BOWARDLEY ENTERPRISES LTD v. MILLENNIUM GROUP LTD

DCCJ3039/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3039 OF 2004

R U L I N G

1.  This is an application for leave to appeal against my decision of 26 June 2005.  The principles on which an application for leave to appeal are set out in Smith v Cosworth Casting Processes Limited  [1997] 1 WLR 1538 and at page 1538 Lord Woolf, MR, gave guidance as follows: 

“	(1)	The court will only refuse leave if satisfied that the applicant had no realistic prospect of succeeding on the appeal.  The test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case.  Why however this court has decided to adopt the former phrase is because the use of the word “realistic” makes it clear that a fanciful prospect or an unrealistic argument is not sufficient.
	(2)	The court can grant the application even if it is not so satisfied.  There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success.  For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying.”

2.  These principles have been followed by Leung JA in Ma Bik Yung v Ko Chuen HCMP 4303/1999 and by the District Court in the judgment of Muttrie J in Unifruit Limited v Capital Years International Limited DCCJ 5798/2002.  Section 63 of the District Court Ordinance, Cap. 336, provides that a party may only appeal from the District Court to the Court of Appeal with leave.  Where the judge below refuses leave the party may still apply for leave to the Court of Appeal.

3.  Here the defendant sets out detailed grounds of appeal in the draft notice of appeal and the plaintiff by counsel has also submitted written skeleton arguments.  But it is important to bear in mind that an application for leave is not an appeal itself and the application should not become, as Muttrie J puts it in the Unifruit case, “a time-wasting and cost-wasting exercise, especially in a situation where if it is not successful the applicant can in any event have a second bite at the cherry”.  I should add that likewise the intended respondent need not rehearse his arguments for opposing the appeal.  The judge should not be requested to effectively re-hear the case.

4.  The decision here relates to an amendment of pleadings and specific discovery of documents but touches essentially on limitation questions and stare decisis.  These are essentially questions of law and how the legal principles are applied to the facts of the case.  While this court may be bound by the vertical stare decisis principle, the Court of Appeal has a wider discretion in deciding whether to follow its own decision in Lim Ban Thoon v Chintung Securities Limited [1991] 2 HKC 2004 under the Young v Bristol Aeroplane Company Limited [1994] KB 718 principles.  Mr Wong has today referred me to the case of Bank of India v Murjani Industries (HK) Limited & Another CACV 86/1989, unreported, 22 June 1989, which adopts the Young v Bristol Aeroplane principles.  This also falls into what Lord Woolf, MR, has described perhaps as an area of the law which requires clarifying.

5.  I have read the written submissions of Mr Wong and heard his oral submissions, but it seems to me that at the outset that I cannot say that the defendant has no realistic prospect of success on appeal.  I bear in mind that the Court of Appeal said in King Royal Limited v Lam Kwan Yuk HCMP 448/2005, unreported, 27 April 2005, that it is not for this court to restrict the grounds which could be argued on appeal if it is considered appropriate to grant leave to appeal.

6.  I will therefore grant leave to appeal generally.

7.  Costs of and incidental to this application be costs in the cause of the appeal with certificate for counsel.

(Discussion between court and counsel)

8.  Leave be granted to the defendant to file and serve the amended defence out of time within 14 days from the date hereof.  Leave be granted to the plaintiff to file and serve a reply within 14 days thereafter.