WADDINGTON LTD v. CHAN CHUN HOO THOMAS AND OTHERS

HCA 3291/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3291 OF 2003

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D E C I S I O N

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1. This is an application for leave to appeal against the costs order I made in respect of the plaintiff’s application for an order to permit the plaintiff’s BVI law expert, Mr Richard Millett, QC, to give evidence by means of video-conferencing facility (“the Costs Order”). In that hearing, I made the Costs Order that save that the costs of the hearing be paid by the plaintiff to the 1^st defendant with certificate for one counsel, the costs of the summons be costs in the cause.

2. There is no dispute between the parties about the following propositions in relation to an application for leave to appeal against a costs order:

(a)  to obtain leave to appeal, an applicant has to show more than just an arguable case with reasonable and not fanciful prospects of success, although he does not have to demonstrate that the appeal will probably succeed (SMSE v KL [2009] 4 HKLRD 125, per Le Pichon JA, paragraph 17).

(b)  the appellate court will not interfere with the exercise of a judge’s discretion in the award of costs unless it can be shown that he:

(i) failed to exercise discretion;

(ii) exercised it upon a false principle;

(iii) did not exercise judiciously; or

(iv) the exercise of the discretion was demonstrably flawed (Hong Kong Civil Procedure 2013, Volume 1, paragraph 62/2/11, page 1106).

3. The background of this case has been set out in my reasons for decision dated 7 May 2013 and I do not want to repeat the same here.

4. As mentioned in the said reasons, it is regrettable that the question about leave to adduce expert evidence was left to be determined by the trial judge at the PTR hearing.  The delay in the determination on such issue has certainly complicated the conduct of the proceedings.

5. Because leave to adduce expert evidence on BVI law was only granted by consent on 24 April 2013, the plaintiff’s BVI law expert cannot personally come to Hong Kong to testify and, as a result, the plaintiff had to apply for leave to allow its expert to testify by way of video-conferencing facilities (“the Video-Link Application”).

6. The plaintiff issued a summons for the Video-Link Application on 30 April 2013.  On 7 May 2013, the 1^st defendant’s solicitors wrote to the plaintiff’s solicitors asking for a copy of Mr Millett QC’s report to enable the 1^st defendant “to duly consider and prepare for the summons”.

7. There were then some heated exchanges between the solicitors for the plaintiff and the 1^st defendant.  The plaintiff’s solicitors refused to provide a copy of the expert report to the 1^st defendant on the ground that the contents of the expert report were irrelevant to the application, and they alleged that the defendant’s solicitors had “wilful intention to obstruct the progress leading to the trial”.

8. The parties then came before me on 15 May 2013.  Upon the request of the court, the plaintiff supplied a copy of Mr Millett QC’s report to 1^st defendant for consideration.  After perusing the report, Mr Lee, SC, counsel for the 1^st defendant, indicated no objection to the plaintiff’s Video-Link Application.

9. I then decided on the issue of costs relating to the Video-Link Application and I gave the oral reasons for the decision.  Before I was able to reduce my oral reasons into writing, the plaintiff obtained the transcript and filed the present application for leave to appeal against the Costs Order.  In any event, the reasons for the Costs Order can be found in the transcript itself.

10. It is clear from the Costs Order that I treated the costs of the hearing on 15 May 2013 separately from the costs of the summons itself. 

11. As to the costs of the hearing, it is clear that the main dispute between the parties is whether the contents of Mr Millett QC’s report are relevant to the Video-Link Application.  In this regard, I disagree with the view taken by the plaintiff’s solicitors.  In my judgment, the contents of the report are clearly relevant.  In deciding whether to grant a video-link application, one of the considerations is whether the credibility of the expert is in issue.  Because of the nature of the expert evidence, one may say that credibility of the experts is unlikely to be in issue in the present case. However, Mr Millett was the expert in the leading case in East Asia Satellite Television (Holdings) Ltd v New Cotai, LLC [2011] 3 HKLRD 734.  In order to determine whether Mr Millett is going to depart from his expert opinion he has given earlier, the 1^st defendant should be entitled to peruse the contents of the expert report before indicating his stance to the application.

12. The 1^st defendant voluntarily withdrew the objection after perusing the report.  In such circumstances, the court is entitled to assume that had the report been supplied to the plaintiff before the hearing, the hearing itself could have been avoided.  In such circumstances, I ordered the plaintiff to pay the costs of the 1^st defendant of the hearing on 15 May 2013 with certificate for one counsel.

13. So far as the costs of the summons itself, it is true that Mr Lee, SC had indicated in the hearing on 24 April 2013 that the 1^st defendant would object to the application.  However, this was not an unreasonable stance before perusing the contents of the plaintiff’s expert report.  In particular, the 1^st defendant’s expert would be able to attend the trial personally for cross-examination by the plaintiff’s counsel.

14. Furthermore, it was not wholly the fault of the 1^st defendant that put the plaintiff in such a difficult position of having to arrange for the expert to testify with such short notice.  As mentioned in my reasons dated 7 May 2013, the 1^st defendant had taken out the summons for leave to file expert evidence on BVI law as early as March 2012.  Apparently the Registrar made an order to the effect that such application would be dealt with by the trial judge at the PTR hearing.  In such circumstances, the criticism should not be directed against the 1^st defendant alone, and the most appropriate costs order for the summons should be one of costs in the cause.  I therefore so ordered.

15. Mr Lam, counsel for the plaintiff, also relies heavily on the contents of the defendant’s solicitors’ letter dated 29 April 2013.  However, this letter had been superseded by subsequent correspondence between the parties. In such circumstances, one should not just focus on the contents of this letter in determining the possible stance of the 1^st defendant in respect of the Video-Link Application.

16. Based on the aforesaid reasons, I am of the view that the chance of the Court of Appeal in interfering with my exercise of the discretion is very slim and so I refuse the plaintiff’s application for leave to appeal against the Costs Order.