D.

Application should be dismissed even if leave is required

26.  In case I am wrong on the above conclusion, I would proceed to consider P’s Leave Application.

27.  An application for leave to appeal under RHC Order 59 rule 2B must be by way of summons accompanied by draft grounds of appeal, affidavit evidence where appropriate and written submissions (in the form of skeleton arguments) as to why leave to appeal should be granted: Hong Kong Civil Procedure 2025 §59/2B/1. As stated above, no draft grounds of appeal as to why leave to appeal should be granted has been filed with P’s Summons. P also failed to comply with the timeline for lodging P’s Skeleton and further lodged P’s Oral Submissions without the leave of the Court and without serving the same on D, as a result of which the hearing of P’s Summons had to be adjourned.

28.  The relevant test to be applied in this Leave Application appears in section 14AA(4) of the HCO. Before granting leave, the court must be satisfied that: (i) the appeal has a reasonable prospect of success; or (ii) there is some other reason in the interests of justice why the appeal should be heard. Reasonable prospects of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”: See Hong Kong Civil Procedure 2025 §59/2A/4; SMSE v KL [2009] 4 HKLRD 125 at §17.

29.  Further, it is a well-established principle that courts are reluctant to interfere with costs orders made at the discretion of the lower court, unless it can be shown that the decision was plainly wrong. The mere fact that the appellate judges might have exercised the discretion in a different manner is not a sufficient ground to warrant interference with the discretion of the judge (Canadian International Education Org Co., Limited and Another v Karen Teresa Ferris Cole and Others [2023] HKCA 87 at § 14.

30.  In particular, in an appeal from the review by a judge of the review of taxation by a master, the correct approach is to determine whether there is any ground that would justify an interference with the taxing master’s decision: See Lam and Lai Solicitors v Ho Chun Yan Albert [2018] 2 HKLRD 127 at §§ 31-32.

31.  For completeness, I noted that P has relied on the case of Tanfern Ltd v Cameron-MacDonald and Another [2000] 1 WLR 1311[1] in support of his contention that the Decision should be set aside. Tanfern concerns the correct procedure for appealing against a District Court decision in England and Wales. I fail to see how it is relevant to the present proceedings.

Findings on P’s Leave Application

32.  In my judgment, P’s appeal has no reasonable prospect of success as P is unable to show that the Decision was plainly wrong. P has also failed to show there is any other reason in the interests of justice for leave to appeal to be granted.

33.  In the Decision, it was held that the scope of the Review Application was limited to what was reviewed by the taxing master and set out in the Taxation Review Decision and Certificate (see §§3 to 5 of the Decision). It follows that the scope of this Leave Application is also confined to assessing the merits of an appeal against the two issues determined in the Decision, namely, Undue Delay and Printing Charges (see §16 of the Decision).

34.  P did not enclose any draft grounds of appeal with P’s Summons. Five grounds of appeal were put forward in P’s Skeleton. In P’s Oral Submissions, P puts forward a further seven grounds of appeal. P’s overall grounds of appeal may be largely summarised into the following:-

(a) The issue of Undue Delay: (i) P’s position is there was no undue delay as P commenced taxation proceedings within the limitation period under Order 62 rule 22(7)(a) of the RHC, and hence, the Court was wrong to endorse the Master’s finding of undue delay and the decision to disallow interest for P’s taxed costs for a stipulated period[2]; (ii) Further, P is of the view that the court erred in limiting the scope of the Review Application to the grounds raised before the Master and by not exercising his discretion to consider D’s “without prejudice” letter dated 3 May 2024 (“the WP Letter”) filed by P without leave, which P thinks is relevant to refute the Master’s finding of Undue Delay[3].

(b) The issue of Printing Charges: P’s position is printing charges are different from photocopy charges and the Scale of Costs under the First Schedule of RHC Order 62 does not apply. P is of the view that the Court should not have agreed with the Master’s decision to apply a 2/3 discount in respect of the printing charges claimed by P under RHC Order 62 rule 28A(2), such printing charges being “necessarily incurred costs” and there being no justification for the Master to apply a discounts[4].

(c) Costs Order: P is of the view that the court’s summary assessment of D’s costs of the Review Application at HK$40,000 is wrong and should be set aside[5].

(d) Other Objections: P also put forward that (i) D has somehow inappropriately criticised the Judiciary[6]; and (ii) Relief should be granted by this Court for fairness[7].

The Undue Delay issue

35.  In respect of P’s position that there was no undue delay, my findings are summarised in §§17-19 and 22 of the Decision. I will not repeat them here.

36.  I simply cannot see how it could be said that I was plainly wrong on this issue.

37.  As to the exclusion of the WP Letter and its relevance to the issue of Undue Delay, P cites a number of cases (albeit not providing the Court or D with a complete copy of such authorities) in support of his proposition that “without prejudice” (“WP”) communications are admissible to explain procedural delays if they reflect genuine settlement attempts[8]. P also claims that as a litigant in person, P faces “challenges in navigating procedural rules” and more “flexibility” should be given by the Court[9] in considering the WP Letter as further evidence. In response, D submits that:

(a) First, I have pointed out in the Decision:-

(i) the WP Letter was filed by P as evidence without leave and should not be considered (see §21(a)-(b) of the Decision).

(ii) In any event, the WP Letter is simply irrelevant to the issue of Undue Delay. As stated above:-

(1) The interest period disallowed by the Master was the period of 24 July 2023 to 3 March 2024. Putting aside whether WP communications should be admissible as evidence in the first place and even if P’s proposition was upheld, it is simply not understood how the WP Letter would be relevant to the disallowance of interest for a period before the said WP Letter was issued on 3 May 2024 (see §21(c) of the Decision).

(2) The delay was caused by P’s own fault and cannot be said to have been caused by the parties’ WP communications.

As such, P’s claim that the court should have exercised its discretion to consider the WP Letter as evidence is bound to fail.

(b) Further, I agree with Mr Law for D that the cases cited by P are also irrelevant for the reasons stated in D’s Submissions. I do not wish to repeat them here save to say that I agree with D’s Submissions on them.

38.  Given the reasons above, I agree with D’s Submissions that there is no reason why the court’s decision on the issue of Undue Delay should not stand or why this court should have interfered with the Master’s findings on Undue Delay. It follows that P’s appeal on this ground has no prospects of success at all (let alone a reasonable prospect of success). There is also no other reason in the interests of justice to warrant the appeal to be heard on this ground.

The issue of Printing Charges

39.  On the issue of Printing Charges, P argues that the printing charges should “align with CACV466 of 2021, allowing 302 pages at HK$4 per page without discount” and that the Court failed to engage with such “precedent”[10]. P also refers to the case of “Leung v Commissioner of Police [2003] 3 HKLRD 302” in support of his claim that the 2/3 discount lacked justification. It is unclear what point P is trying to make here. D is also unable to identify and locate the case of “Leung v Commissioner of Police [2003] 3 HKLRD 302” cited by P.

40.  Further, as the court has clearly explained in §§27- 29 of the Decision:-

(a) P was under a misconception to the extent. P was claiming that his printing charges awarded were not bound by the scale cost; and

(b) there was no issue with the 2/3 discount applied by the taxing master in respect of the printing charges, in which under Order 62 rule 28A of the RHC, the Master had the discretion to award costs to P under this item as he thinks fit.

41.  In light of the above, I agree with Mr Law that P has again failed to show that the Decision on the issue of Printing Charges was plainly wrong or that the court should have interfered with the Master’s discretion in applying a 2/3 discount on the same.

42.  In my view, P’s appeal on this ground likewise has no prospects of success and there is also no other reason in the interests of justice which justifies the appeal to be heard on this ground.

Costs awarded to D in the Decision

43.  P submits that the Costs Order should be set aside on the grounds that (i) the Decision should itself be set aside; and (ii) the quantum of HK$40,000 was disproportionate.

44.  On ground (i), given the above reasons and as mentioned, P has failed to show that the court was plainly wrong and there is no reason why the Decision should be set aside. It follows that P’s claim to set aside the Costs Order on this ground should also fall away.

45.  As to ground (ii), it is trite that costs are a matter of discretion for the first instance judge and the appellate court will not lightly interfere with the exercise of a judge’s discretion in the award of costs, unless it was shown that the judge erred in principle or approach, or took into account irrelevant matters, or his decision was plainly wrong. P has not shown how or why the quantum is disproportionate or that the Costs Order was plainly wrong (Canadian International Education Org Co., Limited and Another v Karen Teresa Ferris Cole and Others [2023] HKCA 87 at §14).

46.  In any event, as D submits, the costs of HK$40,000 awarded in the Decision has already been substantially taxed down after the court adopted a broad brush approach, having regard to the scope and nature of the issues at hand.

Other Objections

47.  As to (i) P’s remaining objections on D’s conduct and (ii) P’s claim that relief should be granted for fairness, for (i), P has clearly misunderstood D’s point as to why the Decision should not be set aside. As to (ii), this is not a ground of appeal and P is simply stating the relief sought for. In any event they are entirely without merit and do not assist P’s Leave Application.

48.  For the above reasons, even if leave is required, I have no hesitation to dismiss P’s Summons.

CONCLUSION

49.  In conclusion, I am of the view that leave is not required for the appeal against the Decision. Even if leave is required, it is refused based on the aforementioned reasons.

50.  Costs should follow the event. P who has failed in the application is liable to pay the costs of and occasioned by P’s Summons to D.

51.  To that end, D has lodged the composite statement of costs for summary assessment for (i) the 9 May hearing; and (ii) this adjourned hearing is enclosed for the Court’s consideration.

52.  Having studied the statement of costs, I summarily assess the costs at HK$80,000, such costs to be paid forthwith by P to D.