CHUNG SHUI MUI v. TOWN PLANNING BOARD

HCAL 231/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 231 OF 2015

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DECISION ON COSTS

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1.  This is the decision on costs in relation to the applicant’s leave application for judicial review, which was withdrawn by the applicant on 20 June 2016.

A.  Background

2.  On 26 November 2015, the applicant applied for leave to judicially review the decision of the Town Planning Board (“TPB”) made on 28 August 2015.  By way of that decision, the TPB approved the planning application of Yiu Lian Dockyards Ltd (“Yiu Lian”) for a proposed temporary concrete batching plant with conditions upon review.  In the leave application, the TPB and Yiu Lian were respectively named as the putative respondent and putative interested party.

3.  Upon the directions of the court given on 1 February and 3 March 2016, the leave application was originally fixed to be heard on 22 June 2016 after consulting counsel’s diaries.  The TPB and Yiu Lian were directed to attend as well and to file their skeletons by 20 June.

4.  Respectively on 1 April and 23 May 2016, Yiu Lian and the TPB filed their respective affirmations opposing the leave application.  These were objected to by the applicant in correspondence on the basis that they were filed without leave of the court.  Eventually, upon application by the TPB and Yiu Lian, on 1 June 2016 the court granted retrospective leave for them to file the affirmations.

5.  On 7 June 2016, the applicant’s solicitors (“YCL”) wrote to Yiu Lian’s solicitors (“Wong”) stating that they were unable to obtain instructions from the applicant to further proceed with this matter and they were in the course of seeking leave from the court to cease to act.

6.  On 8 June 2016, YCL wrote to the court to apply to vacate the leave hearing on 22 June 2016, and to adjourn it to another date in consultation with counsel’s diary.  On 10 June 2016, Wong updated the court with the latest development by YCL’s failure to obtain instructions from the applicant to further proceed with this matter.

7.  The court directed on 13 June 2016 that the hearing shall continue to be heard on 22 June 2016, and gave various fresh directions on the filing of hearing bundles and skeleton by the parties, catering for the possibility that the applicant had to eventually act in person.

8.  On 16 June 2016, the TPB filed and served hearing bundles as directed.  YCL wrote to Wong indicating that the applicant would withdraw her application for leave and would seek to vacate the leave hearing with costs reserved.

9.  On 17 June 2016, the TPB through the Department of Justice (“DOJ”) wrote to YCL indicating that they would seek costs against the applicant.  YCL wrote to the court indicating that they now had instructions from the applicant to withdraw the leave application.  Given that they could now obtain the applicant’s instructions, YCL had also withdrawn their application to cease to act.  Both Wong and DOJ indicated in correspondences that they would seek costs against the applicant.

10.  On 20 June 2016, the court granted leave to the applicant to withdraw the leave application, and gave directions on the filing of written submissions on costs if the parties could not agree on costs.  They could not.  The parties eventually filed written submissions contesting whether the applicant shall bear the costs of the withdrawn leave application.

B.  Discussion

11.  The principles governing costs on an unsuccessful contested leave application have been laid down by the Court of Final Appeal in Leung Kwok Hung v The President of Legislative Council (No 2) (2014)17 HKCFAR 841 at paragraph 17(1) - (6). In gist, costs is always a matter of discretion for the court.  Given the original ex parte nature of the leave application, as a general rule, an unsuccessful applicant will not be ordered to pay costs unless there are special or usual circumstances to justify such an award.[1]  Special or unusual circumstances mean that there are good reasons to do so.[2]  The court in deciding whether there are good reasons to make such a costs order must take into account all relevant circumstances of the case.  There is no definitive list of what these relevant factors or facts can be, but as examples, matters such as the reasons why the putative parties are invited to attend the hearing, and whether the application is motivated for a tactical purpose indicating bad faith are relevant matters that may impact on the consideration of costs.  Further, there has to be additional justification to consider ordering costs for the putative interested party if there is already a proper opposing respondent party.

12.  Bearing these principles in mind, I agree that there are the following good reasons to order costs against the applicant in the present case.

13.  First, in the leave application, the applicant asks for an interim stay of the TPB decision if leave is granted.  Given this requested interim relief, which could no doubt affect Yiu Lian’s interest, the putative parties were entitled to, and should be heard.

14.  Second, the very lateness of the application to withdraw the leave application (effectively about five days before the hearing) is prima facie unreasonable and resulted in the putative parties having to unnecessarily incur costs.

15.  YCL in their skeleton at paragraphs 10 and 23 sought to explain that the lateness of the applicant’s decision to withdraw the leave application was because of the “belated” refusal of legal aid on 26 May 2016, which was formally communicated to YCL on 31 May 2016.  This is to further support the submissions that the applicant in fact had acted most reasonably by taking a “conscious” decision, within a week or so of the refusal of legal aid, to withdraw so as to save the court’s time and also the putative parties’ time and costs.

16.  However, this as a matter of fact is misleading.  As pointed out by the TPB in their reply submissions, after the filing of the leave application in late November 2015, the applicant indeed had applied for and been refused legal aid three times:

(1) The first legal aid application was made on 18 December 2015 and refused on 18 January 2016.

(2) The second legal aid application was made on 2 February 2016 and refused on 24 February 2016.

(3) The third legal application was made on 6 April 2016 and refused on 26 May 2016.

17.  In light of the above facts, the reliance on the last legal aid refusal as a reason to explain the late withdrawal of the leave application is wholly unjustified at the least, if not with bad faith.  This is particularly so as not only has the applicant singly failed in her skeleton to refer to the two previous legal aid refusals, she has also offered no explanations to justify why she had to repeatedly apply for legal aid within short periods of time.

18.  Moreover, the directions for fixing the leave application hearing were given on 3 March 2016.  By that time, the applicant’s legal aid applications had already been refused twice.  She also knew by then that the putative parties were to incur costs to oppose her leave application.  In the premises, it cannot be a good excuse for the applicant to now say she should not bear those costs because she decided to withdraw only after her third legal aid application had been refused.

19.  In light of the above two factors, in particular the unreasonable lateness in withdrawing her application, I find there are good reasons to depart from the general rule and order costs against her in this leave application in favour of the TPB.

20.  Further, I accept Yiu Lian’s submissions that they are the party mostly affected by the leave application (in particular given the interim stay sought by the applicant) and that they were to make submissions on grounds other than those that could be made by the TPB (see Yiu Lian’s original substantive skeleton submissions opposing).  These amount to additional justifications to also order costs against the applicant in favour of them.

21.  Finally, the applicant has submitted that she should not bear the putative parties’ costs incurred in preparing the opposing affirmations as they were initially filed without leave of the court.  I am unable to accept this submission. First, before the applicant withdrew her application, the parties had in correspondence contested on whether leave should be granted for the filing of those affirmations.  She therefore was aware of the potentiality that leave might be granted eventually.  Second and in any event, leave was indeed subsequently granted to the filing of those affirmations before she decided to withdraw the leave application.  In the premises, there are no reasons why the costs of affirmation should not be treated as part and parcel of the putative parties’ costs of the leave application.

C.  Conclusion

22.  For the above reasons, I order that costs of the leave application (including the costs of the opposing affirmations) be to the TPB and Yiu Lian, to be taxed if not agreed.  Costs of this application for costs should also form part of the costs of the leave application.