CHUNG SIU KONG AND OTHERS v. KITTY SO & TONG SOLICITORS (a firm)

HCA496/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 496 OF 2010

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BETWEEN

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DECISION ON APPLICATION
FOR LEAVE TO APPEAL AGAINST COSTS

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1.  This is an application for leave to appeal against a Decision on Costs rendered by this Court on 24 June 2010. 

2.  That decision speaks for itself, and relates to the costs of hearings held in this Court on 12 and 15 April 2010. It sets out the history of the matter and I shall not repeat it. 

3.  There is, however, a little more background to this than first meets the eye. 

4.  A letter from the Defendant, which is the firm of Kitty So & Tong Solicitors, dated 11 June 2010, addressed to this Court, noted that: 

“Subsequent to the hearing on 15 April 2010, the parties were involved in further disputes and the same Plaintiff have commenced another High Court action being HCA643/10 against our firm. This 2nd action was resolved but the question of costs was argued before the Honourable Mr Justice Suffiad on 14 May 2010, a ruling was handed down on 27 May 2010.

In giving his ruling, the Honourable Mr Justice Suffiad accepted our counsel’s statement as to what happened in the afternoon of 15 April 2010; the Plaintiffs are now seeking leave to appeal and raised an issue as to what happen on 15 April 2010.

We therefore write to seek His Lordship’s consent to release the transcript of the hearing in the afternoon of 15 April 2010, the Plaintiffs having indicated that they have no objection.”

5.  This Court then had (and indeed continues to have) no idea of the real scope of the further dispute before Suffiad J. Neverthelessthe transcript request was granted by this Court on 22 June.

6.  However, this was not the end of this correspondence.

7.  On 2 July, the Court received another letter of that date from the Defendant’s solicitor; paragraphs 2 and 3 of which read as follows:

“We have yet to receive the transcript for the hearing in the afternoon on 14 April 2010....”

[this is obviously an incorrect reference to 15 April 2010],

“...while we are considering whether to seek leave to appeal on the ruling, we are advised by counsel but he would...”

I think they mean “that” -

“...he would prefer to read the transcript lest we are mistaken on precisely what was said; in addition, for completeness sake, we would also not want to be mistaken about what was said at the 1st hearing on 12 April 2010, before making a decision whether to seek leave to appeal. We shall therefore be grateful if we can respectfully ask for the Court’s consent to also allow us to have the transcript of the hearing on 12 April 2010 on our undertaking to pay the costs thereof.

Pending receipt of both sets of transcripts (the latter if permissions was given) we shall also be grateful if the Court will consider granting an extension of time for us to apply for leave to appeal until, say 3 days after we receive the transcript.”

I should note that theheadingto this letter was “High Court Action No. 496 of 2010” which is this case.

8.  In accordance with this request, this Court granted an extension of time for leave to appeal.

9.  On 19 July 2010, two further things happened:-

First, a summons of that date seeking leave to appeal against the original costs ruling of this Court handed down on 24 June 2010; and second,anotherletter of that date which, in material part, reads:-

“We write to inform His Lordship that the parties attended before the Honourable Mr Justice Suffiad under HCA643/10 today on the hearing of the Plaintiffs’ application for leave to appeal against the order for costs made by the Honourable Mr Justice Suffiad.

After discussion counsel for both parties took the view that given the parties’ attitude, the costs implication on the application for leave (which may take 2 applications in each case), the fact that the issues involved are matters of right and wrong and not only discretion, plus the fact that to a certain extent it reflects on the Defendant’s professional reputation; subject to the Court’s agreement, both parties agreed that the other should have leave to appeal and the 2 appeals can conveniently be heard by the Court of Appeal together.

The parties therefore duly informed the Honourable Mr Justice Suffiad of their position and the Honourable Mr Justice Suffiad stated that he shared the view.  As a result and by consent, leave to appeal was granted to the Plaintiffs.  In the premises, we shall be grateful if the Honourable Mr Justice Stone would consider granting leave to the Defendant to appeal by consent and excuse the parties’ attendance on 5 August 2010.”

10.  This Court declined to grant its consenton the papersandindicated that itwished to hear argument,which now has taken place.  Mr Chain has appeared for the Defendant’s solicitor,but there has been no representative present on behalf of the Plaintiffs.

11.  I respectfully venture to suggest that it is notappropriate forthe parties to‘cobble together’an agreed application for leave to appeal against costs.  In my view, to grant such application in that manner, on an “on the nod” basis, effectively is to abrogate the necessary‘filtering’function of the first instance tribunal which is seized with the issue of the grant of leave,andparticularly on thequestionof costs,which of course is, and always has been, wholly discretionary.  It seems to me that the Court of Appeal has enough to do without having to referee insignificant disputes.  Be that as it may, this Court having denied the consent sought, the application today, as I have said, is unopposed, although in itself that fact does not make me any more amenable to the request.

12.  Notwithstanding Mr Chain’s arguments which are, as usual, persuasive, I am unconvinced that this is a suitable case in which to grant leave to appeal.  In my view, the Defendant must go to the Court of Appeal to appeal against this refusal of leave to appeal against the issue of costs. 

13.  It strikes me that in some ways this matter is analogous to the “or otherwise” provision in the Court of Final Appeal Ordinance.  The Court of Appeal rarely, if ever, grants leave under the “or otherwise” provision,and leaves it to the superior court to decide whether or not they will wish to entertain the matter.

14.  Whilst I appreciate that there is, by consent, an appealnowpending against the costs ruling of Suffiad J, I emphasise once again that I have no idea of the parameters of that dispute.

15.  If and in so far as the Court of Appeal may take the view that an appeal on costs,in what wasthefirst instalment of the dispute between these parties,should also be entertained in addition to the appeal against the ruling of Suffiad J, so be it. 

16.  For my own part, however, I have little hesitation in declining this application. This Court heard the first instalment of the dispute between the parties,which ultimately was resolved by a sensible (and if I may say so, wholly obvious) expedient, andthereafterthe Court reflected at length on the costs implications before handing down itswrittenruling on 24 June.

17.  With respect, in no sense do I consider that this ruling is incorrect, or that it is wrong in principle, or that I have taken something into account that I should not have, or that I have not taken something into account that I should have, and whether in these circumstances the application should lie is, in my view, entirely a matter for the Court of Appeal.

18.  In the premises, myOrder is as follows.  The application by summons dated 19 July for leave to appeal is dismissed with costs, to be taxed if not agreed.