Court of Appeal Clarified the Operation of RHC O.59 r.14(3)

Generally, leave must be sought before an appeal of an interlocutory judgment or order of the Court of First Instance (CFI) could be brought before the Court of Appeal (CA). This requirement for leave to appeal is laid down by s.14AA of the High Court Ordinance (Cap. 4) (HCO).

However, Order 59 rule 14(3) of the Rules of High Court (Cap. 4A) (RHC) states “where an ex-parte application has been refused by the court below, an application for a similar purpose may be made to the Court of Appeal ex-parte within 7 days after the date of the refusal.” This is a very curious provision, particularly in light of the CA's earlier judgments in Pioneer Iron & Steel Group Co v Chen Ningning[1] (Pioneer Iron) and Brave Venture v Xinhua News Media Holdings[2] (Brave Venture) which seem to suggest that RHC O.59 r.14(3) provides an alternative route for coming to the CA for ex-parte relief:

  • First, it appears to confer original jurisdiction on the CA to hear an ex-parte application. This runs contrary to the notion that the CA exercises appellate jurisdiction only.
  • Second, it seems to suggest that an appeal of an ex-parte interlocutory application which has been refused by the CFI can be brought before the CA without any need for obtaining leave. This is at odds with the position under s.14AA HCO.

The recent decision of the CA in Symphony Partners Limited and others v Fullerton Bay Investment and others[3] (Symphony Partners) provided some much-needed clarification on the operation of RHC O.59 r.14(3). This article will review the CA’s decision in Symphony Partners and dissect its reasoning.

SYMPHONY PARTNERS AND OTHERS V FULLERTON BAY INVESTMENT AND OTHERS [4]

RHC O.59 r.14(3) has been in the Rules of the Supreme Court (RSC) in England since 1875, which was largely based on early practice. However, notwithstanding the rule’s long history, there is a paucity of Hong Kong case law dealing with the operation of RHC O.59 r.14(3). In Symphony Partners, the nature of the CA’s jurisdiction under RHC O.59 r.14(3) and the procedures governing renewed ex-parte applications were clarified for the first time after Pioneer Iron and Brave Venture, which were said to be not having an in-depth discussion of the jurisdictional basis.

The material facts of Symphony Partners are as follows. On June 27, 2018, the plaintiffs made an ex-parte application on notice for a receivership order in respect of certain shares held by the 3rd defendant. After hearing the application, the CFI adjourned the application, and gave directions for evidence to be filed and an early date be fixed for arguments. Instead of following the Court’s direction, the plaintiffs applied to the CA for renewed ex-parte application for the same relief under RHC O.59 r.14(3), without following the prescribed procedures set out in s.14AA HCO. On July 10, 2018, the Court ruled, amongst others, that:

  1. the CA’s jurisdiction is appellate in nature and RHC O.59 r.14(3) does not confer any original jurisdiction on the CA;
  2. an ex-parte interlocutory appeal is not exempted from the usual procedural requirements governing interlocutory appeals set out in s.14AA HCO; and
  3. RHC O.59 r.14(3) is only engaged if there is an extant appeal or an intended appeal with extant proceedings for leave to appeal.

THE NATURE OF THE CA’S JURISDICTION UNDER RHC O.59 R.14(3)

As noted by the Court in Symphony Partners, the civil jurisdiction of the CA is derived from the HCO. S.13 HCO provides that the jurisdiction of the CA is appellate in nature, though it has been recognized that the CA may exercise certain ancillary powers incidental to an appeal. Read against this background, it is clear that O.59 r.14(3) cannot possibly confer any original jurisdiction on the CA. This conclusion is reinforced by O.59 r.1, which stipulates that the rules in Order 59 apply to “every appeal to the Court of Appeal”.  Hence, on a proper construction, it is clear there must be an extant appeal before RHC O.59 r.14(3) is engaged. 

Further, the RHC is a piece of subsidiary legislation enacted under s.54 HCO, and the purpose of s.54 HCO is to regulate and prescribe the procedures and practice to be followed in the High Court in or with respect to which the High Court has jurisdiction. Accordingly, the rules made under s.54 HCO (including RHC O.59 r.14(3)) cannot be read in a way which expand the jurisdiction on the CA beyond the limits of s.13 HCO.

Indeed, tracing the origins of RHC O.59 r.14(3), there was a long-held understanding that a renewed ex-parte application is an appeal, rather than an original application. The genesis of renewed ex-parte applications can be traced back to the Supreme Court of Judicature Act 1873 in the United Kingdom, where the rule appeared in a similarly-worded Ord. LVIII, r. 10. The prevailing understanding has always been that Ord. LVIII, r. 10 is an appeal by way of the renewal of the ex-parte application to the Court of Appeal. For example, the Underhill’s Manual of Procedure of the Chancery Division (1881) at page 343 states

“where an application to the High Court is ex-parte, an appeal from its refusal is also ex-parte”

(underline added)

Similarly, the J. O. Griffits’s Guide to Crown Office Practice (1947) states that an applicant had a right of appeal to the Court of Appeal from the refusal of Divisional Court to make order nisi.

Considering the above, it is evident that the CA is correct in finding that the jurisdiction under RHC O.59 r.14(3) is appellate and RHC O.59 r.14(3) relates only to ex-parte applications for relief incidental to an extant appeal or a pending application for leave to appeal.

PROCEDURES APPLICABLE TO EX-PARTE INTERLOCUTORY APPEALS

Having ascertained the nature of the CA’s jurisdiction under RHC O.59 r.14(3), the following questions then arise: Does RHC O.59 r.14(3) provide an alternative route for ex-parte interlocutory appeals? Does the urgency and secrecy of ex-parte applications provide a basis for applicants to depart from the usual appeal procedures?

Some cases decided in other common law jurisdictions suggest that ordinary appeal procedures need not be followed in renewed ex-parte applications. In Symphony Partners, counsel for the Plaintiffs placed heavy reliance on the case of Kemper Reinsurance Co v Minister of Finance[5] (Kemper), where the Privy Council characterised a renewed ex-parte application under RSC O.59 r.14(3) as “a true appeal with a procedure adapted to its ex-parte nature”. There, their Lordships held that O.59 r.14(3) provides a special route for an appeal of ex-parte interlocutory applications and that “it is plainly inappropriate to follow the ordinary procedure” in such cases.

In Symphony Partners, the CA did not follow Kemper, noting that the case was an appeal from the Court of Appeal of Bermuda to the Privy Council and it is unclear to what extent the procedural mechanism for civil appeals in Bermuda at that time differs from the current system in Hong Kong. Instead, the CA held that the usual procedural procedures of civil appeals apply to RHC O.59 r.14(3). To appeal an ex-parte application which has been refused by the CFI, the Plaintiffs should (i) lodge notice of appeal to the Appeals Registry and (ii) acquire leave to appeal.

The CA based its decision on several reasons:

Firstly, on the requirement of leave under s.14AA HCO, the High Court Rules Committee’s power derives from the RHC, which is a piece of subsidiary legislation. As such, the High Court Rules Committee does not have the power to enact rules which are inconsistent with s.14AA, which provides that leave must be sought for an interlocutory appeal. Therefore, O.59 r.14(3) cannot possibly have the effect of obviating the need to comply with the requirements of s.14AA.

Secondly, the rationale for requiring leave to be granted before appeals is to filter out unmeritorious appeals. There is no reason why such a requirement should be disapplied to ex-parte interlocutory appeals.  RHC O.59 r.14(3) should not be construed as a charter allowing an applicant to disregard such appeal procedures altogether and bring an appeal against a refused ex-parte application through the back door.

Thirdly, in cases where an ex-parte appeal is brought on the account of urgency, Practice Direction 4.1 Section D (which embodies a rolled-up hearing for the leave application as well as the appeal proper) provides for an effective procedure which ensures that an urgent appeal is dealt with expeditiously. Given that urgent ex-parte appeals are already catered for in Practice Direction 4.1, it is not necessary to have a special procedure prescribed under RHC O.59 r.14(3).

LESSONS LEARNT

Symphony Partners is the first occasion where the operation of RHC O.59 r.14(3) has been considered in detail in Hong Kong. Such a decision provides helpful guidance on the relationship between RHC O.59 r.14(3) and various provisions of the HCO. It is now clear that RHC O.59 r.14(3) is not meant to be a procedure on its own but is only engaged where there is an extant appeal.

In other words, the usual appeal procedures also apply to an ex-parte interlocutory appeal and leave to appeal is required. Practitioners should follow Practice Direction 4.1 in preparing the summons and application bundle for leave to appeal. For an urgent application, one should include the application for the appeal to be heard urgently in his application for leave to appeal.


[1] HCMP 1827/2013, July 31, 2013
[2] CAMP 42/2017, Oct. 31, 2017
[3] [2018] HKCA 505
[4] [2018] HKCA 505
[5] (Bermuda) [2000] 1 A.C. 1

Jurisdictions: 

Partner, DLA Piper (Hong Kong)

Harris Chan is a partner in DLA Piper’s Litigation and Regulatory group. He focuses on contentious and non-contentious construction matters across Hong Kong, Macau and mainland China. Chan’s significant experience spans from defending construction site safety and environmental summonses to assisting contractors, consultants and developers in complex construction claims in mediation, arbitration and court proceedings. He brings extensive advocacy experience across all court levels and arbitration covering various jurisdictions for projects in China, Hong Kong, Macau and other major cities in Asia and Africa. He has worked extensively with numerous participants in the construction process across Asia, including main contractors, subcontractors and developers.

Chan regularly works with our corporate group from different offices in providing construction advice for investment projects involving infrastructure development and project development in China. 

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