HMSE v. JJS

FCMP 70/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 70 OF 2008

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D E C I S I O N
(C O S T S)

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1.  This is a hearing of the Applicant (“the mother”)’s application to vary the costs order nisi dated 7 April 2017 requiring her to pay half of the costs of the Respondent (“the father”)’s application for discovery.

2.  The claim of the mother is that she has been unfairly treated because the father’s solicitors had 16 days (from 8 to 24 March 2017) to prepare the updated draft questionnaire while she only had about 4 days to consider them.  She said that her domestic helper had also left adding further strain on her time around that period of time. Therefore, she does not agree to pay half of the costs of the father’s application despite the fact that she was ordered to answer some of the questions in the updated questionnaire.

3.  The father accepts that certain parts of his application were not successful but since a substantial part of his questionnaire was either ordered or only agreed to by the mother at the hearing, he is of the view that a half costs order in his favour is reasonable.  Therefore, he asks for the costs order nisi to be made absolute.

Background leading to this application

4.  The background of this case has already been summarised in the Decision on discovery handed down on 7 April 2017 of which I do not intend to repeat.  Suffice it to say that the current disputes arose out of the mother’s application for an upward variation of the daughter’s maintenance payable by the father.  In her application, the mother has initially included a claim for a full mother’s allowance and therefore her personal financial circumstances have become an important issue. On 7 September 2016, the father’s solicitors issued a summons with a draft questionnaire.  At the hearing, the mother indicated that she would drop the claim for full mother’s allowance, but reserved a claim for travelling allowance so that she could travel with the daughter. 

5.  The mother changed her stance in February 2017 and reinstated her claim for a full mother’s allowance.  Her summons for full mother’s allowance was heard on 8 March 2017 during which the solicitors for the father also restored their summons for discovery in view of this change of stance.  This court allowed the father to file and serve an updated draft questionnaire to be argued on 30 March 2017, a date which was originally fixed for trial but was aborted due to the re-opening of the mother’s claim for a full mother’s allowance.

6.  An updated draft questionnaire was issued by the father’s solicitors on 24 march 2017.  I understand that the mother was requested to indicate which questions would be opposed by 28 March 2017, on which day the mother issued a letter saying that:

“The Questions I answered and filed in June 2016 will not be entertained again. The Questions which I have never encountered, whether I oppose or not, will be handled orally on 30 March 2017 hearing.”

7.  It was very clear that the mother’s then position was that she would not answer any questions which had already been answered previously.  As to the new questions, she was content with them being argued on 30 March 2017.  There was no indication that she did not have enough time for consideration. 

8.  At the hearing on 30 March 2017, the mother agreed to answer most of the questions.  The father withdrew 3, leaving 14 questions to be adjudicated by this court.   Out of these 14 questions, I ordered the mother to answer 7 of them.  As to the rest, 6 questions were refused with the remaining one to be answered partially.  The overall result was that a majority part of the questionnaire was ordered to be answered (either agreed to by the mother at the hearing or ordered by the court after adjudication).   In view of this, the court ordered the mother to bear half of the costs of the father’s application.

My Decision

9.  Due to the special dynamics of matrimonial or family litigation, the court’s discretion on costs is even wider than that in general civil matters: F v F (No.2) 3 HKLRD 976 per Hartmann J (as he then was).

10.  In this particular case, the end result is that the mother was ordered to answer some of the questions after a full day’s hearing.  It is true that she agreed to some of the questions but only at the actual hearing when those questions were canvassed individually.  If this court adopts a purely costs follow event approach, the mother might have been ordered to pay the full costs of the application.   But since some of the questions were being refused, it was felt at the time that the mother should only be required to pay half of the costs.

11.  As to the mother’s claim that she has been given too little time to consider the questionnaire, I am not convinced that she has been unfairly treated.  I remind myself that this application has only become necessary when the mother changed her position concerning a full mother’s allowance.  In the 28 March 2017 letter, the mother had clearly indicated that some of the questions would not be answered.  What happened at the hearing was that either she agreed to answer, or that she was ordered by this court to answer some of those questions previously opposed. Moreover, there was never any request for time for consideration. She was content to have the questionnaire fully argued at the 30 March 2017 hearing. The disputed questions were indeed fully argued and the mother had to accept the consequence of the result. 

12.  All in all, I am not convinced that there is any valid ground for the order nisi to be varied.  The costs order nisi is hereby made absolute.

Costs

13.  Costs to follow event.  The mother’s summons fails and the father shall have the costs of this summons, including all costs reserved (if any), to be taxed if not agreed.