ELIJAH SAATORI AND ANOTHER v. CHENG CHUN MO AND ANOTHER

IN THE COURT OF APPEAL

 1992, No.41
(Civil)

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JUDGMENT

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Godfrey, J.A. (giving the judgment of the court):

1.  This is an application for leave to appeal to Her Majesty in Council from an order of this court dismissing with costs the appeals of Elijah Saatori (“Mr. Saatori”) and Cerebe Design Limited (“Cerebe”) against an order of Deputy Judge Stock Q.C., made in High Court Action 4675 of 1989, on 22 February 1002.  Mr. Saatori and Cerebe (of which Mr. Saatori is the sole director) were the unsuccessful plaintiffs in the action.  We shall refer to them together as “the appellants”.

2.  The facts of the case, and the conclusions of this court upon them, are set out in the judgment of this court dated 25 November 1994, and we need not rehearse them here.

3.  The appellants claim to be entitled to appeal as of right to Her Majesty in Council; failing that, they invite this court, in the exercise of its discretion, to grant them such leave.  The claims made in the action are claims for unliquidated damages which, if substantiated, would result (say the appellants) in an award of over £9,000,000.

4.  The argument for the appellants on the appeal, and on this application for leave to appeal to Her Majesty in Council, was presented to us by Mr. Saatori in person.  However, Mr. Saatori told us that it was the appellants’ intention to be represented by solicitors and counsel on the proposed appeal to Her Majesty in Council.

5.  Appeals from this court to Her Majesty in Council are regulated by an Order in Council made on 10 August 1909 (as subsequently amended).  Rule 2 of the rules set out in the Order (as amended) provides as follows:

“2. Subject to the provisions of these Rules, an Appeal shall lie –

(a) as of right, from any final judgment of the court, where the matter in dispute on the Appeal amounts to or is of the value of $500,000 or upwards, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $500,000 or upwards; and

(b) at the discretion of the Court, from any other judgment of the court, whether final or interlocutory, if, in the opinion of the Court, the question involved in the Appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to Her Majesty in Council for decision.”

6.  Since appeal as of right is permitted only where the matter in dispute is of the value of (or in excess of) the precise figure of $500,000, it is clear that a claim for unliquidated damages, which may or may not result in an award of $500,000 or more, is excluded.  No doubt there will be cases where it can be said as a matter of the utmost probability, or even of virtual certainty, that the damages ultimately to be awarded, if the appellants were successful, would be in excess of $500,000; and in such a case this court might in its discretion think it right to grant leave to appeal.  Equally, however, there will be cases where, although the likely amount of damages if the appellants were successful would be above the threshold, the case itself was so lacking in merit that this court would in its discretion think it right to refuse leave to appeal.

7.  Approaching the matter in this way (as we believe we should, on the authority of Zuliani v. Veira [1994] 1 WLR 1149; see especially per Lord Nolan at p. 1155E-G) we are satisfied that this is not a case in which the appellants are entitled to appeal as of right.  So we have to consider whether we ought to grant them the necessary leave to appeal in the exercise of our discretion.

8.  This requires us to consider the nature of the case which the appellants wish to advance before Her Majesty in Council.  The real grievance of the appellants appears to be that (as they contend) their antagonists won the day by tendering to the court below evidence which, on proper analysis, can be demonstrated to be a tissue of lies; that the court below, in rejecting the appellants’ evidence, was wrong to do so; and that this court was wrong to uphold the judge’s judgment.  The appellants further object to the fact that this court, in disposing of their appeal in a case which had taken weeks to try, did so after giving them a hearing of one day only, and, upholding the judgment of the judge on one particular point, did not go into the many other matters which the appellants had raised in the court below and had sought to raise before this court.  The appellants are right about this; the point which this court held was sufficient to enable it to dispose of the appeal was that, in the view of this court (as of the judge) the appellants were bound by the terms of a settlement agreement dated 2 June 1989 into which the appellants had entered.  On that basis, a re-hearing of the appellants’ original case against the respondents would have been otiose.

9.  So far as the making of the settlement agreement is concerned, the appellants face concurrent findings of fact adverse to their interests, that is to say, the findings of the judge and of this court; and is not the practice of Her Majesty in Council to entertain appeals on matters of fact when there are concurrent findings of fact against the appellant in the courts below. 

10.  The appellants were unable to direct the attention of this court to any question of “great general or public importance” which this court might consider fit to be submitted to Her Majesty in Council for decision; and this court is quite unable itself to discern any other reason why leave to the appellants to appeal to Her Majesty in Council ought to be granted.  In these circumstances, this court must exercise its discretion against granting such leave.

11.  Accordingly, this court will dismiss the appellants’ application for leave to appeal to Her Majesty in Council; and will order that the costs of the respondents of this application are to be taxed and paid by the appellants to the respondents.