HUI YIN SANG AND OTHERS v. TSOI PING KWAN AND OTHERS

HCA 392/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 392 OF 2008

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D E C I S I O N

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1. The defendants applied by summons dated 5 May 2008 to strike out the plaintiffs’ statement of claim.  That application was set down for argument for two days before me, today and tomorrow.  In the light of the summons issued by the plaintiffs for leave to add parties and to amend the statement of claim by their summons dated 25 June 2009, the defendants no longer pursue their application to strike out the statement of claim.  The plaintiffs’ application to add parties and for leave to amend the statement of claim has been adjourned for argument with directions given for evidence to be filed. 

2. In the circumstance I make no order on the defendants’ summons, save to deal with the question of costs.

3. It is accepted by the plaintiffs that costs up to 19 June 2009 should be paid by them to the defendants but in any event.  The plaintiffs ask for costs thereafter to be paid by the defendants to them in any event including the costs of today’s hearing. 

4. The defendants ask for an immediate order for payments of costs by the plaintiffs to them up to today including the costs of the application, such costs to be summarily assessed.

5. On the plaintiffs’ own case they should pay the costs to the defendants up to 19 June 2009 that being the date that they sent the draft of the proposed amended statement of claim to the solicitors for the defendants.  The summons for leave to amend and to add parties was issued on 25 June 2009. 

6. Mr. Chan, SC submitted that even after the draft of the proposed statement of claim was sent to the defendants’ solicitors on 19 June 2009 they did not respond saying that the arguments today would be costs only arguments.  He submitted that it was only on 6 July 2009 that the solicitors unequivocally stated that the arguments today would be on the question of costs only.  Hence it was submitted that costs thereafter should be paid by the defendants to the plaintiffs. 

7. I am unable to accept Mr. Chan’s submissions. 

8. It is clear from the correspondence that I have been referred to that the plaintiffs were at all times offering to pay the costs in any event rather than payment of costs forthwith. 

9. Also, in the earlier letter dated 13 May 2009 the plaintiffs offered to pay costs only if the defendants agreed to the proposed amendments in the earlier draft of the amended statement of claim.  And in the 19 June 2009 letter from the plaintiffs’ solicitors they were asking for the defendants’ agreement to their application to amend the statement of claim when they made the offer to pay costs up to 13 May 2009 only and in any event. 

10. Even in the later letters right up to the hearing the offer has been to pay costs up to 19 June 2009 only and in any event and not payment of costs forthwith. 

11. The question of costs is, of course, a matter for the exercise of the court’s discretion. 

12. On 30 June 2009 the defendants had indicated that they would be prepared to withdraw the application to strike out on terms that the costs of the summons up to that date be paid forthwith. 

13. I do not regard the conduct of the defendants as being unreasonable in the light of the fact that the new proposed amendments to the statement of claim were only supplied on 19 June 2009 by letter and by the summons dated 25 June 2009. 

14. As I have said, the question of costs is a question of the exercise of the court’s discretion.  Whether the costs of an interlocutory application should be made payable in any event or payable forthwith depends on the circumstances. 

15. I have considered all of counsel’s submissions. 

16. It seems to me that the costs of the application to strike out is a self-contained interlocutory application.  

17. In the light of the Civil Justice Reform and the amendments to the Rules of the High Court,it is plain that parties should be discouraged from unnecessarily maintaining or resisting interlocutory applications by making immediate orders for the payment of costs.  I am satisfied that there should be an order for payment of costs forthwith rather than in any event. 

18. The action is at a very early stage.  To make an order for payment of costs to the defendants in any event is, in my view, to deprive them of the benefit of the costs order, which they have succeeded in obtaining, for a substantial period of time.  Looking at the pleaded allegations in the proposed amended statement of claim it seems to me that the trial of this action is a long way off. 

19. As this application is a self-contained application I see no reason why costs should not be paid forthwith. 

20. As the plaintiffs were insisting on paying costs in any event first, up to 13 May 2009 and then up to 19 June 2009 and also subject to an agreement earlier that the defendants accept the proposed amendments, I am of the view that the defendants were entitled to reject the plaintiffs’ offers. 

21. I order that the plaintiffs do pay the defendants the costs of the application including the costs that have been reserved by the Registrar on 9 May 2008 and the costs that have been reserved by me on 30 June 2009 and the costs of today.  In my view such costs should be summarily assessed and I will give directions for that to take place. 

22. I will conduct the summary assessment on 14 August 2009 at 9:30 a.m. with an estimated length of half an hour.  Counsel’s attendance is not required. 

23. I direct the defendants to file and serve a statement of costs within 10 days from today.  The plaintiffs are to file and serve their list of objections within 10 days thereafter.  3 days before the resumed hearing on 14 August 2009 for the summary assessment the parties are to let me have their skeleton submissions.