WINPO DEVELOPMENT LTD v. WONG KAR FU AND OTHERS

CACV 39/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 39 OF 2011

(ON APPEAL FROM HCA NO 3541 of 1993)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Cheung CJHC:

Order

1.  On 19 July 2011, we dismissed the 4^th Defendant’s application for leave to appeal out of time from the order and judgment of Fok JA (sitting as an additional judge of the Court of First Instance) dated 8 February 2011.  We further struck out the Notice of Appeal filed by the 4^th Defendant and dismissed her purported appeal on the basis that leave to appeal had not been obtained.  We now give our reasons.

Facts

2.  The present action was commenced by the Plaintiff on 29 April 1993 against 16 defendants. The Plaintiff claimed as registered owner of land known as Lot Nos. 1829A3 and 1829ARP in Demarcation District No. 121, Yuen Long, New Territories. It claims that the 16 defendants wrongfully and without the consent of its predecessor in title trespassed on portions of the Lots.  The Plaintiff claims an order for vacant possession, an injunction to restrain the defendants from remaining on the Lots and also damages for trespass.  With the exception of the 4^th and 5^th Defendants, the Plaintiff managed to enter default judgments against all other defendants.

3.  The 4^th and 5^th Defendants, mother and son, occupy No. 72 Tong Yan San Tsuen, Southern District, Yuen Long, New Territories, Lot No. 1829ARP in Demarcation District No. 121.

4.  On 28 May 1993, the 4^th Defendant filed her Defence and Counterclaim in which she asserts, and seeks a declaration, that the Plaintiff’s alleged title was extinguished in or about 1969 pursuant to section 17 of the Limitation Ordinance (Cap. 347) by reason of her adverse possession of the land since about 1948.  On 27 May 1993, the 5^th Defendant filed his Defence also asserting adverse possession.  But he did not make any counterclaim.

5.  On 15 June 1993, the Plaintiff filed its Reply and Defence to the 4^th Defendant’s Defence and Counterclaim and its Reply to the 5^th Defendant’s Defence. Pleadings in the action were deemed to be closed in late June 1993.

6.  On 12 May 1994, the Plaintiff took out a summons for directions which was heard by Master Beeson (as she then was) on 2 June 1994.  Subsequently, the 5^th Defendant filed his List of Documents dated 18 June 1994, the Plaintiff filed its List of Documents dated 23 June 1994 and the 4^th Defendant filed her List of Documents dated 3 August 1994.  On 20 September 1995, the Plaintiff filed a Supplemental List of Documents.  On 2 October 1996, Master Jennings extended the time for the Plaintiff to file witness statements of fact and gave leave to each party to adduce surveyor’s reports.

7.  Thereafter the action went to sleep.  Although the Plaintiff filed Notices of Intention to Proceed on 23 January 1998 and 25 August 2005 respectively, it did not take any step to prosecute the action after either notice.

8.  On 27 September 2006 and 21 November 2007, the 4^th and 5^th Defendants filed Notices of Intention to proceed.  The 5^th Defendant then proposed to amend its Defence, and in June 2008 correspondence ensued between his solicitors and the Plaintiff’s solicitors concerning a consent summons in this regard.  This led eventually to a request by the 5^th Defendant for the Plaintiff’s endorsement on his Amended Defence and Counterclaim on 12 January 2009.  In the Amended Defence and Counterclaim filed on 12 January 2009, the 5^th Defendant asserted a title by adverse possession over a larger area of land than that claimed by the Plaintiff in its Statement of Claim.  This prompted the Plaintiff to file an Amended Reply and Defence and Counterclaim to the 5^th Defendant’s Counterclaim on 12 February 2009 in which the Plaintiff asserted its title to that larger area of land.  Despite the filing of these pleadings, the Plaintiff took no further step to prosecute the action from 12 February 2009.

9.  In the meantime, on 12 October 2007, the younger brother of the 5^th Defendant, Mr Ng Kam Hung, commenced an action against the Plaintiff (in this action) as defendant in HCA 2160/2007.  He is represented by the same firm of solicitors (Haldanes) who have also been representing the 4^th and 5^th Defendants in this action at the material times.  In the 2007 Action, Mr Ng Kam Hung seeks a declaration that the Plaintiff (in the present action) is barred from bringing any action to recover the larger area of land counterclaimed by the 5^th Defendant in the present action and a declaration that any title of the Plaintiff to that larger area of land has been extinguished by virtue of section 17 of the Limitation Ordinance.  As defendant in the 2007 Action, the Plaintiff in the present action has counterclaimed to assert its title to that larger area of land.

10.  Returning to the present action, on 3 February 2009, the 5^th Defendant’s solicitors (Haldanes), who also acted for the 4^th Defendant in this action, wrote to the Plaintiff’s solicitors concerning this action and the 2007 Action.  In their letter, Haldanes asked when the Plaintiff anticipated filing a response to the 5^th Defendant’s Amended Defence and Counterclaim. They went on to state that it was their intention to apply to consolidate the two actions but wanted to have all pleadings finalized before doing so.

11.  As mentioned, on 12 February 2009, the Plaintiff filed its Amended Reply and Defence and Counterclaim to the 5^th Defendant’s Counterclaim asserting its title to the larger area of land.  The Plaintiff took no further step thereafter to prosecute the action.

12.  By a summons dated 13 July 2010, the 4^th and 5^th Defendants applied to dismiss the action for want of prosecution.  They succeeded before Master S Kwang, whose decision was however reversed on appeal by the learned Judge.

Judgment below

13.  The Judge found that there were two periods of delay.  For the first period, that is, from 2 October 1996 to 12 February 2009 (less a short period of about 7 months from 14 June 2008 to 12 January 2009), the Plaintiff was guilty of inordinate and inexcusable delay.  However, he found that the delay was waived or acquiesced in by the 4^th and 5^th Defendants :

“41. On the other hand, the combination of (1) the 5^th defendant’s application to amend his Defence and to plead his Counterclaim first intimated in June 2008, and (2) the letter dated 3 February 2009 from Messrs Haldanes for the 4^th and 5^th defendants expressing an intention to consolidate this action and the 2007 Action do, in my opinion, entitle the plaintiff to say that the 4^th and 5^th defendants waived or acquiesced in the past delay for which the plaintiff was responsible. Principle (7) of Trill v Sacher is that a defendant cannot rely on a period of delay if at the end of the period he so conducts himself as to induce the plaintiff to incur further costs in the reasonable belief that the defendant intends to exercise his right to proceed to trial notwithstanding the plaintiff’s delay. Based on these acts of the 4^th and 5^th defendants, the plaintiff proceeded to expend costs in preparing and the filing its Amended Reply and Counterclaim to the 5^th defendant’s Counterclaim.

42. In short, the period of delay prior to June 2008 was, in my opinion, inordinate and inexcusable on the part of the plaintiff but, for the reasons I have explained, was waived or acquiesced in by the 4^th and 5^th defendants.”

14.  As for the second period of delay, that is, the period from 12 February 2009 when the Plaintiff filed its Amended Reply and Defence and Counterclaim to the 5^th Defendant’s Counterclaim until 13 July 2010 when the 4^th and 5^th Defendants issued their summons to dismiss for want of prosecution, the Judge found that this period of delay of 17 months was clearly inordinate and inexcusable.  He further found that by reason of this subsequent period of delay, the earlier period of delay which had been waived or acquiesced in by the 4^th and 5^th Defendants became relevant again : Trill v Sacher [1993] 1 WLR 1379, 1398H – 1399C.

15.  The Judge went on to consider whether a fair trial of the issues between the parties was still possible because of the delay in question, particularly in terms of the dimming of the witnesses’ memories. The Judge noted that the 4^th and 5^th Defendants were already 102 and 73; moreover, the 5^th Defendant’s intended witnesses were aged between 55 and 86.  The Judge thought it obvious that there was a risk that a fair trial was no longer possible and that the two defendants had suffered serious prejudice by reason of the delay involved.

16.  The Judge went on to consider the nature of the claims and counterclaims in the action.  In the course of doing so, he observed :

“56. As against the prejudice of diminished memories on the part of the 4^th and 5^th defendants and their witnesses, it is necessary to consider the nature of the claims and counterclaims in this action. The only issue in this action is the question of whether the family of the 4^th and 5^th defendants is able to establish adverse possession of 20 years of the land in question. In its claim, the plaintiff asserts ownership over the area coloured pink in the plan attached to its Statement of Claim. Based on the alleged adverse possession relied upon by the family of the 4^th and 5^th defendants, the 5^th defendant added his Counterclaim in January 2009 asserting a title to a larger area of land of approximately 7,200 square metres (coloured green in the plan attached to his Counterclaim). To that counterclaim, the plaintiff has in turn counterclaimed to assert its ownership over that larger area of land. That same claim to adverse possession to the 7,200 square metre area is also advanced by Mr Ng Kam Hung in the 2007 Action.

57. Therefore, come what may, even if this action were to be dismissed for want of prosecution, the very same underlying issues will still fall to be determined in the 5^th defendant’s Counterclaim, by reason of the plaintiff’s Counterclaim to Counterclaim, and in the 2007 Action, by reason of the plaintiff’s Counterclaim in that action. The underlying issue of adverse possession for twenty years prior to 1993 will remain in issue in the 5^th defendant’s Counterclaim and in the Counterclaim to Counterclaim by reason of the operation of s. 35(1) of the Limitation Ordinance, Cap. 347, which deems a new claim made in an action to have been commenced on the same date as the original action.

58. Furthermore, in this regard, the possession that is relied upon by the various parties seeking to assert the adverse possession against the plaintiff, namely the 4^th and 5^th defendants in this action and Mr Ng Kam Hung in the 2007 Action, must be exclusive and singular: see Adverse Possession by Stephen Jourdan at §§7-30 & 7-31 citing Powell v McFarlane (1977) 38 P & CR 452 and JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419. The consequence of this is that, although the 4^th defendant has not counterclaimed in respect of the larger area of 7,200 square metres, the basis of her adverse possession claim is the same exclusive and singular possession as that which forms the basis of the 5^th defendant’s Counterclaim.

59. I accept the submission of Mr Chan that the reality of the situation is that the two actions involve the same battle between two camps, namely the plaintiff in this action and various members of the Ng family. The only issue in both actions is whether the Ng family have established adverse possession as against the plaintiff. The 4^thand 5^th defendants in this action and Mr Ng Kam Hung are all represented by Messrs Haldanes. Messrs Haldanes have themselves proposed consolidating the 2007 Action with this action. The Statement of Claim in the 2007 Action and the 5^th Defendant’s Amended Defence and Counterclaim are substantially the same. The 4^th defendant is the mother of both the 5^th defendant in this action and Mr Ng Kam Hung. It would seem likely that the 4^th and 5^th defendants in this action will call the same witnesses as will be called by Mr Ng Kam Hung in the 2007 Action, whose witness statements have been filed.”

17.  In paragraph 60, the Judge reverted to the prejudice that the 4^th and 5^th Defendants had suffered :

“60. As against the prejudice that may be inferred to have been caused by the period of inordinate and inexcusable delay on the part of the plaintiff, it is right to take into account a number of countervailing matters. The 4^th and 5^th defendants were already aged 85 and 56 respectively at the date of the issue of the writ in this action. They cannot complain of any delay in the issue of the writ since the plaintiff as registered owner was entitled to issue its writ claiming vacant possession at any time. Indeed, the later the plaintiff issued its writ the better, so far as those who might assert a claim to adverse possession are concerned. The events to which the witnesses will speak are matters of broad fact rather than detailed events, such as in a personal injury action. Their memories can be assisted by aerial photographs, survey sheets and other documents. In addition, it appears that the 5^th defendant in this action has already made a witness statement in another case to support a claim for adverse possession by a Madam Tsang to a piece of land nearby the land which is the subject of this action: see Yu Siu Cheuk v Realray Investments Limited, unrep., HCA277 of 2007, 31.3.09, at §59.”

18.  The Judge then reached this important conclusion :

“62. Taking all the above matters into account, I have reached the conclusion that the inordinate and inexcusable delay for which the plaintiff is responsible does not give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action. Furthermore, given the exceptional circumstance of the existence of the 5^th Defendant’s Counterclaim and the plaintiff’s Counterclaim to Counterclaim, which means that the same underlying issue that is raised in this claim stands to be tried in any event, I consider that the prejudice caused to the 4^th and 5^th defendant’s by reason of the plaintiff’s inordinate and inexcusable delay is outweighed. I wish to stress that this conclusion is not intended to condone the delay on the part of the plaintiff. That delay, as I have held, was both inordinate and inexcusable. But the court is enjoined, under the CJR, in giving effect to the underlying objectives of the rules always to recognise that the primary aim in exercising its powers is to secure the just resolution of disputes in accordance with the substantive rights of the parties: see RHC O.1A r.2(2). In the exceptional circumstances of this case, I consider I should exercise my discretion to allow the plaintiff’s claim to survive this dismissal application.”

19.  The Judge also found that the inaction of the Plaintiff did not demonstrate that it had no intention to prosecute the action to trial such that it was guilty of an abuse of the court’s process : Grovit v Doctor [1997] 1 WLR 640.

20.  For those reasons, the Judge decided to exercise his discretion, exceptionally, to permit the Plaintiff’s claim to survive the application to dismiss for want of prosecution.  He emphasized that it was only because of the unusual feature of the same underlying issues being subsumed within the lately added 5^th Defendant’s Counterclaim and the Counterclaim to Counterclaim that he had decided that he should exercise his discretion not to dismiss the Plaintiff’s claim.  He expressed his strong disapproval of the Plaintiff’s failure otherwise to bring the action to trial and observed that the Plaintiff’s claim had survived “only by the skin of its teeth” (paragraph 66).  The Judge considered that the dilatory conduct of the Plaintiff should be reflected in the costs order on the appeal and he awarded costs accordingly.

Purported appeal

21.  On 7 March 2011, the 4^th Defendant, but not the 5^th Defendant, filed a Notice of Appeal.  However, she had not obtained leave from either the Judge or from this Court to do so.

22.  The 4^th Defendant’s omission to obtain leave to appeal was apparently not spotted by the Plaintiff at first.  It filed a respondent’s notice seeking to support the Judge’s order on additional grounds on 21 March 2011.  Eventually on 7 June 2011, the Plaintiff filed a summons to strike out the Notice of Appeal and to dismiss the 4^th Defendant’s appeal on the basis that no leave to appeal had been obtained.

23.  In response, the 4^th Defendant belatedly issued a summons on 7 July 2011 applying for leave to appeal out of time.

Leave to appeal required

24.  Mr Eric Shum, appearing for the 4^th Defendant in the appeal (and for the 4^th and 5^th Defendants before the learned Judge), argues that in fact no leave is required for this type of appeal.  However, as his fallback position, he applies for leave to appeal out of time.  Counsel argues that on a “liberal” reading of Order 59, rule 21, the Rules of the High Court (Cap. 4A), leave is not required in the present case.  The material part of rule 21 reads :

“(1) Judgments and orders to which section 14AA(1) of the Ordinance (leave to appeal required for interlocutory appeals) does not apply and accordingly an appeal lies as of right from them are the following –

(a) a judgment or order determining in a summary way the substantive rights of a party to an action;

(b) an order made under section 52A(4) of the Ordinance;

(c) an order prohibiting a debtor from leaving Hong Kong under Order 44A, rule 3(1);

(d) an order for the imprisonment of a judgment debtor under Order 49B;

(e) an order of committal for contempt of court under Order 52, rule 1;

(f) an order granting any relief made at the hearing of an application for judicial review;

(g) an order under Order 53, rule 3 refusing to grant leave to apply for judicial review;

(h) an order granting an application for a writ of habeas corpus ad subjiciendum;

(i) an order under Order 73 (other than an order against which leave to appeal is required under the Arbitration Ordinance (Cap 609));

(j) a judgment given inter partes under Order 83A, rule 4, or Order 84A, rule 3 or in a mortgage action within the meaning of Order 88, rule 1;

(k) an order under Order 121; and

(l) a decree nisi of divorce or nullity of marriage.

(2) Without affecting the generality of paragraph (1)(a), the following are judgments and orders determining in a summary way the substantive rights of a party -

…..

(f) an order dismissing or striking out an action or other proceedings for want of prosecution;

…..

(3) .....

(4) A reference to an order specified in paragraph (1)(b), (c), (d), (e), (f), (h), (i), (k) and (l) includes an order refusing, varying or discharging the order.”

25.  Counsel argues that an order dismissing or striking out an action or other proceedings for want of prosecution is an order determining in a summary way the substantive rights of a party.  I have no difficulty with this submission : rule 21(1)(a) and (2)(f).  But counsel goes on to argue that on a liberal reading of the rule, an order refusing to dismiss or strike out an action or other proceedings for want of prosecution is also an order determining in a summary way the substantive rights of a party to an action.  He refers to rule 21(4) in support of his argument.  He says that although rule 21(4) does not specifically cover rule 21(1)(a), the spirit behind the rule does and therefore an order refusing to strike out is nonetheless an “order determining in a summary way the substantive rights of a party to an action”.

26.  With respect, this interpretation of the rule is plainly wrong.  It is directly contradicted by the very wording of rule 21(1)(a).  When a court refuses to strike out an action for want of prosecution, the action survives the application and is permitted to go to trial.  Therefore, by definition, the court does not determine in a summary way the substantive rights of any party to the action.  They will be determined at trial.  That is wholly different from the situation covered specifically by rule 21(2)(f) where the court orders the dismissal or striking out of an action or other proceedings for want of prosecution.  In that situation, the court’s order determines, summarily, the substantive rights of the parties to the action.

27.  That explains why rule 21(4), which deems an order specified in some sub‑paragraphs in rule 21(1) as including an order refusing, varying or discharging the order, deliberately omits rule 21(1)(a) from its operation.  That only makes sense.

28.  For these reasons, I conclude that leave is required to appeal from a refusal to dismiss or strike out an action or other proceedings for want of prosecution.

Leave to appeal ― merits

29.  Turning to the 4^th Defendant’s application for leave to appeal out of time, the failure of the 4^th Defendant to seek leave to appeal before she filed her Notice of Appeal was, as explained, due to the erroneous view of the law dealt with above.  However, the Plaintiff has had notice of the purported appeal and the grounds of appeal for a long time, and has even filed a respondent’s notice in support of the Judge’s order.  I therefore prefer to focus on the question of whether there are any reasonable grounds of appeal – there is no suggestion that there is any other reason in the interests of justice why the appeal should be heard : section 14AA(4), the High Court Ordinance (Cap. 4).

30.  Mr Shum accepts that the intended appeal seeks to challenge the Judge’s exercise of discretion and that according to well established principles, the court does not lightly interfere with an exercise of discretion below.  He does not say that the Judge has got any of the general legal principles governing this type of application wrong.  Rather, Ground 1 of the Notice of Appeal complains generally that the Judge has taken into account matters or reasons which are “irrelevant and/or wrong”.

31.  Ground 2 of the Notice of Appeal goes on to challenge the Judge’s finding that the 4^th Defendant has waived or acquiesced in the first period of delay.  In his written submission, counsel argues that the 5^th Defendant’s application to amend his Defence and to plead his Counterclaim in early 2009 were not acts of the 4^th Defendant and do not concern her at all.

32.  In my view, this is an over simplification of the position.  As the Judge explained in paragraph 59 of his judgment (extracted above), the reality of the situation is that the present action and the 2007 Action involve the same battle between two camps, namely the Plaintiff and various members of the Ng family.  The ultimate issue in both actions is whether the Ng family have established adverse possession as against the Plaintiff.  The 4^th and 5^th Defendants and Mr Ng Kam Hung in the 2007 Action are all represented by Haldanes.  The letter dated 3 February 2009 from Haldanes to the Plaintiff expressed an intention to consolidate the present action and the 2007 Action.  Haldanes acted for both defendants in this action when that letter was written.  The solicitors did not say that they only wrote the letter on behalf of the 5^th Defendant, and the 4^th Defendant, their other client in the action, took or would take a different stance.  Nor would that have made any sense – it would not have made any sense to consolidate the two actions without involving the Plaintiff’s claim against the 4^th Defendant, particularly when the 4^th Defendant had already counterclaimed against the Plaintiff for extinguishment of its title to the original area of land claimed by the Plaintiff.  By definition, the greater includes the less, and the dispute over the larger area of land must also cover and include the dispute (involving the Plaintiff and the 4^th Defendant) over the smaller area of land.

33.  The Judge was therefore plainly right when he said (in paragraph 41) that the combination of the 5^th Defendant’s application to amend his Defence and to plead his Counterclaim and the letter dated 3 February 2009 from Haldanes expressing an intention to consolidate this action and the 2007 Action, when viewed against the reality of the situation, amounted to waiver or acquiescence on the part of the two defendants regarding the past delay for which the Plaintiff was responsible.

34.  The proposed ground of appeal is therefore unarguable.  To be fair to him, Mr Shum abandoned any reliance on this ground at the hearing.

35.  Ground 3 contends that the Judge erred in not striking out the Plaintiff’s claim against the 4^th Defendant by relying on or being influenced by his finding that even if the action were to be dismissed for want of prosecution, the very same underlying issues will still fall to be determined in the 5^th Defendant’s Counterclaim, the Plaintiff’s Counterclaim to Counterclaim, and in the 2007 Action, when the above matters were not initiated by the 4^th Defendant and do not concern the 4^th Defendant at all.

36.  With respect, the 4^th Defendant has misunderstood the Judge’s point.  The Judge was not saying that the 4^th Defendant was responsible for these other claims.  Nor was he concerned with waiver or acquiescence here.  He was focusing his mind on whether court resources and costs would be saved by dismissing the Plaintiff’s claim against the 4^th Defendant.  He was right to take that into account given the underlying objectives set out in Order 1A, rule 1 of the Rules of the High Court, which the Judge mentioned and discussed in paragraphs 29 to 33 of his careful judgment. In particular, objective (f) requires that the fair distribution of the resources of the court be ensured.  If the dismissal of the Plaintiff’s claim against the 4^th Defendant would lead to a saving of the court’s limited resources, that would, of course, be a highly relevant factor in favour of exercising the court’s discretion to dismiss the claim.  However, as the Judge recognized, given the peculiar circumstances of the present case, “come what may”, the very same underlying issues would still fall to be determined in the 5^th Defendant’s Counterclaim, by reason of the Plaintiff’s Counterclaim to Counterclaim, and in the 2007 Action, by reason of the Plaintiff’s Counterclaim in that action.  (Mr Shum informed the Court at the hearing that if the 4^th Defendant’s intended appeal was successful, she would not pursue her Counterclaim, which also raises the very same issues, albeit on a smaller scale in terms of the area of land involved.)

37.  Looking at the picture globally, it is wholly artificial to differentiate the case of the 4^th Defendant from that of her two sons involved in the present action and in the 2007 Action. Their cases simply stand or fall together.  The present attempt to divorce the 4^th Defendant’s case from that of her children would only lead to more litigation and costs.

38.  For these reasons, I do not think Ground 3 is arguable.

39.  As for Ground 4, the 4^th Defendant criticizes the learned Judge’s reference and apparent reliance on the principle of “singular and exclusive possession as a unit” in paragraph 58 of the judgment (extracted above).  Counsel argues that the principle is totally irrelevant in the context of whether one defendant squatter is responsible for the act of another defendant squatter in the context of an application to strike out for want of prosecution and abuse of process.  He argues that the principle only relates to the substantive law of adverse possession in the context of the requirement of “exclusiveness of possession” such that when different members of a family have possession that is singular and exclusive, each member’s claim of adverse possession would not be defeated for being non‑exclusive.

40.  With respect, I think the 4^th Defendant has misread paragraph 58 of the Judgment.  On a fair reading of that paragraph, the Judge’s reference to the requirement of exclusive and singular possession was made in the context of his point that the basis of the 4^th Defendant’s adverse possession claim is the same exclusive and singular possession which also informs the 5^th Defendant’s Counterclaim and Ng Kam Hung’s claim in the 2007 Action.  In other words, the Judge was still dealing with whether the court’s resources would be saved by dismissing only the claim against the 4^th Defendant. He was saying that the same issues involved in the Plaintiff’s claim against the 4^th Defendant would have to be resolved in the 5^th Defendant’s Counterclaim, the Plaintiff’s Counterclaim to Counterclaim and the 2007 Action, although the land involved in the former was smaller than that involved in the latter.

41.  In my view, there was no confusion between substantive law and procedural law (relating to dismissal for want of prosecution).

42.  This last ground is therefore also unarguable.

43.  In counsel’s written submissions, it was emphasized that the serious delay involved in the present case had caused the two defendants serious prejudice in terms of the dimming of their and their intended witnesses’ memories, and in terms of the deterioration in health of the 4^th Defendant.  The Judge was fully conscious of all this and quite plainly, he gave anxious thought to these matters.  There can be no challenge against the Judge’s approach in this regard, nor is there any such ground in the Notice of Appeal.

Conclusion and costs

44.  For these reasons, I do not consider that the proposed grounds of appeal are reasonably arguable.  Nor is there any other reason in the interests of justice why the appeal should be heard.  I therefore agreed with the making of the order described at the beginning of this judgment. As for costs, the Plaintiff must have the respective costs of the two cross‑applications and that of the purported appeal.  Unlike the hearing below which canvassed many issues, those involved in this Court are straightforward.  I therefore decline to give a certificate for two counsel.  The 4^th Defendant’s own costs shall be taxed in accordance with legal aid regulations.

Hon Tang VP :

45.  I agree.