6. Can the plaintiff or the defendant appeal against an order made on an interlocutory application?

6. Can the plaintiff or the defendant appeal against an order made on an interlocutory application? 

Generally, either the plaintiff or the defendant may appeal against an interlocutory order. However, the applicable procedure and whether “leave” (permission) to appeal is required will depend on the court in which the order was made, the person who made the order (a judge or a master), and the nature of the order (an ex parte order or an inter partes order). 

Ex parte orders 

If the interlocutory order was obtained ex parte (without notice to the other party), the losing party cannot appeal it directly to the Court of Appeal. His first step must be to apply to the judge or master who made the order to have it discharged or varied under Order 32, rule 6 of the Rules of the High Court (Cap.4A) (“RHC”) or the Rules of the District Court (Cap. 336H) (“RDC”). Only after that application is decided can the party pursue an appeal against the resulting order. 

Inter partes orders 

(i) If a party is not satisfied with the decision of a master 

Generally speaking, if a party is not satisfied with the decision of a master, he may appeal against it to a judge in chambers (i.e. not in open court) within 14 days after the decision by serving a notice to attend before the judge on a specified date. The notice must be served on every other party to the proceedings within 5 days after it is issued. The appeal cannot be heard sooner than 2 clear days after service has been effected. 

This is an appeal “as of right” (no permission needed) and functions as a fresh rehearing where the judge can exercise discretion anew. 

For the preparation of an appeal to be heard by a judge in chambers, please refer to Practice Direction 5.4 (Preparation of Interlocutory Summonses and Appeals to Judge in Chambers for Hearing). 

(ii) If a party is not satisfied with the decision of a judge 

For cases in the District Court, if a party is not satisfied with the decision of a judge, he may, within 14 days from the date of the judge's decision, apply to the judge for leave (permission) to appeal to the Court of Appeal of the High Court under Order 58, rule 2(4)(a) of the RDC. If the judge refuses to grant leave to appeal, the party may apply, within 14 days from the date of the judge’s refusal, to the Court of Appeal for leave to appeal under Order 58, rule 2(4A) of the RDC. The Court of Appeal may grant leave on such terms as to costs, giving security for the prosecution of the appeal, etc as it thinks fit. The decision of the Court of Appeal whether to grant or refuse leave is final and conclusive. 

However, no leave is required for specific orders under section 63(3) of the District Court Ordinance (Cap. 336), such as those relating to injunctions, the appointment of a receiver, interim payments, or interim delivery up of goods. 

For cases in the Court of First Instance of the High Court, an appeal goes to the Court of Appeal and leave is required (except for appeals against interlocutory orders determining in a summary way the substantive rights of a party to an action such as a summary judgment or a striking out order). Leave should as far as practicable be sought first from the judge whose decision is being appealed within 14 days from the date of the decision under Order 59, rule 2B(1) and (2) of the RHC. If refused, the party has 14 days to apply to the Court of Appeal to seek leave under Order 59, rule 2B(3) of the RHC. 

If leave is not required or has been obtained, the appeal is brought by a motion and the notice of motion is referred to as a notice of appeal. If leave to appeal is granted, the time limit for appealing is 7 days starting from the date on which leave is granted. However, if leave to appeal is not required, the time limit for appealing is 28 days starting from the date of the decision in question. 

After hearing the arguments, the Court of Appeal will pass a judgment either on the spot or at a later date. The losing party will normally be ordered to pay the winning party's legal costs incurred during the appeal (and possibly, the costs for the previous court hearings). 

It should be noted that comprehensive directions for the conduct of the civil business of the Court of Appeal are provided in Practice Direction 4.1 (Civil Appeals to the Court of Appeal). 

The above appeal procedures are complicated and extra legal costs may be incurred. You should consult a lawyer before making such an appeal.