CHAN CHI SHING v. THE REVISING OFFICER MR SYMON WONG

HCAL 132/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 132 OF 2010

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BETWEEN

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D E C I S I O N

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1.  On 27 April 2011, I handed down judgment allowing the Judicial Review application brought by the Applicant. At paragraph 89 of the Judgment, I made a cost order nisi that the 100^th Interested Party shall pay the costs of the Applicant as he was the only party who had “actively opposed the application”.

2.  The 100^th Interested Party now applies by Summons dated 16 May 2011 to vary the costs order nisi to (a) there being no order as to costs or alternatively (b) only costs of the Judicial Review incurred from 4 March 2011 be to the Applicant and to be paid by the 100^th Interested Party.

3.  The Applicant opposes this application to vary the costs order nisi.

4.  The grounds in support of the variation of costs can be summarized as follows:

(1)   The 100^th Interested Party was only granted legal aid on 24 February 2011 with nil contribution.  The Notice to Act for him was filed and served on 4 March 2011.   Thus, he had taken no steps in the proceedings before 4 March 2011 and should not be held liable for costs for that period in any event.

(2)   Further, the Applicant has incurred no additional costs in the Judicial Review application because of the 100^th Interested Party’s involvement.  He would have had to proceed with the application in the same way whether or not the 100^th Interested Party had taken active steps in its opposition.  There is thus no difference from the position of the other Interested Parties or Respondents where they either had taken no active steps in or maintained a neutral position to the Judicial Review application, and where no costs order has been made against them.

(3)   The 100^th Interested Party should therefore not to be held liable for costs at all, in particular in light of the fact that any such costs order could not be enforced against him under sections 16C(1) and (2) of the Legal Aid Ordinance (Cap 91).

5.  In light of the 100^th Interested Party’s above contentions, the applicable legal principles concerning costs that are relevant to the present purpose are:

(1)   Even in public law litigations, costs is in the general discretion of the court, and the overriding starting principle is still costs should follow the event, unless there are good reasons to depart from it:  Ord 62 r 3(2) of the High Court Rules;  Chan Noi Heung v The Chief Executive in Council [2009] 3 HKLRD 362 (CA) at para 12(1) per Ma CJHC (as he then was); Chu Hoi Dick v Secretary for Home Affairs (No. 2) [2007] 4 HKC 428 at para 10(a) per Lam J; PCCW-HKT Telephone Ltd v The Telecommunications Authority (unrep, HCAL 152/2002,  4 October 2004) at para 36 per Hartmann J (as he then was); R v Lord Chancellor ex parte CPAG [1999] 1 WLR 347 at 356D per Dyson J.

(2)   The fact that a party is legally aided does not alter the Court’s approach in the exercise of its discretion in making a costs order in favour or against an aided person, whether or not such order can be enforced against that person:  s. 19(1) of the Legal Aid Ordinance.

6.  Applying these principles, I accept that the 100^th Interested Party should not be held liable for costs before he started to actively take part in the proceedings itself to oppose Judicial Review application after his solicitors filed Notice to Act.  This is particularly so as the 116 People (as defined in the Judgment) including the 100^th Interested Party were only directed by the Court to be joined as interested parties.  

7.  But once so joined, it fell upon each of them to decide whether or not to take active part to oppose.    I pause here to note that the Applicant has also not sought to vary the order nisi that there is no costs order against the other Interested Parties and Respondents who had not taken any active steps to oppose or had maintained a neutral stance to the Judicial Review.

8.  However, once the 100^th Interested Party had consciously decided to oppose the Judicial Review actively, the position is different.

9.  The mere fact that the Applicant would have to proceed with the application to obtain the relief is in my view neither here nor there since, in the present case, the Applicant’s Judicial Review was hotly opposed by the 100^th Interested Party (and him alone insofar it relates to the proper parties).  He has through his counsel filed very extensive skeletons asking the Court to dismiss the Judicial Review.   His counsel also appeared at the hearing to support these submissions.

10.  The 100^th Interested Party should be fully conscious of the potential consequence of an adverse costs order made against him if he fails in an adversarial system.  As observed by Ma CJHC in Chan Hoi Noi (supra) at paragraph 12(1), this reflects the notion that a successful party should be compensated for the costs incurred in successfully pursuing or defending a claim^[1].

11.  Thus, looking at all the circumstances of the present case, I see no reason to depart from the general principle that costs should follow the event, save that I accept (as explained above), the 100^th Interested Party should not be liable for any costs incurred before 4 March 2011.

12.  I would therefore vary the costs order nisi to that costs of the Judicial Review incurred by the Applicant after 4 March 2011 to be paid by the 100^th Interested Party, to be taxed if not agreed.