IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 37 OF 2012
(ON APPEAL FROM HCA NO. 1694 OF 2008)
J U D G M E N T
Hon Kwan JA (giving the judgment of the Court):
1. This is the application of the 5th and 6th defendants for leave to appeal to the Court of Final Appeal against a judgment we handed down on 15 March 2013, in which we dismissedtheir appeal against the decision of Poon J in 2012 giving leave to the plaintiffs to amend the statement of claim. It was contendedbefore the judge and before us that leave to amend should have been refused on the grounds of res judicata and functus officio.
2. These defendants seek leave to appeal to the Court of Final Appeal to raise the same grounds of appeal. The two questions framedin the Notice of Motion are as follows:
3. Mr Barlow, SC submitted on behalf of the defendants that these are questions of law of great general or public importance in thatthey go to the subject of finality in civil litigation and there is no decision of the Court of Final Appeal on these questions. He contended that in our judgment, we have incorrectly elided the principles of res judicata by issue estoppel with the principles of res judicata by cause of action estoppel and that we have misconstrued Order 18 rule 19(1) as permitting Poon J who had dismissed the action againstthe 5th and 6th defendants in his earlier judgments in 2009 and 2010 (and from which the plaintiffs did not appeal) to give leave to amend the statementof claim in 2012 to advance a re-formulated claim against these defendants.
4. We decline to grant leave to appeal as we do not think the issues raised in the proposed appeal are of great general or public importance. The arguments advanced by Mr Barlow really concern how the well established principles of res judicata should be applied to the facts of the present case. For the reasons given in our judgment in dismissing the appeal, it does notappear to us that his contentions are reasonably arguable.
5. We therefore dismiss this application with costs to the plaintiffs.
Mr Barrie Barlow SC, instructed by Mayer Brown JSM, for the 1st & 2nd Appellants/5th & 6th Defendants
Ms Roxanne Ismail SC, instructed by Minter Ellison, for the 1st to 3rd Respondents/1st to 3rd Plaintiffs