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Ho Lee Man v Wong Wai Kai

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date06 May 1993
Year1993
Judgement NumberCACV183/1992
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000183/1992 HO LEE MAN v. WONG WAI KAI

CACV000183/1992

H E A D N O T E

Since the legislation in Hong Kong empowers not only the court below but also the Court of Appeal itself to give leave to appeal as to costs only, there is no room here for the operation of the Scherer practice fashioned by the Court of Appeal in England to fill the gap left by the English legislation which empowers only the court below but not the Court of Appeal itself to give such leave.

IN THE COURT OF APPEAL

1992, No. 183
(Civil)

_______________

BETWEEN
HO LEE MAN Plaintiff
(Appellant)
AND
WONG WAI KAI Defendant
(Respondent)

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Coram: Litton, Bokhary, JJ.A. and Sears, J.

Date of hearing: 6 May 1993

Date of delivery of judgment: 6 May 1993

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J U D G M E N T

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Litton, J.A.:

1. The first judgment will be given by Mr Justice Bokhary.

Bokhary, J.A.:

2. This appeal or purported appeal by the plaintiff from an order made on September 24 last year by Miss Gladys Li Q.C. sitting as a Deputy Judge of the High Court relates only to costs left to her discretion.

3. Section 14(3)(e) of the Supreme Court Ordinance, Cap 4, provides that:

"No appeal shall lie ... without the leave of the court or tribunal in question or of the Court of Appeal, from an order of the High Court or any other court or tribunal ... relating only to costs which are by law left to the discretion of the court or tribunal".

4. The plaintiff has not obtained - indeed he did not even seek - leave from the High Court. And he submits that he does not need leave from this Court either. In adopting that stance, he relies on what is described in the 1993 Supreme Court Practice, Vol. 1, p. 930, note 59/1/31 as the Scherer principle, which principle is described thus in that note:

"No appeal lies without the leave of the court or tribunal making the order from an order of any court or tribunal as to costs only which by law are left to the discretion of the court or tribunal (S.C.A. 1981, s. 18(1)(f)).

If the court or judge has exercised this discretion judicially, on relevant material, and has not given leave to appeal, the Court of Appeal has no jurisdiction to entertain an appeal on costs only. Where, however, the judge has not exercised the discretion at all or has exercised it otherwise than judicially, the Court of Appeal can, notwithstanding s. 18(1)(f), entertain an appeal (Donald Campbell & Co. v. Pollak [1927] A.C. 732; Jones v. McKie [1964] 1 W.L.R. 960; [1964] 2 All E.R. 842, C.A. and Scherer v. Counting Systems Ltd. [1977] F.S.R. 569 [1986] 1 W.L.R. 615; [1986] 2 All E.R. 529 (note))."

Scherer v. Counting Instruments Ltd (which is the real name of the case wrongly cited as Scherer v. Counting Systems Ltd in the passage which I have just quoted) is a decision of the Court of Appeal in England reached in 1977 but reported as a note at [1986] 1 WLR 615. The court was there concerned with s. 31(1)(h) of the Supreme Court of Judicature (Consolidation) Act 1925 which provided that:

"no appeal shall lie without the leave of the court or judge making the order from an order of the High Court or any judge thereof ... as to costs only which by law are left to the discretion of the court".

That provision has been replaced by the one referred to in the passage from the Supreme Court Practice which I have just quoted, namely s. 18(1)(f) of the Supreme Court Act 1981 which provides that:

"No appeal shall lie to the Court of Appeal ... without the leave of the court or tribunal in question, from any order of the High Court or any court or tribunal ... relating only to costs which are by law left to the discretion of the court or tribunal".

5. Comparing our legislation with the English legislation, this fundamental difference stands out. The English legislation would, in the absence of a principle such as the Scherer principle, leave the dissatisfied party with no chance of redress whatsoever if the court or tribunal whose decision as to costs he seeks to have corrected on appeal withholds leave to appeal. Our legislation does nothing of the kind: for here such a party can seek leave from this Court, which can be granted by a single judge of this Court.

6. That provides a means of redress and, at the same time, a check upon misuse of the same.

7. The Court of Appeal in England, faced with legislation which did not confer upon it power to give leave, fashioned a means of redress in the form of the Scherer principle. Of course, it did not leave the matter there. It went on to lay down a procedure for preventing misuse of the means of redress which it had fashioned. That was done in Marshall v. Levine [1985] 1 WLR 814 in which Sir John Donaldson M.R. said this at p. 815:

"We have, however, been giving some thought to what is the best way in which to deal with such matters, and it seems to us that the proper course to adopt is for the registrar to allow such appeals to be entered but that, if it appears to him to be a case in which there is no prima facie right of appeal and in which, therefore, it would be unjust that the respondent should be troubled with the matter, it should be referred to the full court and the appellant should be told that he must satisfy the full court that there is an arguable case for hearing the appeal on the basis that the facts of the particular appeal might be brought within the Scherer principle. If the full court is satisfied that the matter is arguable, then it will order that the appeal be heard with the respondent present and, of course, the issue will then be whether or not it does fall within the exceptional Scherer doctrine. But if, on the other hand, the full court considers that the matter is not arguable, it will then dismiss the appeal on the grounds that it has no jurisdiction to hear it."

8. That procedure, as Lord Brandon said in Bankamerica Finance Ltd v. Nock [1988] 1 AC 1002 at p. 1008,

"was clearly designed to provide a filter for appeals of the kind here concerned, so as to eliminate unarguable cases at an early stage and by doing so save both time and costs".

9. So, by different routes - one laid down in plain terms by an Ordinance and the other fashioned by the courts within the broad framework of an Act - the courts here and in England have arrived at comparable but by no means identical results. Nothing further need to be said as to the differences in the two routes. As to the difference in their results, it suffices to quote this passage from the Supreme Court Practice, which immediately follows the passage therefrom which I have already quoted:

"To bring a case within the Scherer principle the appellant must show more than simply a ground upon which the Court of Appeal could, in an ordinary case, interfere with the exercise of a judge's discretion; the appellant must establish that the judge has not exercised his discretion at all or, if he has exercised it, that he has exercised it otherwise than judicially: Infabrics Ltd. v. Jaytex Ltd. [1987] F.S.R. 529".

10. There is no justification for importing - or smuggling - the Scherer principle or procedure into Hong Kong. There is simply no need. We have a different means of redress and a different check upon misuse. Both are laid down very clearly by statute. What is more, as we have seen, there are cases in which an appellate court could interfere in the ordinary way but which cannot be brought within the Scherer principle. So such importation would, quite apart from anything else, cut down access to this Court as provided by statute.

11. There is a decision of another division of this Court, Prudential Enterprises Ltd v. P.H. Shek Ltd [1990] 2 HKLR 79 where the appellant invoked the Scherer principle and the Court appears to have applied it without argument against that course since, it would seem, the respondent there was content that the appeal proceed on that basis because of the high threshold for interference which that principle carries.

12. The decision in Marshall v. Levine (supra) was not considered in the Prudential Case (supra) and the Court there did not proceed on the basis of the Scherer procedure. Since the principle and the procedure are inseparable components of the same practice, it is impossible to view the decision in the Prudential Case (supra) as any attempt to import either into Hong Kong.

13. I am bound to say that I was not surprised when we heard from Mr Thomas, who had not appeared below but appeared for the defendant before us, that in an unreported appeal in which he appeared subsequent to the Prudential Case (supra), a division of this Court, presided over by the judge who had presided in that case, dealt with the matter of leave in the way in which we are dealing with it in the present case rather than by reference to the Scherer practice.

14. In the result, we this morning invited counsel for the plaintiff to make an application to us for leave to appeal. On any view, that put him in a better position than letting him proceed or attempt to proceed on the basis of the Scherer practice with the higher threshold which that course carries. And, without abandoning his argument on the applicability of the Scherer practice, counsel for the appellant made such application.

15. I turn now to the merits of the application for leave. It is necessary that I be circumspect in what I say since, regrettably, we are still at the interlocutory stage in this piece of litigation commenced as long ago as 1989, and the matter has yet to go to trial, which trial must...

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