CHUNG YI YUEN v. LAU KOON SHING AND ANOTHER

FAMV No. 24 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 24 OF 1999 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV No. 46 OF 1999)

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DETERMINATION

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Mr Justice Ching PJ :

1. On 16 May 1995, Zhong Yizhou was killed in a traffic accident. He died intestate. His mother, widow, children and son-in-law gave his brother a power of attorney authorising him to claim damages from the persons responsible. He issued a writ claiming damages under the Fatal Accidents Ordinance, Cap. 22, and the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23, against the defendants, the driver and the owner of the vehicle. At the time of the issue of the writ he had not obtained Letters of Administration and he issued it in his own name describing himself as

"... the intended administrator of the estate of Zhong Yizhou ... deceased."

He later obtained by consent an order described to us as an order to carry on the proceedings purportedly made under the provisions of Order 15 rule 6A(4) of the Rules of the High Court and allowing him to amend his description to read

"... the intended administrator, appointed by Order to represent the estate of Zhong Yizhou ... deceased."

Notwithstanding their consent to this order, the defendants subsequently raised an objection to the form of the action. The judge at first instance acceded to the objection and adjourned the trial sine die with liberty to restore once Letters of Administration had been issued to the plaintiff. Costs of and occasioned by the adjournment were ordered in favour of the defendants.

2. Rather than wait until the Letters of Administration had been issued to him, the plaintiff appealed to the Court of Appeal. That Court dismissed the appeal with costs. The plaintiff then asked the Court of Appeal to certify points of law as being of great general or public importance. This the Court of Appeal was minded to do but it then appeared that Letters of Administration had in fact been granted shortly before. As a result the Court of Appeal held that any further appeal was academic, refused to certify the questions and refused leave to appeal. The Court of Appeal ordered costs of the application in favour of the defendants. Earlier in the month of January 2000, before this application came before us, the action was settled. The applicant nevertheless proceeded with his application to us to certify points of law and for leave to appeal to the Court of Final Appeal.

3. The questions which we and the Court of Appeal were asked to certify related to the vires, exact content and proper construction of Order 15 rule 6A. We agree with the Court of Appeal that, the claim having been settled, any further appeal has become academic. None of these questions is now in issue between the plaintiff and either defendant. It was argued that the appeal would not be academic having regard to the costs ordered against the plaintiff, the payment of which would exhaust the sum for which the claim was settled. That result is regrettable but cannot justify an appeal to the Court of Final Appeal. It is to be noted that in the usual case an appeal is brought upon a substantive issue upon determination of which consequences in costs will follow. The present argument effectively appears to stand this upon its heard, for the argument seems to be that if leave to appeal were given to appeal on costs the decision would inevitably decide the questions put forward.

4. In essence this is an application for leave to appeal against an order for an adjournment and for costs when there is no longer an issue between the parties. We decline to certify the questions proposed and we refuse leave to appeal. This application must be dismissed with costs. Since the Department of Legal Aid has undertaken that the plaintiff will not be required to contribute to his own costs of this application it is unnecessary to make the usual order that his costs should be taxed under the Legal Aid Ordinance.