MST v. THE DUTY LAWYER SERVICE

HCAL 6, 7 AND 63 of 2013

HCAL 6 of 2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 6 OF 2013

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DECISION ON COSTS

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1. On 16 August 2013, I handed down judgment (“the Judgment”) refusing the applicants’ applications for leave for judicial review. I further made an order nisi that there be no order as to costs.

2. This is the hearing of DLS’s application to vary the costs order nisi, asking for the costs of the leave applications.

3. This decision should be read together with the Judgment.  For convenience, I also adopt herein the abbreviations used in the Judgment.

APPLICABLE PRINCIPLE

4. It is now well established that the court would only award costs against an unsuccessful applicant for leave where there are unusual or exceptional circumstances to justify doing so.  Unusual circumstances are those that the court finds that there are “good reasons” to order costs: see the authorities referred to by this court in TVB v Communications Authority, HCAL3/2013, 22 July 2013, at paragraph 5.

5. In considering whether there are such good reasons or exceptional circumstances to justify awarding costs against an unsuccessful applicant for leave, the court takes into account of various factors.  This court has also in TVB, supra, at paragraph 6 referred to the well known non-exhaustive list of factors.  I therefore do not propose to repeat them again.

THE PRESENT APPLICATION

6. Relevant to the present application, Mr Duncan SC for DLS relies on the following four factors[1] to support his submissions that there are exceptional circumstances to justify an award of costs.  These four factors are:

(1)   DLS was invited by the court to participate in the leave applications hearing, and had rendered significant assistance to the court by filing relevant evidence and skeleton, and making submissions in relation to the leave applications (which submissions were accepted by the court).

(2)   The applicants in effect had a “rolled-up” hearing of the intended judicial review applications.

(3)   The applicants were advancing a personal interest in the intended judicial review applications.

(4)   The applications clearly have no merits.

7. I will consider factor (2) first.  I agree that the leave applications hearing can be regarded as a “rolled-up” substantive hearing of the judicial review applications proper.  My reasons are as follows.

8. As mentioned in the Judgment, although three grounds are raised in support of the proposed judicial review, only two of them (ie, Grounds 1 and 2) are the principal grounds of judicial review, as the applicants’ counsel accepted that Ground 3 would and could only be advanced if Ground 1 and/or Ground 2 had arguable merits (See paragraphs 6 and 7 of the Judgment).

9. Grounds 1 and 2 are:

(1)   Ground 1: The decisions are tainted with illegality as the Administrator had fettered her discretion by applying the Policy rigidly and inflexibly by looking only at the number of cases that had been assigned to Mr Daly.

(2)   Ground 2: The decisions are tainted with illegality or irrationality as the Administrator had failed to give sufficient weight to the pre-existing solicitor-client relationship between the applicant and his chosen lawyer, and had given too much weight to the Policy.

10. Central to the determination of the merits of these two grounds are what were the Administrator’s reasons in her decisions to refuse to assign Mr Daly to the applicants.

11. In dismissing the leave applications, I have found both Grounds 1 and 2 not reasonably arguable as it is clear from the objective evidence that in making the relevant decisions, the Administrator had taken into account (a) the relevant pre-existing client-solicitor relationship (ie, the Relationship Factor), and (b) the Performance Factor (see paragraphs 40-42 of the Judgment). These thus have effectively dealt with the substantive bases and arguments raised under Grounds 1 and 2.  The dismissal was not based on any arguments on preliminary issues such as whether the relevant decisions were amendable to judicial review.

12. Mr Deng for the applicants however contends that there was no rolled-up hearing as, had there been a substantive hearing of the judicial review, the applicants would have had the benefit of having discovery of various documents from DLS, in particular documents relating to the quota system adopted by DLS in January 2012 in assigning generally not more than an average of 25 active cases to each lawyer under the panel[2].

13. With respect, I am not persuaded by Mr Deng’s submissions.  In my view, once it is accepted by this court on the basis of the objective evidence (as I did at the leave hearing) that the Administrator had taken into account of the Performance Factor and Relationship Factor in making the decisions, whether or not and how the quota system had been applied generally is irrelevant to the determination of the merits of Grounds 1 and 2. The position would have been the same even if there had been a substantive hearing.

14. Thus, I accept that there was effectively a “rolled-up” hearing in the present case.

15. Insofar as factor (1) is concerned, as I mentioned in Chau Tam Yuet Ching v Director of Lands (unrep., HCAL 66/2012, 12 November 2012) at paragraph 7(5), this factor alone generally would not constitute a good reason to justify awarding costs against an unsuccessful applicant for leave.

16. However, when factor (1) and factor (2) are looked at together in the present case, they in my view constitute such exceptional circumstances for the purpose of costs.

17. This is so because if leave had been granted to the applicants in the absence of hearing DLS at the leave stage, DLS would still have succeeded in opposing the judicial review at the substantive hearing for the reasons I have summarised above.  DLS would have been entitled to costs in that event.  It would be thus exceptional to deprive DLS its costs because it was invited by the court to participate at the leave hearing, and its presence had enabled the court to dispose of the applications effectively substantively at an earlier stage.

18. On this basis, I accept DLS’s submissions and find it justified in the present case to vary the costs order nisi, andto award it costs of the applications.

19. Thus, I need not consider factors (3) and (4) for the present purpose.  But for completeness, I would briefly say that they do not add to the finding of exceptional circumstances in the present case for the consideration of costs:

(1)   For factor (3), I accept Mr Deng’s submissions that although the applicants are advancing a personal interest in the intended judicial review, the applications are concerned with the important issue as to whether DLS had taken into account the pre-existing client-solicitor relationship in refusing to assign their preferred lawyer to the applicants (see also paragraph 11 of the Judgment).  To that extent, I do not think this factor would tip significantly in favour of granting costs against the applicants.

(2)   Finally, for factor (4), the question is whether the intended applications are so obviously unmeritorious.  In my view, they cannot be so described in light of the reasons I have explained in the Judgment in rejecting Grounds 1 and 2 as well as concluding that the applications are academic.

CONCLUSION

20. For the above reasons, I allow DLS’ application to vary the costs order nisi.  I thus make an order that costs of the leave applications be to DLS to be taxed if not agreed, with certificate for two counsel.

21. As agreed by the parties, costs of this application shall also be in the cause of the leave applications.  In other words, costs of this application shall similarly be to DLS.

22. Mr Deng asks this court not to allow certificate for two counsel for DLS in relation to this application.  However, given that DLS was represented by two counsel at the leave applications, and this costs variation application can be regarded as part of the leave applications, I am satisfied that DLS should also be entitled to certificate for two counsel for the purpose of this application.

23. I further order that the applicants’ own costs (both in the leave applications and in this application) be taxed in accordance with legal aid regulations.

[1]   Although DLS in the skeleton relies on more factors, Mr Duncan has fairly sought to only rely on four of them at the hearing.

[2]   See footnote 11 of the Judgment on the quota system.