CHAN SIU LUN v. HUI CHO YEE AND ANOTHER

CACV 171/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 171 OF 1999

(ON APPEAL FROM HCPI 27 OF 1999)

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D E T E R M I N A T I O N

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Leong, J.A. (giving the determination of the Court):

1. This is an application for leave to appeal to the Court of Final Appeal.

2. The applicant was injured in a traffic accident in December 1991 in which the two respondents were involved. On 17th May 1998 in a claim for damages for negligence against the two respondents, Nguyen, J. awarded to the applicant damages in the sum of $267,852. The applicant appealed against this award. On 12th November 1998 the Court of Appeal allowed his appeal and increased the damages to $322,934. The applicant then sought leave to appeal to the Court of Final Appeal but his application was dismissed.

3. On 11th January 1999, the applicant issued proceedings against the respondents on the same cause of action claiming damages for negligence. His action was struck out by the Registrar on the ground of "res judicata". On 11th June 1999, Cheung, J. dismissed his appeal against the Registrar's order striking out his action. His appeal to this Court against Cheung, J.'s decision was dismissed by this Court on 13th October 1999. The applicant now seeks leave to appeal to the Court of Final Appeal.

4. S. 22 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides for civil appeals to the Court of Final Appeal as follows:

"(1) An appeal shall lie to the Court in any civil cause or matter -

(a) as of right, from any final judgment of the Court of Appeal, where the matter in dispute on the appeal amounts to or is of the value of $1,000,000 or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more; and

(b) at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to Court for decision."

5. The applicant's claim is an award of unliquidated damages and the question involved in the appeal was whether his claim should be struck out by the Registrar on the ground of "res judicata". The applicant cannot make avail of s. 22(1)(a) of the Ordinance for appeal as of right. The appeal is not from a final judgment and the matter in dispute was unliquidated damages. The applicant's claim is plainly an abuse of process. There is no question of great general or public importance involved in the matter in dispute or otherwise this Court should exercise its discretion to have the matter submitted to the Court of Final Appeal for decision.

6. The application is therefore dismissed with costs to the respondents.

7. As we said in our decision refusing leave, this is plainly a case of abuse of legal process and on that basis, it would be appropriate for costs to be awarded against the applicant for the respondents on an indemnity basis.

Representation:

Mr. Law Man-chung, instructed by M/S T.S. Tong & Co. for 1st & 2nd Defendants/1st & 2nd Respondents

Chan Siu-lun, Plaintiff/Appellant in person

"1. At all material times, the 1st Defendant was the owner of a private BMW car registration number BY 739 ('the said car') and employed the 2nd Defendant as a chauffeur.

2. At all material times the 2nd Defendant was the driver of the said car.

3. On the evening of the 7th day of December 1988, the Plaintiff was running in Cloud View Road at the junction of Tin Hau Temple Road when the 2nd Defendant so negligently drove managed and controlled the said car that he caused or permitted the same violently to collide with the Plaintiff and knocked him down.

Particulars of Negligence

(a) Driving at a speed which was too fast in the circumstances;

(b) Failing to keep any or any proper lookout or to have any or any sufficient regard for the Plaintiff;

(c) Failing to see the Plaintiff in sufficient time to avoid colliding with him or at all;

(d) Failing to give any or any adequate warning of his approach;

(e) Failing to heed the presence of the Plaintiff in the said Road; and

(f) Failing to stop, slow down, swerve or in any other way so to steer, manage, control or manoeuvre the said car as to avoid colliding with the Plaintiff."

            "The Plaintiff is now suing in this action on the same cause of action he had relied upon in the previous action and also against the same parties. This he cannot do. The principle is that the same cause of action cannot be litigated again when it had already been adjudicated upon. The only basis relied upon by the Plaintiff to continue with the present action is that he has some additional evidence not previously disclosed in the earlier action. This is not good enough. Leave to adduce fresh evidence must be made to the appellate courts in the earlier action. Whether such leave would be granted or not is a different consideration."

"... It is a well settled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once for all. ... 'The principal consideration,' says De Grey, C.J., in Kitchen v. Campbell, 'is whether it be precisely the same cause of action in both, appearing by proper averments in a plea, or by proper facts stated in a special verdict, or a special case.' 'And one great criterion,' he adds, 'of this identity is that the same evidence will maintain both actions.' See per Lord Eldon in Martin v. Kennedy. 'The question,' says Grose, J., in Seddon v. Tutop, 'is not whether the sum demanded might have been recovered in the former action, the only enquiry is whether the same cause of action has been litigated and considered in the former action."

"The second question depends on the application of a doctrine of estoppel, namely res judicata. .... But there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings. The locus classicus of that aspect of res judicata is the judgment of Wigram V.-C. in Henderson v. Henderson (1893) 3 Hare 100, 115 where the judge says:

'... where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.'

The shutting out of a 'subject of litigation' - a power which no court should exercise but after a scrupulous examination of all the circumstances - is limited to cases where reasonable diligence would have caused a matter to be earlier raised; moreover, although negligence, inadvertence or even accident will not suffice to excuse, nevertheless 'special circumstances' are reserved in case justice should be found to require the non-application of the rule."

CACV 171/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 171 OF 1999

(ON APPEAL FROM HCPI 27 OF 1999)

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R U L I N G

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Leong, J.A. (giving the ruling of the Court):

1. The appellant was injured in an accident in December, 1988. His claim for damages against the driver and owner of the car involved in the accident (the Respondents) was heard in the Court of First Instance of the High Court on 27th March 1998. On 17th May 1998, Nguyen, J. gave judgment in the appellant's favour and awarded him total damages amounting to $267,852. The appellant was not satisfied with this judgment and he appealed to the Court of Appeal and his appeal was heard on 17th and 18th September 1998. His appeal was allowed to the extent that the award was increased. The appellant remained unsatisfied with the result and he sought leave to appeal to the Court of Final Appeal. Leave to appeal was refused by the Court of Appeal and the Court of Final Appeal on 25th November 1998 and 21st December 1998 respectively.

2. The appellant persisted to pursue his action by issuing fresh proceedings on the same cause of action against the same parties, that is the respondents. This new action was dismissed on 11th June 1999 by Ms Registrar Chu on the ground of "res judicata". The appellant then appealed against this decision but his appeal was dismissed by Cheung, J. on 24th June 1999. The Judge in his judgment said this:

"The Plaintiff is now suing in this action on the same cause of action he had relied upon in the previous action and also against the same parties. This he cannot do. The principle is that the same cause of action cannot be litigated again when it had already been adjudicated upon. The only basis relied upon by the Plaintiff to continue with the present action is that he has some additional evidence not previously disclosed in the earlier action. This is not good enough. ..."

3. The Judge also said that the matter of assessment of medical evidence and factual evidence had already been fully considered in the previous action and the matter could not be litigated again.

4. The appellant has filed a notice of appeal against this judgment of Cheung, J. on the same grounds he had put before Cheung, J. and in addition, he says the court had not gone into the merits of the case especially the new medical evidence.

5. The respondents now apply for security for the costs of their appeal on the ground that the appellant is impecunious and would not be able to pay their appeal costs if he is unsuccessful in his appeal. They also say that there is no merit in the appellant's appeal.

6. In the affirmation in support of the application for security for costs the respondents state that the appellant presently resides in a flat owned by a company with a capital of $10,000. The appellant owns only one share of the 10,000 $1 shares of the company. The appellant was asked to give $50,000 security in a letter to the appellant by the respondent but the appellant refused to response to that request and also refused to say what assets he had to meet the costs of the appeal.

7. Before me this morning the appellant says that he should not be prevented to proceed with his appeal because of his poor financial position. He says there is merit in his appeal. He also says that there were certain evidence which were new which the court had not considered. But Mr. Tam for the respondents states that this matter had already been gone into in the previous trial as well as in the Court of Appeal.

8. In my opinion, the appeal is less than meritorious. It is prima facie an abuse of the process of the court. Relitigation on the same cause of action against the same parties after it has been tried on the merits and finally disposed of by the Court of Final Appeal is very unlikely to succeed. The respondents should be protected from the costs of the appeal by the appellant on an appeal which has little chance of success. The respondents in the affirmation has put in a draft bill of costs. It is an estimate of the costs likely to be incurred by the respondents if the appeal which has been fixed for a two hour hearing is heard. It is in the region of $100,000. I have no reason to suspect that that is an exaggerated estimate of the costs likely to be incurred and costs which have already been incurred in the trial before Nguyen, J. I am informed by Mr. Tam that the trial costs had been taxed and it came to over $400,000.

9. Having heard the submission from the parties, I am satisfied that the appellant will not be able to meet the costs, if he is unsuccessful in his appeal which is prima facie unmeritorious. Accordingly I order the appellant shall furnish a sum of not less than $100,000 either in cash or by bank guarantee as the respondents' costs in the appeal. Such security shall be provided within 14 days hereof, until security is finished within that time the appeal shall be stayed and in default the appeal shall stand dismissed.

10. The costs of this application shall be costs in the appeal.

Representation:

Mr. Tam Chi-wai, Danny of M/S T.S. Tong & Co. for 1st & 2nd Defendants/1st & 2nd Respondents

Chan Siu-lun, Plaintiff/Appellant in person