YEUNG KAM WAH v. THE MEDICAL COUNCIL OF HONG KONG AND ANOTHER

HCAL 313/2018

[2018] HKCFI 1939

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 313 OF 2018

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DECISION ON COSTS

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1.  The basic facts of this matter were set out in the court’s reasons for decision dated 2 August 2018 (“the Decision”) and will not be repeated here. Pursuant to directions given by the court, the Applicant and the 2^nd Interested Party have filed their respective further submissions on the issue of costs, while the Respondents are content to rely on their previous written submissions on the issue of costs.

2.  As is clear from the parties’ respective submissions, the only outstanding issue to be determined relates to the costs of the hearing on 25 July 2018, and the costs of the further submissions.

3.  The hearing on 25 July 2018 was to deal with the Applicant’s application for leave to discontinue the present application for judicial review, which was supported by the Respondents but opposed by the 2^nd Interested Party.  For the reasons given by the court in the Decision, the court granted leave to the Applicant to discontinue the application for judicial review.  Since the 2^nd Interested Party was unsuccessful in opposing the discontinuance application, prima facie she ought to bear the costs of the hearing.

4.  On behalf of the 2^nd Interested Party, Mr Adrian Huggins, SC submits that she should not have to pay the costs of the hearing on 25 July 2018, on the following grounds:-

(1)   It was reasonable for the 2^nd Interested Party to take the point that the application for judicial review need not have been made in the first place given that the Applicant had an alternative remedy of asking the Medical Council to re-consider its decision to dismiss the complaints, and given that the Medical Council appears to have been ready and willing to accede to such a request.

(2)   It was perfectly reasonable for the 2^nd Interested Party to submit in the context what appropriate costs order should be made on any discontinuance, and since the Applicant and the Respondents chose not to take the opportunity given to them by the court to answer, by 5 July 2018, the 2^nd Interested Party’s allegations about inordinate and inexcusable delay and about the Applicant providing a patently untruthful reason why the PIC should have re-opened the case, the court should proceed on the basis that the 2^nd Interested Party behaved both understandably and reasonably in not consenting to a discontinuance of the proceedings (as distinct from a dismissal) without some provisions being made for her costs or at least a part thereof which she had to incur in relation to these proceedings through no fault of her own.

(3)   In order to seek and obtain the court’s leave to discontinue the application for judicial review, the Applicant’s and Respondents’ appearance on 25 July 2018 was necessary irrespective of the 2^nd Interested Party’s position.

5.  In respect of (1), it seems to me to be clear that but for the present application for judicial review, the Medical Council and PIC would not have agreed that the Applicant’s complaints against the 1^st and 2^nd Interested Parties should be remitted to the PIC for re-consideration.  I consider that the Applicant’s application is necessary to achieve this result.  On the other hand, it has been the 2^nd Interested Party’s consistent stance that the Applicant’s complaints against the 1^st and 2^nd Interested Parties should not be re-considered by the PIC.  In the circumstances, I do not accept that the Applicant had any alternative remedy as suggested by the 2^nd Interested Party.

6.  In respect of (2), the 2^nd Interested Party’s position at the hearing on 25 July 2018 was not that she only wished to make submissions on the issue of costs.  Her position was that the court should not grant leave to the Applicant to discontinue the application for judicial review.  As a matter of fact, the court ruled against the 2^nd Interested Party’s opposition to the application.  If the 2^nd Interested Party had only wished to make submissions on the issue of costs, that issue could easily have been dealt with on paper without the need for the oral hearing on 25 July 2018.

7.  In respect of (3), but for the 2^nd Interested Party’s opposition to the discontinuance application, the matter could have been disposed of without the parties attending the hearing on 25 July 2018 in accordance with the procedures set out in paragraph 23(1) of Practice Direction SL 3, leaving the question of costs to be dealt with on paper and thereby saving the costs of that hearing incurred by the Applicant and the Respondents.

8.  In all, I consider that the 2^nd Interested Party should bear the costs of the hearing on 25 July 2018.

9.  I make the following costs order:-

(1)   save for the costs of the hearing on 25 July 2018, the Applicant’s costs of these proceedings be paid by the Respondents, to be taxed if not agreed;

(2)   there be no order as to costs as between the Applicant and the 1^st Interested Party in these proceedings;

(3)   save for the costs of the hearing on 25 July 2018, there be no order as to costs as between the Applicant and the 2^nd Interested Party in these proceedings; and

(4)   the 2^nd Interested Party shall pay the Applicant’s costs of the hearing on 25 July 2018 and of the supplemental submissions on costs dated 16 August 2018, to be taxed if not agreed.