NGO TAI HONG v. JOHN DAVID ANDREW IP AND ANOTHER

cacv 12/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 12 of 2006

(on appeal from HCA NO. 7929 of 2000)

______________________

__________________________

REASONS FOR DECISION

__________________________

Hon Rogers VP:

1.  This was an application by the defendants for leave to appeal to the Court of Final Appeal.  The application was made under both sections 22(1)(a) and (b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  At the conclusion of the hearing the application was refused with reasons to be given in writing.  The background to this application can be gleaned from the judgment of this court handed down on 13 March 2007.

2.  Although this court ordered a retrial of the action, the judgment in the court below had been a final judgment on liability.  Although it can be said that because this court had ordered that there be a retrial the matter was not a final judgment of this court, that could be said of any case where a retrial might possibly be ordered.  I consider that section 22(1)(a) has to be read in the context of the judgment that was appealed to this court.  That was a final judgment.  In this matter, however, I do not consider it necessary to decide whether the case would come within the be category of final judgment of the Court of Appeal as used in section 22(1)(a) since the claim in this case is not a claim to liquidated damages.  In those circumstances this matter would not, in any event, come within section 22(1)(a).

3.  The defendants also sought leave on the basis that there were questions of great general and public importance.  There were a number paragraphs set out in the notice of motion.  Without disrespect to the drafter of the notice of motion it can be said that it is difficult to discern any concise question of law, as opposed to various submissions.  When the matter came to be argued on this application, the major point was summarised in the skeleton argument as follows:

“The question of great general or public importance is whether, inasmuch as it is the function of the Plaintiff solely to decide how to plead, prove and conduct his case, and the Court of Appeal having reached the conclusion on issues that the Plaintiff did not raise and/or pursue, the Court of Appeal should have ordered a re-trial which would give the Plaintiff an opportunity to raise and/or pursue such issues and to profit from the considered opinions of the Court of Appeal which would be unfair to the Defendants and not in the interests of the administration of justice: see Mulloy v. Chief Constable of Humberside Police, unreported, [2002] EWCA Civ 1851, 13 December 2002.”

4.  In argument Mr Ismail, who appeared on behalf of the defendants, clarified what was intended to be raised was the opportunity on the part of the plaintiff to raise questions of causation which had not been dealt with at trial.  The reason that the issue of causation had not been dealt with was because the decision of the court below had not reached that stage.  The judge had held that there was no negligence and hence he did not need to go into the question of causation.  The points that might be envisaged that the plaintiff might take on the question of causation would clearly be open to him and there would be nothing unfair or inequitable in that in the light of the way the case was conducted in the court below.

5.  Although there was another point taken in the skeleton argument, when it was pointed out that the question sought to be raised was fact specific to this case and not a matter of general or public importance, that matter was not pursued.

Hon Le Pichon JA:

6.  I agree.

Hon Barma J:

7.  I agree.