DESIGNING HONG KONG LTD v. THE TOWN PLANNING BOARD

HCAL 49/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 49 OF 2014

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DECISION ON LEAVE TO APPEAL

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A.  INTRODUCTION

1.  On 30 April 2015, I handed down judgment (“the Judgment”) refusing the applicant’s application for a protective costs order (“PCO”).

2.  This is now the applicant’s application by summons dated 14  May 2015 seeking leave to appeal the Judgment to the Court of Appeal.

3.  In that summons, the applicant also seeks leave to appeal against this court’s refusal at the hearing of the PCO application on 16 December 2014 to allow the 3^rd affirmation and the last sentence of the 12^th paragraph of the 4^th affirmation of Mr Zimmerman filed on behalf of the applicant in the PCO application (“the Evidence Decision”).  The applicant subsequently recognises that it is out of time in seeking leave to appeal against that decision.  The applicant is late in this part of the application as it understood that the court in refusing this evidence at the hearing indicated that it would set out its reasons for doing so in the judgment of the PCO application.  The applicant therefore had waited for the handing down of the Judgment to consider whether to appeal against that refusal.  When the Judgment was handed down, however, no reasons were included in it in relation to the Evidence Decision, and hence this part of the application for leave to appeal.  The applicant now accepts that this court has no jurisdiction to grant any extension of time for it to seek leave to appeal and is contented to pursue that part of the application at the Court of Appeal.  I am therefore no longer concerned with this part of the application for leave to appeal against the Evidence Decision.  I will therefore say nothing more about this part of the application save that, as it happened at the hearing, it is clear that I refused to admit that evidence on the basis that it was irrelevant to the PCO application.

4.  Thus, this court is now concerned only with the application for leave to appeal against the Judgment.

5.  By consent, this leave to appeal application is to be dealt with on papers and by written submissions.  The parties have since provided their respective written submissions.

6.  This decision should be read together with the Judgment, and for convenience, the abbreviations used in the Judgment would be adopted in this decision unless otherwise stated.

B.  THIS LEAVE TO APPEAL APPLICATION

B1.  The Judgment

7.  In summary, in the Judgment, this court adopted the Corner House principles as the principles (as further explained in the Judgment) applicable to a PCO application in Hong Kong.[1] In applying those principles, I came to the view that, on the totality of the evidence, including the lack of any evidence showing the financial abilities of the shareholders and directors of the applicant corporation, the court was not satisfied that (a) the applicant was genuinely not in a position to bear the costs of the respondent if it fails in the judicial review; and (b) it was reasonable for it to probably withdraw from the judicial review if no PCO is granted.  In the premises, I refused the application as it would not be fair and just in all the circumstances of the case to depart from the general starting position of costs follow the event and grant the PCO.[2]

B2.  The proposed grounds of appeal

8.  In the draft Amended Notice of Appeal, the applicant raises effectively the following grounds of appeal:

(1)  Ground 1(1): in applying the Corner House principles flexibly, the court misdirected itself in not applying the principles in accordance with the “overriding purpose” of the jurisdiction of the PCO to ensure (a) the underlying objective of giving the public wide access to justice, including in planning and environmental cases in particular; and (b) protecting the public interest in full and effective representation on both sides where points of genuine and significant public interest are raised.

(2)  Ground 1(2): The Corner House principle at paragraph 74(2) (ie, “if those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO”) is not good law in England or Hong Kong and the court is not required to and should not take into account whether the applicant is or will be represented pro bono.  As a matter of principle, the lawyers should not be required to subsidise the administration of justice in a case of genuine significant public importance.

(3)  Ground 2: This court erred in the application of the principle in Corner House paragraph 74(1)(iv) (“having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order”) in that this court (a) treated financial resources as a condition; (b) extended it to cover the financial resources of directors and shareholders of the applicant; (c) rejected the applicant’s evidence on financial ability as insufficient; and (d) failed to consider the financial resources of the respondent.

(4)  Ground 3: The court erred in holding that Corner House simpliciter (as opposed to the version advocated by the applicant) is a proportionate restriction to the right of access to court enshrined in Article 35 of the Basic Law and Article 10 of the Bill of Rights.

B3.  The test in granting leave to appeal

9.  It is common ground that leave to appeal should only be granted if:

(1)  the intended appeal has a reasonable prospect of success; or

(2)  there is some other reason in the interests of justice why the appeal should be heard.

See: section 14AA(4) of the High Court Ordinance (Cap 4).

10.  The applicant relies on both limbs to support its application for leave to appeal.

11.  I will deal with them in the order as it is submitted by the applicant.

B4.    Interests of justice

12.  The applicant submits that leave should be granted in the interests of justice in this case for it to be heard by the Court of Appeal.

13.  I agree that the leave should be granted to the applicant to have the appeal heard by the Court of Appeal for the following reasons of interests of justice:

(1)  Given that this is the first time where the Court of First Instance is required to more comprehensively consider the basis upon which a PCO may be made or refused, the questions arising are thus generally of general public interest as this court recognised at paragraph 8 of the Judgment, and by calling upon an amicus to assist it in the resolution of the issues arising therefrom.

(2)  The court’s actual decision turns on the substantive point of law on whether the court can as a matter of principle take into account the financial position of the directors and shareholders of a corporate applicant.  A point which the contentions of the applicant and the amicus departed (see paragraphs 59 and 61 of the Judgment).  This is a point which also appears not to have been properly and fully considered by authorities.

(3)  This point would have an impact on future PCO applications brought by corporate applicant.  As submitted by the applicant, the Judgment on this point may have a wider impact on potential corporate applicants for judicial reviews (which are of a public litigation in nature) where they are or backed by voluntary organisations, charities and other NGOs and pressure groups.  It therefore is in the public interest to have this aspect of the Judgment tested in the Court of Appeal at the earliest occasion.

(4)  Similarly, the questions of (a) whether the Corner House principles per se sufficiently cover the question of the right to access to court in the context of the Basic Law and the Bill of Rights as held in the Judgment;[3] and (b) how the “overriding purposes” should guide the exercise of discretion in the present circumstances in deciding whether to grant a PCO are also raised for the first time and should also be tested in the Court of Appeal at the earliest opportunity.

14.  For these reasons, I would grant leave to appeal the Judgment to the Court of Appeal on Grounds 1(1), 2, and 3.

15.  However, I would not grant leave to appeal on Ground 1(2) as this point (to challenge the applicability of Corner House paragraph 74(2)) is simply not open to the applicant to take on appeal since (a) the applicant itself effectively advocated this as good law before this court in its skeleton at paragraphs 40 and 88(6); and (b) in any event, the Judgment is not decided on this point.

B5.  Merits of the appeal

16.  Under this limb, leave to appeal should not be granted unless the applicant can show that its prospect of succeeding in the intended appeal are reasonable and more than “not fanciful”, without having to be “probable”: SMSE v KL [2009] 4 HKLRD 125 per Le Pichon JA at paragraph 17.

17.  Given that I have decided to grant leave to appeal on the basis of interests of justice, I should refrain from saying much about the merits of the grounds of appeal as they would be argued in full before the Court of Appeal.  Suffice for me to say that I would not grant leave to appeal on the basis of the merits of the intended appeal under Grounds 1(1), 2, and 3.  Nothing the applicant has submitted in this application convinces me that I have arguably erred in any principles or in law in the exercise of discretion as contested under these grounds.

18.  Nevertheless, it may perhaps be necessary for me to briefly say something about the applicant’s contention under Ground 1(1) that in refusing the PCO application in the present case, the court had failed to have regard to the “overriding purposes”.  The court of course was aware of the “overriding purposes” as submitted by the applicant at paragraphs 41 - 47 of its skeleton submissions for the hearing in December 2014 and at the hearing itself.  It must be however noted that, when exercising the court’s discretion, these “overriding purposes” on the questions of access to justice and having full and proper representation are and should be considered in the context of a PCO application as to whether these elements are being restricted by reason of the applicant’s fear of costs.  In the present case, when exercising the court’s discretion, these considerations must thus be looked at against the court’s conclusion on the basis of the evidence that it was not satisfied that (a) the applicant is genuinely unable to bear the costs of the respondent if it fails in this judicial review; and (b) it is reasonable for the applicant to probably withdraw the judicial review. As such, I do not think there are any arguable merits in the contention that the court had erred in misdirecting itself in the said exercise of discretion.

19.  Insofar as Ground 1(2) is concerned, I will simply repeat paragraph 15 above and similarly will not grant leave to appeal on this ground on the basis of arguable merits.

C.  CONCLUSION

20.  I would grant leave to appeal on the Grounds 1(1), 2, and 3 as set out in the draft Amended Notice of Appeal on basis that it would in the interests of justice to have the appeal heard by the Court of Appeal.  I would however not grant leave to appeal on Ground 1(2).

21.  I will further extend the stay of the substantive application of the judicial review until the final determination of the appeal or further order.

22.  Finally, I will order on a nisi basis that costs of this leave application be in the cause of the intended appeal, with certificate for two counsel.[4]  This order shall become absolute 14 days after today.