PACIFIC ELECTRIC WIRE & CABLE CO LTD v. TEXAN MANAGEMENT LTD AND OTHERS

FAMV Nos. 5, 6, 7 & 8 of 2014

FAMV Nos. 5, 6, 7 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION  

MISCELLANEOUS PROCEEDINGS NOS 5, 6 AND 7 OF 2014 (CIVIL)

(ON APPLICATIONS FOR LEAVE TO APPEAL FROM
CACV NOS. 94, 95 & 96 of 2012)

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FAMV No. 8 of 2014

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Heard together

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DECISION ON COSTS

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Mr Justice Ribeiro PJ :

1. On 14 October 2014, the Appeal Committee[1] dismissed the application of Top Selection Co Ltd (“Top Selection”) and Hu Hung Chiu (“Hu”) for leave to appeal.  An order nisi was made requiring the two applicants to pay the costs of and occasioned by the application.  The respondent (“PEWC”), who had been represented at the leave application by two senior and two junior counsel, lodged submissions seeking a certificate for four counsel.  That was opposed by both applicants.

2. Top Selection had sought leave on the “as of right” and the discretionary “question of law” bases while Hu’s application was only on the discretionary basis.  The applications were heard together and PEWC obviously had to deal with the arguments advanced on both bases.

3. PEWC submits that a certificate for four counsel is justified because it was an unusual application supported by substantial expert evidence[2] aimed at establishing the value of the shares in Blinco BVI and Patagonia which were at stake, against the background of three actions which the Appeal Committee described as being “of great factual complexity”.[3]

4. Resisting the certificate, Top Selection and Hu point out that counsel involved were well-versed in the facts and issues from long involvement in the case and argue that there was no need for any complex legal analysis for the purposes of the leave application.

5. We accept that this was a somewhat exceptional leave application involving extensive evidence, but we do not think that the losing parties should not be required to pay for the luxury of four counsel.  It was well within the competence of two counsel to analyse the evidence and make the arguments canvassed.  As was pointed out in the Determination, it was neither possible nor necessary for the Appeal Committee actually to value the shares.  The argument, applying the well-established criteria for leave to appeal on the as of right basis,[4] involved identifying what needed to be done before such value could be established.

6. Similarly, the application made on the discretionary basis faced the obvious obstacle of concurrent findings that the Takeover Arrangement did not exist.  This necessitated resort to purported questions of law which were fact sensitive and unpromising arguments based on the pleadings and burden of proof which were readily refuted.

7. We conclude that there should be a certificate for two counsel only.  We make no order as to costs in respect of this ruling.