XCHRX GOH KIM LAY v. VERSATILE ADVERTISING CO. LTD. and MESSRS. T.L. IP and CO.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

( ACTION No. 8090/1994 )

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J U D G M E N T

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Yam, J.:

1. This is an application to set aside H.H. Judge Yeung's Order of costs dated 11 May 1994 against the Applicant (a firm of solicitors) on the ground that the learned judge acted irregularly without regards to the procedure in O.62 r.8.

2. Be that as it may, I am of the view that I have no jurisdiction at all to set aside the learned Judge's Order. The proper forum should be the Court of Appeal. The attack by the Applicant on the irregularity of Judge Yeung's Order should be made in the Court of Appeal. It is not appropriate for me to decide whether he was irregular or not.

3. Order 2 provided for non-compliance of the rules by the litigant. Any alleged non-compliance of the rules by any tribunal or judge is an error in law and it can only be corrected by an appeal to the appellate court.

4. Accordingly the Applicant's application before me, in my view, is misconceived and has to be dismissed with costs to the Plaintiff.

5. In respect of costs, I think this is an unusual and exceptional case. The Applicant is applying to set aside a District Court judge's Order for irregularity. They are a firm of solicitors. They have been warned by the other side and also as indicated by Woo J.'s decision that this in itself is irregular and is an appeal through the back door.

6. However, the Applicant is adamant in proceeding with the application. Given the background to this case, it is quite oppressive for this firm of solicitors to proceed against the Plaintiff. It would be unjust, in my view not to Order costs on full indemnity basis to which I think the Plaintiff is entitled.

7. Order for costs to be taxed and paid forthwith on full indemnity basis by the Applicant.

(D. Yam)

Judge of the High Court