TOTAL LUBRICANTS HONG KONG LTD AND OTHERS v. CHRISTOPHE DE LA CROPTE DE CHANTERAC AND OTHERS

CACV 37/2012

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)

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BETWEEN

TOTAL LUBRICANTS HONG KONG LIMITED 1st Plaintiff
TOTAL OIL ASIA-PACIFIC PTE LTD 2nd Plaintiff
TOTAL LUBRIFIANTS SA 3rd Plaintiff
and
CHRISTOPHE DE LA CROPTE DE CHANTERAC 1st Defendant
JEAN-CHRISTOPHE LAMBERT 2nd Defendant
CAROLINE HUOT (alias CAROLINE SURIN) 3rd Defendant
VALERIE JONIAUX 4th Defendant
GULF OIL MARINE LIMITED 5th Defendant
GULF OIL INTERNATIONAL UK LIMITED 6th Defendant

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Before: Hon Kwan, Barma JJA and McWalters J in Court

Date of Hearing: 13 September 2013
Date of Judgment: 13 September 2013

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J U D G M E N T

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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:

“(A) Does the dismissal of an Action, pursuant to RHC O. 18 r 19, by a judge of the Court of First Instance, due to the plaintiff’sinability to plead a single asserted cause of action, by a final judgment on the merits between parties to the Action, which is notappealed by the plaintiffs, confer upon the successful defendants, under the doctrine of res judicata, an absolute right not again to be sued by the same plaintiffs in the same Action for the same asserted single cause of action?

(B) In the same circumstances, once the time for appealing the aforementioned final judgment has expired, is the Court of First Instancefunctus officio in relation to any application by the same plaintiffs to re-introduce, within the same Action, a plea of the same cause of actionagainst the same former defendants?”

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.

(Susan Kwan)
Justice of Appeal
(Aarif Barma)
Justice of Appeal
(Ian McWalters)
Judge of the
Court of First Instance

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