ESQUIRE (ELECTRONICS) LTD v. THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD AND ANOTHER

HCA11077/1994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.11077 OF 1994

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(by original writ and order to carry on)

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J U D G M E N T

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1. I have before me an application by the Bank, the defendants, against Esquire, the plaintiffs for further security. By my order of May 2002, I granted security to the defendants for security of costs to cover the costs of the trial and the amount of the security that was given is $3.8 million, which is a very substantial sum.

2. At the time of the application for security of costs, the plaintiffs estimated the time for trial to be 15 days. Mr Fok, for the defendants, said 20 days. I took the view that all it was probably somewhere there and at the time of the fixing of the date of the trial on 15 February 2003, the time estimate was given the same that is 15 days and 20 days. I fixed the trial to start on 2 February 2004 but I reserved twenty-five days including five days added as a matter of extra-precaution to allow for over-run. The time estimate throughout has not changed.

3. I have now before me an application for further security. The time estimate is still good - nothing has changed from that time until now, except the dispute over interrogatories that had taken place earlier this year resulted in my handing down a judgment on 2 September, basically granting to the plaintiffs practically all the Interrogatories that were sought and I also made an order of giving 90% of the costs relating to the Interrogatories to the plaintiffs with certificate for two counsel.

4. So if anything that has happened on the costs side, it has been in favour of the plaintiffs. The affidavit that is now put before me, certainly does not reveal anything radically that had changed over the period of time. In the oral argument now before me, Mr Hunsworth has told me that as a result of the Interrogatories served, the Bank has found itself necessary to concentrate and focus much more closely on the accounting exercise and he indicates to me that there may be an application for additional witness statement. But that is in the future and, having regard to the closeness of the trial, it does not have a high prospect of success.

5. In my view, we are now so close to the trial that whatever application may be made for security of costs is really too late. The plaintiffs have been going forward on the basis of the security of costs order that I made last year in May 2002 and they have been preparing and gearing up for the trial on that basis. In my view it is much too late, even if the defendants found themselves to be now having to work much harder and incurring more costs for the trial, for any additional security to be ordered against the plaintiffs.

6. Therefore, I dismiss the application of the defendants for additional security. The costs of the application should be paid by the defendants to the plaintiffs.