SUNNY TADJUDIN v. BANK OF AMERICA, NATIONAL ASSOCIATION

HCA 322/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 322 OF 2008

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J U D G M E N T

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1.  This is the plaintiff’s application for leave to appeal from my Decision on discovery and particulars, and to vary the order of costs which I made on 22 December 2011.

2.  My reasons for the orders made have been set out in the Decision itself which I shall not repeat. It suffices to say that overall, I was not satisfied that the plaintiff had made out a prima facie case that the defendant was in possession, custody or control of further documents not already disclosed and /or that such discovery was necessary for disposing fairly of the cause or matter or for saving costs, particularly in view of the discovery already made.

3.  Under section 14AA (4)(a) of the High Court Ordinance, leave to appeal shall not be granted unless the appeal has a reasonable prospect of success.  This has been clearly established by the authorities after the Civil Justice Reform to mean more than just an arguable case but an appeal that has merits, the prospects of which are more than not fanciful, without having to be probable.

4.  Orders for discovery under Order 24, for particulars under Order 18 rule 12 and for costs are all in the discretion of the court.  The authorities are clear that an appellate court would only interfere with a trial judge’s exercise of discretion where the judge has erred in law or in principle, or if the judge has taken into account some matter which he or she should not have taken into account or has left out of account some matter which he or she should have taken into account, such that the judge was plainly wrong.  The fact that the appellate court may exercise a discretion differently on the same facts is no ground to substitute its discretion for that of the trial judge.

5.  Applying the principles outlined above as to the appellate court’s approach to an appeal against a discretion exercised by the trial judge, I am not at all satisfied that there are reasonable grounds of success of the intended appeal.

6.  Further, although leave to appeal shall not be granted under section 14AA (4)(a) of the Ordinance unless the appeal has a reasonable prospect of success, the converse is not true.  In the case of Ho Yuen Kee, Winnie v Ho Hung Sun, Stanley HCA 391/2006, 25 May 2009, Cheung J (as he then was) highlighted the fact that even if the court takes the view that there is a reasonable prospect of success in the intended appeal, it still retains a discretion as to whether or not to grant leave.  That decision was affirmed on appeal to the Court of Appeal.

7.  This action was commenced in 2008, but even now the parties have been bogged down at the stage of discovery without having made any progress to trial.  A further round of argument over discovery, particulars or costs at the appellate level would only increase costs and further delay the trial, and would not advance the real interests of the parties or the due administration of justice in accordance with the objectives of the Civil Justice Reform.  The interests of the parties in this case would be much better served by their actively progressing to the exchange of witness statements, and thereafter proceeding to have an early trial of the issues in dispute.

8.  For all the above reasons, I dismiss the application for leave and for variation with costs to the defendant.