IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 2044 OF 2008
(ON AN INTENDED APPEAL FROM HCA NO. 1551 OF 2004)
Before: Hon Rogers VP in Chambers
Date of Hearing: 3 November 2008
Date of Decision: 3 November 2008
D E C I S I O N
1. This is an application for leave to appeal out of time. The decision in respect of which leave is sought is a decision made fouryears ago, or nearly four years ago. The order that was made stayed these proceedings for the purpose of arbitration.
2. Had it not been for the delay I might have given leave to appeal in this matter because I am not sure that the so-called agreementto arbitrate really was enforceable. In any event, it seems to me clearly arguable that the Defendant in this matter has no intentionof arbitrating.
3. But in my view, the four year delay is simply too long, and I say that in the light of the fact that I do not think anything reallyis going to come out of this case at the end of the day, looking at the documents that I have seen. All that is going to happenis that an enormous amount of costs will be spent. If I were to give leave today, the first thing that would happen is that therewould be applications for security for costs on appeal, security for costs on the action, and so on and so forth. As far as I amconcerned, it is really doing the Plaintiff a kindness to refuse this application.
4. If the Plaintiff is dissatisfied with my judgment, it can go to the Court of Appeal, a two man Court of Appeal. It is open to itto do so. But in my view, the four- year delay is why I am not giving leave.
Mr Tony Ko, instructed by Messrs Andy Fung & Associates, for the Plaintiff/Applicant
Mr But Sun-wai, of Messrs W. K. To & Co, for the Defendant/Respondent