LO SHIU CHUN v. LAW YING CHEE FOGG

IN THE COURT OF APPEAL

1993, No. 130
(Civil)

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J U D G M E N T

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Godfrey, J.A.:

1. This is an application for leave to appeal to the Privy Council, out of time, against the decision of this court on 3 March 1994 to allow a husband's appeal against an interlocutory order of His Honour Judge Gill made on 18 June 1993 whereby the husband was ordered to file evidence as to his means, despite the husband's concession that he would be able to satisfy the largest order in the wife's favour that the court could reasonably make.

2. The wife is only a few days out of time. Although we have not called upon counsel for the husband to address us, there seems to us to be no good reason why we should in this particular case concern ourselves with the matter of time, and we will therefore directly proceed to consider the wife's case that there is here a point of great general or public importance, or otherwise, which is worthy of consideration by the Privy Council.

3. We said in our judgments that this was an exceptional case. It turns on its own particular facts and lays down no new principle of law. There is, in our view, no point of law here of great general or public importance, nor is there any other reason, why leave to appeal to the Privy Council ought to be granted. The wife did not in her application formulate any question for consideration by the Privy Council, and her counsel got into considerable difficulties when asked by this court to do so.

4. We are anxious to deter applications to this court for leave to appeal to the Privy Council in cases where no point of great general or public importance is involved and in which this court has simply applied a well- settled principle to the facts of the particular case, particularly when the point in question arises only on an interlocutory application; and we refuse the present application. What order should we make as to costs?

5. Counsel for the husband asks for the costs of the application, to be taxed on the common fund basis. Counsel for the wife concedes that the husband is entitled to the costs of the application, but says that they should be taxed as between party and party.

6. We do not think it right in the instant case to depart from the ordinary practice of ordering simply that the costs of the husband are to be taxed (if not agreed), which will mean that they will be taxed on the usual party and party basis. However, we wish to sound a note of warning. The profession must appreciate that applications for leave to appeal to the Privy Council from decisions of this court will be very carefully scrutinised. The Privy Council is not there to give unsuccessful litigants a third bite at the cherry, and practitioners must therefore ensure that the question of great general or public importance, or otherwise, which it is desired to submit for consideration by the Privy Council is properly formulated and set out in the application for leave to appeal. And, anyway, only in quite exceptional cases will this court consider it appropriate to give leave to appeal to the Privy Council against a decision of this court made on an interlocutory application.

7. In these circumstances, although we have decided in this case to make the usual order as to costs, in future, a stricter line as to the costs of unsuccessful applications of this sort is likely to be taken if the warnings we have given appear to have been disregarded.