CABLE & WIRELESS HKT INTERNATIONAL LTD. v. NEW WORLD TELEPHONE LTD.

HCCL 229/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO.229 OF 1999

(formerly High Court Action No.2076 of 1999)

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J U D G M E N T

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THE APPLICATION

1. This is an application under Order 14A, rule 1, RHC. By a Notice under Summons for Directions, dated 24 August 1999, the defendant herein ("NWT") sought an Order that the court determine "the following questions of law and/or construction" :

"On a proper construction of the Determination dated 29th September 1995 ('the 1995 Determination') and the Determination dated 7th October 1998 ('the 1998 Determination') made by the Telecommunications Authority under Section 36A of the Telecommunications Ordinance (Cap.106):-

(1) For incoming external telephone calls made between 29th September 1995 and 6th October 1998 inclusive, were delivery fees payable by the Plaintiff to the local operator to whose network calls were delivered directly from the Plaintiff's international gateway, rather than to the local operator (if different) on whose network such calls terminated?

(2) In the light of the answer to the question at paragraph 1(1) above:

(a) Is the term alleged by the Plaintiff in item 1(a)(vii) of its Answer to the Request for Further and Better Particulars of the Statement of Claim dated 28 April 1999 inconsistent with the terms and conditions imposed by the 1995 Determination?

(b) For incoming external telephone calls made between 29th September 1995 and 6th October 1998 inclusive and routed as described in paragraph 19(a) of the Defendant's Defence and Counterclaim, were delivery fees properly payable by the Plaintiff to the Defendant?

(c) For incoming external telephone calls made between 29th September 1995 and 6th October 1998 inclusive and routed as described in paragraph 19(b) of the Defendant's Defence and Counterclaim, were delivery fees properly payable by the Plaintiff to the Defendant?

(d) Does the 1998 Determination affect the answer to question (2)(c) above in respect of calls made on or after 7th October 1998 and if so, in what respect?"

2. In the event, and as later appears, these specific questions ultimately were not proceeded with, albeit the argument remained concerned with the meaning to be attached to aspects of the 1995 and 1998 Determinations of the Telecommunications Authority.

THE SUBJECT-MATTER OF THIS LITIGATION

3. The plaintiff ("CWHKTI") has brought this action against NWT in a bid to recover the sum of HK$280 million it alleges it paid to NWT in delivery fees under a mistake of fact, namely, that the calls in respect of which such fees were paid actually terminated on the defendant's network. These telephone calls have variously been described as 'delivery call diversion' calls or, as the plaintiff also put it in argument, 'hijacked' calls.

4. In addition to the monies allegedly wrongly so paid, CWHKTI further seeks a declaration that it has been entitled, for the like reason, to withhold payment of a further sum of HK$94 million otherwise allegedly due to NWT.

5. For its part, NWT, by Amended Defence and Counterclaim, asserts that by virtue of the Interconnection Agreement entered into between itself and CWHKTI as from 1 July 1995, together with the operation of section 36A of the Telecommunications Ordinance, Cap.106, and the 1995 Determination of the Telecommunications Authority, such delivery fees were rightfully paid for the interconnection of its network with that of CWHKTI, and that such fees were a function of interconnection per se as opposed to actual delivery of the call to the called party, that is, termination of the incoming calls. Accordingly, NWT counterclaims for the sum of $94 million wrongfully so withheld, and for certain declaratory relief.

6. The foregoing, in very broad terms, represents an overview of what is at stake in this litigation, the generality of the description belying the considerable amount of paper and detail thrown up by a case which has its genesis in the liberalisation by the Government of an hitherto tightly controlled telecommunications market. Indeed, the present application cannot be understood without brief reference to the relevant background.

THE REGULATORY FRAMEWORK

7. Until 31 July 1993, CWHKTI, the plaintiff herein, and its local affiliate, Cable & Wireless Hong Kong Telephone Company ("CWHKTC") operated an international telephone revenue sharing agreement under which CWHKTI paid a percentage of its international call revenue to CWHKTC, which was directly connected to CWHKTI's international gateway, and without whose network international calls could not have originated from, or been received in, Hong Kong. It is probably accurate to say that CWHKTC's revenue share was, at bottom, compensation for the contribution it made to CWHKTI's business by carrying the calls on its local network from the international gateway to the point of termination.

8. In June 1992, the Government announced that telecommunication services in Hong Kong would be opened to competition. New entrants to the field would be allowed to connect both with CWHKTC's local network and CWHKTI's international gateway. New public fixed link telephone networks were to receive payment for carrying traffic to and from customers and the international facilities which were already in place via CWHKTI. At the same time, it was also decided that cellular mobile telephone networks would also be able to directly connect with CWHKTI's international gateway, instead of, as hitherto had been the case, utilizing CWHKTC's domestic network.

9. This process had a profound effect upon the local telecommunications market. As from 1 July 1995, CWHKTC's hitherto exclusive franchise was replaced with a non-exclusive licence coterminus with the grant of additional non-exclusive licences to other network operations wishing to operate Local Fixed Telecommunication Networks ("FTNS"). In fact, three such licences were granted, to the defendant herein, NWT, to New T&T and to Hutchison Telecom, and from 1 July 1995 onwards the networks built and operated by these licensees became interconnected with the plaintiff's international gateway. It followed that as from that day, also, telephone call "delivery fees" became payable to these other FTNS operators, whereas previously in the monopoly years only the plaintiff and CWHKTC had shared the revenue derived from international telephone traffic.

10. It is the circumstances in which payment of such delivery fees is to be made to these other FTNS operators that lies at the heart of this case.

11. On 29 September 1995 the Office of the Telecommunications Authority ("OFTA") published a Determination under section 36A of the Telecommunications Ordinance, Cap.106, governing the payment of delivery fees by the plaintiff for, inter alia, incoming international telephone calls. The effect of section 36A meant that the terms of the 1995 Determination became an integral element of the agreement between plaintiff and the defendant which had come into existence on 1 July 1995, and under which NWT was entitled to delivery fees for incoming external phone calls at the delivery fee rate specified in the 1995 Determination, namely HK$2.23 per minute.

12. It is at this point in the history of events that this action has its genesis. Because after the 1995 Determination came into effect, CWHKTI discovered that NWT had been engaged in the practice of what has been termed by the plaintiff 'delivery fee diversion calls', and by the defendant as 'refile' and 'call back' calls. For present purposes, there is no necessity to become entangled in technical detail; suffice to say that the essence of this is that, in circumstances involving such call diversion, the defendant had interposed its own network between the plaintiff's international gateway (to which the defendant itself is interconnected) and the network of such number as was actually the subject of the incoming international call. Such interposition, as I understand it, arose by virtue of an agreement between NWT and the operator carrying the outward call from the country of origin, so that the incoming international call was routed from its point of origin to CWHKTI's exclusive international gateway, and at that stage was passed onto NWT's interconnecting network before thereafter again being rerouted from NWT's network to the local non-NWT network actually servicing the number of the originally-called party.

13. In addition to such so-called 'refile calls', there is also a type of 'callback' call (other than the species of 'callback' calls recognized by the plaintiff to be legitimate, and for which no claim is advanced in these proceedings) which passes through the CWHKTI international gateway and is delivered to the NWT network. It is to this particular type of 'callback' call (referred to as Type B 'callback' calls) to which the plaintiff further objects, since again it is said to involve the artificial imposition of the NWT network solely in order to obtain payment of the relevant delivery fee.

14. But to revert to the history of the matter. Discovery of the phenomenon of 'delivery fee diversion calls' led to an investigation by OFTA, and as a result, a 1998 Determination was published on 7 October 1998, which grappled with the specific issue of "which local network operator should be the appropriate recipient of the delivery fee for handling the present traffic in the incoming direction". Pursuant to section 36A, the terms of the 1998 Determination also became of the essence of the interconnection agreement between the plaintiff and the defendant, and in this context the 1998 Determination pronounced thus :

"(a) In handling the relevant traffic in the incoming direction from the external gateway of HKTI, the operator of the terminating network shall be entitled to the payment of the delivery fee from HKTI;

(b) In handling the relevant traffic in the incoming direction from the external gateway of HKTI, a local network operator shall not, whether or not in collaboration with any operator outside the HKSAR, perform any telephone number translation function the effect of which is that the telephone number associated with the incoming call routed through the external gateway of HKTI is different from the telephone number dialed by the call originating party so as to alter the identity of the local network operator to which the delivery fee should be paid under this Determination."

15. The 1998 Determination thus put the delivery fee issue unequivocally to rest, and in effect rendered illegitimate call diversion via "any telephone number translation function".

16. In broad terms, therefore, (and I believe this to be common ground) the monetary sums at stake in the present case focus upon the fees harvested from 'refile calls' "since at least January 1997" [paragraph 20, Statement of Claim] until the date of the 1998 Determination, together with such fees accruing from the allegedly illegitimate 'Type B' callback calls from the date of the 1995 Determination onwards, although the window of inquiry in this case necessarily is limited to the period 29 September 1995 (the date of the 1995 Determination) to 31 December 1998, given that further substantial regulatory changes - in particular a 'Framework Agreement' dated 20 January 1998 whereby the plaintiff agreed with the Government to an early surrender of its exclusive External Licence to provide external public telephone services - provoked further major changes, from 1999 onwards, within the international telephone service environment.

THE ARGUMENT

(i) The revised Order 14A questions

17. It became clear at an early stage in the argument of Mr Henderson QC, on behalf of the defendant/applicant, that he did not consider the questions as initially formulated under the Notice of 24 August 1999 to be an appropriate starting point, and he "readily accepted refinement was necessary". In the circumstances of this application there had, he pointed out, been no 'iterative process', given that those acting on behalf of the plaintiff had opposed the concept of an Order 14A determination from the outset. In the event, and in the face of a submission from Mr Field QC, for the plaintiff to the effect that he wished to know the precise issue he was being asked now to address, Mr Henderson proffered an alternative formulation in "simplified form" which he acknowledged itself might require further refinement. Accordingly, it was this document which became the focus of the debate. It is in the following terms :

"1. Are each of the propositions of law pleaded in paragraphs 17 and 26 of the Plaintiff's Statement of Claim correct? If incorrect, in what respect or respects?

2. Apart from the calls prohibited by paragraph 6(b) of the 1998 Determination does that Determination affect the Answer to Question 1 above, and if so in what respect?"

18. In the event, only Question 1 was seriously pursued, and in itself may only be understood by reference to the pleaded paragraphs in question. These respectively read :

"17. On the true construction of the 1995 Determination, in respect of incoming external calls, the 'local network operator' to whom delivery fees were payable was the local network operator which provided its subscribers access to the Plaintiff's international network and on whose network the incoming call initiated by the person or device outside Hong Kong was to terminate.

26. The delivery fees in respect of the delivery fee diversion calls were, pursuant to the Agreement, the 1995 Determination and the 1998 Determination, not payable to the Defendant, but to the Local Operator on whose network the delivery fee diversion calls terminated including HKTC."

(ii) The issues raised

19. The focus of the application having now become the pleaded paragraphs in question, the argument advanced effectively required resolution by the court of two distinct issues :

first, is this an appropriate case for the grant of Order 14A relief; and

second, (and if so) are the matters pleaded in paragraphs 17 and 26 correct as a matter of law?

20. Mr Henderson QC strongly asserted that the first of these issues was no issue at all : this is and was a "paradigm case" for Order 14A. There was plainly an issue on the pleadings, that issue was central to the case, it plainly had to be decided at some time, and the facts as they emerged were never going to change the formulation and effect of the agreement between the parties; indeed, the Determinations in question were quasi-statutory instruments, and clearly candidates for construction in the summary manner requested.

21. As to the construction issue, the bull point was that whatever NWT may or may not have done in practical terms to divert the calls in question, this could not affect the proper construction of the relevant Determinations, and accordingly it was "inappropriate" for NWT to respond to certain pejorative aspects of the case as they had emerged on affidavit. It followed, continued Mr Henderson, that if a party had made what turned out to be a "harsh agreement", it was not the function of the court to come to its aid, and whilst recovery of delivery fees in the present circumstances "may seem unmeritorious", nevertheless if that was the effect of the plain language of the agreement between the parties, the court can and must not shrink from so holding. In this context, he submitted, the fact of interconnection provided the consideration for the payment of delivery fees : in its 1995 Determination, the Telecommunications Authority had determined :

"...that the following terms and conditions concerning delivery fees shall form part of the terms and conditions of an agreement between HKTI and each local network operator respectively for the interconnection between the network of HKTI and each local network...",

'delivery fee' also being defined in that Determination as meaning :

"the payment to the local network operator for the delivery of the relevant traffic to and from the network of Hong Kong Telecom International Limited (HKTI). The delivery fee is expressed in gross terms before any deduction for Universal Service Contribution; ..."

22. In the present case, therefore, there was no doubt that there had been 'interconnection' in the technical sense, the calls in question had indeed ultimately been 'delivered', and NWT indisputably had played a part, albeit an intermediate part, within that delivery process.

23. For his part, Mr Field QC took strong issue with this latter argument. The significance of the 'refiling' manoeuvre (albeit until discovery it remained unclear precisely how the originally dialed number in fact had been "subverted" to achieve the relevant diversion onto the NWT network, nor for that matter what were the terms of the agreement between NWT and the operator carrying the incoming call from the country of origin) was that such 'refiling' was the only way in which there could be such 'intermediate delivery' of an incoming external call. And that if and in so far as this court was minded to accede to the defendant's request to grapple with this issue in whatever guise the defendant now chose to put it forward, it was as plain as a pikestaff that 'delivery' connoted delivery to the call party from beginning to end, as the true context of the 1995 Determination clearly demonstrated. This was so because first, it must be taken that the Telecommunications Authority was throughout acting consistently with its policy (which in this regard was clear on the relevant documents, including in particular earlier Statements whereby IDD by-pass schemes clearly had been proscribed) and second, that what was apparently being done by NWT in terms of such 'intermediate delivery' conferred no benefit whatever on the party actually paying the delivery fee (namely, CWHKTI), the international gateway being turned to account only upon actual completion of each call to the called party. All possible called party networks had a direct interconnection with CWHKTI's international gateway, said Mr Field, and but for interception by way of refiling (which was not done at the request of the calling or called party) there could be no doubt that the calls in question would have been carried direct to the called party's network. Accordingly, if there was to be an Order 14A construction, such should clearly be resolved in his client's favour.

24. This, however, did not represent Mr Field's primary submission upon this application. His main submission on behalf of the plaintiff was that, in the circumstances of this case, to proceed by way of Order 14A, as the defendant now sought to do, was singularly and manifestly inappropriate : in fact, he chose to characterise as "nonsense" the "three very expensive days" examining this summons. The relief sought was premature, it might well lead to difficulties further down the line, and it would not obviate the necessity for a trial, which would inevitably take place in any event. This had been the position adopted by his client since the defendant had first broached the Order 14A issue in correspondence prior to the filing of this application some six months previously. Accordingly, the plaintiff's unequivocal (and consistent) position was that this application should be dismissed, but that if it was to be entertained in whatever form - and in this regard there had been a demonstrable and fundamental shift in the defendant's approach, as was clearly reflected in the change of stance in terms of the questions posed - then the plaintiff's construction was to be preferred.

25. Descriptive compression does less than justice to submissions of counsel, but that at any rate formed the parameters of the argument.

DECISION

26. The detailed and heavily documented submissions made by the parties on this application have inevitably resulted in the court forming certain provisional views upon the issue of whether what was characterised as 'indirect delivery' of the relevant calls (which by the conclusion of the argument represented NWT's stance) was sufficient to justify payment of a delivery fee, or whether such payment followed on 'direct' delivery absent interposition of an interconnecting network. In this connection I recognize Mr Henderson's efforts to circumvent potential factual disputes, the defendant for the purposes of this application being prepared to "live with" the allegations presently levelled against it within the context of a case in which, as Mr Henderson put it, the plaintiff had nailed its flag to the mast on the pleadings in their current form. And I bear further in mind that Mr Henderson accepted that the court could "even now refine" the question posed, noting that the "termination theme will always remain" whatever else may or may not occur in this case.

27. Put thus, there is a passing temptation to take up Mr Henderson's invitation and to express a concluded view on a point whose true profile only emerged during this application, albeit I am resistant to any suggestion that the court should, in effect, seek further to 'refine' the debate. It seems to me, with respect, that either the defendant gets home on its application as presently posed, or it does not.

28. In my judgment it does not. After reflecting upon the argument, together with the wealth of material placed before the court, I have decided that in the exercise of my discretion I should decline this application, which in any event I consider was mounted too broadly even in such revised form, since in my view any sensible issue would have to be limited to paragraph 17. However, I am firmly disinclined to countenance this application, even in these restricted terms, persuasively though the argument was advanced. I say this for the following principal reasons.

29. First, I place heavily in the balance the overwhelming probability that there will be a trial of this action. I am unpersuaded by the argument that, in effect, there is waiting in the wings a settlement waiting to happen consequent only upon this court expressing its opinion upon the construction issue (which judgment would almost certainly be appealed, thereby causing yet further delay), and that refusal to do so will result in additional unnecessary expenditure in terms of both time and costs. With respect, I consider this unlikely. The calibre of legal advice available to each of the litigants ensures that a robust view of this case can be taken at any time, and I do not accept the implication that, absent compliance with the defendant's current application, early resolution necessarily will be precluded.

30. Nor do I agree with Mr Henderson's recurrent theme that since the delivery/termination issue has to be decided at some stage, in effect 'tis better 'twere done sooner rather than later. The stark fact is that the defendant's present posture invites decision upon an issue on the basis of assumed facts (but carefully and progressively revealed in the affidavit evidence) and prior to discovery; indeed, in the particular circumstances of 'refiling' I do not accept the blanket assertion that it makes absolutely no difference what the defendant may or may not have done, and notwithstanding leading counsel's submissions on the point I remain unconvinced that discovery considerations have played no part in the decision to mount and maintain this application. Nor, for that matter, would I be confident that any construction which might be made in the terms now requested might not effectively constrain (or be said to constrain) the normal process of discovery.

31. At the end of the day, in my view the case is a far cry from that of Korso Finance Establishment Anstalt v. John Wedge (unreported, February 1994, CA Transcript, No.94/387, digested at White Book MN14A/2/5), which decision Mr Henderson strongly prayed in aid, contending that the current Order 14A application indeed was "stronger" than in that case. In Korso, as I understand it, the English Court of Appeal took the opportunity to construe a document the effect of which would almost certainly be dispositive of what was perhaps perceived as an unmeritorious action.

32. Such is clearly not the case here. The submission made by the plaintiff that in any event this case will proceed to trial, and consequently that there will not be any great saving in costs, has considerable substance. As Mr Field pointed out, even if the present issue were to be decided in his client's favour, the defendant denies that there has been any mistake of fact, and alternately alleges a change of position defence, so that the issue of the defendant's belief that it was entitled to the delivery fees as paid would have to be explored, not least because the defendant must have known, some five months prior to the 1995 Determination, that OFTA had declared that refiling of incoming calls would not be condoned; accordingly evidence of what the defendant had been doing, and what it had done to conceal it, remained highly pertinent.

33. Nor, he submitted, would the action be over if the indirect/direct delivery point were now to be concluded in the defendant's favour, since not only would it remain open to the plaintiff to establish that the true facts were different from those which the court was being asked to assume on the face of the present (and deliberately restricted) affidavit evidence, but in any event the plaintiff wished to contend that even if, qua interconnecting network, what the defendant actually did in 'refiling' terms was held to fall within the 1995 Determination, nevertheless the payments as made remained payments under a mistake of fact, in that had it then been known to the plaintiff what the defendant was doing, it would not have paid the 'delivery fees' in question but instead would have sought an earlier Determination from the regulatory authority.

34. In addition, said Mr Field, whilst the Statement of Claim in its current form had "been left alone in light of the pending summons", nevertheless the case had now moved on, and notwithstanding any finding adverse to the plaintiff on the meaning of the 1995 Determination, the plaintiff also now would seek to amend and to further maintain that such 'refiling' of calls in any event was outwith the 1995 Determination, and accordingly that the claim entitlement was vitiated by such 'refiling' - which was itself an issue bearing directly upon the defendant's counterclaim for the allegedly wrongfully withheld $94 million. When the Statement of Claim originally had been settled, submitted Mr Field, the plaintiff had only been able to plead lack of termination, and had not been in the position to allege refiling. However, an alternative plea (for which leave duly would be sought) to allege that on a proper construction of the 1995 Determination, 'delivery from' necessarily connoted receipt from the gateway without refiling was not an issue embraced by paragraph 17 as now drawn, so that any adverse construction based upon the contents of that pleaded paragraph in its present form manifestly would touch only part of the picture, and would not mean that the claim would fail in toto, as the defendant had suggested.

35. The question of amendment to plead an alternative case or cases consequent upon the material thus far revealed does not seem to me to be an inappropriate circumstance for the court now to take into account, and in this regard I decline to accept Mr Henderson's riposte that, absent sight of the proposed amendment, little weight should be accorded to this argument. In my view, it is singularly ambitious to cavil at the lack of a formulated amendment when the plaintiff is not only entitled to review its pleaded case in light of what has emerged at the conclusion of discovery (and latterly in the witness statements), but when the defendant itself demonstrably has but lately shifted its own ground on this application, choosing to abandon the questions in the original Order 14A Notice in response to which this application was prepared, and substituting at the eleventh hour paragraphs culled from the Statement of Claim.

36. In my judgment the natural caution felt by any court when faced with an Order 14A application in what is evidently a complex case is more than justified in this instance, since it is not until the trial takes place that the court will have the whole picture available for its consideration. To jump the gun at this early stage, on the basis of assumed facts and absent discovery is, in my view, a signally unwise course to adopt.

37. Which brings me to the second significant consideration which has weighed in the decision to refuse this application; indeed, arguably it is the other side of the same coin. Despite Mr Henderson's efforts to argue the contrary, I remain unconvinced that it is possible adequately to factually "desensitize" this case so as to circumvent the dangers of "deciding questions of legal principle without knowing the full facts", to use the well-known words of Sir Thomas Bingham M.R. In this case I do not believe that it is possible to reach the position wherein it can safely be said that there are no issues of fact necessarily interwoven with the legal issues raised, notwithstanding Mr Henderson's willingness presently to accept the adverse matters alleged against his client in the evidence.

38. In this connection, it was accepted by both leading counsel that in order to construe the 1995 Determination, the court may properly look at the context of that Determination, which in turn would be revelatory of the relevant policy. The problem, however, as Mr Field pointed out, is that there is clearly a factual dispute as to what was the predominant policy in respect of the payment of the delivery fee, and that in order to get home on his argument - and, more to the point, to sidestep the contents of earlier Telecommunications Authority Statements which were clearly unhelpful to his case - Mr Henderson had been obliged to maintain that something fundamental had occurred between May and September 1995, so that the September 1995 Review of Delivery Fees posited a structural change which embraced the concept of FTNS operators earning delivery fees via the so-called process of "intermediate delivery". This was in any event wrong, asserted Mr Field - the Review could not be construed as indicative of OFTA's intention to change the basis of entitlement, and what lay behind the Review was simply his client's desire to delink outgoing calls from the so-called "accounting rate". But for present purposes resolution of this particular argument was nothing to the point : what was or was not the relevant policy, both economic and regulatory, and thus what constituted the true context for the 1995 Determination (which in turn governed what documents could properly be looked at as an aid to construction), was no more than one of the many specific facts which was required to be found by the court at trial. I agree.

39. It is at this point, also, that the issue of the expert evidence looms into view, namely that of Dr Ure, on behalf of the plaintiff, and that of Dr Wood for the defendant. The plaintiff's contention is that the 1995 Determination contains technical terms which are terms of art - there had, for example, been a dispute on the face of the evidence between these two experts as to the meaning to be accorded to the term 'delivery' - and whilst Mr Henderson appeared late in the argument to be driven to the position that, for present purposes, he would accept Dr Ure's formulation as to 'delivery', nevertheless it is clear to me that if expert evidence is to be used at trial to assist the court in resolving this dispute, then equally clearly the court should have the opportunity of considering the evidence of these witnesses (who in any event would have to canvass the issue of 'delivery' in the refiling context) untrammelled by any fetter that an Order 14A construction on the presently premised basis might provide.

40. Such expert evidence will also, no doubt, assist upon another unresolved factual matter, the question of the allegedly proscribed Type B "call back" calls, Mr Field maintaining, I think justifiably, that any construction of the issue now mooted would not resolve the call back issue (which in turn also impacted upon the defendant's counterclaim), and which again underpinned the clear necessity for a trial and the desirability of delaying any judicial declaration of the legal position until all relevant facts have been found. Again I accept this contention.

ORDER

41. This defendant's application is dismissed.

42. As to costs, I make an order nisi that the costs of and occasioned by the application be to the plaintiff in any event, to be taxed if not agreed. In so far as may be necessary, I certify the application as fit for two counsel.

FINALLY

43. This application has effectively caused this action to be stalled for a full six months. The delay and the expenditure of what doubtless are very considerable costs is regrettable. It is clearly desirable that this action should now proceed to trial with a minimum of further interlocutory disruption. Absent agreement thereon, the court will make all necessary procedural directions at an early date to be fixed.

44. I thank counsel for their assistance.