ACTIVE PROFIT LTD v. NISSHO IWAI HONG KONG CORPORATION LTD AND OTHERS

cacv 320/2003

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 320 of 2003

(on appeal from HCCL NO. 47 of 1998)

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J U D G M E N T

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Hon Rogers VP:

1.  I do not intend to give a long judgment on this because the background to this matter has been fully set out in the previous judgments.  Although I approached this hearing on the basis that what had taken place

2.  before Mrs Justice Le Pichon JA on 13 February 2004 was an appeal, as Mr Jat has now persuaded me, it was not an appeal, it was a renewed application to the Court of Appeal to exercise a first instance, or its own, discretion.

3.  In the previous judgments I endeavoured to set out the principle that although a successful party is not to be deprived of the fruits of its success, that is subject to the corresponding principle that a party pursues remedies granted, in particular enquiries as to damages and accounts of profits, at its risk as to costs.  Of course, there are various types of costs orders which can be made, but in a case such as this where the plaintiff’s claim was subject to a serious appeal and the costs of pursuing the remedies were likely to be heavy, it is not unreasonable for a stay to be sought.  It has to be bourne in mind that even if a successful appellant were to recover costs thrown away by the other party having pursued remedies to which it was ultimately held it was not entitled, those costs would only be party and party costs.  Hence, if there were no stay and a defendant appellant were successful it would be out of pocket to a considerable extent in respect of costs incurred as a result of a plaintiff having proceeded with, for example, an account of profits.  The more that might be involved in the case the more those irrecoverable expenses would be likely to be.

4.  In those circumstances, I think the right order on any of these applications should be that the winner of the appeal should have the costs.  In other words, the order should be costs in the appeal.  I propose that the costs order made on 13 February and so forth should be varied in that respect.

Hon Cheung JA:

5.  I agree.