HO LAI CHUEN CADIA t/a RESOLUTION SOFTWARE CONSULTANTS v. XEROX (HONG KONG) LTD.

HCA 6454/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6454 OF 1997

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J U D G M E N T

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1. This is an application for leave to appeal against an order I made relating to costs.

2. On 16 January 2002, I handed down judgment after trial in this action. On 19 April 2002, I handed down another judgment in which I varied the costs order nisi I made in favour of the Plaintiff in my first judgment by reducing the entitlement of costs of the successful Plaintiff by 15%. The Plaintiff now wishes to take this matter to the Court of Appeal and applies for leave to do so from me.

3. The parties are in agreement that the appropriate test to adopt is the one laid down in Smith v. Cosworth Casting Processes Ltd [1997] 1 WLR 1538, which has been adopted by the Honourable Mr Justice Leong JA (as he then was) in Ma Bik Yung v. Ko Chuen HCMP 4303/1999 (8 September 1999), i.e. whether the intended appeal has any realistic prospect of success and whether there are any other good reasons for giving leave to appeal. Of course the two cases were not concerned directly with an intended appeal against an order of costs only, but I agree with the parties that the same principle must be applicable in this type of application, even though the subject of the intended appeal relates to an exercise of discretion on costs.

4. I have heard the parties' competing submissions on the point. Having done so, whilst my views on the correctness of my second judgment in varying my original costs order nisi have not changed at all, that is not really the test; the test is whether the intended appeal has any realistic prospect of success. Having heard in particular the submission of Mr Kerr, counsel for the Plaintiff, I cannot say there is no realistic prospect of success in the intended appeal; and in any event, I agree with Mr Kerr that this particular decision of mine raises an interesting question of law, i.e. under what circumstances a plaintiff may legitimately be deprived of part of the costs of the action even though he has managed to beat a payment in albeit by a small margin, and when the de minimus principle is inapplicable. This, according to the authorities, is also a good ground for giving leave to appeal.

5. Before parting with this application, I would simply mention this. I have been supplied with a draft Notice of Appeal. It contains three grounds. I am not sure if the 3rd ground is factually correct, i.e. that the information ultimately relied on by the Court which led to the Plaintiff being successful in his claim in respect of the service and maintenance claims was information that was available to the Defendant at all times. Speaking as the trial judge, I think this is factually incorrect but since I am giving leave to appeal, I would leave it to the parties and the Court of Appeal to find out the exact position from the trial record and my two judgments.

6. For all these reasons, I accede to the present application for leave to appeal. Costs be in the costs of the intended appeal. I also direct that the Notice of Appeal be filed and served by the Plaintiff within seven days from the date hereof.