PREMIER BEARING AND EQUIPMENT LTD v. IFB INTERNATIONAL FREIGHTBRIDGE (CHINA) LTD

1996, No.CL355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL LIST

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RULING

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1. On 2nd January 1998, this Court delivered its Judgment upon an Order 14A application which had been taken out by the Defendant herein. In that Judgment, the Court draw attention to matters which had occurred in the course or the hearing; in particular, it drew attention to the misunderstanding (I use as neutral a word as possible) between Counsel as to the manner in which the application was going to be argued. I will not now rehearse that misunderstanding. I refer to it both in the Judgment and also in a Ruling which I made during the course of the application dated 14th November 1997, and which specifically, and for obvious reasons, I caused to be annexed to the Judgment.

2. I confess that I did not find this an easy case. It was never going to be straightforward on the law, and once one gets to the ramifications of counsel-to-counsel telephone conversations cross-fertilising the legal arguments, then these are dangerous grounds indeed. In any event, at the conclusion of my Judgment on 2nd January, I made an Order nisi to the effect that the costs of and occasioned by the application be to the Plaintiff in any event, to be taxed if not agreed. That judgment was taken by the solicitors on both sides and it was quite clear to me that Mr Gobindpuri, who has instructed Mr Kerr throughout in this application, was in difficulty in arguing costs. Accordingly it was anticipated by both sides that, should it be thought to be necessary, the parties would return to Court to revisit the cost issue. This, then, is the matter before me today.

3. Mr Coleman, for the Plaintiff, asserts that the order nisi was correct. With apologies to Julius Caesar, he says: "I came, they lost, they pay."

4. Mr Kerr is in difficulties and he has, in my judgment, done his best to put the matter before me as fairly as possible whilst at the same time arguing his corner. I dare say that all parries will choose to reflect upon the wisdom of Order 14A applications, unless, for example, they are confined to the most clear-cut of construction arguments. I dare say, also, that both Counsel will have pause to reflect upon the wisdom or counsel-to-counsel conversations as to the ambit of challenge to the evidence and the possibilities for misunderstanding. Such a misunderstanding has obviously occurred here; what should I do about it in terms of costs?

5. Mr Kerr says the fair and just order is to reserve the costs. He does not seek to apportion blame; he says this situation has happened, he came prepared to argue in a certain way, that did not work out, and the case will come before me at trial. If he wins, then he can justifiably ask for the costs; if Mr Coleman wins, equally so. Alternatively, he trails his coat in terms of costs in the cause. I am bound to say that this latter possibility does not interest me at all. Nor I do not think, as a matter of rigorous analysis, that costs reserved is correct in these particular circumstances. The application has been constituted, it has been argued, it has been lost. I am not generally in favour of reserved costs orders. They seem to me too often to be simply a vehicle to duck a pressing issue about which a decision must be made. So I am not with him on that submission either.

6. But I am bound to say that there is lurking in my stomach (which, at the end of the day, is generally the best arbiter), a residual unease. I am dealing with two counsel of integrity who have done their best to assist in a difficult situation. I recognise also that I refused the adjournment application for the reasons given in my Ruling, and I now recognise of course, although I did not know it at the time of that Ruling, that Mr Kerr has lost in terms of the arguments placed before me. On reflection, however, I think that the Order nisi is a bit harsh in the very unusual circumstances that have arisen. With the benefit of reflection, and after taking into account everything that has been said on this topic, my instinct (and it is, as I have said, an instinct perhaps as much to do with my gut feeling on the point as with any cerebral function) would be more settled, I think, if I vary the Order nisi to read "costs of and occasioned by this application to be Plaintiff’s costs in the cause, and that the matter be certified as fit for Counsel".