GURDAS S. CHOITHRAMANI v. MAYER BROWN (FORMERLY KNOWN AS MAYER BROWN JSM FORMERLY KNOWN AS JOHNSON STOKES & MASTER) AND OTHERS

CACV 180/2021

[2022] HKCA 753

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 180 OF 2021

(ON APPEAL FROM HCA NO 507 OF 2019)

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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):

1.  On 3 March 2022, this Court gave a judgment (“the CA Judgment”) ordering, inter alia, the Plaintiff to give security for the Defendants’ costs in respect of the Plaintiff’s appeal against the judgment of Deputy High Court Judge To dated 12 March 2021 (“the CFI Judgment”) by paying into court the sum of HK$350,000 within 28 days. The basic facts of this case and the reasons for ordering the Plaintiff to give security for costs are set out in the CA Judgment and will not be repeated here.

2.  On 12 April 2022, the Plaintiff filed a Notice of Motion seeking leave to appeal the CA Judgment to the Court of Final Appeal.

3.  Although the Notice of Appeal mentions “questions of law of great general or public importance”, no question of law is in fact identified in the Notice of Motion. Instead, it is contended in the Notice of Motion, inter alia, that (i) the Court of Appeal erred in stating that the Plaintiff’s allegations “have twice been rejected by different courts in the 1994 Action and 2011 Action”, (ii) the Court of Appeal erred in failing to take account of the difficulty which can be faced by a party in attempting to raise funds from family or friends, and (iii) the Court of Appeal was wrong to decide that it is “just” to order security in the particular circumstances of this case, and it is a matter of great importance that the Plaintiff is given the opportunity to present his case on appeal without the imposition of conditions which would effectively block any access the Plaintiff has to seeking justice. None of these contentions raises any distinct question of law fit for decision by the Court of Final Appeal. Further:

(1)  In respect (i), as held by Deputy High Court Judge To, the present claims of the Plaintiff are caught by the principles of res judicata, and his allegations have either been raised, or could and should have been raised, in the previous actions. At §77 of the CFI Judgment, the Judge concluded as follows: “Viewed in the round and looking at the matter on a broad level and making a merit-based judgment, this action is clearly an attempt by the Plaintiff to re-litigate the same principal allegations determined against Esquire or himself as Esquire’s privy in the previous proceedings… To allow the Plaintiff to litigate his present claims, there is a risk of inconsistent judgments in respect of the very same subject matter, namely the 1984 RSA. For the Plaintiff to even have a chance of succeeding, he would need to persuade the court to reach a decision fundamentally different from that reached by the Court of Appeal in the 1994 Action and 2011 Action, particularly CACV 312/2005.”

(2)  In respect of (ii), the Plaintiff did not previously suggest he could not raise funds elsewhere to provide the security for costs sought by the Defendants (§23 of the CA Judgment). In ordering the Plaintiff to give security for costs, this Court also took into account the fact that the security sought by the Defendants, while substantial, was not extravagant.

(3)  In respect of (iii), this Court considered, for the reasons given in the CA Judgment, that there were special circumstances in the present case which justified ordering the Plaintiff to give security for the Defendants’ costs of the appeal (§26 of the CA Judgment).

4.  Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of, inter alia, the Court of Appeal in any civil cause or matter if, in the opinion of the Court of Appeal the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision. We are unable to see any such question being involved in the proposed appeal.

5.  In the Notice of Motion, the Plaintiff also contends that the “or otherwise” limb should be applied by reason of the exceptional circumstances of these proceedings, taking account of the inequality of arms between one of the leading law firms in Hong Kong and an individual facing his third bankruptcy. It is, however, the settled practice of the Court of Appeal to defer to the Appeal Committee of the Court of Final Appeal in respect of any question as to whether leave to appeal should be granted on the “or otherwise” limb. We can see no good reason to depart from this practice in the present case.

6.  For the above reasons, the Plaintiff’s application for leave to appeal is refused, and the Notice of Motion is dismissed with costs to the Defendants. Having considered the Defendants’ statement of costs dated 10 May 2022 for summary assessment, it seems to us that the amount claimed by the Defendants is reasonable. Accordingly, the Defendants’ costs are summarily assessed in the amount of $32,013.