PANG CHUI PING v. REGISTRAR OF THE HIGH COURT

HCAL 1152/2022

[2024] HKCFI 2699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1152 OF 2022

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DECISION ON COSTS

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A.  Introduction

1.  In my Judgment dated 16 August 2024, [2024] HKCFI 2054 – the definitions and abbreviations in which I shall continue to adopt – I emphasised the rarity or exceptional nature of the circumstances of the case, and I stated that it was therefore appropriate not only to quash the impugned decision made by the Master on the legal aid appeal, but to grant the order of mandamus directing the Master to direct the issue of a legal aid certificate to the Applicant in respect of the proceedings in relation to which she made the application for legal aid.

2.  I reserved the question of costs to await submissions from the parties, once they had had sight of the Judgment and its reasoning.  I said I would deal with the question of costs by way of paper submissions, and insofar as it may be appropriate I would make summary assessment of any party’s costs.  I gave directions for that purpose.

3.  In accordance with my directions, the Applicant filed her submission on costs. 

4.  Shortly before the deadline for the Director to file his submissions, the Director suggested that the costs argument should be delayed in light of the fact that the Director had appealed from my Judgment. I declined that invitation for delay, and required the costs arguments to be concluded (although I allowed a little extra time for that process).  The Director has since filed his costs submissions, and the Applicant has filed comments on them.

5.  Having considered the submissions, the following is my Decision on Costs.

B.  Applicable Principles

6.  I do not think I need to set out the applicable principles at any length.  It is trite that costs are in the general discretion of the Court, though the discretion has to be exercised judicially.

7.  Even in public law cases, the general principle is that costs should follow the event, unless there are good reasons to depart from it.  Hence, a respondent to judicial review proceedings who is unsuccessful in defending those proceedings will ordinarily be ordered to pay the successful applicant’s costs.

8.  The position may be different in respect of an interested party.  If the interested party has merely adopted a neutral stance, no costs order will be made against it.  Such party will generally only be ordered to pay costs if it has taken active steps to defend an action.  This is usually a matter of degree, and will require an holistic assessment.  The focus will be on whether the interested party in question has taken steps or actions that are of substance.

9.  In this particular case, the contest on costs is between the Applicant and the Director as interested party.  The actual respondent to the application was the Master, who remained neutral and took no active part in the proceedings (as is both appropriate and usual).

10.  It may also be of relevance that both sides to the proceedings are publicly funded.  This factor may be taken into account, but the fact that a party is legally aided does not of itself alter the Court’s approach to the exercise of its discretion.

11.  As to the circumstances in which an indemnity costs award might properly be made, they are not restricted.  Costs on the indemnity basis can properly be ordered where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner or such a way as constitutes an affront to the court.  But the discretion as to ordering indemnity costs is not fettered or circumscribed beyond the requirement that taxation on that indemnity basis must be appropriate.

C.  This Case

12.  It is convenient to deal first with the incidence of costs, before turning to any potentially relevant question of indemnity costs and any assessment. 

13.  I have already noted that the Director’s underlying decision was not the subject of challenge by way of judicial review.  That is because the Applicant exercised her right of appeal to the Master.  The judicial review challenge was to the decision of the Master.

14.  However, from the respective submissions, it is clear that the key issue of dispute between the parties, now on the question of costs, is whether the Director has taken active steps in opposing the Applicant’s application to challenge the Master’s decision, or whether the Director was merely facilitating the process, by narrowing down the issues in dispute in resolving the matters in a cost-efficient way.

15.  On behalf of the Director, it is submitted by Ms Xu that the Director’s role as interested party was nothing but facilitative, as evident from the Director’s conduct throughout, including the offer to settle at the earliest available juncture and the appropriate concessions made.  She says that the Director never contested any of the substantive judicial review grounds, and the only contested issue was the narrow question of relief. Attention is also drawn to the fact that the relief ultimately granted was on the basis of an amendment to the Form 86, which amendment was only pursued actively by the Applicant at the substantive hearing.

16.  Ms Xu also reminds me that that in my Judgment I acknowledged the arguments deployed on behalf of the Director were put forward on a principled basis, appropriate to a person acting in the allocation of (as well as being guardian of) public funds.  Hence, it is argued on behalf of the Director now that the approach taken was not only reasonable, but well founded on established principles.  Ms Xu says that, looked at on an holistic assessment, the Director’s conduct was reasonable and appropriate, and did not amount to taking active steps to defend the judicial review.

17.  Ms Xu also points to a number of individual elements relating to the timing when the Director was joined as an interested party, and the fact that the main costs of the leave application would have been incurred before that.

18.  As regards the key issue, Mr Clough for the Applicant says that the Director plainly did not take a merely facilitative approach to these proceedings.  The very fact that the Director has appealed from the Judgment is, he says, indicative of the Director’s active role.

19.  Though I do not need to rehearse them for present purposes, Mr Clough has also set out at some length the role adopted by the Director, and the steps taken throughout the course of the chronology of these proceedings.  I have taken them into account.

20.  Mr Clough also points to the fact that the concession ultimately made on behalf of the Director was linked directly to a proposed rehearing of the legal aid appeal by a different Master, where all issues would again be at large – and that followed what was in reality the active contesting of the issues through extensive skeleton submissions filed to argue all points raised by the Applicant in those submissions.

21.  Having considered matters holistically, I do not accept the Director took no active role in contesting these proceedings.  I take into account that the basis of the Master’s decision was not on submissions advanced for the Director before her.  However, whilst it is correct that the Director acknowledged, ultimately on an open basis, that the Master had erred on each of the three reasons relied on by her to dismiss the legal aid appeal, the extent of the Director’s active opposition in these proceedings was shown by the materials filed and deployed by Ms Xu at the substantive hearing.  The active opposition was perhaps ultimately limited to the question of the appropriate relief, but the way it was argued traversed much ground, including why it was said that all matters relevant to the legal aid application made by the Applicant ought to remain ‘up for grabs’, even if already dealt with one way or another in the legal aid application and appeal process. 

22.  On the other hand, I did indeed accept that the opposition to the proposed relief of mandamus was put forward on a principled basis – and it would at least be correct to say that the grant of mandamus in this type of case was (as I tried to emphasise) rare and arose only in the exceptional circumstances of this particular case.

23.  I also take into account that some substantial costs in launching the judicial review application would have been incurred by the Applicant before the Director was added as an interested party, to make the challenge against the Master’s reasons which were not advanced by the Director. 

24.  It does also seem to me to be of some significant relevance in this particular case that the Applicant pursued this application with the benefit of legal aid, to make a challenge as regards an application/appeal relating to legal aid, and where the active opposition to it was by the Director who is of course also publicly funded.  

25.  I also take into account that there is considerable dispute between the parties as to which of the Applicant and the Director took the right, fair and reasonable approach to these proceedings.  Though I see no particular benefit in the expenditure of further public funds on the use of Court time seeking to resolve those areas of dispute, I do note some degree of intransigence on both sides.

26.  Further, though the overall chronology of the Applicant’s application for legal aid is perhaps rather unimpressive in certain respects, I do not think this is a case where any ‘message’ is best sent through an award of costs against the Director.

27.  Ultimately, weighing all the points and looking at matters in the round, it seems to me that the appropriate order to make is no order as to costs.

28.  It is therefore unnecessary to consider any question of assessment or taxation of costs on the indemnity basis, or to perform any summary assessment.

29.  I also accept that, where the Applicant has agreed to a summary assessment of costs, that would ordinarily have meant that the Applicant has expressly waived any taxation of her own costs in accordance with the Legal Aid Regulations.  But, where I have decided that there should be no order as to costs, so that no summary assessment will be performed, it seems to me to be still appropriate for there to be that order.  In short, such an order is required.

30.  Lastly, I would state that I have not found it necessary or helpful in this case to be drawn into any debate about the use of without prejudice correspondence in judicial review cases, insofar as that may impact questions of costs.

D.  Result

31.  For the reasons I have given above, and in the exercise of the applicable broad discretion to the circumstances of this case, I make no order as to costs, save to order that the Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.