MAM v. THE ADMINISTRATOR, THE DUTY LAWYER SERVICE

HCAL 79/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 79 OF 2014

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DECISION ON COSTS

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A.  INTRODUCTION

1. In around October 2013, the applicant was prosecuted in Shatin Magistracy for the offence of making a false representation to an immigration officer.  She was assisted by Duty Lawyer Service (“DLS”) with a court liaison officer (“the Former CLO”) and an assigned lawyer (“the Former Assigned Lawyer”).  After having consultations with the assigned lawyer and in the presence of a consulate staff, she pleaded guilty and was convicted.  The matter was adjourned without any further step being taken.  However, after she had subsequently obtained other legal advices from lawyers acting on pro bono basis (through the contact of NGO), she wanted to change her plea.  This was so as she was advised that, in the circumstances of her case, she could raise a “defence” that she was a victim of human trafficking, and in light of the relevant prosecution policy published by the Department of Justice, she should not be prosecuted for the offence.  With the assistance of the pro bono lawyers (“Vidler”) and counsel, she therefore applied before the Magistrate to reverse her plea (“the plea reversal application”).  In that application, she also raised an allegation that she was not advised by the Former Assigned Lawyer about the raising of the said possible defence of being a victim of human trafficking and that she “felt pressured” to plead guilty.  When the application was adjourned, she through Vidler applied to DLS to assign her a lawyer in the plea reversal application.

2. There were then exchanges of correspondence between Vidler and the Administrator of DLS. In substance, DLS raised the concern that there would be a real conflict of interest for them to assign a lawyer to represent the applicant in the plea reversal application given her complaint against the Former CLO and Assigned Lawyer in pressuring her to enter a guilty plea previously.  The conflict of interest arose, in DLS’s view, as there was a real chance that the Former CLO and Assigned Lawyer might be required to give evidence in the plea reversal application and be cross‑examined by the newly assigned lawyer.

3. In these exchanges, at one point, DLS offered to assign a lawyer to represent the applicant in the plea reversal application on the condition that she withdrew the complaint, which was not accepted by the applicant.  Vidler also indicated that the applicant might apply for legal aid to apply for judicial review against the decision, but DLS maintained their position.

4. On or about 4 April 2014, DLS eventually effectively decided to refuse to assign a lawyer to represent the applicant in the plea reversal application (“the Decision”).

5. After being granted legal aid, the applicant applied for leave to apply for judicial review against the Decision.  In the intended judicial review, the applicant asked to quash the Decision and for an order of mandamus to direct the DLS to assign a lawyer to represent her.

6. This court then gave directions that DLS should file a written Initial Response in relation to the intended judicial review.  After two extensions of time, DLS eventually filed the Initial Response on 22 September 2014, whereby it indicated that it did not intend to oppose the applicant’s judicial review application save on the question of costs.  It also stated that it would assign a lawyer to represent her in the plea reversal application.  Later, by consent and upon DLS’s undertaking that it would provide and instruct a duty lawyer to represent the applicant, the court ordered that:

(1)  The Decision be quashed.

(2)  Time be extended for the leave application to apply for judicial review.

(3)  The costs of the proceedings be dealt with on papers by way of written submissions.

7. The parties later filed their respective written submissions on costs.

8. This is the decision on costs.

B.  THE PARTIES’ RESPECTIVE POSITIONS ON COSTS

9. The applicant asks for costs of these proceedings.  The main submissions of Mr Kat (for the applicant) is that the applicant has effectively succeeded in her judicial review application, as the DLS has consented to all the substantive reliefs the applicant asked for in the application.  Costs should therefore follow the event, unless DLS can show any special reasons not to do so, where DLS has shown none.

10. DLS on the other hand asks for no order as to costs.  Ms Tannie Toh (for DLS) submits that this is a settlement and it is simply not clear at this stage that the applicant would, if the matter had gone on to full hearing, win on merits.  In the circumstances, the fall back costs order should be no order as to costs.  In support, Ms Toh relies on the authority of R (Boxall) v Waltham Forest London Borough Council (unreported, 21 December 2000, Westlaw Hong Kong transcript)[1] at para 22, per Scott Baker J.

C.  DETERMINATION

C1.  The applicable principles

11. In Boxall, supra, Scott Baker J was asked to decide costs in relation to a judicial review, where leave (or permission as it is called in the UK) had been granted, but the matter was settled without having the matter heard substantively.  The applicants in that case were regarded as having obtained substantially what they had asked for as relief in the judicial review.

12. After reviewing a line of authorities, Scott Baker J laid down at para 22 what he regarded as the principles governing the exercise of discretion on costs in such a situation as follows:

“22. Having considered the authorities, the principles I deduced to be applicable are as follows:

(i) The court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.

(ii) It will ordinarily be irrelevant that the Claimant is legally aided.

(iii)The overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost.

(iv)At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.

(v) In the absence of a good reason to make any other order the fall back is to make no order as to costs.

(vi)The court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage.”

13. As said above, Ms Toh asks this court to adopt the same principles in considering costs in this case.  Counsel submits that at this stage, the court cannot form a view that the applicant would eventually be successful in the application on merits.  Thus, the court should order no order as to costs.

14. Mr Kat however contends that the court should proceed with the following principles:

(1)  As the applicant has substantively won the application in having the substantive reliefs she had asked for, the court should adopt the general principle that costs should follow the event, and it is for the DLS to show special reasons to depart from it.

(2)  Moreover, the court should pay heed to the observations laid down by the English Court of Appeal in R (Bahta) v SSHD [2011] EWCA Civ 895 at paras 49, 50 and 59‑62 that in public law cases, if the claimant obtains the relief sought, or substantially similar relief, the claimant can expect to be awarded costs against the defendants.

15. With respect to Mr Kat, I am unable to accept his submissions for these reasons:

(1)  I think the general principle of costs should follow the event applies to cases where the “event” has been determined on merits but not by default also to settlement scenarios. The underlying rationale of this principle is that the true “winner” of the overall action on meritsshould recover his costs of the action.

(2)  The costs should follow the event principle is to look at who is the “winner” on merits is also the underlying basis adopted by Scott Baker J to arrive at the principles in Boxall.  In Boxall the claimants had effectively obtained substantially the relief they had sought in the judicial review and the matter was settled.  The claimants asked for costs of the application, and the respondents resisted.  Scott Baker J started his analysis by saying that[2] the starting point in considering costs must be CPR Part 44.3.  The said rules provide, inter alia, that costs is a matter of discretion for the court, and when the court decides to make an costs order: (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party (ie, the costs follow the event position) but it has a discretion to make a different order;[3] and (b) in deciding what order is to make, the court must have regard to all the circumstances to the case, including, among others, (i) the conduct of the parties,[4] and (ii) whether a party has succeeded on part of this case, even if he has not been wholly successful.  It is with this starting position as provided in the rules that the learned judge then went on to look at various authorities on costs following settlement and laid down at para 22 the above quoted principles.  These principles, in particular principle (iv), show that the judge was looking at the meaning of a successful party (for the purpose of determining whether to apply the costs should follow the event proposition [and as incorporated in the rules]) by reference to who was likely to be successful on merits.  The Boxall principles have been applied in Hong Kong for determining costs in settlement scenarios.[5]

(3)  On the other hand, there are many reasons (such as avoiding the trouble of litigation, seeking to maintain good relationship, etc) why parties may want to settle a claim on various terms, including agreeing to most or all of the reliefs sought in the claim.  The merits of the claim or defence may not necessarily be the overriding consideration in these reasons.  Further, if the costs should follow event position simply looks at what a party has substantially obtained even by way of a settlement without looking at the merits of the claim or defence, it may well also discourage settlements in cases where, even though a party believes that the other side’s case has no or weak merits, but would be prepared to settle the case for other reasons such as mentioned above.  This is so as he would still have to (as a matter of that principle) bear all the costs of the other side.  I do not think there could be any good underlying rationale to support this starting costs position in settlement scenarios as a matter of principle.

(4)  In the circumstances, I do not accept the applicant’s submissions that the costs following event principle applies to a settlement scenario without looking at the question of who is likely to win on merits had the proceedings gone on to its conclusion.

(5)  Insofar as the authority of Bahta is concerned, I also agree with Ms Toh’s submissions that the observations made in it are premised substantially on the practice of the pre‑action protocol in England (which does not apply in Hong Kong).  The importance of the pre‑action protocol in underlying these observations leading to the modification of the Boxall approach was highlighted by what Pill LJ himself said at para 59 as follows:[6]

“59. What is not acceptable is a state of mind in which the issues are not addressed by a defendant once an adequately formulated letter of claim is received by the defendant. In the absence of an adequate response, a claimant is entitled to proceed to institute proceedings. If the claimant then obtains the relief sought, or substantially similar relief, the claimant can expect to be awarded costs against the defendant. Inherent in that approach, is the need for a defendant to follow the Practice Direction (Pre‑Action Conduct) or any relevant Pre‑Action Protocol, an aspect of the conduct of the parties specifically identified in CPR 44.3(5). The procedure is not inflexible; an extension of time may be sought, if supported by reasons.” (emphasis added)

(6)  As there is no such pre‑action protocol adopted in Hong Kong, Bahta is distinguishable and cannot simply be applied to Hong Kong.

16. Although Bahta is not applicable to Hong Kong, it of course does not mean that the Hong Kong courts could not take into account the conducts of the parties before and after the issue of the action, including any pre‑action letters, when deciding costs.  This is so as costs is always a matter of discretion for the court to make a just and fair order by looking at all the circumstances of the matter.  Moreover, it is now expressly provided by Order 62, rule 5 that the court may, in considering costs, look at the parties’ conduct and have regard to the underlying objectives of Order 1A, rule 1.

17. For these reasons, I would agree with Ms Toh and adopt the principles set out in Boxall in considering costs in the present case.

C2.  Applying the Boxall principles to the present case

18. In this regard, given that the principal contentions of the parties centred on the application of principles (iv) and (v) laid down in Boxall, the core question I have to look at is whether I can come to a view with the materials before me at this stage that the applicant is obviously more likely to win the judicial review on merits.  In so assessing the likely merits, I should adopt a broad approach without entering into an overly detailed forensic analysis.[7]

19. Ms Toh submits that it is not at all obvious that the applicant could succeed if the matter had gone on to substantive hearing.  Mr Kat, obviously, says otherwise.

20. In the Form 86, the applicant raises three principal grounds in support of the judicial review:

(1)  The decision was irrational in the public law sense, in that the “unresolvable conflict” perceived by the Administrator and relied upon for refusal of representation was and is not in fact a conflict precluding the assignment of an alternative duty lawyer to the applicant’s case.  (“Ground 1”)

(2)  The decision was unlawful in that it infringes the applicant’s fundamental right to legal representation in the defence of the charge against her, under Article 10 and 11(2)(d) of the HK Bill of Rights and Articles 35 and 41 of the Basic Law.

(3)  The Administrator failed to exercise the DLS’s power granted for the purpose of providing representation to persons in the position of the applicant (a “qualified defendant”); she refused representation contrary to the applicant’s legitimate expectation that the DLS would act in accordance with its published policy and mandate to provide publicly‑funded legal representation to means‑qualified defendants in criminal cases in the magistracy where it is in the interests of justice (on the Widgery criteria) to do so.

21. Looking at what is before me now in a broad fashion, I am of the view that the applicant is more likely to succeed at least on Ground 1.  My reasons are as follows:

(1)  The reason for refusing to assign a new lawyer to represent the applicant at the reversal of plea application was that there was a real conflict of interest, in that the Former Assigned Lawyer and the Former CLO might have to be cross‑examined by the newly assigned lawyer at the hearing.

(2)  However, even if that was the case, I cannot say why this amounted to a real conflict of interest that would prevent as a matter of principle DLS from assigning another lawyer to represent the applicant.  This is so as DLS (in this costs application) has not by way of any submissions and evidence showed why the purported conflict of interest cannot be avoided by (as suggested by Vidler in correspondence) assigning another lawyer and CLO to represent the applicant in the plea reversal application. This is particularly so as assigned lawyers (whether the new one or the former one) apparently do not represent DLS as such, and in any event the applicant’s allegations were not made against DLS as an institution.

(3)  In the premises, purely looking at the matters set out in the Form 86 and the supporting affirmation, and in the context of depriving the applicant any aided legal representation, I am driven to the conclusion that the applicant is obviously likely to succeed under Ground 1.

22. For these reasons, applying the Boxall principles, I agree that the applicant shall have the costs of the judicial review application.  For the avoidance of doubt, the costs should not include any costs incurred before the grant of legal aid, as before then, the applicant had been assisted by pro bono lawyers.

23. Finally, both parties have referred me to the correspondence exchanged between Vidler and DLS before the taking out of the judicial review leave application.  Mr Kat for the applicant submits that the applicant had clearly set out in these letters her grounds that could be made in support of the judicial review and thus there was more the reason why costs should be made against the DLS who had unreasonably not agreed to assign a lawyer to the applicant earlier to avoid this litigation altogether.  Ms Toh submits otherwise, saying that those letters do not depict the clearer grounds as now advanced in the Form 86.

24. Given my above conclusion based on the Boxall principles, I do not think the correspondence adds anything further that would have changed my mind.

D.  CONCLUSION

25. I therefore order that costs of the judicial review application be to the applicant, to be taxed if not agreed.

26. As the applicant is successful in this costs application, she too should have the costs herein, also to be taxed if not agreed.

27. I would further order that the applicant’s own costs in the judicial review and this costs application to be taxed in accordance with legal aid regulations.

28. Finally, I thank counsel for their assistance in this matter.