THE YIN NIN SAVINGS MORTGAGE LOAN & LAND INVESTMENT CO LTD AND ANOTHER v. OCCUPIER(S) OF PREMISES (save and except the 2nd Defendant to the 9th Defendant) AND OTHERS

CACV 240/2021
CACV 242/2021
(Heard together)

[2022] HKCA 613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 240 OF 2021

(ON APPEAL FROM HCMP NO. 1739 OF 2003)

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BETWEEN

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 242 OF 2021

(ON APPEAL FROM HCMP NO. 1739 OF 2003)

___________________

BETWEEN

___________________

(Heard together)

____________________

JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

Introduction

1.  These two appeals were brought by the plaintiffs against the decision of Lok J (“the Judge”) given on 7 October 2020 (“the Decision”) whereby he allowed the 8^th defendant’s appeal against the order of Master Hui (“the Master”) made on 27 May 2019 amending and correcting a consent order under the slip rule. Leave to appeal was given by this Court (Chu and Au JJA) on 5 May 2021[1].

2.  CACV 240/2021 is the 1^st plaintiff’s appeal, and CACV 242/2021 is the 2^nd plaintiff’s appeal. The two appeals were directed to be dealt with together and on the basis of written submissions without an oral hearing pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap 4A (“RHC”). The core issue in these appeals concern a narrow point, namely, the scope and application of Order 20 rule 11 of the RHC, or what is often referred to as the slip rule.

Background

3.  In 2003, the 1^st plaintiff, who was then the registered owner of the Remaining Portion of Lot No.1198 in Demarcation District No. 109, Kam Tin, New Territories, Hong Kong (“the Land”), commenced the action below (HCMP 1739/2003, “the Action”) to recover possession of the Land from the various defendants under Order 113 of the RHC. The 1^st plaintiff has been represented by Mayer Brown, (“MB”), formerly, Johnson Strokes & Master.

4.  The 1^st plaintiff subsequently entered judgment against the 2^nd and 9^th defendants, and discontinued the claim against the 3^rd and 7^th defendants. The 4^th, 5^th, 6^th and 8^th defendants are the remaining defendants in the Action.

5.  After the filing of the Statement of Claim, a joint Defence and Counterclaim by the 4^th to 8^th defendants and the Reply and Defence to Counterclaim in 2004, no significant step was taken in the Action.

6.  By a deed poll dated 29 January 2018, the 1^st plaintiff subdivided the Land into Section A, Section B and a new Remaining Portion of Lot No.1198 in D.D. No.109 (respectively “Section A’, “Section B” and “RP of the Land”).

7.  By an assignment dated 29 January 2018 (which was preceded by a sale and purchase agreement dated 19 December 2017), the 1^st plaintiff sold Section A and Section B to the 2^nd plaintiff and Strength Power Group Limited (“Strength Power”) to hold as tenants in common.

8.  By a deed poll dated 11 June 2018, Section A was further subdivided into seven subsections (collectively “Subsections of Section A”) and the Remaining Portion of Section A (“RP of Subsection A”). Subsections of Section A were assigned to the 2^nd plaintiff while the RP of Subsection A and Section B were assigned to Strength Power.

9.  As a result of the subdivision of the Land and the assignments mentioned above, the 2^nd plaintiff has become the registered owner of the subject matter of the claim against the 4^th defendant (which is for possession of Subsection 7 of Section A), the 5^th defendant (which is for possession of Subsections 1 to 4 and 6 of Section A), and the 6^th defendant (which is for possession of Subsection 5 of Section A).

10.  The 1^st plaintiff has remained as the owner of RP of the Land, which is the subject matter of the claim against the 8^th defendant.

11.  By the sale and purchase agreement dated 19 December 2017 and the assignment dated 29 January 2018, the 1^st plaintiff has assigned its title and rights in the Action to the 2^nd plaintiff and Strength Power.

12.  On 23 May 2018, the 2^nd plaintiff, represented by Dundons (“DD”), initiated an application by consent for it to be joined as a plaintiff in the Action with consequential directions (including amendment of the pleadings). It is apparent from the draft amended statement of claim provided by DD that the 1^st and 2^nd plaintiffs were to be separately represented by MB and DD.

13.  After MB indicated that the 1^st plaintiff has no comments on the draft consent summons, the 2^nd plaintiff sought consent to the proposed application from the 4^th, 6^th and 8^th defendants, represented by Edmund WH Chow & Co (“EWHC”), and the 5^th defendant, represented by KM Tang & Co (“KMT”).

14.  On 3 July 2018, EWHC replied with comments on the terms of the draft consent summons. On 26 July 2018, KMT wrote to DD (copied to EWHC) to query whether it was appropriate for the two plaintiffs to be separately represented by two firms of solicitors.

15.  By letter dated 3 August 2018 (copied to EWHC and MB), DD referred to the decision in Noor Maritime v Calandra Shipping [2018] 2 HKLRD 1408 and Order 15 rule 4 of the RHC, and indicated that separate legal representation was warranted and justified having regard to the fact that (i) no conflict of interest was anticipated between the 1^st and 2^nd plaintiffs; (ii) the 1^st and 2^nd plaintiffs have interest in separate and distinct portions of the Land; (iii) there was no overlap between the claims of the 1^st and 2^nd plaintiffs; and (iv) no inconsistent steps were anticipated between the 1^st and 2^nd plaintiffs in the proceedings.

16.  On 28 August 2018, KMT replied (copied to EWHC and MB) that on the basis of the circumstances stated in DD’s letter, they would not oppose to the joinder application but reserved the right to make necessary application to the court if there was any change in the circumstances stated in DD’s letter.

17.  On 4 September 2018, DD circulated to MB, KMT and EWHC a revised draft consent summons together with a revised draft amended statement of claim for approval and signature. After further exchanges of comments between the parties on the terms of the consent summons and the consequential directions, the consent summons was signed by all parties. Throughout the exchanges, no issue or objection to separate representation of the plaintiffs was raised by EWHC on behalf of the 4^th, 6^th and 8^th defendants. As noted above, the fact that the plaintiffs were and will be separately represented is apparent from the draft amended statement of claim.

18.  On 18 September 2018, the signed consent summons (“Consent Summons”) was filed with the Court. Paragraphs 1 and 2 of the Consent Summons applied for an order that the 2^nd plaintiff be joined as a plaintiff in the Action, and for leave to the plaintiffs to amend the statement of claim as per the draft attached together.

19.  On 27 September 2018, the Master issued a requisition to DD (which was not copied to the parties to the Consent Summons), asking for justification for the 1^st and 2^nd plaintiffs to be separately represented.

20.  DD replied by letter dated 2 October 2018. After referring to the background and history of the Action and the relevant legal principles relating to separate legal representation for co-plaintiffs, including Noor Maritime v Calandra Shipping and Bushra Bibi v Method Building & Engineering Works Ltd [2014] 3 HKLRD 21 at [43], the letter went on to state as follows:

“Justification

By reason of the above, we respectfully invite the Court to share our view that no conflict of interest is anticipated between the two Plaintiffs in this action, particularly in view of no overlap between the claim of the 1^st Plaintiff and the claims of the 2^nd Plaintiff, as reflected in the draft Amended Statement of Claim.

Further, no inconsistent steps are anticipated between the two Plaintiffs in running the present proceedings, such that they would not embarrass the fair trial of the action.

In such circumstances, we respectfully submit that separate legal representation for the two Plaintiffs is justified.

We further invite the Court to take into account that there is a consensus between all material parties in the proceedings for our client’s application to be joined as the 2^nd Plaintiff in this action and that at all material times, the parties are well informed of the two Plaintiffs being separately represented.

In the premises, we respectfully seek the approval and leave of the Court for the 1^st Plaintiff and the 2^nd Plaintiff to be represented by two separate legal teams in the present proceedings.”

21.  It can be seen that the justifications put forward in the letter to the Master are similar to those set out in DD’s reply to KMT’s query (see [15] above).

22.  After consideration of DD’s reply, the Master made a consent order on 9 October 2018 in terms of the Consent Summons (“Consent Order”).  

23.  Subsequently, the parties proceeded to file amended pleadings[2]. The plaintiffs also applied to strike out part of the defendants’ pleadings.  

24.  At the hearing of the striking out application on 22 March 2019, Registrar Kwang directed the plaintiffs to address the Court at the next case management summons (“CMS”) hearing the circumstances justifying their being separately represented.

25.  At the CMS hearing on 23 April 2019 before Master Ho, EWHC representing the 4^th, 6^th and 8^th defendants indicated for the first time that they opposed separate representation of the plaintiffs.  Master Ho accordingly adjourned the issue for substantive argument at a further CMS hearing fixed for 28 May 2019.

26.  On 2 May 2019, Master Ho further directed the plaintiffs to seek clarification from the Master as to whether he had in fact granted an order allowing separate representation in the Consent Summons application, and if so, further directions on whether the Consent Order should be amended under the slip rule or otherwise to include an order allowing separate representation.

27.  Accordingly, MB and DD jointly wrote on 8 May 2019 to the Master seeking leave to file a summons to amend and correct the Consent Order under Order 20 rule 11 of the RHC and the inherent jurisdiction of the Court to the effect that express leave was given to the plaintiffs to be separately represented. 

28.  On 10 May 2019, the Master directed that a summons be filed for the Consent Order to be amended or corrected.  On 17 May 2019, the plaintiffs jointly issued an inter partes summons (“Amendment Summons”) applying to amend and/or correct the Consent Order by inserting a new paragraph 1B which read as follows:

“1B. The 1^st and 2^nd plaintiffs do have leave to be represented by separate representations in this action, namely Messrs Mayer Brown for the 1^st plaintiff and Messrs Dundons for the 2^nd plaintiff.”

29.  On 21 May 2019, EWHC on behalf of the 4^th, 6^th and 8^th defendants, wrote to DD setting out their reasons for opposing the Amendment Summons.  In gist, they argued that there was no error in expressing the manifest intention of the court arising from a slip or omission in the Consent Order because (i) the 4^th, 6^th and 8^th defendants never consented to separate representation of the plaintiffs; (ii) they only consented to the joinder of the 2^nd plaintiff; and (iii) whether the plaintiffs should have leave to be represented separately remained a live issue to be determined by the court as the court never invited them to make submissions on this issue.  The letter was copied to the Master on 24 May 2019.

30.  The Master heard the Amendment Summons on 27 May 2019.  The application was opposed by the defendants.  After hearing the parties, the Master made an order in terms of the Amendment Summons (“Amendment Order”), and ordered the defendants to pay the plaintiffs’ costs summarily assessed at $1,040.  

31.  On 6 June 2019, the 8^th defendant lodged a Notice of Appeal against the Amendment Order.  By letter dated 10 June 2019, KMT indicated to the Court that the 5^th defendant would not be appealing against the Amendment Order.   No appeal has been brought by the 4^th and 6^th defendants, who were legally aided.

The Judge’s decision on the appeal

32.  The Judge heard the appeal. By his decision handed down on 7 October 2020, the Judge allowed the appeal, set aside the Amendment Order and directed that “the question of whether the 1^st and 2^nd plaintiffs are allowed to have separate representation be reconsidered by a master after hearing further submissions from the parties, and if necessary, further evidence can be submitted to the court for consideration”.  He also ordered the plaintiffs to pay the 8^th defendant’s costs of the appeal.

33.  The reasons underlying the Judge’s decision may be summarised as follows:

(1) Although the objection of the 8^th defendant (and possibly also the 4^th and 6^th defendants) to separate representation of the plaintiffs was an afterthought[3], the defendants did not agree to separate representation of the plaintiffs when they consented to the Consent Summons, which concerned only the joinder of the 2^nd plaintiff[4]. The fact that KMT had raised the question of separate representation with DD did not mean that the 4^th, 6^th and 8^th defendants had agreed to separate representation for the plaintiffs. Even though amended pleadings were filed after the Consent Order was made, the defendants were not estopped from challenging the issue of separate representation[5]. In any event, the court has the power to override any agreement made by the parties on this issue[6].

(2) The Master’s decision to also allow separate representation when he approved the Consent Summons was an ex parte decision. The defendants were therefore entitled to challenge the decision in a subsequent inter partes hearing. At the hearing of the Amendment Summons, the Master was duty bound to reconsider the issue. However, he simply amended the Consent order under the slip rule without considering the issue[7].

(3) It was doubtful whether 2^nd plaintiff had locus to maintain a claim for possession in the Action because it was not the owner of any part of the Land when the action was commenced in 2003. If the 2^nd plaintiff did not have locus, there was little justification for allowing separate representation[8].

The Judge’s leave to appeal decision

34.  The 1^st and 2^nd plaintiffs’ application for leave to appeal was dismissed by the Judge on 26 March 2021. In the decision refusing leave to appeal (“the Leave Decision”), the Judge reiterated that the Master should have reconsidered the issue of separate representation when the defendants raised objections to it, given that the defendants were not asked to address the Court on this issue when the Consent Summons was approved and such that the decision to allow separate representation was made ex parte[9]. The Judge was also of the view that the Master should have considered the issue of additional costs arising from separate representation of the plaintiffs[10]. It was further said that the Court has case management power to regulate its own proceedings and the Decision was one that the Judge was entitled to make in terms of his case management power and discretion[11].

Grounds of appeal

35.  Between the 1^st and 2^nd plaintiffs, three grounds of appeal have been put forward in these appeals. They are as follows (respectively “Ground 1” to “Ground 3”):

(1) The Judge erred in holding that the Master was wrong to amend the Consent Order under the slip rule.

(2) The Judge erred in holding that the Master was duty bound to reconsider the issue of separate representation again at the hearing of the Amendment Summons.

(3) Assuming that the Master’s decision to allow separate representation when approving the Consent Summons was made ex parte, if the 8^th defendant were to apply to set aside the Consent Order or apply for leave to appeal out of time, the Court would require the 8^th defendant to justify the substantial delay in making the challenge, and would, in any event, upheld the Master’s decision.

36.  The plaintiffs’ principal challenge in these appeals is directed at [30] of the Decision. Other than the additional submission on the locus point made by the 2^nd plaintiff under Ground 3, the arguments of the 1^st and 2^nd plaintiffs are similar. The core issue arising from their submissions is whether the Judge was correct to take the view that the Master should have reconsidered the issue of separate representation instead of applying the slip rule to amend and correct the Consent Order to make clear his intention in making the order.

Relevant legal principles

37.  The starting point is to consider the relevant principles relating to the application of the slip rule and the rule on separate representation of co-plaintiffs. It does not appear from the submissions that there is disagreement among counsel as to the applicable principles.

38.  It is trite that the slip rule jurisdiction under Order 20 rule 11 of the RHC can only be invoked to correct errors in expressing the manifest intention of the Court: Hong Kong Civil Procedure 2022, volume 1, at 20/11/1). The purpose is to enable the Court to amend a formal order which through accident or error does not reflect the actual decision of the Court.

39.  The power under Order 20 rule 11 does not extend to correcting an error or mistake of the Court. Hence, even where the court is satisfied that it has made a mistake in making the order, it cannot invoke Order 20 rule 11 to correct it: Lo Yuen Chong v IWS Environmental Technologies Limited (formerly known as Fook Woo Environmental Technologies Limited) [2021] HKCA 89 at [18] & [19]; and Li Tze Cho v Ching Hua Co (H.K.) Ltd (No.3) [1961] HKLR 201 at 205. The slip rule cannot be used by the Court to reconsider a final and regular decision once it has been perfected, even if it had been obtained by fraud: R v Cripps, ex p Muldoon [1984] QB 686 at 695A-F; and HKSAR v Law Chun Man (No.2) [2013] 1 HKLRD 555 at [11] and [12].

40.  As regard the issue of separate representation, the primary rule is that there should be no separate representation for co-plaintiffs. This, however, is a rule of practice rather than a principle of law; it may be departed from in appropriate circumstances: Noor Maritime Ltd v Calandra Shipping Co Ltd (No.2), supra, at [12], [17] and [18]; and Lewis Daily Telegraph Ltd (No.2) [1964] 2 QB 601 at 620.

Ground 1: Application of the slip rule

41.  Under Ground 1, the plaintiffs submitted that the only application before the Master at the hearing on 27 May 2019 was the Amendment Summons, which was a slip rule application to make express the Master’s manifest intention at the time of making the Consent Order on the question of separate representation of the plaintiffs. It was not a fresh application for leave to the plaintiffs to be separately represented, which the Master was well aware of[12]. Accordingly, the only issue for determination is whether to apply the slip rule, which the Master correctly decided to do so.

42.  The 8^th defendant, however, argued that the slip rule was not applicable because previously the defendants were never invited to make submissions on the issue of separate representation. There was thus no error in expressing the manifest intention of the court or clerical mistake in the Consent Order that required rectification. The Judge was therefore correct to have stepped into the shoes of the Master and considered the matter afresh and reached his conclusion on the issue.

43.  The 8^th defendant also complained that this ground of appeal raised a new point that was not argued at the appeal before the Judge. We do not agree. Ground 1 arises directly out of the Judge’s reasoning and holding that the Master should have reconsidered the issue of separate representation. This ground simply calls into question the correctness of this holding.

44.  As to the merits of the ground of appeal, the Amendment Summons and the 27 May 2019 hearing came about as a result of the Master’s direction made in response to MB and DD’s joint letter dated 8 May 2019. The only matter before the Master at the hearing was the Amendment Summons, which was a slip rule application to amend the Consent Order. The hearing was an inter partes hearing attended by, among others, the solicitor for the 8^th defendant. At the end of it, the Master allowed the plaintiffs’ application and made an order in terms of the Amendment Summons. In so doing, he must have been satisfied that the Consent Order failed to make clear his manifested intention to give leave to the plaintiffs to be separately represented.

45.  This fact was accepted by the Judge who found it was the Master’s view that he had allowed separate representation when approving the Consent Summon; otherwise he would not have directed the plaintiffs to take out the Amendment Summons under the slip rule[13]. In these appeals, the 8^th defendant does not take issue with this finding of the Judge. In fact, his solicitor accepted at the Amendment Summons hearing that, in order to determine whether the slip rule under Order 20 rule 11 applied, it was important to look at the manifested intention of the Court[14]. The 8^th defendant’s solicitor also acknowledged that it was not for him to “jump into the mind of Master and say what Master’s manifest intention was”[15].

46.  In these circumstances, the Master must be entitled, and was obliged, to apply the slip rule to amend and correct the Consent Order so as to make clear his manifested intention. There was no error in the Master invoking the slip rule or in amending the Consent Order in terms of the Amendment Summons.

47.  Moreover, as submitted by the plaintiffs, to uphold the appeal from the Amendment Order, the Judge would have to find that the Master did not actually have the manifested intention which he professed to have at the time of approving the Consent Summons. There was, however, no such finding by the Judge. To the contrary, as mentioned above, the Judge in fact found that the Master considered himself to have allowed separate representation when he approved the Consent Summons. The 8^th defendant has not been able to show how the Master could be said to have erred in applying the slip rule when the Consent Order failed to express his manifested intention.

48.  Further, it is apparent from the Decision that the Judge’s reasons for allowing the appeal were not directed at the correctness of the Master’s decision to invoke the slip rule. Instead, his primary reason for allowing the appeal was that he had doubts as to whether the 2^nd plaintiff had any cause of action when the Action was commenced in 2003, since the 2^nd plaintiff only acquired part of the Land in 2018[16]. The Judge’s question on the 2^nd plaintiff’s locus to bring the claim against the defendants only pertains to the correctness of the joinder of the 2^nd plaintiff, which was never challenged by the defendants. The question of locus has no relevance to whether the plaintiffs should be allowed to have separate representation, still less whether the Master was correct in amending the Consent Order under Order 20 rule 11 of the RHC.

49.  Similarly, the Judge’s concern about the implications on costs[17], while may be a relevant consideration in considering whether to allow separate representation, has no bearing on whether the Master should invoke Order 20 rule 11 to amend and correct the Consent Order, which was the only issue that the Judge was called upon to decide in the appeal before him.

50.  The Judge, in refusing to grant leave to appeal, further alluded to his case management power to regulate the proceedings, and stated that his decision was one that he was entitled to make in terms of his case management power and discretion[18]. It is also the 8^th defendant’s argument in these appeals that the Judge’s decision was an exercise of case management power with high discretionary content such that the appellate court should not intervene.

51.  We do not accept that the Judge’s decision can be supported as an exercise of case management power or discretion. As discussed above, the appeal before the Judge concerned solely with the Master’s decision to apply the slip rule and to amend the Consent Order. Given the Judge’s acceptance that the Consent Order failed to express the Master’s manifested intention to allow separate representation, there was no legal basis to disturb the Master’s decision to apply the slip rule. That should have been the end of the appeal. There was no occasion for exercising any case management power or discretion.

52.  For the above reasons, Ground 1 is made out, and the plaintiffs’ appeals should be allowed on this basis alone.

Ground 2: The Master was duty bound to reconsider the issue?

53.  Under Ground 2, the plaintiffs challenge the Judge’s holding that the Master was duty bound to reconsider the issue of separate representation at the hearing of the Amendment Summons, when there was no application by the defendants for leave to appeal the Consent Order out of time, or to set aside what the defendants argued was an ex parte decision made by the Master.

54.  In seeking to uphold the Judge’s holding, the 8^th defendant argued that the Consent Order, in so far as it covered the issue of separate representation, was an ex parte decision in that the defendants were not invited to address the Court on the issue and/or to indicate whether they consented to it. Accordingly, he argued, the defendants were entitled to challenge the decision in a subsequent inter partes hearing.

55.  It is to be noted at the outset that the Judge accepted that when the Consent Summons was filed in September 2018, the defendants were aware that the 1^st and 2^nd plaintiffs were and would be separately represented in the Action[19]. This was apparent from the draft amended originating summons and the draft amended statement of claim. The Judge also found that the 8^th defendant’s objection to separate representation was an afterthought, pointing out that the 8^th defendant had not thought about the implications of separate representation when he gave consent to the making of the Consent Order[20].

56.  Notwithstanding this, the Judge held that when the Master decided to approve the Consent Summons, intending at the same time to give leave for the plaintiffs to be separately represented, that decision was made ex parte without hearing submissions from the defendants. He then went on to hold that the Master was duty bound to reconsider the issue at the hearing of the Amendment Summons[21].

57.  In coming to this view, the Judge had failed to have regard to the scope of Order 20 rule 11, which does not extend to correcting the court’s own mistakes, even where the court is satisfied that it has made a mistake when granting the order. Hence, the slip rule could only be invoked to correct the Consent Order to reflect what the Master meant, and not to correct errors or mistakes in approving the Consent Summons. This distinction was well understood by the Master[22], who indisputably was in the best position to say what his own manifested intention was when he approved the Consent Summons. Once the Master was satisfied that the Consent Order failed to express his manifested intention of allowing separate representation for the plaintiffs, he was neither obliged nor permitted to reconsider the separate representation issue. The fact that the Judge would have approached the issue differently is not the point.

58.  The 8^th defendant disputes that it had consented to separate representation, and contends that the Master’s decision to also allow the plaintiffs to be separately represented was an ex parte decision. This, however, does not sit well with the Judge’s finding that the 8^th defendant’s objection to separate representation was an afterthought. More importantly, if the 8^th defendant disagrees to the plaintiff’s being allowed to have separate representation and wishes to raise objections to it, the proper course is to either apply to set aside the Consent Order under Order 32 rule 6 of the RHC (since he contends that it was an ex parte decision) or appeal it out of time. The 8^th defendant has done neither. This being the case, there was no basis to reopen or reconsider the issue of separate representation.

59.  Further, as pointed out by the plaintiffs, had the 8^th defendant applied to set aside the Consent Order or appealed it out of time, he would have to justify his rather substantial delay, bearing in mind the Judge’s finding that the defendants knew, at the time of the filing of the Consent Summons, that the plaintiffs were to be separately represented and that the 8^th defendant’s objection to separate representation was an afterthought. Evidence explaining the delay is relevant to the Court’s exercise of discretion as to whether to set aside the order or to allow the appeal out of time. There is therefore force in the plaintiffs’ complaint that the Judge’s decision to direct the question of separate representation to be reconsidered afresh by a Master, without first requiring the 8^th defendant to justify his long delay, is unfair and wrong in principle.

60.  The 8^th defendant has also argued that the point about applying under Order 32 rule 6 to set aside the ex parte order was a new point. We do not agree. Firstly, the plaintiffs’ case has always been that the Master’s decision to approve the Consent Summons is not an ex parte decision. Secondly, the point relating to Order 32 rule 6 is an alternative argument that flows from the Judge’s holding that the Master’s decision on the Consent Summons was an ex parte decision.

61.  For these reasons, we are of the view that the Judge’s holding that the Master was duty bound to reconsider the separate representation issue at the Amendment Summons hearing, and his direction that the question be reconsidered by a Master afresh cannot stand.

Ground 3: Substantial delay

62.  The plaintiffs’ submissions under Ground 3 are that even if the 8^th defendant had applied to set aside the Consent Order under Order 32 rule 6 or appealed the order out of time, the Consent Order would have been upheld in any event because of the substantial delay on the part of the 8^th defendant (i.e. more than 2 years have lapsed since the date of the Consent Order) and his failure to show there is a real prospect of success. It was argued that the 8^th defendant could not satisfy the high merits threshold having regard to the fact that the rule against separate representation, which is only a rule of practice, can be justified in this case and any prejudice that may occasion to the defendants can be remedied by the court’s case management powers and wide discretion on costs.

63.  The 8^th defendant argued that the point about his failure to provide an acceptable reason for the delay is a new point. However, the point on inexplicable delay was argued before the Judge. It is not a new point. His main argument under this ground is that there are no exceptional circumstances justifying separate representation for the plaintiffs. He further pointed out that the plaintiffs’ own conduct in changing their counsel team and solicitors demonstrated the problems of separate representation and the potential prejudice to the 8^th defendant (and the other remaining defendants).

64.  In our view, this ground of appeal is premised on the supposition that the 8^th defendant would be challenging the Consent Order, either by way of an appeal out of time or a setting aside application under Order 32 rule 6. In light of our conclusions on Grounds 1 and 2, and given that the 8^th defendant has not taken any step to set aside or appeal the Consent Order, there is in fact no need to consider whether the 8^th defendant would have a real prospect of success in challenging the Consent Order. Ground 3 therefore does not arise for determination.

65.  We need only point out that, on the facts of this case, there are some merits in the plaintiffs’ submissions that the primary rule against separate representation can be displaced. It is possible to alleviate the Judge’s concerns about possible procedural complications and additional costs implications[23] and to address any prejudice to the defendants that may flow from the plaintiffs’ separate representation by means of appropriate case management, such as limiting the time of speeches, examination of witnesses and making appropriate costs orders by allowing, for example, only one set of costs to the plaintiffs in the event they are successful in their claims: see Floods of Queensferry Ltd v Shand Construction Ltd (1997) 54 ConLR 137 at 160; and Ong v Ping [2015] 5 Costs LT 997 at [48], [60] to [68].

Conclusion and costs

66.  In conclusion, we make the following order:

(1) The 1^st plaintiff’s appeal and the 2^nd plaintiffs’ appeal are allowed.

(2) The Order of the Judge dated 7 October 2020 is set aside.

(3) The order of the Master dated 27 May 2019 is reinstated.

67.  We do not see any reason to depart from the usual rule of costs follow event such that the 8^th defendant should be ordered to pay the costs of the appeal before the Judge and the costs of these appeals, including the applications for leave to appeal made to the Judge and to this Court.

68.  As to quantum, while separate appeals have to be brought and the 1^st and 2^nd plaintiffs are separately represented, the Court has a wide discretion on costs. Given the many commonalities in the plaintiffs’ grounds of appeal, submissions and also the stance taken in the appeal, we are inclined to exercise our discretion to allow only one set of costs to be apportioned between them.

69.  Accordingly, we make a costs order nisi that the 8^th defendant pays the 1^st and 2^nd plaintiffs the costs of the appeal before the Judge and these appeals, including the costs for the applications for leave to appeal, but limited to one set of costs, to be taxed if not agreed.