SOSHILA KESWANI v. MOTIRAM KESWANI

DCCJ 579/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 579 OF 2013

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DECISION

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1.  On the first day of this trial, ie 28 June 2017, there were two applications made by the plaintiff, both in relation to the proposed new witness, ie Ms Juliana Chu. The first one is a praecipe for writ of subpoena and the second one is for leave to include Ms Chu as a new witness.

2.  On the second day of the trial, ie 29 June 2017, after discussion and argument in court, the plaintiff withdrew both applications.  The defendant asked for costs on an indemnity basis.  The plaintiff objected by claiming that she had been “misguided” by the defendant’s pleadings into believing that Ms Chu would either be called by the court or by the defendant.  It was not until a letter dated 26 April 2017 by the defendant’s solicitors that she started to realise that Ms Chu would not be called.  Then she made the said two applications.

3.  What are worth noting are that, first, in none of the defence pleadings that they indicated that they would call Ms Chu.  It was only stated in the pleadings that the court would be asked to infer from certain evidence.  Second, in none of the questionnaires or any other documents filed by the defendant in the court that the defendant indicated calling Ms Chu as defence witness.  It follows that if the plaintiff was under any mistaken belief, as she claimed, that was self-generated.

4.  I have also taken note that in an unsuccessful attempt at the interlocutory stage the plaintiff had tried to adduce seven witness statements of witnesses other than herself, but had never included Ms Chu as one of those, and in none of the case management conferences did the plaintiff raise any doubt or concern as to what witnesses would attend court, knowing all along full well that only herself, the defendant and the nephew would be the witnesses for the trial.

5.  I am therefore of the view that the plaintiff should be responsible for the defendant’s costs in relation to these two applications, which were first made and subsequently withdrawn by her.

6.  Finally, there is a question as to whether the costs order should be made on an indemnity basis.  I have considered an authority, Fenn Kar Bak Lily v Goh Kim Lay & Anor CACV 217/1994, unreported, dated 8 September 1995. There, the Court of Appeal, having considered an earlier case, Overseas Trust Bank Limited v Coopers & Lybrand & Ors [1991] 1 HKLR 177, confirmed certain guidelines for awarding indemnity costs and stated at paragraph 35 that:

“Except for the recognised contempt cases, special or unusual features have as a rule to be shown to justify an award of costs on an indemnity basis, such as abuse of court process, scandalous or vexatious proceedings, proceedings improperly prosecuted with malice or an ulterior motive or in an oppressive manner, circumstances constituting an affront to the court, etc.”

7.  I do not see those special or unusual features exist in these two applications. 

8.  Also, apart from the nature or character of the proceedings, the attributes of the party may be relevant in the court’s exercise of discretion when awarding costs.  To this, I have taken into account the fact that the plaintiff is a senior citizen who is about 70 years of age, that she was unrepresented and therefore in this case and when making those applications was not having the benefit of any legal advice. 

9.  I therefore do not see fit to impose costs on an indemnity basis as applied, but would instead order costs on a party and party basis be paid by the plaintiff to the defendant in any event in relation to these two applications by the plaintiff.