BRIGHT SHIPPING LTD v. CHANGHONG GROUP (HK) LTD

HCAJ 3/2018

[2023] HKCFI 2990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO 3 OF 2018

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D E C I S I O N

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1.  I will decide two matters first because I find them relatively straightforward. In respect of the third issue, the payment into court, I think it is a bit controversial and difficult.

2.  There are three issues before the Court today. The first issue concerns para 1 of the Plaintiff’ Summons seeking an order of apportionment in respect of liability to reflect what has recently been decided in the Shanghai Maritime Court, namely, that the liability for the collision in question should be apportioned such that the Plaintiff was 70% to blame and the Defendant was 30% to blame. The second issue concerns the costs order which should be made in respect of the costs incurred so far. The Plaintiff says that it should equally reflect the order of the Shanghai Maritime Court, namely, that the Defendant to pay 30% of the Plaintiff’s costs of determining liability and the Plaintiff to pay 70% of such costs incurred by the Defendant.

3.  In respect of the first issue, I have considered the somewhat lengthy submissions put forward by the Defendant. I have not noticed anything said in respect of the basis of this application by the Plaintiff, namely, that given the determination of the Shanghai Maritime Court there is an issue estoppel which binds the parties. Nothing has been said about this, and Mr Wright who appears for the Defendant has been given the opportunity to inform the Court if there is any dispute on the application of that principle and nothing has been advanced. In these circumstances, I think there can be no serious alternative but to make the order sought by the Plaintiff. I should deal with the terms of the order in a minute.

4.  In respect of the second issue on costs, first of all, as regards the Defendant’s position concerning an opportunity to file evidence and so on, there is nothing in Mr Wright’s submissions on what specifically is the relevant evidence which the court requires for the determination of the issue in question. Again, Mr Wright has been given the opportunity to inform the Court what evidence there can be which is relevant, and nothing has been advanced.

5.  The Defendant contends that the Plaintiff should bear the costs of the trial on liability, which was adjourned sine die with liberty to restore shortly before it was to start on the Plaintiff’s application. The Defendant says that the costs of the trial were wasted because, in short, the Plaintiff should not have proceeded in parallel with both the trial on liability in the Shanghai Maritime Court[1] as well in this jurisdiction. I am afraid that I do not find that to be a properly grounded proposition because the fact of the matter is that the Plaintiff was entitled to bring proceedings against the Defendant in Hong Kong. That was confirmed by not just the decision of this Court, but also the Court of Appeal as well as the refusal of leave for the Defendant to appeal further. Given the Plaintiff’s entitlement to bring proceedings against the Defendant in Hong Kong, I see nothing wrong in principle for the Plaintiff to proceed with the trial.

6.  It is not disputed that there was a race perceived by the parties as to whether the Shanghai Maritime Court or this Court would be quicker in the determination of liability. As it happened, the trial on liability by the Shanghai Maritime Court took place and concluded in 2020. At that stage, only the decision was pending and the Plaintiff in those circumstances applied to the trial Judge, Mr Justice Ng, to adjourn the trial sine die with liberty to restore. The matter was fully ventilated and resulted in a detailed Decision by the learned Judge dated 7 April 2022 ([2022] HKCFI 920). In that Decision, the learned Judge dealt with much of the substance of the submissions now being advanced, namely, the Defendant’s complaints that the Plaintiff was gaming the system and it was playing with tactics. The treatment of those complaints can be seen in paras 37-38 of the Decision.

7.  I think it must be accepted that once the Plaintiff is entitled to sue the Defendant in Hong Kong, it must be entitled to have the matter tried. The fact that the Shanghai Maritime Court in a sense had done better than this jurisdiction in terms of speed in dealing with the trial on liability is not a matter for which the Plaintiff can be criticized. In any case, the Plaintiff must have a judgment in Hong Kong before it is entitled to have the quantum assessed, so I do not see any real objection in principle for the Plaintiff to proceed with the trial here. Sensibly, as accepted by Mr Justice Ng, the matter was then adjourned sine die because at that stage the Shanghai Maritime Court had already tried the matter and only the decision was outstanding.

8.  For these reasons, I do not believe that the Defendant has made out any good resistance to the order of costs proposed in paras 2 and 3 of the Summons.

[The third issue was adjourned for argument.]