In this case, the respondents applied for leave to appeal against the order of the Honourable Madam Justice Kwan, who dismissed their application to strike out the misfeasance proceedings brought against them by the liquidators for want of prosecution or abuse of process. Two issues relating to the Civil Justice Reform arose.

Firstly, the test for leave to appeal under section 14AA of the High Court Ordinance (Cap.4) was considered by the court. The Honourable Kwan JA adopted the view expressed by the Honourable Madam Justice Chu in Wynn Resorts (Macau) SA v Mong Henry (unrep., HCA 192/2009, [2009] HKEC 1293): “To meet the reasonable prospect of success test, an applicant is required to show more than just an arguable case, but an appeal that has merits and ought to be heard, although he does not have to demonstrate that the appeal will probably succeed.”

Secondly, it was argued by the respondents that the principles in Birkett v James [1978] AC 297 for dismissal of action for want of prosecution would need to be adjusted in the post-CJR era. In support of this argument, the respondents relied on the judgment of the Honourable Mr Justice Reyes in Nanjing Iron & Steel Group International Trade Co Ltd v Stx Pan Ocean Co Ltd (unrep., HCAJ 177/2006, [2009] HKEC 1492), in which the court applied the underlying objective in O. 1A r. 1(b) (Rules of the High Court (Cap.4A – Sub. Leg.)) and regarded that as sufficient cause to strike out a claim under the new regime. The Honourable Madam Justice Kwan indicated that the issue as to “how the principles of Birkett v James should be applied in the post-CJR era is a matter of importance to warrant consideration by the Court of Appeal“, and granted leave to appeal to the respondents.

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This article is available in [2009] 19 CJRA.