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Mohawk Incorporated And Others v Swire Insurance Ltd.

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date02 December 1997
CourtHigh Court (Hong Kong)
Judgement NumberHCCL81/1987
Subject MatterCommercial Action
HCCL000081B/1987 MOHAWK INCORPORATED AND OTHERS v. SWIRE INSURANCE LTD.

HCCL000081B/1987

1987, No.CL81
1988, No.CL247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL LIST

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BETWEEN
MOHAWK INCORPORATED 1st Plaintiff
YI CHUN NAVIGATION, INC. 2nd Plaintiff
WAN HAI STEAMSHIP CO. INC. (a body corporate pursuant to the Laws of Liberia) 3rd Plaintiff
TAIWAN CONTAINER EXPRESS, INC. 4th Plaintiff
CHINA CONTAINER EXPRESS LINE, INC. WAN HAI STEAMSHIP CO. INC. 6th Plaintiff (a body corporate pursuant to the Laws of the Republic of China) 5th Plaintiff
AND
SWIRE INSURANCE LIMITED Defendant

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Coram: The Hon Mr Justice Stone in Chambers

Date of Hearing: 2 December 1997

Date of Judgment: 2 December 1997

____________________

J U D G M E N T

____________________

1. On 29th July 1997, I handed down a judgment in this case. That judgment was consequent upon a strike out application which had been issued by the Defendant against the Plaintiffs. That application was based upon want of prosecution. After some deliberation, as the judgment makes clear, the application failed.

2. I refer to this judgment because it is the key to two matters which are before me this morning. The first is the outstanding question of costs, and the second is the Plaintiffs' application for a split trial. I will deal with them briefly in turn.

3. As to the costs of and occasioned by the strike out application, I indicated at the last page of my judgment that I would hear the parties in due course. The matter was not totally without controversy in my view; I could I suppose have made an order nisi but I chose not to do so. In the event, the matter has been dealt with shortly this morning. Mr Reyes, who appears on behalf of the Plaintiffs this morning, says simply and understandably : "I won, can I have my costs? Costs follow the event." Mr Fok, who appears for the Defendant as he did in the strike out application, suggests that in light of the circumstances of that application, and in particular, I think, in light of the fact that I found there had been inordinate delay, that there should be no order as to costs. He was good enough, within the course of his address, to outline a number of other possibilities that would be available to the Court, including the question of an apportionment. He also indicated to me that he was in the position of having to resist a certificate for two Counsel.

4. Curiously enough, I have not found the question of costs an easy matter. Possibly because, as my judgment makes clear, I did rather teeter on the edge before finally coming down in favour of the Plaintiffs in refusing the application. However, after some reflection, and taking into account all that has been placed before me, I think that the appropriate costs order is Plaintiffs' costs in the cause, and I so order. I think it would be difficult in the circumstances of the strike out application to refuse a certificate for two Counsel. If the bench-mark is the reasonableness of instructing leading Counsel, I think one must factor in both the intrinsic difficulty of the application and the stakes at issue. This may be one case where the fact that the Defendant was not itself represented by leading Counsel is not a powerful argument. Accordingly, I certify the matter as fit for two Counsel.

5. This brings me to the second matter. The history is this. By a Summons for Directions dated 22nd February 1997 the Plaintiffs asked, at paragraph 1 of that summons, that the question or issue of the liability of the Defendant to the Plaintiffs in this action be tried as a preliminary issue before the question or issue of damages (if any); and then proposed directions in the summons went on to deal with matters consequential. What happened was that, at least so far as I am able to discern, this Summons for Directions in turn spawned the strike out application which I heard in June. It was agreed between the parties, and I am sure there is an Order to this effect, that the question of the preliminary issue be held over until the determination of the strike out. That of course occurred, the strike out has now been determined, and the matter is now at large before me this morning.

6. This was one of those applications where the Court was very greatly assisted by the clarity of the affidavits which were filed by Mr Cutler for the Plaintiffs and by Miss Sumption for the Defendant, both for and against the proposition that there should be a split trial between liability and quantum. The clarity...

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