SIT KA YIN PRISCILLA v. EQUAL OPPORTUNITIES COMMISSION AND OTHERS

DCEO 11/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 11 OF 1999

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BETWEEN

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DECISION ON COSTS

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1.  This is a claim for damages allegedly caused by unlawful disability and sex discrimination. In the Judgment handed down on 11 February 2010, I dismissed the Plaintiff’s claim. At the request of counsel at the trial, the parties would prefer to make further submissions on the issue of costs after seeing my Judgment, and so the parties now come back before me to argue on this particular issue. Mr. Leung, counsel for the Defendants, asks for costs against the unsuccessful Plaintiff, while Mr. Dykes SC, counsel for the Plaintiff, resists the application.

The legal principles relating to costs in discrimination claims

2.  The detailed background of this case has already been outlined in my Judgment handed down earlier and so I do not want to repeat the same here.  Before I deal with the merits of the application, I would like to set out the legal principles involved.

3.  The normal rule of costs follow the event does not apply in discrimination claims.  S. 73B(3) of the District Court Ordinance, Cap. 336 (“the DCO”) provides that:

“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.”

S. 73C of the DCO provides for the same costs rule in respect of the claims under the Disability Discrimination Ordinance, Cap. 487 (“the DDO”).

4.  For the rationale of such rule, I would like to repeat the observations that I have made in the case of Cano-Shearer, Anne & Ors. v Cathay Pacific Airways Limited, unreported, DCEO No. 1/2001 (decision of HH Judge Lok on 23 September 2002):

“18. The rationale for such rule is clear. If the court always makes an order of costs against an unsuccessful plaintiff, it may discourage individuals who may have legitimate grievance in enforcing their civil right. On the other hand, I agree with [the Defendant’s counsel] that such indulgence should not go unchecked, otherwise parties who are sued as defendants may have to face with all sorts of unmeritorious claims, and the said statutory provision would be doing more harm than good. In particular, if the court cannot make any costs order in respect of procedural matters, the court will lose the power to control and regulate the progress of the proceedings. Hence, apart from the case that the proceedings were brought maliciously or frivolously, the court is given wide discretion to make an order of costs if there are ‘special circumstances’ which warrant so. Obviously, it would be very difficult for the court to list out all the special circumstances in which an order of costs should be made. However, the court should always bear in the mind the aforesaid considerations in deciding on the issue of costs in sex discrimination cases.”

5.  Hence, in order to depart from the general principle that each party should bear its own costs in discrimination claims, the party asking for costs has to establish that the case falls within either of the two limbs of the proviso stated in ss. 73B and 73C.  In determining whether a claim was brought maliciously or frivolously under the first limb, the court has to apply both a subjective and objective test.  In this regard, I would repeat the dicta that I have made in the Cano-Shearer Anne case:

“24. A case is obviously frivolous when the claimant subjectively knows that it is unmeritorious. A case may also be frivolous when objectively considered it is plainly without foundation and is bound to fail. In E.T. Maler Ltd. v. Robertson [1974] 1 ICR 72, the English National Industrial Relations Court was asked to consider, inter alia, the issue of costs relating to an appeal from the Industrial Tribunal. Under the relevant statutory provision, the Tribunal should not normally award costs unless it considers that a party has acted frivolously or vexatiously. Sir Hugh Griffiths said the following in p. 76:

‘If the employee knows that there is no substance in his claim and that it is bound to fail, or if the claim is on the face of it so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of the procedure of the tribunal to pursue it.’

In Wilson v. Phoenix Contracting Services (1998) EOC 92-936, the Victorian Anti-Discrimination Tribunal in Australia was asked to consider a similar provision relating to costs. The Tribunal said the following in page 78234 of the report:

‘The costs referred to in the section are party/party costs (including disbursements) and , notwithstanding sub-section (2), the discretion of the Tribunal to award costs is very wide.

There is no general rule adopted by this Tribunal that the successful party is entitled to costs (see Murphy v. Colorific Lithographics ADT of Vic, 22 January 1997). In exercising its discretion the Tribunal must have regard to the nature of the jurisdiction. If orders for cost are made too readily, people might be deterred from coming to the Tribunal and, to that extent, the policy of the legislation would be frustrated.

In Delmonaco v. NRU Worklife Pty Ltd. (ADT of Vic, 3 April 1997), … … … the Tribunal said:

“We therefore find that the Respondent has been put to needless expense in defending a claim that should not have been brought against her.  It is not simply a case of a complaint having failed.  It is a case where a Complainant has made a complaint without any reasonable grounds for expecting that it might succeed.  In such circumstances, we think that it is appropriate to order costs in favour of the Respondent.”

… … …

The Tribunal should not lightly find that a claim should not have been brought.  It is the intention of the legislation that a person with a bona fide claim will bring it to the Commission and, if it is not resolved, have the matter determined by the Tribunal.  On the other hand it must be recognised that an accusation of unlawful discrimination can have serious consequences for the person accused (see Gray v. Ritossa Supreme Court of Victoria 21 October 1993 per Nathan J) and should not be made without due cause.’

In Hong Kong, by virtue of the second limb of s. 73B(3), the court has a much wider discretion in approaching the issue of costs in sex discrimination claims.”

Merits of the application

6.  I then turn to the merits of the application. In the present case, the claim for sex and disability discrimination was made by a former Director of the Gender Division of the Equal Opportunities Commission (“the EOC”).  By reason of her work, she was supposed to have some knowledge of the anti-discrimination law in Hong Kong.  On the other hand, the 1st Defendant herein, the EOC, is the very organisation entrusted with the statutory duty to eliminate discrimination in Hong Kong, and 2^nd and the 3^rd Defendants were the respective Chairman and Chief Executive of the EOC at the material time.  Because of the unique features of the present case and the positions held by the various parties at the material time, the allegations made by the Plaintiff were particularly serious.  In the event that the Plaintiff’s allegations were found to be substantiated, it would have a serious impact on the work and the reputation of the EOC.

7.  In a nutshell, the Plaintiff complains that she had been unfairly treated in the course of her employment, including that, inter alia, she was denied the opportunity of acting up the post of the Chief Executive, attending the training course for the staff members of the EOC at Tsing Hua University and an overseas conference in Seoul.  According to the Plaintiff, the Defendants also made some unjustified criticisms against her work performance which ultimately led to termination of her employment.  She complains that she had been so unfairly treated because of her gender and disabilities, the latter of which included, inter alia, neck pain and regular high fevers.

8.  The Defendants deny that there was any discrimination on their part, and the Plaintiff’s employment was terminated solely because of her poor work performance.  Further, the Defendants were not aware of any significant disabilities suffered by the Plaintiff when she was working in the EOC, and so any management decisions made in respect of the Plaintiff could not have been influenced by the proscribed grounds stated in the DDO.

9.  At the trial, the evidence showed that the Plaintiff’s claim is totally without merits.  The EOC’s then Legal Adviser, Madam Alexandra Papadopoulos, was a female senior staff who was of the same rank as that of the Plaintiff.  She was taking more sick leave than the Plaintiff, and yet she was offered the opportunity of acting up the post of the Chief Executive and there was no suggestion to terminate her employment like that of the Plaintiff.  The Plaintiff was not asked to attend the overseas conference in Seoul because that conference was about disabilities issues, and the conference was not directly related to the work of the Plaintiff who was responsible for gender issues.  In fact, the Plaintiff attended an overseas conference on gender issues in Miami much earlier on her own, and it was therefore quite absurd for the Plaintiff to say that she had been unfairly treated in this regard.  Further, the staff members of the EOC took turn to attend the training courses at Tsing Hua University and the selection process in respect of the first course had nothing to do with the gender of the staff members concerned.

10.  After listening to the evidence of the case, I came to the firm conclusion that the case only involved a personnel dispute between the Plaintiff and the senior management of the EOC.  Very serious allegations had been made by a former senior staff of the EOC against her colleagues who were responsible for eliminating discrimination in the community, and yet there was no evidence to substantiate the complaints which were no more than suspicion on the part of the Plaintiff.  Further, there was not even one single hint in the evidence which might suggest that the management decisions of the EOC were affected by any of the proscribed grounds, nor was there any evidence to show that the EOC had been adopting a discriminatory practice against any of its employees.

11.  Based on the evidence in the present case, there are amble reasons for the court to conclude that the Plaintiff’s claim was brought frivolously.  If the Plaintiff had been more objective, I would expect her to reach the same conclusion about the merits of her claim.  It is very difficult for me to understand why the Plaintiff, with an impressive curriculum vitae, was so obsessed with her claim.  It might be the case that her emotional disturbance experienced after the termination of her employment had clouded her judgment.  But if one approaches the facts of the case objectively, one would not be too difficult to reach the conclusion that the Plaintiff’s claim should not have been brought in the first place.  I therefore order the Plaintiff to pay for the costs of the action under the first limb of ss. 73B(3) and 73C(3) of the DCO.

12.  In the case that I am wrong on the above conclusion, I also find that there are special circumstances in the present case which warrant an award of costs against the Plaintiff under the second limb of the proviso.  As I have mentioned in the Cano-Shearer Anne case, the court has to take into account the objects of the anti-discrimination legislations and the legitimate right of the defendant in dealing with the issue of costs in the case of an unsuccessful discrimination claim.  On the one hand, the court is conscious of the fact that an award of costs against an unsuccessful plaintiff may discourage other potential plaintiffs of pursuing their complaints in courts.  On the other hand, if a plaintiff who brought an unmeritorious claim does not have to bear any responsibility if he loses the claim, the court will be flooded with a lot of unmeritorious claims.  As I see it, this could not have been the intention of the legislature.

13.  The dispute between the parties in the present case was no more than a personnel dispute.  As mentioned in my Judgment, there was not even one single hint in the evidence which could possibly suggest that the management decisions made in respect of the Plaintiff were in any way influenced by the proscribed grounds.  If the court does not make an award of costs against the Plaintiff, any person whose employment was terminated by his employer can file an unmeritorious claim without any consequences.  This simply cannot be right.  Hence even if the claim of the Plaintiff is not a malicious or frivolous claim within the meaning of the first limb of the proviso, there are still special circumstances in the present case which warrant an award of costs against the Plaintiff.  I therefore so order.

14.  Both sides had engaged senior counsel to the conduct the trial.  However, the present case only involves simple factual disputes between the parties and so I doubt whether it was appropriate to engage senior counsel for the trial.  Having said that, the Defendants had all along instructed one counsel to conduct the proceedings, and it was only because of the engagement of senior counsel on the part of the Plaintiff in the latter part of the proceedings that the Defendants had engaged a senior counsel to conduct the trial.  In such circumstances, there is no reason to deny the Defendants’ request for certificate for two counsel.  Furthermore, there was so much at stake for the Defendants in these proceedings.  In the case that the Plaintiff’s allegations were found to be substantiated, it would have a serious impact on the work and the reputation of the EOC.  Hence, despite that the present case is not a particularly complicated one, I would grant certificate for two counsel in favour of the Defendants.

Costs and delay in the present case

15.  Having dealt with the costs issues, I would like to make some observations about the delay and the amount of costs incurred in this particular case.  The Plaintiff’s employment was terminated in 1997, but the trial of this action took place 12 years later in 2009.  I am also given to understand that substantial costs had been incurred by the Defendants in defending the claim.  But if one looks at the facts at the trial, it would not be too difficult for the court to conclude that the Plaintiff’s claim is one totally without merits.  In such circumstances, one particular question pops up to my mind: why do we need to spend so much time and money to resolve this relatively simple dispute?

16.  Undoubtedly, the Plaintiff is mainly responsible for the delay in the proceedings.  The Plaintiff’s alleged cause of action accrued before the termination of her employment on 25 September 1997.  The writ was issued on 24 September 1999, one day before the expiry of the arguable limitation period.  The writ was not served until September 2000, which was close to the end of the validity of the writ.  There was then delay on the part of the Plaintiff in the exchange of witness statements, and there was total inaction on her part in pursuing the action between September 2003 to September 2006.  In view of the inaction on the part of the Plaintiff, the Defendants had to issue two Notices of Intention to Proceed on 17 February 2003 and 30 August 2006 respectively.

17.  In the period from 1999 to 2005, the Plaintiff had also engaged in various satellite litigations against the EOC under the Personal Data (Privacy) Ordinance, Cap. 486 by making no less than 3 complaints to the Privacy Commissioner Office.  She also lodged no less than 3 appeals to the Administrative Appeals Board against the decisions of the Privacy Commissioner for Personal Data.  All the appeals were dismissed by the Board.

18.  The Plaintiff filed a Notice to Act in Person on 28 September 2006.  After that, there were quite a number of unnecessary interlocutory applications before the court in 2007 and 2008.  The Plaintiff did not attend the trial in November 2008 and as a result the trial took place one year later in November 2009.

19.  Despite that the Plaintiff is the one mainly responsible for the delay in the proceedings, I believe that a more simplified set of procedural rules can reduce some of such delay.  After the implementation of the civil justice reform in 2009, the court has already adopted a more pro-active approach in the case management of discrimination claims. The court has referred appropriate cases for mediation with some successful results.  The court would also set speedy timetables for the progress of the cases with a view to reduce some of the delays.  Dispite that, the court is still faced with a lot of interlocutory applications such as applications for extension of time to file pleadings, applications for provision of further and better particulars of pleadings and striking out applications.  Although there are no formal statistics, my observation as the judge-in-charge of the Equal Opportunities List shows that there were more such interlocutory applications in discrimination claims than other ordinary civil claims.

20.  As I see it, the problem may lie with the use of pleadings in the adjudication of discrimination claims.  One of the features of such kind of actions is that they usually involve a series of incidents over a period of time which eventually lead to the ultimate detriment suffered by the complainant, for example the termination of the complainant’s employment. These incidents are usually closely related.  Because of the large numbers of incidents involved, the legal advisers often take great care in listing out all such incidents in the pleadings and the relationship between them.   On the other hand, litigants in person may experience great difficulty in listing out all their complaints clearly in the pleadings.  The result is that the pleadings may become very lengthy documents, which would in turn lead to a lot of interlocutory applications such as applications for provision of further and better particulars and striking out applications.

21.  With the lengthy technical pleadings, one can also easily overlook some of the important facts of the case, which was actually what happened in the present case.  There was some evidence revealed at the trial which clearly showed that the Plaintiff’s claim was unmeritorious, but for some reasons they did not appear in the pleadings.  Firstly, the Plaintiff claimed that there was a practice in the government and public institutions that, in the case that there was an acting post available, all the staff members who were eligible would take turn to act.  The evidence revealed at the trial clearly showed that such allegation was untrue.  There were two Chief Equal Opportunity Officers working under the Plaintiff at the material time, one was a man and the other one was a woman.  However on every occasion when the Plaintiff was absent from the office, the Plaintiff would arrange for the male Chief Equal Opportunity Officer to act in her post.  This showed that acting appointment was made based on merits and operational needs only.  If there was such a practice as alleged by the Plaintiff, one would query why she had not adopted such practice herself.  Secondly, the evidence at the trial showed that Madam Alexandra Papadopoulos, who was a female staff taking more sick leave than that of the Plaintiff, was offered the opportunity of acting up the post of the Chief Executive.  It showed that the Defendants had not adopted a discriminatory practice against the employees of the EOC, and yet the Plaintiff complained that she was denied the opportunity of acting up by reason of her gender and disabilities.  For some reasons, these facts did not appear in the pleadings and the parties might not appreciate the significance of these facts until the trial itself.  In such circumstances, one would query the wisdom of continuing to adopt the pleadings system in the adjudication of discrimination claims.

22.  In a number of jurisdictions including the United Kingdom (with the exception of the adjudication of non-employment related discrimination claims), Australia and Canada, the courts or tribunals have already dispensed with formal pleadings in the adjudication of discrimination claims.  Instead, complainants and respondents have to file more informal Points of Claim or Points of Defences.  The procedural rules are also less complicated.

23.  In my opinion, the time is now ripe for us to review whether the pleadings system is suitable for the adjudication of discrimination claims.  One must bear in mind that anti-discrimination statutes are social legislations which involve the protection of civil rights.  In order not to deter complainants with legitimate grievances of enforcing their rights in the court, discrimination claims should be adjudicated in a speedy manner. The costs of such kind of proceedings should also be reduced as much as possible.  I believe that the use of more simplified claim forms can, to a great extent, achieve such result.