XCHRX 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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1. There is before the court an application on the part of the plaintiff, by summons dated 17 December 1999 for, inter alia, an order that :-

"The Defendant's application pursuant to RHC Order 14A as described in the Defendant's Notice under Summons for Directions dated 24th August 1999 ('the Order 14A application') be dismissed."

2. The background to this application is that on Monday 20 December, the parties attended before this court pursuant to the plaintiff's summons dated 16 November 1999 for an order that this action be transferred to the Commercial List. The application was resisted by the defendant, albeit in moderate and tactful terms, but in the event, it was granted primarily because, as I made clear to counsel at the time, this court has the advantage (if advantage it be) of a degree of background knowledge of what for general purposes I will call 'the telecommunications cases'. During that hearing for transfer to the Commercial List, reference was made by Mr Carolan in particular to the plaintiff's summons of 17 December 1999 which had been short served (albeit no point was taken on that) which anticipated the hearing of an Order 14A application taken out by the defendant pursuant to a Notice Under a Summons for Directions dated 24 August 1999. After some exchange between Bench and Bar, it was decided to hear this morning the plaintiff's preliminary summons to dismiss the imminent 14A application, and it is this summons which forms the focus of this judgment today.

3. Mr Burke, for the plaintiff, takes considerable exception to the Order 14A route chosen by the defendant. In his submission, he basically makes four points as to the unsuitability of this case for Order 14A, namely :-

(a) the case trespasses into areas of disputed fact;

(b) any construction of the Regulator's 1995 Determination will necessarily involve an incomplete view of the Regulator's reasons;

(c) the issues raised require evidence substantially different to the evidence necessary simply to focus upon the 1995 Determination itself; and

(d) in any event, the Order 14A application would not be determinative of the issues between the parties.

Mr Burke submitted that his client has always had reservations about the merits of proceeding by means of the Order 14A route, and by the issuance of this summons he simply wished to head off this application, so to speak, at the pass.

4. For his part, Mr Carolan for the defendant makes, if I may say so, all the points that one would anticipate counsel would make on this type of preliminary application. He stresses that the question of construction posed by the subject matter of the Order 14A is the central issue in this case, although he accepts that if the matter of construction is decided in the plaintiff's favour there will admittedly be outstanding issues to be dealt with at trial, albeit that these outstanding issues would be rendered considerably more manageable. On the contrary, were the Order 14A application to be decided in favour of the defendant, that effectively would be the end of the case, not only with regard to the plaintiff's claim but also in terms of the defendant's counterclaim. Mr Carolan further says that the disputes of fact variously spotlighted this morning by Mr Burke have nothing to do with the primary issue of construction which is the subject of the Order 14A. More tellingly, he suggests - and these are matters outlined in greater detail in his skeleton argument - that in any event he does not have to convince this court of anything today save and except that there is no good reason why he should not get his day in court in normal course on the hearing of the Order 14A application. Now, as to this, I took the opportunity on Monday, at the time of the transfer of this case to the Commercial List, to formally fix dates for the substantive application. Both parties had expressed dismay at the prospect to delay, and the court was able to oblige with relatively early dates whereby the Order 14A application has now been fixed for three days in the first week of March 2000.

5. I have no intention of depriving the defendant of its day in court in early March by means of what is, in effect, a preliminary issue as to the validity of the application under Order 14A. As a matter of courtesy to Mr Burke, I made time this morning to hear him on the substance of this preliminary summons, although I came very close on Monday of this week to peremptorily dismissing it, and nothing I have heard this morning has served to change my mind. All I would presently say is that the issues, so carefully and clearly articulated by Mr Burke, will doubtless provide considerable scope for counsel's argument at the hearing of the substantive application.

6. To this there is little I can or need to add. The court, unless something is palpably and completely bad, does not in effect strike out in advance applications which parties have seen fit to make. It hears the applications, it weighs the arguments and it renders a decision. Mr Burke's complaint that this will pose difficulties in terms of the collection of evidence is, I am afraid, no more than a normal by-product of an application made by the opposing party in litigation, and I am far from convinced that such difficulties are insuperable. Mr Burke was more than capable today of advancing these issues in short form, and if these arguments are borne out, doubtless they will be considered and given appropriate weight at the hearing. Equally, if abundant evidence needs to be adduced in order, as he perceives it, to safeguard his position, and if the court on the substantive hearing comes to the conclusion that he should not have been put to such time and expense, then the matter can be appropriately compensated in costs. But the court is highly resistant to the suggestion that the primary application should not even be given the time of day. I am not saying that such a course could never be adopted, but it would need a clear abuse of the process for the court, in the exercise of its inherent jurisdiction to control its own procedure, to exercise such a palpably summary remedy. It may be, I know not (and I specifically express no view), that the matters raised by Mr Burke will turn out to be significant at the substantive hearing. We shall simply have to wait and see.

7. It follows, therefore, that the relief prayed for in paragraph 1 of the plaintiff's summons, dated 17 December 1999, is refused. There remain, however, housekeeping matters consequent upon such refusal, which are canvassed by paragraph 2 of that summons. In this regard, as was made clear by the court on Monday 20 December, the date upon which the action came into this List, Mr Burke can have as much time as he reasonably needs, prior to the March dates now fixed, to collate and to put in his evidence. Indeed, Mr Carolan does not oppose that sensible course, providing that he has sufficient time to respond, and providing there is then a period prior to the hearing in which the court and counsel can digest the material filed absent any further evidence coming in.

8. Accordingly, I will now hear the parties on these housekeeping matters, and on the question of costs.

[Submissions from the parties]

9. These two matters have now been canvassed by counsel. As a matter of housekeeping, Mr Burke asks that he be permitted to file and serve his evidence by 1 February 2000. I have no difficulty with that. Nor does Mr Carolan, who asks that upon receipt of such evidence he should have a further 21 days in which to respond. I make an order in those terms. Of course, if the evidence on the part of the plaintiff can be filed and served earlier, so much the better, and Mr Carolan will then have 21 days thereafter. I further make an order, in a case which seems to me to have certain overtones, that no further evidence is thereafter to be filed on either side without leave of this court.

10. As to the question of costs, Mr Burke asks that the costs of today should be in the substantive Order 14A application. With respect, I fail to understand why this should be the case. As Mr Carolan points out, the arguments made today could as easily have been made in opposition on the Order 14A, and therefore today's hearing was unnecessary. I share that view. It seems to me to be as plain as a pikestaff that any sort of 'anticipatory dismissal' summons was doomed to failure. In the circumstances, I order that the costs of today be to the defendant in any event, to be taxed if not agreed. In so far as I made no order as to the costs of Monday's hearing, which in normal course could have been used both for the transfer to the Commercial List and consequential procedural directions (which were in fact deferred until today), in my view, the appropriate order for the hearing on Monday 20 December should be costs in the cause, such costs to be taxed if not agreed.

11. That being all for today, I thank both parties for their assistance.