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Indeed, doubts as to whether the tests operate differently in their application have
recently been surfacing in our courts. In O Mark Polyethylene Products Fty Ltd v
Reap Star Ltd [2000] 3 HKLRD 144, the question arose as to whether any difference
existed between the test for setting aside a default judgment under O 13 r 9 and the test
for setting aside a summary judgment obtained in the absence of a defendant under
O 14 r 11.
Keith JA left this question open because "to the extent that there is a
practical difference between the two" he was satisfied that the defendant had satisfied
the former test, taken for such purposes to be the more demanding.
Godfrey VP
described the question as leading to "a minefield" because :-
"...... the principles which guide the court on an application to set aside a judgment under
O 13 r 9
are themselves not entirely clear. It appears from Alpine Bulk Transport Co Inc v
Saudi Eagle Shipping Co Inc, The Saudi Eagle [1986] 2 Lloyd's Rep 221 that it is not
sufficient, on an application under O 13 r 9, to show a merely ‘arguable' defence that would
justify leave to defend under O 14; it must both have ‘a real prospect of success' and ‘carry
some degree of conviction'. Thus, the court must form a provisional view of the probable
outcome of the action: see the Supreme Court Practice 1999 at para 13/9/18. Yet, as the
editors add, in Allen v Taylor (1992) 1 PIQR 255, the Court of Appeal, holding that: . . . a
judge had misdirected himself by giving too little weight to an assertion of a defendant on
merits and too much to conduct, allowed an appeal following an analysis of the principles
emerging from The Saudi Eagle. It qualified the requirement to form ‘a provisional view of
the probable outcome' where assessment of facts at a trial is essential to form a view. The
Court held it enough that certain exculpatory facts ‘could well be established'. The editors of
the Supreme Court Practice express some reservations about that decision of the Court of
Appeal."
As discussed in the Interim Report,
when in Swain v Hillman [2001] 1 All ER 91,
the English Court of Appeal gave guidance as to how the "real prospect of success"
formula should be approached, Lord Woolf stated :-
"The words ‘no real prospect of being successful or succeeding' do not need any
amplification, they speak for themselves. The word ‘real' distinguishes fanciful prospects of
success or, as Mr Bidder QC submits, they direct the court to the need to see whether there is
a ‘realistic' as opposed to a ‘fanciful' prospect of success."
Notes
At 148.
At 150. It was decided that the tests should be the same, namely the test applicable under O 13 r 9.
At §307.
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