CHEUNG TING KAU, VINCENT v. KOO SIU YING AND ANOTHER

CACV 42/2017

[2021] HKCA 139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 42 OF 2017

(ON APPEAL FROM HCAP NO. 4 OF 2011)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court) :

I. Background

1.1  The plaintiff is the sole executor of the will of Mr Lim Por Yen (‘the Deceased’) dated 3 December 2004 (‘the 2004 Will’).  The Deceased died on 18 February 2005.

1.2  Madam Koo, the first defendant, is the Deceased’s second concubine and Madam Ling, the second defendant, is her daughter with the Deceased.

1.3  Madam Koo and Madam Ling are expressly disinherited under the 2004 Will.  They used to be the beneficiaries under the earlier wills of the Deceased made in 1967 (‘the 1967 Will’) and 1973 (‘the 1973 Will’).  They entered caveats against the 2004 Will in August 2010.  In 2011, the plaintiff commenced the present probate action (HCAP 4/2011) against them seeking an order that the 2004 Will be pronounced in its solemn form. 

1.4  The defendants denied that the 2004 Will is valid.  They denied the claims of the plaintiff to be the executor of the 2004 Will and they raised a counterclaim for their entitlements either upon intestacy or upon probate being granted in respect of the 1973 Will and codicil or the 1967 Will under which they were named beneficiaries.

1.5  By summons dated 30 October 2014, the defendants applied for administrators pendente   lite (in English language, administrators pending litigation) to replace the plaintiff.  Deputy High Court Judge Kent Yee refused the application on 18 February 2016.  After an unsuccessful application for leave to appeal from Deputy Judge Kent Yee, the defendants obtained leave from another division of this Court on 15 February 2017. 

1.6  The notice of appeal was filed on 20 February 2017 and the appeal was set down.  However no further steps were taken by the defendants on the appeal until 21 April 2020 when their solicitors Holman Fenwick Willan (‘HFW’) wrote to the plaintiff’s solicitors MinterEllison LLP (‘ME’) enclosing an amended notice of appeal which they intended to file when the Court reopened for business on 3 May 2020.  The letter stated :

‘ We confirm that we will proceed to make an application to fix a date for the hearing of the appeal once we receive your comments to the following enclosures:

1.  Draft indices to the Appeal bundles.

2.  Draft Joint Checklist.’

1.7  By a letter dated 7 May 2020, HFW sent to ME the defendants’ amended notice of appeal which was filed the day before and indicated that the defendants now wish to fix a hearing date for the present appeal.  No explanation of any kind was given by HFW as to the reasons for the defendants’ delay in applying for a hearing date before 7 May 2020.

1.8  On 27 July 2020, the plaintiff issued the present summons seeking the following relief :

‘ 1. No date should be fixed for the substantive hearing of the appeal on the grounds that :-

1.1  There had been inordinate delay by the Defendants in applying to fix a hearing date of the substantive hearing, having taken no steps to do so after obtaining leave to appeal in February 2017;

1.2  There was and is no good reason for such delay;

1.3  Such delay has caused prejudice; and

1.4  The chance of success of the appeal is low;

1.5  In the circumstances the Court should not exercise its discretion to allow the Defendants to fix a hearing date, or should exercise its discretion against it.

2.  Further or alternatively, the Amended Notice of Appeal dated 21 April 2020 be struck out for want of prosecution for the same reasons set out at paragraph 1 above;

3.  Consequently, the appeal be dismissed; and

4.  Costs of and occasioned by the application and the appeal be to the Plaintiff.’

II.  The defendant’s explanation

2.1  The main basis of the defendants’ application for administrator pendente lite was their complaint that the plaintiff lacked neutrality and sided with the beneficiaries of the 2004 Will, namely, Peter Lam and Madam U.  Under the 2004 Will, the Deceased bequeathed all of his shares in Wisdoman Limited (‘Wisdoman’) to Peter Lam and Madam U.  Wisdoman holds many of the assets of the Deceased.  For example, it holds the Deceased’s 480 million shares in Lai Sun Garment (International) Ltd which are of substantial value.  At the same time, the Deceased also gave all his shares in Wisdoman to Peter Lam and Madam U by way of an inter vivos gift. 

2.2  The underlying theme of the defendants’ application is that they contended that the plaintiff should have considered a claim to be made against Peter Lam and Madam U to recover the Wisdoman shares transferred to them as an invalid gift.  As the claim may be time-barred, they said urgent steps were needed to be taken by the administrators pendente lite to preserve such a claim.  They also said that the inaction of the plaintiff in pursuing the claim against Peter Lam and Madam U was indicative of his alliance with them, particularly given his aggressive conduct in some litigation against Highfit Development Company Limited (‘Highfit’).

2.3  The defendants explained that the inactivity after obtaining leave to appeal was due to their intention to commence a derivative action.  The following steps were taken by them in respect of that action.

1)  In HFW’s letter dated 10 July 2017 to Reed Smith Richards Butler (‘RSRB’), the plaintiff’s former solicitors, HFW indicated that they had instructions to commence derivative proceedings, and asked RSRB to confirm whether RSRB had instructions to accept service on behalf of the plaintiff.

2)  On 6 September 2017, the defendants further issued a summons seeking leave to use and rely on the documents in respect of the Wisdoman Transaction (which they had previously obtained from third party discovery applications) for the purpose of commencing the derivative action. In the affirmation filed in support of that summons, a draft writ endorsed with a statement of claim was exhibited.  Leave was granted by Chung J on 3 January 2018.

3)  Interrogatories were served by the defendants in the present probate action on 21 August 2017 (which were ordered by Chung J to be withdrawn for irrelevance by a decision dated 26 March 2018).  The defendants confirmed that the interrogatories were issued to obtain information for the purpose of the derivative action.

2.4  Despite these steps the defendants did not commence the derivative action.  Ms Rosie Ng, solicitor for the defendants explained in her affirmation of 10 August 2020 the reason for not pursuing the derivative action.

‘The Defendants did investigate the possibility of commencing a Derivative action. It took nearly a year after leave was given to obtain the Court’s permission to use documents in such proceedings which was opposed by the Plaintiff. This was granted on 3 January 2018. Following this, the Defendants continued to investigate the viability of such proceedings. It emerged during the first half of period 2018 that in order to recover assets the Defendants would also need to reverse transfers and transactions not merely by the Deceased but by Wisdoman itself. A claim to reverse the transfers of Wisdoman shares might not make sense without reversing transfers by the directors of Wisdoman. This therefore meant that a double derivative action of some kind would have been needed and substantially complicated what had been envisaged before. However, without cooperation from the Plaintiff, the Defendants lacked visibility as to what transactions had been concluded at the Wisdoman level. There was simply too much factual uncertainty involved for double derivative claims on behalf of both the Deceased’s Estate and on behalf of Wisdoman itself to have been viable and by about mid-2018 the Defendants had concluded that this was the case. However, I believe the Defendants acted reasonably in seeking fully to review and consider the merits of such proceedings and that until about mid-2018 they had a reasonable explanation for delay.’

2.5  In HFW’s subsequent letter of 10 June 2020, it further explained why the derivative action was not commenced.  It stated, inter alia, 

‘ 3. Ultimately, we concluded by the end of 2018 that we were not likely to obtain any further information from your client and that your client would indeed oppose all further attempts to obtain information.

4.  Added to this, our clients had no visibility as to what had happened to the underlying assets of Wisdoman.  Wisdoman was largely established to hold interests in the Lai Sun Group.  Those companies were and continue to be managed by Peter Lam.  Our clients could not have invested in derivative proceedings with respect to Wisdoman without also knowing what had happened in the corporate structure below.’

2.6  The defendants, however, did not explain why steps were not taken in the present appeal from mid-2018 or end 2018 until April 2020.

III.  Our view

3.1  Although the first limb of the plaintiff’s application is to ask the Court to refuse to fix a date for the appeal, we consider it more appropriate to deal with the strike out application first.

1)  Striking out

3.2  The Court of Appeal has inherent jurisdiction to strike out a notice of appeal where an appeal is plainly not competent, or where the appeal is frivolous, vexatious or an abuse of process of the Court.  In the case of the latter, the inherent jurisdiction would be exercised on precisely the same basis as if Order 18, rule 19 of the Rules of the High Court (‘RHC’) (Cap 4A) applied to notices of appeal: Leung Chung Lan Lorraine v Hang Seng Bank Ltd [2019] HKCA 1408 at [34] and Competition Commission v. W. Hing Construction Company Limited and others (CACV 257/2019) at [16].

3.3  The principles on striking out for want of prosecution have been comprehensively reviewed by Ma CJ in Wing Fai Construction Co Ltd v Yip Kwong Robert (‘Wing Fai’) (2011) 14 HKCFAR 935.  It is sufficient to state that the foundation for the jurisdiction to strike out for delay is based on an abuse of the process of the Court by the party whose case is to be struck out. Inordinate and inexcusable delay causing prejudice to a defendant, contumelious conduct or initiating proceedings without any intention to bring them to a conclusion which is commonly referred to as ‘warehousing a claim’, are examples of abuse (Wing Fai [66]).

2)  Inordinate and inexcusable delay

3.4  In this case the plaintiff first relied on inordinate and inexcusable delay and prejudice to the plaintiff.  After the notice of appeal had been served and filed, there was inactivity for three years on the part of the defendants to prosecute the appeal.  It can hardly be argued otherwise that this is inordinate delay particularly if the nature of the appeal is to be taken into account.

3.5  The defendants wished to replace the plaintiff who is the executor of the 2004 Will of the Deceased by administrators pendente lite.  The nature of the application speaks volumes that the appeal should be prosecuted expeditiously in order to enable someone else to be put in charge of the estate.  The urgency is highlighted by the fact that the probate action by the plaintiff was commenced in 2011 and yet by 2020 the important issue whether the plaintiff should be replaced has still not been resolved.  Furthermore, Order 1A, rule 1(b) of the RHC now expressly requires that a case should be dealt with as expeditiously as possible.  The defendants are clearly in breach of this requirement.  The delay is inordinate.

3.6  Is the delay inexcusable?   The defendants put up the excuse that they were then pursuing the possibility of a derivative action.  But as it turned out, despite having a writ endorsed with a statement of claim being ready in September 2017, they had chosen not to issue it.  More importantly, this could not possibly be a reasonable explanation for the delay because during this period the defendants were not dealing with the present appeal at all.  On the contrary, they were dealing with a matter which would have the effect of doing away with the need of administrators pendente lite in order to protect the Wisdoman shares.  The defendants were still sitting on the fence even after they had decided not to pursue the derivative action.  They could not be allowed to conduct litigation in such a manner particularly after the Civil Justice Reform.  In our view, the delay is inexcusable. 

3.7  The defendants’ approach also amounts to ‘warehousing’ of their claim.  They started proceedings and then delayed with no intention to bring the proceedings to a conclusion.  This amounts to an abuse. 

3.8  Even if, for the purpose of argument, the defendants’ pondering whether to pursue the derivative action amounts to a reasonable explanation, this will only carry the matter up to middle or end of 2018.  Beyond that there is no excuse for the substantial delay thereafter.

3)  Prejudice

3.9  Is there prejudice to the plaintiff as a result of the delay?  Prejudice takes many forms.  Apart from the traditional ones, such as prejudice caused by proceedings hanging over the head of a defendant causing undue anxiety (Wing Fai [75(3)]), the Court recognizes that one should take a broader view and prejudice also includes prejudice to the Court and the administration of justice and other litigants when the Court’s limited resources are abused.  Thus in Wong Shui Kee Roger v Victor Chu & Co [2011] 4 HKLRD 594, this Court held :

‘ 29. Moreover, it must not be forgotten that, in the present era, prejudice includes prejudice to the courts and the other litigants when the court’s limited resources are misused. As Lord Woolf MR noted in Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426, 1436D/E–F/G:

... any delay which occurs from now on will be assessed not only from the point of view of the prejudice caused to the particular litigants whose case it is, but also in relation to the effect it can have on other litigants who are wishing to have their cases heard and the prejudice which is caused to the due administration of civil justice.’

3.10  From July 2017 onwards the plaintiff had repeatedly asked the defendants whether they intended to pursue the appeal.  Taking a perspective view, the delay in the prosecution of the appeal clearly causes prejudice to the plaintiff in the administration of the estate.  Prejudice in the wider sense of affecting the due administration of civil justice is also established in this case.

4)  Sleeping dog

3.11  The defendants referred to Clarke: Hong Kong Civil Court Practice (2020) at [paragraph 59.5.4.] and submitted that the plaintiff himself could have applied to list the appeal for hearing.  They argued that the jurisdiction to strike out presupposes an obligation on the party against whom the strike out is aimed to take some steps or action such as to apply for a peremptory order against the defendants.  The inactivity on the part of the plaintiff suggested a ‘let sleeping dog lie’ approach which was disapproved of by Wing Fai where Ma CJ stated:

‘ 75(8) ...Thus, post-CJR, where all parties to the proceedings have the obligation to prosecute the proceedings and assist the Court in furthering the underlying objectives, it would be highly relevant to consider any failure on the part of the parties here. As far as the defendant is concerned, I would say once again that there is no place anymore for defendants to adopt the attitude of “letting sleeping dogs lie”. No longer will it be possible (if it ever was) for a defendant to sit idly by and do nothing, in the hope that sufficient delay would be accumulated so that some sort of prejudice can then be asserted.’

3.12  It is clear from the correspondence that the plaintiff had repeatedly inquired with the defendants about the progress of the appeal.  They stated that the defendants’ inaction was an abuse and suggested that the appeal should be dismissed by consent.  The plaintiff had clearly not adopted a ‘let sleeping dog lie’ approach in this litigation.

3.13  In RSRB’s letter of 25 July 2017, they asked the defendants to agree to have the appeal dismissed by consent :

‘ 9.  It is now further apparent from your indication that your client intends to commence a derivative action, and your client’s inaction in proceeding with the appeal in CACV No. 42 of 2017 (the “Appeal”), that your client no longer has any intention of proceeding with the Appeal.

10.  In the circumstances, please confirm that Pearl Ling and the other appellant Madam Koo Siu Ying agree to the dismissal of the Appeal by consent with costs of the Appeal, and the costs of the leave application before the Court of Appeal (with certificate for two counsel), to be paid to our client.’ 

3.14  RSRB in a further letter dated 9 November 2017 wrote :

‘ 6. We wrote to you on 25 July 2017 stating that it appeared to us that your clients’ intention to commence a derivative action, coupled with your clients’ inaction in proceeding with the appeal in CACV 42/2017, indicated that your clients no longer had any intention of proceeding with the appeal, and invited you to agree to the dismissal of the appeal by consent. You responded to state that your clients had no intention of abandoning the appeal, but the fact remains that they have yet to take steps to fix an appeal hearing date.

7.  With the stage that the probate action is now at, it is highly undesirable that your clients’ APL Application, which was initially made in October 2014, should remain outstanding some three years later.  Please can you confirm what your clients intend to do in relation to the APL Application and CACV 42/2017.’

3.15  In RSRB’s letter of 31 May 2018, they again expressly stated :

‘ 6.  However, since being granted leave to appeal, your clients have taken no steps to fix the appeal hearing date. At the same time, you have maintained that your clients have no intention of abandoning the appeal. This is a clear abuse of process.’

3.16  Whilst it is true that after HFW’s letter of 19 November 2018 which indicated that the defendants would proceed with the appeal, the plaintiff had not taken steps to apply for a hearing date or a peremptory order notwithstanding the defendants’ continuous inactivity, we do not consider that it can be said that the plaintiff was deliberately refraining from action with the hope that sufficient prejudice would be accumulated so that some sort of prejudice could then be asserted.  Each case must be decided on its own facts.  We disagree that in the present case the plaintiff is obliged to take such steps.  He is entitled to pursue the alternative relief of striking out the appeal.  In the present case on 17 June 2020 ME replied to HFW and stated that :

‘ 9.  We remain of the view that given the extraordinary period of delay in this case, your clients will need to explain to the Court the reasons for the delay, as well as how their complaint about the Wisdoman transaction, which you say “remains at the heart of the appeal”, still gives rise to grounds for the appointment of APLs.

10.  Absent any good explanation, we are of the view that the Court should refuse to fix a hearing date for the appeal.  That being the case, we decline to sign the joint checklist which you have prepared.’

3.17  Shortly thereafter ME issued the present summons.

5)  Other circumstances

3.18  It is not disputed that the Court must consider all the circumstances of the case in a strike out application.  One factor is the chance of success of the intended appeal.  Deputy Judge Kent Yee refused the application because of the lack of merits and also of the delay in the application.  He held at [134] the delay was inexcusable.  When this Court granted leave to appeal to the defendants, it had expressly stated that it did not intend to express any view on the merits of the appeal, rather the purpose of granting leave was to provide guidance on the law because the decisions so far on administrators pendente  lite are all first instance decisions.    On delay, the application was taken out in October 2014 which was more than nine years after the death of the Deceased and three years after the commencement of the probate action by the plaintiff.  There is a further delay of three years after the granting of leave.  It is uncontroversial that the application by the defendants below could be achieved by other means such as requiring the plaintiff to issue a protective writ in respect of the Wisdoman shares which the defendants had chosen not to pursue.  In our view the defendants have not demonstrated that they have a high chance of success in an appeal from a discretionary decision such that the Court should not stifle it by striking out the appeal.

3.19  The defendants submitted that the plaintiff had delayed in prosecuting the probate action which was refuted by the plaintiff.  But this is not relevant to the delay by the defendants in prosecuting the present appeal.  The defendants also referred to the litigation conducted by the plaintiff against them.  Again the focus must be on the way the defendants themselves have prosecuted the present appeal.

6)  Ample justification

3.20  Ma CJ in Wing Fai at [69] stated that resort to a striking out must be a remedy of last resort and at [72] stated that under the Civil Justice Reform regime he would expect to see virtually no application unless peremptory orders have not been complied with, or provisions such as Order 25, rule 1(4), 1(5) or 1C apply.  As repeatedly said the context of a case is important and in this case we find ample justification to strike out the appeal.

7)  Order 59, rule 5(2)

3.21  In the present case the defendant submitted that because of the absence of specific time limit for the appeal to be fixed, there was no obligation on their part to fix a date for their appeal.  Accordingly the first limb of the plaintiff’s application should be dismissed.  It is clear from the wording of Order 59, rule 5(2) of the RHC both in its old version on 20 February 2017 i.e. the date when the defendants filed their notice of appeal and in its current amended version that there is no requirement for an appellant to apply to fix the appeal within a specific time.

3.22  The old version reads :

‘ (2) Upon the said documents being left, the Registrar shall file one copy of the notice of appeal and cause the appeal to be set down in the list of appeals; and the appeal shall come on to be heard according to its order in that list unless the Court of Appeal or a judge of that court otherwise orders.’ (emphasis added)

3.23  The part that was underlined above was removed in the current amended version.

3.24  In Chan Cheryl v Ngai Po Lun Paul [1990] 1 HKC 148, this Court dealt with the old version of the rule.  We held at pages 153-154 that an appellant had to apply for a date to be fixed for the hearing of the appeal notwithstanding the wording in Order 59, rule 5(2).

‘ The doubt arises in this jurisdiction because the Court of Appeal here has never maintained a ‘list of appeals’ in the sense in which the phrase is obviously used in sub-r (2) and in the opening words of r 9. All appeals here are given fixed dates. Provision for that is made in a Practice Direction issued by the then Chief Justice on the 10 January 1986 which requires the submission to the clerk of the court of a Form 1, which is headed ‘Application to fix a date for the hearing of an appeal’.

...

We should also add that there was a suggestion in the course of argument that it might be desirable to amend O 59 r 5 to include, as a third item in sub-r (1), an application to fix a date.  On reflection, we do not think this is necessarily so, for there may be occasions when the appellant, for good reason, is not yet ready to do so.  There should be no difficulties as matters now stand, if those responsible keep clearly in mind that service of the notice of appeal, setting down, and fixing a date, are three separate and distinct stages in the procedure and should be accomplished in that order.  We do, however, venture to suggest that the Rules Committee might reconsider generally the wordings of the order which in parts seems more appropriate to the English practice in which, in particular, the Registrar of Civil Appeals, an officer whom we do not have as such in this jurisdiction, plays a significant part.’

3.25  Yuen JA in Yu Man v Pricewaterhouse Coopers (a firm) HCMP 71/2006 (unrep., 5 June 2006) dealt with an application for extension of time to fix the hearing date for appeal.  She held that such an application was unnecessary because of the wording of the old Order 59, rule 5(2).  Referring to the words that were underlined as indicated above she held that :

‘ 14.  The words I have emphasized indicate that even if no application to fix a hearing date is made, the appeal should still come on to be heard according to its order in the list of appeals. Although there are now three lists, this is clearly an interlocutory appeal and the appeal should come on to be heard according to its order in the interlocutory list. I do not consider that the words “unless the Court of Appeal or a judge of that Court otherwise orders” can be construed to mean the Practice Directions.

15.  Of course, where an application to fix dates is made, the court would be able to assign the most appropriate date for hearing having regard to the type of appeal and the estimate of length of hearing.  But in view of the mandatory language of rule 5(2), I do not see how it can be said that an appeal can never be heard unless an application to fix dates is made.’

3.26  She declined to follow another decision of this Court in Law Siu Hong Albert v Cheung Kin Ping CACV 114/1997 (unrep., 3 August 2000) where extension of time was granted.  This Court held at page 4 :

‘ Although the time for setting down appeal is prescribed by Order 59, rule 5 of the Rules of the High Court, there is no specific provision for a time limit within which an appellant must apply to fix a date for hearing of the appeal. However, we are of the view that because of the delay, it is within the inherent power of the Court whether to allow a date to be fixed for the hearing of the appeal, so as to regulate its own business and to prevent excessive delays in the proceedings that it has to handle.’

3.27  In Wong Shui Kee Roger this Court dealt with an application by the respondent under the current amended version of Order 59, rule 5 and under the Court’s inherent jurisdiction to strike out the notice of appeal on the grounds that the appellant has failed to prosecute the appeal.  We held :

‘ 23. ... A respondent to a dormant appeal which has been set down should either apply to fix dates for the appeal to be heard, or, in an appeal involving a litigant in person, apply for a preliminary directions hearing, or apply to strike out the appeal for want of prosecution under the inherent jurisdiction of the court, as the respondent has done in the present application.’

3.28  As we have already acceded to the application to strike out, it is not necessary for us to consider whether the first limb of the application can also be sustained or not.  In respect of the earlier decisions of this Court, Yuen JA in Yu Man was, of course, correct not to make an order extending time because it was not necessary to do so.  But it is now only of academic interest to discuss whether there is any conflict between Yu Man and Law Siu Hong Albert because we are of the firm view that after the Civil Justice Reform, notwithstanding the absence of a specific provision for the appellant to apply to fix a date for the hearing of the appeal, such an obligation is indeed imposed on the appellant.  The following paragraphs of Practice Direction 4.1, Civil Appeals to the Court of Appeal are relevant :

‘ 1.  This Practice Direction governs the conduct of the civil business of the Court of Appeal (“the Court”). It aims at more proactive and effective case management to ensure that every application and appeal to the Court are properly presented by the litigants and dealt with by the Court as expeditiously as is reasonably practicable in line with the underlying objectives as provided in Order 1A of the Rules of the High Court.’

‘ 4.  Non-compliance with this Practice Direction or the specific directions given by the Court or the Registrar CA may entail the imposition of appropriate unless order and the calling upon of the party or, where appropriate, his/her legal representative to show cause.’

‘ 54.  Unless the Court directs otherwise, one set of the bundles shall be lodged before an application is made to fix a date for the hearing of the appeal. When the application for the fixing of a date is made, the parties shall jointly lodge a checklist in the form of Annex 2 within 7 days of the filing of the application, setting out the estimated length of the hearing and any unusual listing considerations of the appeal (including whether it should be heard by a bilingual division), and confirming that the bundles have been lodged and there will be no further interlocutory applications before the appeal is heard. ...’ (emphasis added)

3.29  These requirements clearly impose an obligation on an appellant to apply to fix a date for the appeal.  As this Court said in Chan Cheryl at page 154 that there are three separate and distinct stages in the appeal process which should be accomplished in the following order, namely, service of the notice of appeal, setting down and fixing a date.  This Court’s view in Chan Cheryl that there may be occasions when an appellant is for good reason not ready to fix a date was of course correct, but an appellant’s underlying obligation to have his case dealt with expeditiously must be emphasised.  Whilst there is no specific time limit for him to do so and each case must be judged on its own facts, the words in the Practice Direction ‘as expeditiously as is reasonably practicable’ must surely serve as the guide post.

IV.  Conclusion

4.  Accordingly we will strike out the notice of appeal with costs to the plaintiff together with certificate for two counsel.  We will summarily assess the plaintiff’s costs which include counsel fees at $600,000.