WONG ANGIE SIE YING v. DOW JONES PUBLISHING CO (ASIA), INC.

HCA 349/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 349 OF 2011

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REASONS FOR DECISION

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1.  The plaintiff (“Wong”) commenced the present action against her former employer, the defendant (“Dow Jones”), for tort of deceit and conspiracy to defraud or to injure by, among other things, terminating her employment 2 weeks after commencement. She claims damages for alleged inability to find any comparable alternative employment as a result. This was the appeal from the master’s order for specific discovery made on 30 October 2012.

2.  The parties took out cross summonses for specific discovery, that by Wong dated 27 April 2012 followed by that by Dow Jones dated 8 May 2012.  The documents requested were set out in the schedules respectively annexed to the parties’ summonses.  The summonses were heard by Master De Souza on 30 October 2012.

3.  By the time of the hearing, about half of the documents requested by Wong’s summons had been dealt with.  The master refused her application for the other half requested; and awarded Dow Jones 50% of its costs in any event.

4.  In respect of Dow Jones’ summons, the master ordered that Wong should disclose the documents requested by Dow Jones by way of affidavit to be filed within 14 days; and that there should be inspection of the documents specified in the affidavit within 7 days of its filing.  Dow Jones was awarded costs of its summons in any event.

5.  In both cases, costs (to Dow Jones) were ordered to be taxed, if not agreed, with certificate for counsel.

6.  On 13 November 2012, Wong filed her notice of appeal against the master’s decision in respect of the parties’ summonses.

7.  On the following day, leave was given to set this case down for trial (which will be held this December).  Time for Wong’s compliance with the above order of the master was also extended pending the outcome of the present appeal.

8.  On 11 December 2012, Dow Jones’ solicitors wrote to Wong’s solicitors to the following effect;

(1) Solely for the purpose of limiting costs and to avoid any further wasting of the court’s time, Dow Jones now confirmed by further affidavit that it does not have in its custody, power and possession items 1 and 6-10 of those requested by Wong’s summons.  The further affidavit was enclosed.

(2) As to the remaining 6 items sought by Wong, Dow Jones maintained its stance that they are either irrelevant or protected for data privacy.

(3) This letter would be relied on for the purpose of costs at the hearing of the present appeal.

9.  By then, the appeal by Wong had yet to be fixed for hearing.  For that, Dow Jones’ solicitors wrote on 10 January 2013 to invite Wong’ solicitors to attend the court for the purpose of fixing the hearing.  This the parties did eventually. Hence the present hearing.

10.  On 14 March 2013, Wong’s solicitors initiated the discussion with Dow Jone’s solicitors seeking agreement on the bundles for the hearing of the appeal.  The latter duly responded; and proposed, among other things, the inclusion of their letter dated 11 December 2012 and the further affidavit mentioned above.

11.  Wong was supposed to lodge the hearing bundles by 18 March 2013.  At 4:10 pm of that day, Wong’s solicitors sent their letter (labelled as “1^st Letter”) by fax to Dow Jones’ solicitors, stating that upon taking counsel advice and solely to save time and costs, Wong would withdraw the appeal “save the costs orders to be made with respect thereto.”

12.  Dow Jones’ solicitors duly informed the court of the new development.

13.  I thought what Wong’s solicitors referred to as “the costs orders to be made with respect thereto” could have been clearer.  Either

 Wong is withdrawing the appeal subject to the argument on the costs of and occasioned by the appeal or Wong is maintaining her appeal but only against the costs order below.

14.  In the former case, and following that event, Dow Jones should be entitled to the costs of and occasioned by the appeal, unless circumstances justify otherwise.

15.  In the latter case, the appeal would not be the usual re-hearing exercise under O.58 of the Rules of the High Court but essentially challenge against the master’s discretion as to costs.  The court will unlikely disturb the exercise of discretion on the basis of the outcome of the hearing below that is unchallenged, unless such exercise of discretion was unreasonable or erroneous in law: see Hong Kong Civil Procedure 2013 (Vol.1) at 58/1/6.

16.  At one point, Mr Leung seemed to proceed with the appeal limited to the costs order made by the master.  I would have concluded that there was insufficient ground for disturbing the master’s exercise of discretion as to costs upon his order on the parties’ respective substantive applications before him (which was not challenged).

17.  Mr Leung of Wong’s solicitors finally confirmed that Wong was indeed withdrawing the appeal.  Now upon that, Dow Jones became prima facie entitled to seek the costs of this appeal.  Mr Leung disagreed; and submitted that his client’s liability at most should be limited to one third or one half of such costs.

18.  Mr Leung referred to what happened after the master has made the order.  Essentially it was argued that the letter from Dow Jones’ solicitors dated 11 December 2012 and the further affidavit for discovery mentioned above were concessions.  Such concessions, Mr Leung submitted, came late but still changed the position. Hence the withdrawal of the appeal.

19.  The suggestion that the above letter and further affidavit were provided as concessions on the part of Dow Jones is without merits.  It was abundantly clear from the wordings of the letter that the filing of the further affidavit for discovery was intended to reduce the scope of the appeal.  Not only did Dow Jones maintain its stance in respect of the rest, but it also made it clear that the letter would be referred to as being relevant to the question of costs of the appeal.

20.  The fact was that both sides proceeded on the footing that Wong maintained her appeal.  The appeal was fixed only upon the invitation of Dow Jones’ solicitors afterwards.  Had the filing of the further affidavit for discovery by Dow Jones caused Wong to conclude that the appeal became unnecessary as a whole, none of these steps would and should have been taken.  Mr Leung referred to the need for time to consider.  However time (effectively 3 months) was taken when further steps in the appeal were taken and costs were incurred in the meantime at his client’s risk, if she decided eventually to withdraw the appeal altogether as she just did.

21.  In the circumstances, there could be no valid argument against Dow Jones’ entitlement to the costs of and occasioned by this appeal after its solicitors’ letter dated 11 December 2012.

22.  That effectively left behind the costs of the notice of appeal.  The first thing to notice was that by the notice of appeal, Wong sought to appeal against the master’s decision on Wong’s summons as well as Dow Jones’ summons.  Plainly, what Dow Jones did after the notice of appeal has been filed had nothing to do with that part of the appeal.  The fact was that no issue was actually taken in respect of the master’s decision on Dow Jones’ summons in this appeal.  That part of the appeal was never justified from the outset.

23.  As to the appeal against the master’s decision on Wong’s summons, Mr Leung repeated that there would have been no challenge against the substantive part of the order even if Wong had proceeded with the appeal.  I need not repeat my observation about the nature of the letter from Dow Jones’ solicitors dated 11 December 2012.

24.  On the scale of things discussed above, I ordered that upon the withdrawal of the appeal, Dow Jones shall have its costs of and occasioned by the appeal.

25.  Mr Maurellet asked for gross sum assessment of costs; and submitted a statement of costs for such purpose.  Mr Leung objected to that as a matter of principle and in any event as to the quantum.

26.  The master refused gross sum assessment of the costs below for his reasons.  I might have come to a similar decision, in view of the need to apportion the costs between the parties’ respective applications as ordered below.  I do not feel bound to take the same view in respect of the costs of this appeal that Wong becomes liable to pay in any event.

27.  As to the quantum, I took into account Mr Leung’s objections to the statement of costs.  This was never a taxation exercise.  But I disagreed with his challenge in respect of the reasonableness of engagement of counsel.  Counsel appeared in the hearing below, whose attendance then was certified by the master to be reasonable.  It was not unreasonable for the same counsel to be briefed to conduct the present appeal.  Mr Leung appeared but, according to him, not without counsel advice up to this stage.  That was clear from the correspondence.  The appeal was withdrawn only in the course of the hearing.

28.  I assessed the costs to be HK$120,000, payable within 28 days.