CHEUNG HING v. WAH FUNG FOREST RESOURCES LTD

HCMP 2433/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2433 OF 2012

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REASONS FOR DECISION

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1.  In my judgment dated 31 May 2016, I ordered the intervener to pay 80% of the plaintiff’s costs to be assessed on a gross sum assessmentto be conducted on paper without a hearing. After receiving written submissions on the question of costs, I assessed the costs payable by the intervener in the sum of $536,952, which included costs ordered to be in the cause but not costs previously reserved or separately ordered in favour of a specific party. The assessment was notified to the parties by letter dated 2 September 2016.

2.  By summons dated 15 September 2016, the intervener sought leave to appeal against the assessment of costs on the ground that no reasons have been given.

3.  In English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, the English Court of Appeal suggested at §25:

“Accordingly, we recommend the following course. If an application for permission to appeal on the ground of lack of reasons is made to the trial judge, the judge should consider whether his judgment is defective for lack of reasons, adjourning for that purpose should he find this necessary. If he concludes that it is, he should set out to remedy the defect by the provision of additional reasons refusing permission to appeal on the basis that he has adopted that course. If he concludes that he has given adequate reasons, he will no doubt refuse permission to appeal. If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the appellate court that the application is well founded, it should consider adjourning the application and remitting the case to the trial judge with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings. Where the appellate court is in doubt as to whether the reasons are adequate, it may be appropriate to direct that the application be adjourned to an oral hearing, on notice to the respondent.”

4.  Having regard to this suggested practice, when the application for leave came before me on 17 October 2016, I referred the intervener’s solicitor to English v Emery Reimbold & Strick Ltd who indicated that the intervener was content for me to consider whether it is appropriate to give reasons and if so to proceed to give them.  Accordingly the intervener’s application for the leave to appeal was adjourned sine die with liberty to restore.

5.  By letter to the court dated 25 October 2016, however, the intervener’s solicitors referred to RHC O 42 r 5B(1) which provides:

“A Court shall give the reasons for any decision either at the time the judgment or order is pronounced or, where it is at that time announced that the reasons will be given at a later date, at such later date as may be fixed.”

The solicitors submitted that as the court did not state in the letter dated 2 September 2016 notifying the parties of the sum of assessed costs that reasons would be given at a later date, the court cannot and should not give reasons now.

6.  The court does not have a general duty to give reasons in relation to costs orders: see eg Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119.  However, in the present case, since the sum assessed covered a number of steps and was constituted by various components, it is in my view not unreasonable for the intervener to wish to have at least a breakdown of the amount.  Accordingly I consider that, unless I am prevented by some law or rule of practice from doing so, I should now indicate how that global sum is arrived at.

7.  I do not think O 42 r 5B(1) precludes me from doing so.  That rule is apt in dealing with cases in which a judgment or order is pronounced at the end of a hearing (see r 5B(2)), but does not appear to have been drafted with a procedure such as the summary assessment of costs on paper in mind.  Nor does r 5B(1) in terms expressly prevent the court from giving reasons later where it has not done so at the time of giving judgment and has not stated it will do so at a subsequent date.

8.  Insofar as it might be said that r 5B(1) presupposes there is a common law rule that the court cannot give reasons for or explanation of its judgment or order after the judgment or order is made, the proposition seems to me to be contrary to English v Emery Reimbold & Strick Ltd, as set out above, and to Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 383D, where the English Court of Appeal suggested the course which was subsequently endorsed in English v Emery Reimbold & Strick Ltd.

9.  In Hong Kong, in Kwan Ka Man Blanche v Esprit Retail (Hong Kong) Ltd (HCLA 160/2003; 15 July 2004) at §20, Lam J (as Lam VP then was) opined that had the intended appellant there relied on the absence of reasons as a ground of appeal, the Court of First Instance might have followed the practice suggested in English v Emery Reimbold & Strick Ltd and adjourned the application for leave to appeal and invited the Presiding Officer to provide additional reasons for his findings.  Although what was said concerned the Labour Tribunal, I would have thought that the Court of First Instance as a superior court of record would have at least the same jurisdiction in terms of providing reasons.

10.  In Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 141, the Court of Final Appeal also considered it within its inherent jurisdiction to give further explanation of its judgment.  The court’s reference to the exceptional circumstances in that case underlines the point that this is not a course to be frequently adopted, but it shows that there is no lack of jurisdiction for the court to do so in an appropriate case.

11.  I would readily accept that once a judgment or order has been drawn up and sealed, the court cannot in general revisit the matter in terms of amending, varying or supplementing it: Lilik Andayani v Chan Oi Ling [2000] 4 HKC 233.  But what I propose to do is not revisiting the matter in that sense, but making manifest the breakdown of an assessment of the costs of various steps.  This does not involve this court acting when functus officio: see also Man Ping Nam v Man Fong Hang (No 2) (2007) 10 HKCFAR 140.

12.  I would therefore state the breakdown of the assessed sum as follows: