LILY CHEUNG v. THE OFFICIAL SOLICITOR AND ANOTHER

HCMP 635/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 635 OF 2006

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DECISION ON COSTS

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Introduction

1.  This decision on costs should be read together with the decision that I handed down on 27 October 2008.  By that decision, I allowed the Application, allowed the plaintiff’s appeal to the extent that the plaintiff’s claim against the OS on Paras. 1 and 3 be allowed to continue whereas Para. 2 remains struck out against the OS.  I also ordered a stay of the proceedings pending the determination of HCAP3/2008.

2.  The parties have lodged their submissions on costs.  For present purpose, it is not necessary to set them out in full.  Suffice it to say that I have already considered them carefully.

The costs before the master

3.  As I have observed in para. 43 of the earlier decision, the master was entirely correct in striking out the plaintiff’s claim against the OS.  I can see no reason to depart from the usual rule of costs following the event.  I will order that the OS shall have the costs below, with a certificate for counsel, to be taxed if not agreed.

The costs of the Application

4.  The Application was opposed by the OS and the 2^nd defendant.  Again, I fail to see any reason why costs should not follow the event.  I will order that the plaintiff shall have costs against the OS and the 2^nd defendant, to be taxed if not agreed.  The plaintiff was represented by leading and junior counsel.  But I do not consider the Application warranted the appearance of two counsel.  Like other parties, junior counsel’s appearance should have been sufficient.  Accordingly, the plaintiff can only have a certificate for the junior counsel for the Application.

The costs of the appeal

5.  The appeal was rescued only because of the Application.  Before the application was taken out on 4 August 2008, the appeal was doomed to failure.  The OS was entirely justified in opposing the appeal before then and should have the costs up to 4 August 2008, to be taxed if not agreed.  As to the balance of the costs of the appeal, they should follow the event.  The plaintiff shall have those costs against the OS, to be taxed if not agreed.  For the reason stated in para. 4 above, the plaintiff can only have a certificate for the junior counsel.

Apportioning the costs of the hearing on 9 October 2008

6.  To assist the parties on taxation (if any), I will make an apportionment of the time spent on the Application and the appeal on 9 October 2008.  Understandably, the apportionment cannot be precise.  I can only do the best that I can.  Taking the matter in the round, I will apportion 60% of the hearing time to the Application and 40% to the appeal.

Mr Cheung’s costs

7.  Mr Cheung was made a party to the Application by the plaintiff.  He adopted a neutral position but it was proper and indeed necessary for counsel representing him to appear in court and stay for the entire hearing.  In such special circumstances, I will order the plaintiff to pay Mr Cheung his costs, to be taxed if not agreed.

Costs on the submissions on costs

8.  As between the plaintiff, the OS and the 2^nd defendant, having regard to their submissions on costs, I think the most appropriate order is to make no order on the related costs.  And I so order.

9.  As between the plaintiff and Mr Cheung, the plaintiff shall pay Mr Cheung his costs for the submission on costs, to be taxed if not agreed.

All costs are to be paid forthwith

10.  Since the present proceedings have been stayed, it is proper to order, and I so do, that all the costs ordered above are to be paid forthwith.