CJR Final Report, Section 22: Leave to appeal

If the "reasonable prospects of success" test is adopted in relation to interlocutory

appeals, it becomes unnecessary in practice to adopt Proposal 45. The Court of

Appeal has repeatedly made it clear that case management decisions of the first

instance judge are matters within his discretion and that it will not interfere with that

discretion in the absence of plain error.

As Bokhary JA put it in Cheung Yee-mong

v So Kwok-yan [1996] 2 HKLR 48 at 51 :-

"Case management is pre-eminently within the province of the trial judge. And it is only in

wholly exceptional circumstances that we will interfere."

Often cited is the dictum of Asquith LJ in Bellenden (formerly Satterthwaite) v

Satterthwaite [1948] 1 All ER 343 at 345, dealing generally with appeals against the

exercise of discretion, as follows :-

"We are here concerned with a judicial discretion, and it is of the essence of such a discretion

that on the same evidence two different minds might reach widely different decisions without

either being appealable. It is only where the decision exceeds the generous ambit within

which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate

body is entitled to interfere".

Accordingly, where a CFI judge makes a case management decision which is not

wrong in principle and which does not "exceed the generous ambit within which

reasonable disagreement is possible", it would not be regarded as appealable on the

proposed test and leave would be refused. On the other hand, a case management

decision which raises a significant point of principle would necessarily enable the

aggrieved party to contend that the judge had erred in principle in the exercise of his

discretion so that, assuming the appeal had reasonable prospects of success, it would

qualify for leave on the test proposed above. Indeed, even if it is questionable whether

the appeal has reasonable prospects of success, the fact that it raises a significant point

of principle may suffice to justify the grant of leave on the basis that it provides "some

other compelling reason why the appeal should be heard".

Notes

See, eg, Carrian Investments Limited (In Liquidation) v Price Waterhouse International [1994] 1

HKLR 150 at 153 and 154.