L v. EQUAL OPPORTUNITIES COMMISSION AND OTHERS

DCEO 1/1999
& DCEO 6/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

EQUAL OPPORTUNITIES ACTION NO.1 OF 1999

--------------------

--------------------

(Both actions consolidated by Order dated 27 August 1999)

-------------------------

R U L I N G

-------------------------

1. When I handed down the judgment dismissing the plaintiff's claims, I made no order as to costs. In my judgment I wrote :

"I turn to the question of costs. Section 73B(3) of the District Court Ordinance, Cap.336 provides :

Each party to any proceedings in the Court in the exercise of its jurisdiction under the Sex Discrimination Ordinance (Cap 480) shall bear its own costs unless the Court otherwise orders on the ground that-

(a) the proceedings were brought maliciously or frivolously; or

(b) there are special circumstances which warrant an award of costs.

The arguments of Mr. Grossman for the defendants in both cases started out with a condemnation of the plaintiff's actions as 'completely unmeritorious and an appalling abuse of the litigation process....a waste of the court's time and resources and an affront to the system'.

I would not go quite as far as that. I am satisfied that the plaintiff's claims are completely unmeritorious. However the legislation is wide enough to allow just about any minor illness to be regarded as disability, and just about any action to be regarded as detrimental. The plaintiff was entitled to try to bring his case within the ambit of the legislation. I am not prepared to say that the proceedings were brought maliciously or frivolously though some of the claims were arrant nonsense from the outset. I will therefore make no order as to costs, but that order itself will be nisi."

2. The defendants seek costs against the plaintiff. It is argued that though I have implicitly decided that the application for costs could not be brought under subparagraph (a) of section 73B(3), special circumstances exist which would allow me to make the order under subparagraph (b), and the order should be made.

3. I am obliged to counsel for their very full and thorough arguments, which I have carefully considered. I do not want to go through them at length here. I have characterised the plaintiff's claims as completely without merit and have called some of them "arrant nonsense". The case has already generated far more paper than it was ever worth.

4. Subparagraph (a) can only refer to costs against a plaintiff. Subparagraph (b) may cover costs against either party. In the three Hong Kong cases cited to me, costs were awarded against the defendants, the court in each case having found special circumstances. However the two subparagraphs are disjunctive. I take it that "special circumstances" must mean something other than malice or frivolity, where a plaintiff is concerned.

5. The defendants argue that special circumstances may arise having regard to the conduct of a party before and after bringing the proceedings, and the strength or merits of the claim, and any vexatious or unreasonable conduct in the proceedings, particularly where the claim is groundless and unmeritorious. It is also said that the provision for no order as to costs should not benefit one who acts vexatiously or conducts his case unreasonably.

6. Mr Grossman SC seeks to rely on vexatious conduct on the part of the plaintiff. He says that vexatiousness "implies the doing of something over and above that which is necessary for the conduct of the litigation". See Marler v. Robertson [1974] ICR 72, cited in Cartiers Superfoods Ltd v. Laws [1978] IRLR 315. Also cited in Cartiers was a useful comment from the case of Prajapati v. Richard Thomas & Baldwins Ltd [1966] ITR 564 :

"We take it that an application in order to be frivolous must be made with knowledge that it is doomed to failure, as a 'try on'; and that 'vexatiousness' involves the same knowledge with an added intention of putting the respondents to unjustified trouble and expense."

7. It seems to me that this is a helpful definition of the two terms. A frivolous application is a "try on"; a vexatious one is a malicious "try on". It is difficult therefore to see that vexatiousness would not come within subparagraph (a). I accept that the conduct of the party concerned must be considered at every stage of the proceedings; it is quite possible that someone will start a hopeless case without knowing it is hopeless, but that later circumstances will arise which should make it clear to any reasonable person that it is hopeless; and to continue after that point will be frivolity.

8. But that is not the point here. My finding that there is no justification for an award of costs under subparagraph (a) is not being attacked. I am being asked to find special circumstances. I do not think I can rely on the conduct which the defendant says was vexatious as a special circumstance. Mr Coleman for the plaintiff says that the defendant should not be able to get costs by the "back door" in this way and I agree.

9. It follows that I should not take into account the lack of merits in the plaintiff's claim. However the defendants also seek to rely on the "dilatory, obstructive and oppressive" conduct of the plaintiff, in the course of the actions. In particular they point to unreasonable and inordinate delay, persistent failure to comply with the rules and directions, and unreasonable and obstructive behaviour, all at the interlocutory stage, and particularly when the plaintiff, for whatever reason, was acting in person.

10. Costs were reserved in respect of some of the interlocutory summonses. H.H. Judge Fung on 27 August 1999 reserved the costs of the defendant's withdrawn application to strike out. At that time the plaintiff was represented. In the normal case one would expect the defendant to pay the costs of its withdrawn summons.

11. On 27 October 2000, H.H. Judge Saunders reserved costs of the summons for discovery. The plaintiff was then in person, as he was when costs were again reserved by the same judge on 29 November 2001. The matter came before H.H. Judge Line on 7 March 2003, when the plaintiff was represented, and costs of discovery were again reserved.

12. One of the problems with discovery was the plaintiff's insistence on having articles taken from his desk, when he was leaving the Commission, put in a sealed box. This was a complete damp squib. It had no effect on the trial. The whole thing was a demonstration of the plaintiff's tendency to get things out of proportion. However, if the business of handing over on leaving had been handled more sensitively on the defendants' side, this time-wasting exercise would probably never have happened.

13. It is true that the plaintiff, when he could simply have given discovery, filed a long affidavit arguing that he was not obliged to make discovery of original documents, although he had them. This contention was dismissed by H.H. Judge Line. It is true that the plaintiff did not make proper efforts to comply with the orders of H.H. Judge Saunders and H.H. Judge Line. He was unco-operative on this and other matters and he did delay the proceedings, though where such delay came about because of legal aid applications, I do not think this can be held against him.

14. I can accept that there are special circumstances which would have allowed the judges concerned to order costs in favour of the defendants in respect of the summons for discovery. I cannot however accept that these special circumstances could justify an award of the costs of the whole proceedings.

15. I note the defendants' arguments about the effects on the Commission. The problem is that the Commission in these proceedings is in the same position as any other employer and I do not think it can be treated differently. I have more sympathy with the arguments from the effects on the individual defendants. It is true that the legislation permits individual officers to be sued but I doubt that there was any need to sue them in this case. Perhaps malice was involved. If so, it would be a valid reason to order costs under subparagraph (a); but I am not asked to change my ruling in this respect. In any event, it does not appear that the individual officers had any separate costs.

16. On the basis that there are special circumstances to justify it, the plaintiff will pay the defendants the reserved costs of the summons for discovery, to be taxed if not agreed.