ORIENTAL PRESS GROUP LTD. v. NEXT MAGAZINE PUBLISHING LTD. AND OTHERS

CACV371/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 371 OF 2000

(ON APPEAL FROM HCA 11900 OF 1995)

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DETERMINATION

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Hon Leong CJHC (giving the determination of the Court):

1. There are two applications: an application for leave to appeal to the Court of Final Appeal and an application relating to the costs order made by this court differently constituted.

2. The defendants published an article which the plaintiffs claimed was defamatory of them and the plaintiffs commenced a libel action against the defendants. The defendants pleaded justification and fair comment which the plaintiffs claimed that the defence of fair comment was defeated by malice on the part of the defendants. At the trial, the defendants claimed there was insufficient evidence of malice for the case to go to the jury. The judge ruled to the contrary and the jury returned a verdict against the defendants. The defendants appealed on the ground that the judge adopted the wrong approach on the question of malice and was wrong to allow the case to go to the jury despite insufficient evidence. A further ground of appeal was that the judge's direction on fair comment was wrong.

3. On 27 June 2001, this court differently constituted rejected the defendants' ground that there was insufficient evidence for the case to go to the jury. However this court allowed the appeal on the ground that the judge's direction was wrong in view of the decision of the Court of Final Appeal in the case of Paul Tse v Albert Cheng [2000] 3 HKLRD 318 and ordered a retrial. On costs, this court made an order nisi that the costs of the appeal shall be costs in the retrial. No order was made in respect of the costs of the trial.

4. The defendants have asked this court to vary the costs order. It is submitted that the defendants should have a percentage of the costs of the appeal at least and proposed a 50% proportion. The defendants also asked this court to make an order in relation to the costs of the trial and that order should be no order as to costs.

5. On the costs of the appeal, it is submitted by the defendants that the normal rule is that costs follow the event except where there are special circumstances for a different order to be made. It is submitted that where a party is successful in the appeal, the fact that the party has raised issues or made allegations which eventually failed does not affect the general rule that he should have the costs of the appeal. It is submitted that the defendants' appeal was allowed in part because of the Court of Final Appeal decision. The fact that the defendants failed in their other grounds should not affect the general rule. The court should not make an order which will or might lead to the successful litigant having to pay any part of the costs of the other side. The costs order of costs in the retrial will bring about a situation that if the defendants lose in the retrial, they might be required to pay for the costs of the other party in the appeal even though the defendants are at least partially successful in the appeal.

6. The plaintiffs on the other hand contend that the defendants were not successful in seeking to have the plaintiffs' case dismissed on the ground that there was no sufficient evidence for the issue of malice to go to the jury so that their defence of fair comment was bound to succeed. It is submitted that the appeal was mostly on the issue of sufficiency of evidence and the defendants wholly failed on this. The misdirection of the judge was the reason for the order for retrial but that was no fault of the parties nor of the judge. It would be reasonable for the costs of the appeal to be costs in the cause in the retrial. With regard to the costs of the trial, Mr Edward Chan SC for the plaintiffs makes no submission.

7. In our view, the judge's direction only became a misdirection as a result of a change in law by the case of Albert Cheng which came into being after the trial. It was neither the fault of the judge nor that of the parties. The defendants succeeded on a point not taken below whereas on all other points taken by them, they failed. Had there been no change of the law, the defendants would have completely failed in their appeal. The general rule that costs follows the event is subject to the court's discretion to make some other form of order appropriate in the circumstances of the case. The present circumstances justify the making of the order that the costs of the appeal should be in the cause of the retrial. The original order nisi as to the costs of the appeal is confirmed. But as to the costs of the trial, we make no order as to costs.

8. On the application for leave to appeal to the Court of Final Appeal, the only question for this court to consider is whether there is some question of great general and public importance that the case should be dealt with in the Court of Final Appeal. The present case centers on the sufficiency of evidence of malice and that is crucial to the case, having regard to the way it was conducted which involved the defence of fair comment and allegations of malice on the part of the defendants. We have considered all the grounds stated in the Notice of Motion in support of the application. We do not see any question of law of great general and public importance that leave should be granted for a case essentially one depending the factual situation to go to the Court of Final Appeal. The application for leave must fail.

Costs order

9. The costs of the application for leave to appeal to the Court of Final Appeal shall be to the plaintiffs and the costs of the application to vary the costs order nisi shall be costs in the cause of the new trial.