HBS MARKETING LTD. v. APPLIED ELECTRONICS (OEM) LTD. and Another

IN THE COURT OF APPEAL

1994, No. 77
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

1. I do not propose to recount all the circumstances. Those are set out in the judgment and as it indicated at the end of it, we made an order nisi in terms of that sought in the plaintiff's notice of appeal. That had the result that the costs of the appeal were to be to the plaintiff. In response to that, the defendant applied to the listing clerk to have the matter relisted for argument on the order nisi.

2. Mr Barlow who appears for the defendants takes a very short point. He says that the plaintiff has been granted the indulgence of the court in two respects. At p.12 of the judgment the court has, he contends, been indulgent in taking the view that the plaintiff would be driven from the judgment seat, and at p. 13, the court chose to exercise the original jurisdiction of the High Court and actually grant leave to amend in a respect that had not been applied for before the High Court. He uses this basis of the grant of indulgence to seek an order that the 1st defendant have its entire costs of the appeal.

3. It should at once be pointed out that the appeal is concerned with three major matters in which the judge is said to have been wrong, i.e. the application of the parole evidence rule, the matter of rectification and the exclusive jurisdiction of the Labour Tribunal. None of the decisions on these major matters, which occupied the attention of counsel and of the court almost to the total exclusion of the minor consequential matter of leave to amend on an extended basis to include also Mrs Beatrice Sandler, is the subject of complaint by the defendant. What is submitted is that leave to amend in the present circumstances is an indulgence and an applicant for such must bear the costs; to obtain that leave the plaintiff had to appeal and to come to this Court; therefore the plaintiff should bear all the costs of the appeal. Quite apart from the matter of leave having occupied virtually no time and effort, I find no merit whatsoever in that submission which I reject out of hand. It does not bear examination. Had leave for that amendment not been sought, there would have been no basis for the present application; that this position should be wholly reversed by the grant of leave to amend is absurd. I would dismiss the application and immediately make the order nisi absolute.

Penlington, J.A.:

4. I agree. I would also dismiss this application and make the order nisi absolute.

Yam, J.:

5. I also agree and I only want to add this:

6. Assuming Mr Barlow appeared in the appeal and conceded the appeal on all grounds put forward by the appellant, and only said that their only objection was the addition by the plaintiff of Mrs Beatrice Sandler as an additional party, (of course, one would wonder why anyone in his right frame of mind would do that, but assuming that that was the situation,) there are, to my mind, still two sets of costs, i.e. the costs of the hearing and the costs of the amendment. The costs of the amendment would be to the other party (i.e. the defendant) but the costs of the hearing might still be to the plaintiff because they have won the argument of adding Mrs Beatrice Sandler as an additional party. In this situation I think it would be illogical if we were to accede to the request of Mr Barlow today that they should have the costs of the appeal after the defendant had lost on all three major matters as pointed out my Lord Nazareth, V-P. For these reasons, I would also dismiss Mr Barlow's application and make the order nisi absolute.