PARK AVENUE TOYS LTD v. CANDY NOVELTY WORKS LTD

HCA11135/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 11135 OF 1997

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R U L I N G

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1. This is an application for leave to appeal against a ruling in relation to costs given by me on 12 January 2005.  The ruling was one which involved the consideration of a Calderbank offer which had lapsed prior to the commencement of the trial.

2. Mr Sakhrani has drawn my attention to a decision of the English Court of Appeal in Bristol and West Building Society v Evans and Bullock and Company, unreported, (February 1996) , in which a similar circumstance arose.  There, a Calderbank offer had been made, it had not been accepted, and was subsequently withdrawn.  The judge, in refusing costs, referred to that fact, said that he took a broad view of costs, and made no order for costs.

3. Mr Sakhrani says that the principle that can be drawn from that decision are, first of all, that the fact that the Calderbank offer had lapsed is not a relevant factor in the award of costs and, second, that the date at which the court ought to consider the issue of costs - I suppose at least in the first stage of considering the question of costs - is the date at which the Calderbank offer was made.  He says that the court should look at that date at the Calderbank offer and say whether or not it should have been accepted and, if it says it should have been accepted, proceed on that basis in dealing with costs.

4. I am satisfied that it is arguable that in dealing with the Calderbank offer in the way I have, particularly in paragraphs 9 and 10 of the ruling,  I have not taken that course and that, consequently, leave to appeal to granted.

5. Costs on the application for leave will be in the appeal.

(Submission re draft Notice of Appeal)

6. Leave is given to amend the draft Notice of Appeal as is considered appropriate by the defendant’s advisers.