REM Assets Limited v MIR Investments Limited

5 January 2009, Court of Appeal, Hong Kong

Background

The case has to do with a security for costs application (in Chambers) which was, according to the appeal judge (Rogers VP), "slightly unusual".

In the words of the appeal court judge,

"So when I come to look at this application for security for costs I do approach it on the basis that the 2nd defendant is probably impecunious and cannot afford the security for costs. But I also look upon it on the basis that the sooner this case is finished the better. Apart from anything else, the 2nd defendant himself is under a prohibition order, which is something, as I have indicated before, I regard as a matter which is in itself not particularly desirable because very often, particularly if a person is impecunious, there is not much point in keeping him or her in Hong Kong if they have no any money in the first place."

"So be all that as it may, in my view the fact that the defendant is impecunious does not take the matter into the realm of an appellant that has a meritorious case which should be heard: first and foremost, because this is satellite litigation which, in my view, should not go ahead, and the action should be disposed of as quickly as possible with as little as possible of these interlocutory skirmishes."

The plaintiff was however penalised (the appeal judge made no order as to cost) for not bringing the application sooner.

"This appeal, first of all, was set down in September, but a date was given in October. But it was not until 24 December, which was just last week, that the application for security for costs was made with the appeal coming up in early February. In the meantime the 2nd defendant had prepared all the appeal bundles; and they are massive. So there is a lot of money that has been wasted. That, to my mind, is quite unacceptable."

And

"The excuse has been proffered that the plaintiff's solicitors were acting for other people who have other claims. That is totally irrelevant as far as this case is concerned. If the solicitors have too much work they should not have taken on that much work. There is no excuse that a solicitor is overworked and cannot get on with it."

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