CHAN HOI SHUET SUSAN v. THE CHINESE UNIVERSTIY OF HONG KONG

DCMP 3033/2017

[2018] HKDC 1140

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3033 OF 2017

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DECISION

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INTRODUCTION

1.  This is the plaintiff’s summons to vary the costs order nisi, namely, seeking (a) to bear the costs of the defendant in respect of items (i) and (j) stated in the application for pre-action discovery of documents only and; (b) the defendant to pay the plaintiff’s costs incurred from August 2017 to January 2018.

BACKGROUND

2.  The facts of this case can be found in my judgment dated 6 July 2018 (“the Judgment”).  I shall not repeat them here.

3.  In the Judgment, I dismissed the plaintiff’s application for pre-action discovery of documents, with a costs order nisiin favour of the defendant, to be taxed if not agreed, including certificate for counsel.

4.  On 20 July 2018, the plaintiff, who has since been acting in person, issued a summons to vary the costs order nisi, stating the following reasons in her affirmation in support of her application:

(1)   the defendant provided items (a) to (h) only after repeated requests from August 2017 to January 2018 from the plaintiff. Thus, the defendant has caused unnecessary delay and costs to the plaintiff as the items are directly relevant and readily available;

(2)   the costs to the defendant should only be applicable to item (i) & (j), namely, 2 out of the 11 items requested; and

(3)   the defendant should also pay the plaintiff’s costs from August 2017 to January 2018 as the majority of those costs was incurred due to the defendant’s delay.

DISCUSSION

5.  I agree with the defendant’s counsel Mr Adrian Leung that the summons should be dismissed for the following reasons.

6.  First, at the hearing for the pre-action discovery summons, both parties have agreed that the “general rule on costs of pre-action discovery is that the person against whom the order is sought shall be entitled to costs”: s47C (3) of the DCO and O.62 r.3 of the RDC.   It follows therefore that even if the plaintiff should be regarded as the winner of the application (which was not the case), applying the general rule for pre-action discovery application, the defendant will still be entitled to the costs of the proceedings and costs of complying with the discovery order: See Judgment §34.  I do not see any good reason to depart from the general rule in this case.

7.  Second, the plaintiff’s grounds for variation of the costs order nisi are merely a repetition of the costs arguments advanced by the plaintiff’s counsel at the hearing on the originating summons (“OS”).  I have already carefully considered those arguments and rejected them: see Judgment §§36-37.

8.  Third, in relation to items (i) and (j), it has been submitted by the plaintiff that she should only bear the costs of the defendant in respect of these 2 items as the defendant had provided the plaintiff with items (a) to (h) already and therefore she says that she succeeded with part of her application.  I am unable to accept such submissions.  As this court has held that items (i) and (j) are not directly relevant and necessary to the issues of the claim, hence the plaintiff has not satisfied the stringent requirements laid down in a pre-action discovery application: (See Zhang Shouen v Standard Chatered Bank (Hong Kong) Limited, [2015] HKCFI 1893 (unrep., HCMP 682/2015; 15 October 2015)).  As such, there is no reason for the court to depart from the general rule stipulated under s 47C(3) of the DCO and O 62, r3 of the RDC.

9.  As for items (a) to (h), I have already dealt with the reasons why the plaintiff would not be entitled to those costs in my judgment and I do not wish to repeat them here: see §36 of the Judgment.

10.  Fourth, in relation to the plaintiff’s submissions that the defendant should be liable for the plaintiff’s costs incurred from August 2017 to January 2018, this has been misconceived for the following reasons:

(1)   It is not disputed by the parties that items (a) to (h) were provided by the defendant to the plaintiff “by without prejudice letters sent in December 2017 and January 2018: (See §5 of Judgment);

(2)   As the defendant has stressed in its affirmation, those documents were provided to the plaintiff simply with a view to save time and costs but without prejudice to the defendant’s positon that the requested items (a) to (h) are not necessary and therefore not directly relevant;

(3)   Further, there was no delay on the part of the defendant in supplying those documents to the plaintiff.  The OS was issued on 25 October 2017 and most of the documents were supplied to the plaintiff’s then solicitors within 1.5 months;

(4)   Nonetheless, the plaintiff insisted to pursue items (i) and (j) despite the supply of the above documents by the defendant;

(5)   In any event, the OS was issued on 25 October 2017, therefore it is incorrect for the plaintiff to say that her costs in this application had been incurred from August 2017 onwards.

CONCLUSION

11.  In conclusion, I refuse the plaintiff’s application to vary the costs order nisi. I order that she will pay the defendant’s costs of the OS, including the costs of the hearing of this application to vary the costs order, such costs to be taxed if not agreed, on a party and party basis, with certificate for counsel.