YUEN MAN CHUN as representative on behalf of himself and all members of CHING WAI BOXING v. HONG KONG BOXING ASSOCIATION LTD

HCMP 962/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 962 OF 2016

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DECISION ON COSTS

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1.  I have an inter-parte summons dated 13 January 2017 before me seeking leave to amend the originating summons. The issue that I deal with in this short decision, there being no controversy that the amendment should be allowed, is how costs should be dealt with in respect of the application to discontinue the proceedings against the 2^nd to 4^th defendants.

2.  There is no dispute that the costs of the 2^nd to 4^th defendants should be borne by the plaintiff.  However, Mr D’Souza who appeared for the defendants sought an order that those costs be paid on an indemnity basis.  He has done so on the grounds that as the allegations that were made against the 2^nd to 4^th defendants were of fraud, then in accordance with the practice recognised by Mr Justice David Richards (as he then was) in Clutterbuck and Paton v HSBC plc[1] then on the discontinuance of the claim, it is appropriate that costs are ordered on an indemnity basis.

3.  Richards J says this at [20]:

“I therefore consider that allegations of fraud will in general justify the court in ordering costs upon an indemnity basis where the claimant serves notice of discontinuance. In a case to which I drew the attention of counsel, Jarvis plc v PricewaterhouseCoopers [2000] 2 ECLC 368, Lightman J took the same view.”

4.  It seems to me that although no authority in Hong Kong deals with this specific point (although the Court of Final Appeal have dealt comprehensively with the circumstances in which it is appropriate to order indemnity costs[2]), the approach described by Richards J is generally appropriate and should be adopted in Hong Kong.

5.  I will therefore make an order that the 2^nd to 4^th defendants’ costs are paid on an indemnity basis.