ALLIED ARAB BANK LIMITED v. TAJ EL AREFIN HAJJAR AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

COMMERCIAL LIST

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BETWEEN

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RULING ON COSTS

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1. The Summons to Strike Out was issued on the 20th of March this year, following upon some correspondences between the solicitors for the parties. Solicitors for the Defendants had written to the Plaintiffs indicating in general terms defects in the pleadings and inviting amendment; when none was forthcoming, the Summons to Strike Out was taken out. It seeks an order that the whole of the Points of Claim be struck out and the action be dismissed. On the 3rd of June, less than one week before the Summons was due to be heard, the Points of Claim were extensively amended.

2. The Defendants did not take the stance that consequent upon those amendments, part of the Points of Claim could survive their attack. They maintained their position that the Points of Claim pleaded no reasonable cause of action, and that is how the matter was opened before me on Monday this week.

3. In the outcome, of the four causes of action pleaded, two had been ordered to be struck out, one (that of conspiracy) was partially struck out. I do not think it right for me to have much regard to the fact that what survived was in fact the amendments effected on the 3rd of June; the Defendants did not take the stance (as they might have done) that consequent upon the amendments, they were no longer seeking to attack the whole of the pleading. The outcome of the position as I see it is that the Defendants have failed to obtain the order they sought, which is that the Points of Claim be struck out and the action dismissed. To that extent, it can be said that they have failed in the Summons before me. However, looking at the matter realistically, they have achieved a very considerable measure of success.

4. Order 62 rule 3 requires the Court, in the event that the Court makes an Order for costs, to give the costs to the party who succeeded upon the outcome of the proceedings.

5. Mr. Wadsworth, therefore, invites me to give him the whole or part of the costs. That, in the circumstances of this case, seems to me to be somewhat unrealistic. On the other hand, I do not think it right for me to pay no heed to the provisions of Order 62 rule 3. In the circumstances, in my judgment, the best order is that I make no order as to costs.