ESTHER CHAN PUI KWAN（陳佩君）also known as CHAN PUI CHUN（陳佩珍）v. CHANG WA SHAN

FACV Nos. 2 and 3 of 2018

[2018] HKCFA 41

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2018 (CIVIL)

(ON APPEAL FROM CACV NO. 240 OF 2015)

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IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2018 (CIVIL)

(ON APPEAL FROM CACV NO. 240 OF 2015)

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JUDGMENT ON COSTS

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The Court:

1.  This is the Court’s ruling on the issue of the costs of this appeal.  The costs order nisi made by the Court was that the defendant should have -

(a) 50% of her costs of the hearing before the Recorder (so restoring his order of 28 January 2016) and

(b) all her costs of the appeals to the Court of Appeal and to this Court.

2.  The plaintiff seeks to vary the order for the costs of the two appeals so as to allow the defendant only 50% (or some other fraction) of the costs of the appeals.  The defendant resists that, submitting that the costs order nisi should stand (or, as a fallback position, that the defendant should have at least 75% of her costs of the appeals).

3.  In making his submission the plaintiff does not seek to rely on the Recorder’s rejection of much of the oral evidence that the defendant gave at the trial.  He is right not to do so.  The defendant did not challenge this order in either of the appeals, which were concerned with different legal issues.  It would not be right for the orders on appeal to redouble the sanction which the Recorder rightly imposed on the defendant for her oral evidence.

4.  Instead the plaintiff relies on the argument that (as it is put in paragraph 6 of his written submissions), “The certified question on absolute privilege was a discrete issue in the defendant's appeals which added significantly to the length and costs of the appeals before the Court of Appeal and this Court.”  There is no doubt that this may be a reason for depriving a successful litigant of part of his or her costs: see paragraph (iii) in the summary by Nourse LJ in Re Elgindata Ltd (No 2) [1992] 1 WLR 1207 at 1214B.  But that is still an exception to the general rule that costs follow the event. Elgindata was an unusual case in that it was a minority shareholder’s petition in which the plaintiff succeeded in getting an order for the purchase of his minority shareholding, but many of his allegations were “thin” (see at 1211B) and the price to be paid for the shares had not been determined. The judge’s order was unusual, and was wrong in principle (see at 1213 D to E).

5.  The topic of absolute privilege was central not only to the first certified question, on which the majority of the Court ruled against the defendant, but also to the third certified question, on which this Court thought it better not to express a view.  It was entirely appropriate for this Court, and the Court of Appeal, to look closely at the development of the doctrine, and to observe how, in other jurisdictions, the doctrine has been extended by statute, on the one hand, and restricted by the exigencies of disclosure by the prosecution of unused material, on the other hand.

6.  The plaintiff’s submissions on costs are clear and moderately expressed, but this Court does not consider that this is a suitable occasion to make an exception to the general rule.  Apart from the discount properly applied by the Recorder at first instance, the costs should follow the event.