HONG KONG AIRCREW OFFICERS ASSOCIATION v. THE DIRECTOR-GENERAL OF CIVIL AVIATION

HCAL 96/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 96 OF 2008

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JUDGMENT   (ON   COSTS)

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1.  In its judgment handed down on 6 July 2009, the Court dismissed the application for judicial review.  It made a costs order nisi in favour of both the respondent and the interested party.

2.  The applicant accepts that costs should follow the event and it should pay to the respondent his costs of the proceedings.  However, it applies to vary the costs order nisi, insofar as it relates to the costs of the interested party, contending that there should be no order as to costs.

3.  The facts of the present case, the issues involved and the Court’s reasons for its decision are fully set out in the judgment, and I will not repeat them here.

4.  The applicant is correct in contending that generally speaking, an applicant for judicial review should only be made to pay one set of costs, where his application has been successfully opposed by more than one respondent, or where, as here, the opposition has come from the respondent as well as an interested party.  It is for an interested party to justify its participation in the proceedings.

5.  In my view, costs is always in the discretion of the court, and there can be no hard and fast rules.  In a situation of the present type, there are several interrelated questions to bear in mind:

(1) whether the interested party has any relevant or significant interest or reason to justify its participation in the proceedings;

(2) whether the interested party raises (successfully) any separate or distinct, material issue for adjudication in the same proceedings;

(3) whether the interested party can be represented by the same team of lawyers as the respondent for the proper protection of its interest or ventilation of the issue in question.

6.  On different facts, the same or similar principles have been formulated and applied by Hartmann J (as he then was) in his ruling as to costs in Cathay Pacific Airways Flight Attendants Union v The Director-General of Civil Aviation HCAL 19/2005, 6 December 2005.

7.  In the present case, the question of whether the safety of Flight CX168 had in fact been compromised by the decision under challenge allowing it to be flown by two pilots instead of three was a matter of concern, which prompted Cathay Pacific to participate in these proceedings as an interested party.  Although it sought clarification from the applicant by letter dated 28 October 2008 that no such compromise was asserted in the proceedings, no satisfactory reply was obtained. 

8.  Furthermore, in a reply affidavit filed on behalf of the applicant on 8 January 2009, it was specifically asserted that “safety must be compromised in some non-trivial degree” (para 10 of Captain Patrick Paul Weatherilt’s affidavit). 

9.  At the hearing, senior counsel submitted on behalf of the applicant that “the margin of safety of the Flight was reduced” (para 57 of the applicant’s opening submission).

10.  In those circumstances, I take the view that Cathay Pacific had sufficient interest and concern of its own to participate in these proceedings.

11.  This does not mean that the question of the actual safety of Flight CX168, or put another way, the question of any non-trivial reduction in the margin of safety of that flight, formed a separate or distinct issue in the proceedings.  For all practical purposes, it was subsumed under the issue of irrationality raised by the applicant against the decision of the Director-General, and was therefore defended as such by the Director-General at the hearing.  No significant, separate arguments were advanced by any parties, particularly by Cathay Pacific, in relation to the question of actual safety or actual reduction in the margin of safety, at the hearing.

12.  All this means that first, the costs expended on this question of safety or a reduced margin of safety were comparatively small. 

13.  Secondly, the interest of Cathay Pacific could have been adequately protected by instructing the same counsel as the Director-General at the hearing.  On the other hand, I accept that since the Director-General was represented by the Department of Justice, a separate firm of solicitors would have been required to represent Cathay Pacific in the proceedings.

14.  The upshot of the above discussion is that in my view, Cathay Pacific should be entitled to part of the costs of the proceedings.  Looking at the matter in the round, I think Cathay Pacific should fairly be awarded its solicitors’ costs, together with 20% of its counsel’s fees, of the proceedings, to be taxed if not agreed.

15.  The costs order nisi is varied to the extent indicated above.

16.  As for the costs of the application to vary, as either side has been successful in part only, it would be fairest to make no order as to costs.