AKTIESELSKABET DANSK SKIBSFINANSIERING (BODY CORPORATE) v. WHEELOCK MARDEN & CO LTD AND OTHERS

CACV000113C/1997

CACV 107, 109 & 113/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 107, 109 & 113 OF 1997

(On appeal from HCMP No. 2625 of 1988 and HCA No. 1670 of 1989)

BETWEEN
AKTIESELSKABET DANSK SKIBSFINANSIERING(body corporate) Plaintiff

AND

WHEELOCK MARDEN & COMPANY LIMITED 1st Defendant
JOHN LOUIS MARDEN 2nd Defendant
WILLIAM JOHN LEES 3rd Defendant
LEE PEI-CHUNG 4th Defendant
ROBERT JOHN FRANCIS BROTHERS 5th Defendant
LEUNG HON WAH 6th Defendant
PATRICK POON 7th Defendant
DAVID ANDREW HUSSEY 8th Defendant
CHARLES BRIAN MURRAY LLOYD 9th Defendant
YUEN CHU-WING 10th Defendant
YING MING TEH MICHAEL 11th Defendant
ANTHONY LOUIS MARDEN 12th Defendant

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Coram: Hon. Godfrey, Liu, JJ.A. & Le Pichon, J.

Date of Hearing: 2 December 1998

Date of Judgment: 2 December 1998

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JUDGMENT

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Godfrey, J.A.:

1. We are now asked by the plaintiff to grant it leave to appeal to the Court of Final Appeal, which we now do.

2. Under section 25(6) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, this court has power, when granting, under sub-section (1) of that section, leave to appeal to the Court of Final Appeal,to impose a timetable on any party for the prosecution of the appeal. In this case, we have indicated that we are prepared to grantleave under sub-section (1) for such an appeal and following that we have been asked to consider imposing such a timetable.

3. On the defendants’ side, it is said that some of the time limits for formal steps in the appeal ought to be abridged. We do not agree.As it seems to us, the framers of the relevant rules have given some thought to these matters, and, in the absence of some specialdegree of urgency, we do not think that it would be appropriate (for us, at any rate) to interfere with the timetable for the operationof these rules.

4. On the plaintiff’s side, it is said that time should be extended for, in particular, the filing of its case. Again, we do not agree.Judgment in this appeal was given long ago, and an appeal to the Court of Final Appeal has been on the cards for a considerable time.The judgments of the Court of First Instance and of the Court of Appeal have clarified the issues. We see no sufficient ground forextending the prescribed time for filing of the plaintiff’s case.

5. However, the Court of Final Appeal will itself be able to give such directions (if any) as it thinks fit by way of imposing a timetablefor the prosecution of the appeal. If any party is dissatisfied with the refusal of this court to intervene on the matter of timetable,that party will be at liberty to make an application for that purpose to the Court of Final Appeal, which is better fitted to decidehow it wishes to manage its own business than we are.

6. For these reasons, we will make no order imposing any timetable on any party for the prosecution of the appeal.

7. We have also to dispose of a Notice of Motion asking for the following relief, that is to say:

(1) The following questions in the appeal on which the Court of Appeal did not hear argument, and which were directed to bereserved for further consideration if necessary, namely
(a) the question of illegality in EEC of English law;
(b) the question of what if any directions should be given by way of relief under section 275 of the Companies Ordinance, Cap. 132;
(c) the question of the quantum of damages for misrepresentation; and
(d) the question of interest on such damages

“be not heard” (to quote from the Notice of Motion) by the Court of Appeal before the appeals by the Plaintiff to the Hong Kong Courtof Final Appeal against the order of the Court of Appeal dated 12 June 1998, have been heard and determined or until further order.

(2) The question of costs in the Court of Appeal and the question of costs in the court below “be not heard” (see above) bythe Court of Appeal before the said appeals by the Plaintiff have been heard and determined or until further order.

8. We do not think it necessary to make any order upon this application. It is enough for us to indicate that if any party seeks torestore the appeal to the list for further argument, before the Court of Final Appeal has dealt with the appeal for which we havetoday granted leave to appeal to the Court of Final Appeal, that party can expect pretty short shrift from this court. There is simplyno need for an order the effect of which would be to stay further proceedings in the appeal. Of course, when the appeal to the Courtof Final Appeal has been determined, it may be necessary to restore the appeal to the list of this court for further argument onwhat have been called “the reserved issues”; but that is not a matter with which we need to deal today.

9. For these reasons, we do not propose to make any order upon this application.

(Gerald Godfrey) (B. Liu) (Doreen Le Pichon)
Justice of Appeal Justice of Appeal Judge of the
Court of First Instance

Representation:

Mr. Clifford Smith (M/s. Holman Fenwick & Willan) for Plaintiff

Mr. Michael Bunting (M/s. Richards Butler) for 1st Defendant

Mr. Chua Guan Hock (M/s. Dibb Lupton Alsop) for 5th Defendant