TSANG WOON MING v. TSAN HING TAT HEIDI AND OTHERS

CACV 18/2022

[2023] HKCA 389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 18 OF 2022

(ON APPEAL FROM DCCJ NO 3791 OF 2016)

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J U D G M E N T

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

INTRODUCTION

1.  There are before the court two applications:

(1)  the Defendants’ summons dated 24 August 2022 seeking to strike out the Supplemental Notice of Appeal dated 12 August 2022 filed and served by the Plaintiff without the court’s leave; and

(2)  the Plaintiff’s summons dated 1 September 2022 seeking leave to amend the Notice of Appeal dated 7 January 2022.

2.  Having considered the papers before us, we are of the view that it is appropriate to deal with the two applications on the basis of written submissions only without an oral hearing pursuant to Order 59, rule 14A(1) of the Rules of the High Court, Cap 4A.

BASIC FACTS

3.  The background facts of this adverse possession claim have been fully set out in the written judgment of H H Judge Leung dated 27 April 2021 (“the Judgment”). For the purpose of disposing of the present applications, the following brief summary should suffice.

4.  The Plaintiff and the Defendants are relatives. They are descendants (or, in the case of the 3^rd Defendant, the spouse of a descendant) of a common ancestor, Tsan Hei, deceased (“Hei”). Hei was the father of Tsan Yung (“Yung”)[1] and Tsang Tung (“Tung”), both deceased. The Plaintiff is from Tung’s branch, while the Defendants are from Yung’s branch, of the Tsan family:

(1)  The Plaintiff is the son of Tung.

(2)  The 1^st and 2^nd Defendants are the grandchildren of Yung, the 3^rd Defendant is the widower of another grandchild (“Lana”) of Yung, while the 4^th to 6^th Defendants are the children of the 3^rd Defendant and Lana (in other words, the great-grandchildren of Yung).

5.  The subject matter of this adverse possession claim is Lot No 141 in DD 313 in Tai O, Lantau Island (“the Lot”). It is also known as Nos 158 and 160 of Tai Ping Street, Tai O. Apparently, the Lot was originally owned by Hei, but it was swindled out of him at some stage. In 1916, Yung managed to regain title to the Lot, and became the registered owner thereof. Since that time, the paper title to the Lot has been held by members of Yung’s branch of the Tsan family, or by their company. The 1^st to 6^th Defendants are currently the registered owners of the Lot as tenants-in-common.

6.  In relation to the physical use and occupation of the Lot over the years, the position is as follows:

(1)  After Yung managed to regain title of the Lot in 1916, he caused building structures (“the House”) to be erected on it. Afterwards, the House was occupied by his mother (referred to in the Judgment as “the Grandmother”), the Plaintiff’s father (ie Tung), and an uncle of the Plaintiff as their residence. At that time, Yung apparently lived in the same street in Tai O.

(2)  In the 1940s, the said uncle of the Plaintiff moved out of the House and emigrated to Malaysia.

(3)  The Plaintiff’s father and mother were married in 1943. The Plaintiff’s mother then moved into the household and lived in the House, and looked after the Grandmother. Subsequently, the Plaintiff[2] and his four siblings (as and when they were born) also lived in the House.

(4)  There was one other member of the household called Cheung Sui Fan (“Sui Fan”), an adopted daughter (or, according to the Plaintiff, adopted granddaughter) of the Grandmother.

(5)  The Grandmother passed away soon after the Second World War ended in 1945, while the Plaintiff’s father passed away in around 1955.

(6)  Thereafter, the Plaintiff’s family (including his mother, himself and his siblings) and Sui Fan continued to live in the House until 1957 when the Plaintiff’s mother and her children moved out of Tai O to Kowloon, leaving Sui Fan as the only occupant of the House.

(7)  In 1966, the Plaintiff joined the civil service, and his mother moved back to Tai O and rejoined Sui Fan to live in the House.

(8)  By the 1980s, the Plaintiff’s siblings (except his younger sister, Tsang Yuet Ho, who lived in another street in Tai O with her own family) had emigrated to the USA/Australia.

(9)  In 1984, Sui Fan passed away, leaving the Plaintiff’s mother as the only occupant of the House. The Plaintiff then succeeded in securing his transfer to work for the Agricultural and Fisheries Department at Lantau Country Park, and moved back to Tai O. He has been living with his mother in the House since 1984.

7.  According to the Plaintiff:

(1)  His family has all along treated the Lot as their own property.

(2)  Since his return to live with his mother in 1984, the Plaintiff has treated the Lot as his own.

(3)  He has been paying the government rent and rates as well as the utility expenses incurred in relation to the Lot.

(4)  He has caused works to be done to repair, maintain and improve the House as well as to guard the Lot against outsiders. The works carried out between 1984 and 2014 included:

(a)  changing the wooden door at the main entrance;

(b)  erecting fences and gates at the backyard;

(c)  keeping the building structures in good repair, including fixing the ceiling, replacing the water pipes, repairing the walls, gates and window frames, installing roof tiles, making good flood damage, replacing the electrical wiring and renovating the interior; and

(d)  erecting a mail box for Nos 158 and 160, Tai Ping Street, at the wall of the main entrance.

The Plaintiff says that throughout the years, the occupation of the House/Lot by his family has been without interruption or interference by anyone until 2015.

8.  The 1^st and 2^nd Defendants’ mother (“Madam Luk”) passed away in June 2014. Apparently, the Defendants then caused a survey of various lots of land comprised in the estate of Madam Luk in late 2015, and discovered that the Lot was occupied by “third parties”. By their solicitors’ letter dated 2 September 2015, the Defendants demanded the occupiers of the Lot to deliver up vacant possession. This triggered the Plaintiff’s action.

9.  On 29 July 2016, the Plaintiff commenced the action below (DCCJ 3791/2016) against the Defendants, claiming that, by way of adverse possession since 1984, he in his own name had acquired possessory title to the Lot, and the Defendants’ title to the Lot had been extinguished by virtue of ss 7 and 17 of the Limitation Ordinance, Cap 347.

THE JUDGMENT

10.  The Plaintiff’s action against the Defendants was tried by the Judge in July and August 2020. On 27 April 2021, the Judge handed down the Judgment.

11.  In the Judgment, the Judge made the following material findings:

(1)  The Plaintiff has been residing in the Lot since 1984 (§58 of the Judgment).

(2)  The occupation of the Lot by the Plaintiff’s mother and Sui Fan from 1966 to 1984 had always been joint. So has the occupation by the Plaintiff and his mother since 1984 (§60 of the Judgment).

(3)  Whilst the Plaintiff has been one of the two occupiers of the Lot since 1984, he fails to establish that he has been possessing, with the requisite intention to possess, the Lot in his own name and on his own behalf to the exclusion of the world at large since 1984 (§85 of the Judgment).

(4)  The Plaintiff’s family (including the Plaintiff’s mother and the Plaintiff) occupied the Lot with the implied consent or licence of the owners (ie the Defendants’ predecessors-in-title or the Defendants) until about 2014 (§§86 & 95 of the Judgment), and had not done anything to unequivocally manifest to the world, including the paper title owner, of any change in the understanding on their part of the basis of their occupation of the Lot (§§96 & 97 of the Judgment).

12.  Accordingly, the Judge dismissed the Plaintiff’s claim, entered judgment on the counterclaim in favour of the Defendants, and made an order for possession of the Lot against the Plaintiff[3].

LEAVE TO APPEAL

13.  The Plaintiff was not satisfied with the Judgment, and applied to the Judge for leave to appeal by a summons dated 25 May 2021. Attached to that summons was a draft Notice of Appeal (“the 1^st Draft Notice of Appeal”) containing 5 grounds of appeal (“the Original Grounds”).

(1)  Ground 1 challenges the Judge’s finding that the Plaintiff and his family members had knowledge that Yung had acquired title to the Lot in mid-1910.

(2)  Ground 2 contends that the Judge misunderstood or mis-read the evidence concerning what the Grandmother said to the Plaintiff’s mother that the Plaintiff’s family could continue to live at the Lot without any consideration.

(3)  Ground 3 contends that the Judge erred in failing to appreciate that Sui Fan was adopted as the granddaughter, instead of daughter, of the Grandmother, and thus she was subordinate to the Plaintiff’s mother instead of being on the same level as the Plaintiff’s mother in the family hierarchy.

(4)  Ground 4 contends that, by reasons of the wrong findings mentioned in Grounds 1 to 3 above, the Judge erred in holding that the Plaintiff failed to establish the requisite intention to possess the Lot for the purpose of adverse possession.

(5)  Ground 5 contends that, by reasons of the wrong findings mentioned in Grounds 1 to 3 above, the Judge erred in holding that the Plaintiff’s occupation of the Lot was referable to an implied licence by the Defendants’ predecessors-in-title/the Defendants.

14.  On 13 September 2021, the Judge dismissed the Plaintiff’s application for leave to appeal.

15.  On 27 September 2021, the Plaintiff issued a summons in the Court of Appeal to renew the application for leave to appeal against the Judgment. Attached to that summons was a draft notice of appeal (“the 2^nd Draft Notice of Appeal”) containing 6 grounds of appeal (“the Expanded Grounds”). The 6 grounds were not numbered sequentially, but were numbered 1, 2, 1, 3, 4, and 5. A comparison between the Expanded Grounds and the Original Grounds shows that:

(1)  the first 5 grounds of the Expanded Grounds reproduced the Original Grounds but with some additions or amendments; and

(2)  the Expanded Ground 6 was a new ground of appeal, contending that (i) the Judge erred in finding that the Defendants’ family had acquiesced (consented) to the occupation of the Lot by the Plaintiff’s family, and (ii) the Judge should instead have held that the inaction of the Defendants’ family, being aware of the occupation of the Lot by Plaintiff’s family for over 70 years, was tantamount to an abandonment of the Lot.

16.  The Defendants objected to the Plaintiff’s application for leave to appeal. In their written submissions, the Defendants expressly drew the court’s attention to the differences between the Original Grounds and the Expanded Grounds[4], and complained that the Plaintiff had failed to give any explanation for seeking leave to appeal on new or amended grounds which were different from those advanced before the Judge (with the consequence that the court did not have the benefit of the Judge’s views or observations on the new or amended grounds when considering the leave application), contrary to the guidance given by the Court of Appeal in Jenho Development Ltd v Pensonic Technology (HK) Limited, HCMP 277/2013 (25 March 2013), at §§4-7, and Practice Direction 4.1, §11[5].

17.  On 31 December 2021, Yuen JA made an order granting the Plaintiff leave to appeal against the Judgment, but expressly “on the grounds stated in the draft Notice of Appeal annexed to the Summons filed in DCCJ 3791/2016 on 25^th May 2021” (ie the Original Grounds). We shall come back to the relevance of this qualification in the leave granted to the Plaintiff later in this judgment.

18.  On 7 January 2022, the Plaintiff filed a notice of appeal (“the Notice of Appeal”) substantially in the same form as the 1^st Draft Notice of Appeal containing the Original Grounds.

THE STRIKE OUT SUMMONS

19.  On 12 August 2022, the Plaintiff filed and served a Supplemental Notice of Appeal (“the Supplemental Notice of Appeal”) which had attached to it an “Amended Notice of Appeal” (“the Purported Amended Notice of Appeal”) containing 10 grounds:

(1)  Grounds 1 to 6 reproduce the Expanded Grounds.

(2)  Grounds 7 to 10 (“the Additional Grounds”) are new, and concern (i) the Judge’s finding that the Plaintiff’s mother was in joint possession of the Lot with the Plaintiff, and (ii) the question of whether the Plaintiff has, at the latest since 1996, alternatively 2004, been in sole possession of the Lot to the exclusion of his mother whose occupation was as a member of the Plaintiff’s household and under his care.

20.  By letter dated 18 August 2022, the Defendants’ solicitors objected to the Supplemental Notice of Appeal on the ground it was filed without the prior leave of the Court of Appeal given that the present appeal was against a judgment from the District Court and required either leave of a judge of the District Court or the Court of Appeal in respect of specific grounds of appeal. The Defendants’ solicitors also demanded the Plaintiff’s solicitors to withdraw the Supplemental Notice of Appeal. The Plaintiff’s solicitors failed to do so, indicating instead that, subject to legal aid approval, they would apply for leave to amend the Notice of Appeal.

21.  On 24 August 2022, the Defendants issued a summons (“the Strike Out Summons”) seeking an order that the Supplemental Notice of Appeal be struck out.

THE AMENDMENT SUMMONS

22.  On 1 September 2022, the Plaintiff issued a summons (“the Amendment Summons”) seeking leave to amend the Notice of Appeal in the form of a draft “Amended Notice of Appeal” (“the 3^rd Draft Amended Notice of Appeal”). The 3^rd Draft Amended Notice of Appeal is materially the same as the Purported Amended Notice of Appeal, containing the same 10 grounds.

DISCUSSION

(i)  The Strike Out Summons

23.  Section 63(1) of the District Court Ordinance (Cap 336) provides that an appeal can, with leave of a judge (of the District Court) or the Court of Appeal, be made to the Court of Appeal from every judgment, order or decision of a judge in any civil cause or matter. Section 63A(1)(a) further provides that leave to appeal may be granted in respect of a particular issue arising out of the judgment, order or decision.

24.  Where leave to appeal has been granted in respect of specific grounds of appeal, the appellant is not entitled to add to or vary the grounds of the appeal by relying upon Order 59 rule 7(1)(b) of the Rules of the High Court (Cap 4A), which permits an appellant, by supplemental notice, to amend the notice of appeal without leave before the date on which a hearing date of the appeal is fixed. If the appellant wishes to rely on any additional or varied ground(s) of appeal, he should apply for leave to appeal in respect of the issues raised therein, coupled with an application for an extension of time for making the leave application (if necessary). The applicable principles are clearly set out in the judgment of Kwan JA (as she then was) in Ngan Cheung Wah v Kwong Shook Ling, CACV 92/2014 (20 August 2014):

“[9] In giving leave to appeal, the judge’s order provided expressly that it was on the grounds of appeal in the draft Notice of Appeal appended to the plaintiff’s application. Although the word ‘issue’ did not feature in the order, the meaning is perfectly clear. The plaintiff was restricted to arguing the matters or issues raised in the three grounds of appeal and no further. If the plaintiff wishes to expand the scope of his arguments on appeal, leave must be sought from the court.

[10] Order 59 rule 7 cannot be prayed in aid in the situation where leave to appeal on an issue must first be obtained under section 63A(1).

[11] It is fallacious to speak of a right to add to or vary the grounds of appeal that may be reserved. There is no right to add to or vary the grounds of appeal that would have the effect of raising an issue for which leave to appeal has not been granted. And it is clear on the wording of the draft Notice of Appeal and the Notice of Appeal that was filed that the plaintiff did not assert such a right, as contended by his counsel. What was stated there was that ‘the Plaintiff reserves the right to apply to add to or vary the above grounds upon receiving a copy of the transcript of the evidence of the trial’ (Emphasis supplied).

[12] We therefore treated the arguments advanced in respect of grounds 4 and 5 as supportive of an application for leave to appeal in respect of the issues raised therein, albeit out of time. If the threshold requirement in section 63A for granting leave is met, we would grant leave to raise those grounds in this appeal and treat the arguments as advanced in the appeal. Otherwise, we would refuse leave to advance those arguments in the appeal.”

25.  In the present case, the Plaintiff had not obtained any leave to add to or vary the grounds of appeal appearing in the Notice of Appeal at the time when he filed and served the Supplemental Notice of Appeal. He was not entitled to do so in purported reliance on Order 59, rule 7(1)(b) of the Rules of the High Court.

26.  On behalf of the Plaintiff, Mr Chain accepts that in respect of the Additional Grounds, leave to amend the Notice of Appeal should have been sought[6]. However, he argues that the Plaintiff is not required to apply for leave in respect of the Expanded Grounds, because (i) they are “essentially a tidying up/polishing exercise” on the Original Grounds, and (ii) the Expanded Ground 6 is merely “an expansion” of the Original Ground 5[7]. We do not accept this argument. In our view, where leave to appeal is required and leave has been granted on some specific grounds by the court, an appellant who wishes to rely on any new or amended ground(s) of appeal is generally required to obtain the court’s leave before it may amend the notice of appeal to bring in the new or amended ground(s). Introducing qualifications such as whether a new or amended ground amounts to a “tidying up/polishing exercise” or an “expansion” of an existing ground would serve only to create uncertainty or unnecessary arguments.

27.  We consider that the Plaintiff is required to obtain the leave of the Court before it may rely on the Expanded Grounds in the appeal. In any event, there cannot be any serious argument that he requires the leave of the Court to raise the Additional Grounds. Hence, the filing of the Supplemental Notice of Appeal by the Plaintiff on 12 August 2022 is irregular. Where leave to appeal is required but no leave to appeal has been obtained, a notice of appeal filed without leave is invalid and is liable to be struck out: see Fok Hing (HK) Trading Limited v Gunawan-Indra, trading as Bumipala Dhanadwipa (also known as Toko Indonesia Gajahmada), CACV 74/2014 (4 July 2014), at §24 per Kwan JA (as she then was). We see no reason why the Supplemental Notice of Appeal should not be struck out in the present case.

(ii)  The Amendment Summons

28.  The Expanded Grounds and the Additional Grounds require separate consideration.

(a)  The Expanded Grounds

29.  In so far as the Expanded Grounds are concerned, the Plaintiff is, effectively, seeking to reinstate the 2^nd Draft Notice of Appeal which had been considered, but rejected, by Yuen JA when granting leave to appeal to the Plaintiff.

30.  Although no reason was given by Yuen JA when granting leave to appeal, it cannot be disputed that (i) both the 1^st Draft Notice of Appeal and 2^nd Draft Notice of Appeal were before her, and (ii) her attention was expressly drawn to the differences between the Expanded Grounds and the Original Grounds, complaint having been raised by the Defendants that the Plaintiff sought leave to appeal on grounds which were different from those advanced before the Judge without any explanation. By paragraph 1 of her order dated 31 December 2021, Yuen JA expressly granted leave to appeal “on the grounds stated in the draft Notice of Appeal annexed to the Summons filed in DCCJ 3791/2016 on 25^th May 2021”. It is clear that Her Ladyship only granted leave to appeal on the Original Grounds and, by necessary implication, must have refused to grant leave to appeal on the Expanded Grounds.

31.  Since the Plaintiff’s application for leave to appeal was determined (i) on the basis of written submissions only and there was no order made under Order 59, rule 2A(8) precluding any aggrieved party from seeking a reconsideration of the determination at an oral hearing inter partes, and (ii) by a single Justice of Appeal, if the Plaintiff was not satisfied with the order of Yuen JA, he could, within 7 days of the order, have requested the Court of Appeal to reconsider the matter under Order 59, rule 2A(7) or rule 2C. The Plaintiff did not do so. Even now, the Plaintiff is not seeking leave to appeal out of time in respect of the Expanded Grounds.

32.  Mr Chan (for the Defendants) does not dispute that the Court has a discretion whether to permit the Plaintiff to amend the Notice of Appeal to bring in the Expanded Grounds.

33.  In considering whether to allow the Plaintiff’s proposed amendments in respect of the Expanded Grounds, it is relevant that there has been substantial delay on the part of the Plaintiff in making the application, regardless of whether it is treated as an application to amend the Notice of Appeal under Order 59, rule 7(1)(a), or an application to the Court of Appeal to reconsider the leave under Order 59, rule 2A(7). No good explanation has been given for the delay. The Plaintiff says that his legal aid certificate for the appeal was granted only in February 2022, counsel was only assigned on 3 May 2022, and the transcript of the trial was only obtained on 7 July 2022. However, the Plaintiff was legally represented in the application for leave to appeal in the Court of Appeal, and the Expanded Grounds had already been formulated and attached to the summons of 27 September 2021. There was no good reason why the Plaintiff did not seek a reconsideration of the leave granted by Yuen JA within 7 days of the date of Her Ladyship’s order. In view of the length of the delay and the absence of any good explanation for the delay, normally the Plaintiff has to show a real prospect of success on the merits, not merely a reasonable prospect of success, before the Court would grant leave to the Plaintiff to amend the Notice of Appeal (Tang Chai On v Tang Sing Si [2016] 5 HKLRD 104 at §9).

34.  We are not prepared to exercise our discretion to allow the Plaintiff to amend the Notice of Appeal to raise the Expanded Grounds, for the following reasons:

(1)  Insofar as the Expanded Grounds 1 to 5 are concerned, it is the Plaintiff’s own position that they are “essentially a tidying up/polishing exercise” (see §26 above). We have looked at the proposed amendments in those grounds, and do not consider that they would likely have any substantial impact in the outcome of the appeal.

(2)  Insofar as the Expanded Ground 6 is concerned, it constitutes a challenge to the Judge’s findings of fact concerning the issues of consent/licence and abandonment. The threshold for the Court of Appeal to overcome a finding of fact made by a trial judge is a high one even in relation to findings of secondary facts: see China Gold Finance Limited v CIL Holdings Limited, CACV 11/2015, (27 November 2015), at §22. We are not satisfied that the Plaintiff has demonstrated a real prospect of success in respect of this ground.

(b)  The Additional Grounds

35.  There has also been substantial delay on the part of the Plaintiff in seeking to raise the Additional Grounds in support of the appeal, and an absence of good explanation for the delay. However, unlike the Expanded Grounds, the Additional Grounds were not before Yuen JA when she determined whether to grant leave to appeal, and if so, on what grounds.

36.  The Additional Grounds raise an interesting, but by no means uncommon, question of whether, in a situation where land has been adversely possessed by more than one member of a family jointly for the requisite limitation period, it is open to one of the family members to make an adverse possession claim against the paper title owner without joining the other joint adverse possessor(s), and what would be the consequence of a failure to join all the joint adverse possessors as plaintiffs in the action. In the recent judgment of the Court of Appeal in Leung Chi Cheong v Liu Che Wun [2022] 4 HKLRD 633, the court had to consider a different but related situation where a claim for possessory title to land was made by a family member (the second wife) against the estate of her deceased husband (represented by a son from his first marriage), and both the husband and the second wife were in physical occupation of the land during a portion of the relevant limitation period vis-à-vis the paper title owner. That judgment has given rise to arguments on whether it is necessary to join all the family members/occupants in an action for adverse possession: see, for example, Fung Yuk Luen v Wong Fung Lan, CACV 398/2021 (21 February 2023), at §35, where the court considered that it was not necessary for the issue to be resolved because it had not been raised as an issue for determination by the trial judge.

37.  In the present case, the Judge made a finding that the Plaintiff and his mother were in joint possession of the Lot since 1984, and the Plaintiff failed to prove that he had been possessing, with the requisite intention to possess, the Lot in his own name and on his own behalf to the exclusion of the world at large since 1984 (see §§60 and 85 of the Judgment). We are satisfied that the Defendants have shown a real prospect of success in relation to the Additional Grounds, and that the issue raised is one which ought to be considered by the Court of Appeal. Having reached this view, we do not consider it appropriate to further discuss the merits of the Additional Grounds in the present judgment.

38.  In considering whether to grant leave to amend, we take into account the issue of prejudice raised by Mr Chan on behalf of the Defendants. However, regardless of whether leave to amend is granted in respect of the Additional Grounds, the Plaintiff will be entitled to pursue his appeal based on the existing Notice of Appeal. While some more costs will likely be incurred as a result of allowing the Plaintiff to rely on the Additional Grounds, we do not believe that the additional costs will be very substantial. We also do not believe that the hearing of the appeal will be substantially lengthened or delayed by the inclusion of the Additional Grounds.

39.  Mr Chan relies on the judgment of Moore-Bick LJ in R (Hysaj) v Secretary for the Home Department [2015] 1 WLR 2472 in support of an argument that the Court should equate the present application as one for relief from sanctions and approach it in the same way and with the same rigor. It is unnecessary to consider whether the approach in Hysaj should be adopted generally in relation to applications for leave (or permission) to appeal and extension of time to appeal. As pointed out by Mr Chain, Hysaj concerns applications for leave to appeal out of time, and there would be no appeal if time is not extended. In the present case, leave to appeal has been granted. Thus, there will be an appeal in any event.

40.  Overall, we are prepared to grant leave to the Plaintiff to amend the Notice of Appeal, but limited to the Additional Grounds only (ie §§7 to 10 of the 3^rd Draft Notice of Appeal).

41.  In passing, we would mention that there may be a reasonable argument as to whether the Judge was justified on the evidence to find that the Plaintiff was in joint possession of the Lot with his mother. We shall leave this matter to the Defendants’ lawyers for their further consideration.

DISPOSITION

42.  In respect of the Strike Out Summons, we make an order that the Supplemental Notice of Appeal filed on 12 August 2022 be struck out with costs to the Defendants.

43.  In respect of the Amendment Summons, we grant the Plaintiff leave to amend the Notice of Appeal limited to the incorporation of the Additional Grounds to the Notice of Appeal. Taking into account that the Plaintiff is only partially successful in his application to amend the Notice of Appeal, his substantial delay in making the application, the absence of any good explanation for the delay, and the fact that he is asking the court’s indulgence to allow him to raise the Additional Grounds, we would order the Plaintiff to pay 50% of the costs of the Amendment Summons.

44.  Overall, we order the Plaintiff to pay 75% of the Defendants’ costs of the Strike Out Summons and Amendment Summons on a composite basis.

45.  The Defendants have asked for their costs to be taxed or assessed on an indemnity basis. We do not consider that there is sufficient justification for a higher scale of taxation or assessment. We also do not consider it justifiable to award certificate for 2 counsel in the present case. The Defendants’ costs shall be assessed summarily on the normal party-and-party basis. The Plaintiff shall have leave to file and serve a statement of objections (limited to 2 pages) to the Defendants’ statement of costs dated 24 November 2022 within 14 days of the date of this judgment. Subject to such further directions as may be given, the Court shall assess the Defendants’ costs summarily without further notice to the parties.

46.  The Plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.