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Benchmark Electronics (Thailand) Pcl And Others v Cargo Container Line Ltd

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date23 April 2020
Neutral Citation[2020] HKCA 168
Year2020
Judgement NumberCACV593/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV593A/2018 BENCHMARK ELECTRONICS (THAILAND) PCL AND OTHERS v. CARGO CONTAINER LINE LTD

CACV 593/2018

[2020] HKCA 168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 593 OF 2018

(ON APPEAL FROM HCAJ NO 65 OF 2016)

________________________

BETWEEN
BENCHMARK ELECTRONICS (THAILAND) PCL 1st Plaintiff
VIASAT, INC. 2nd Plaintiff
NAVIGATORS UNDERWRITING AGENCY LIMITED AND/OR ACE UNDERWRITING AGENCIES LIMITED SUING ON THEIR OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF LLOYD’S SYNDICATE 1221 AND/OR LLOYD’S SYNDICATE 2488 AND THE OTHER INTERESTED UNDERWRITERS SUBSCRIBING TO COVERNOTE NO. B0753PC1206508000 AND/OR MARINE CARGO POLICY NO. MC-3019 3rd Plaintiff
SHIMANO EUROPE BIKE HOLDING B.V. 4th Plaintiff
SHIMANO EUROPE FISHING HOLDING B.V. 5th Plaintiff
SHIMANO BENELUX B.V. 6th Plaintiff
SHIMANO EUROPE HOLDING B.V. 7th Plaintiff
SOMPO JAPAN INSURANCE COMPANY OF EUROPE LTD. 8th Plaintiff
HUSQVARNA AB 9th Plaintiff
AND
CARGO CONTAINER LINE LTD. Defendant

________________________

Before: Hon Kwan VP, Barma JA and Au JA in Court

Dates of Written Submissions: 15 and 29 November 2019, 6 December 2019

Date of Judgment: 23 April 2020

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. On 4 October 2019, the Court of Appeal (Kwan VP and Barma JA) dismissed the defendant’s appeal[1] from the decision of Anthony Chan J on 9 April 2018[2], in which the judge refused to set aside the concurrent amended writ of summons and service on the defendant and to discharge the order of the master granting leave to the plaintiffs to issue the concurrent amended writ of summons and serve the same on the defendant out of the jurisdiction in the British Virgin Islands.

2. The short point considered by the courts is whether there was substitution of a new party or merely correction of a misnomer when the address of the defendant in the writ was amended, there being two different entities with the identical name of Cargo Container Line Ltd, one was incorporated in Malta and the other in the BVI (“CCL BVI”). This action was brought by the plaintiffs for damages against the contract carrier under six bills of lading. The bills of lading, which did not provide the address or any information as to the whereabouts of the contract carrier, were issued by CCL BVI. The Court of Appeal upheld the judge’s ruling that the amendment of the address of the defendant was correction of a misnomer.

3. The defendant issued a notice of motion on 1 November 2019 seeking leave to appeal to the Court of Final Appeal contending that the intended appeal involves four questions of great general or public importance. We do not propose to set them out. Reliance is also placed on the “or otherwise” limb, which, as acknowledged by the defendant, is usually dealt with by the Appeal Committee as a matter of practice.

4. The order sought to be appealed from is an interlocutory order. Appeals from interlocutory orders to the Court of Final Appeal are rare and exceptional. Leave to bring such an appeal will generally be refused unless it can clearly be seen that (1) the proposed appeal genuinely raises a question of law of great general or public importance; (2) the result of the appeal would indeed turn on how that question is answered; and (3) such result is likely to make a significant contribution to the just disposal of the litigation (Pacific Electric Wire & Cable Co Ltd v Hu Hung Chiu & Anr, FAMV 73/2007, 13 March 2008, at §§7 to 8).

5. We are not persuaded that the questions formulated in the notice of motion or the proposed appeal would genuinely raise questions of great general or public importance. The defendant’s submissions, which are largely repetitive of the arguments made at the hearing of the appeal, have been fully addressed in the Court of Appeal judgment. The questions as formulated only serve to obfuscate the central issue, which is whether there was substitution of a new party or merely correction of a misnomer in the particular circumstances of this case.

6. How that issue is to be resolved must be fact-sensitive. Questions 1 and 3 cannot be answered without reference to the essential facts of the case.

7. The defendant does not dispute the correctness of Lord Woolf MR’s statement in Signet Group Plc v Hammerson UK Properties Ltd...

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