OLENA PONOMAROVA v. NORTHCROFT HONG KONG LTD

HCA 156/2022

[2023] HKCFI 2271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 156 OF 2022

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D E C I S I O N

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1.  By summons dated 26 April 2023 (“Summons”), the plaintiff applies for leave to appeal against the Judgment of this court dated 13 April 2023 (“Judgment”), whereby it was ordered that:

(1)  The defendant’s appeal be allowed;

(2)  The plaintiff is to pay the sum of HK$250,000 into court within 28 days from the date of the Order as security for the defendant’s costs of this action up to and including the trial;

(3)  Until the said security is provided, this action be stayed;

(4)  In default of the security being provided, this action shall stand dismissed without further order, with the costs of this action be paid by the plaintiff to the defendant, to be taxed if not agreed; and

(5)  There be a costs order nisi that the plaintiff is to pay the costs of the summons and the appeal to the defendant, to be taxed if not agreed.

2.  By letter dated 27 April 2023, this court gave directions for the lodging of Skeleton Submissions by the parties in respect of the Summons. It was further directed that the Summons be determined on the papers without an oral hearing.

3.  This is my decision on the Summons.

4.  In paragraph 8 of the Judgment, I have summarised the principles on ordering security for costs against foreign plaintiffs.  Such principles include:

(1)  An order for security will usually be granted if the foreign plaintiff with no assets within jurisdiction cannot demonstrate that there is a high degree of probability that he will succeed on his claim at trial.

(2)  Where a foreign plaintiff wants to rely on the merits of his case to resist a security for costs application, he would need to show, without embarking upon a detailed analysis of the merits, that he has a high probability of success.  The threshold for establishing this is “very high indeed”.

5.  These principles do not appear to be disputed by the plaintiff.

6.  In carrying out the exercise to determine whether there is a high probability that the plaintiff will succeed, it is of course necessary to consider the defendant’s case in defence.  There is thus nothing unfair in the court setting out a summary of the defendant’s case at paragraph 6 of the Judgment.

7.  Without embarking upon a detailed analysis of the merits, I came to the view, at paragraph 11 of the Judgment, that the plaintiff has failed to show that she has a high probability of success in establishing her case.  In this regard, in her Skeleton Submissions in support of the Summons, the plaintiff never disputed that she had made the concessions recorded at paragraph 11 of the Judgment, namely, that the “conspiracy” alleged against the defendant is very hard to prove, and the defendant’s case turns on the credibility of Mr Lai.  These are clearly matters that will have to be explored at a trial.

8.  For the reasons stated above, the plaintiff’s proposed appeal has no reasonable prospect of success.  There is also no other reason in the interest of justice for the appeal to be heard.  I refuse the application for leave to appeal.

9.  Accordingly, I order that the plaintiff’s Summons be dismissed.  The interim stay of execution of the order dated 13 April 2023 granted on 27 April 2023 be uplifted.

10.  I further order that the costs of the Summons be paid by the plaintiff to the defendant, such costs are to be summarily assessed with the directions that (i)  the defendant shall file and serve a statement of costs within 14 days from the date hereof; and (ii)  the plaintiff shall file and serve her grounds of objection (if any)  within 14 days thereafter. The summary assessment shall be conducted on paper unless otherwise directed by the court.