A SOLICITOR v. THE LAW SOCIETY OF HONG KONG AND ANOTHER

FACV No. 7 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2003 (CIVIL)

(ON APPEAL FROM CACV NO. 2 OF 2001)

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JUDGMENT ON COSTS

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Mr Justice Chan PJ:

1. This is the Court's judgment on costs.

2. In a judgment handed down on 19 December 2003, the Court allowed the appeal and made an order nisi that the appellant have the costs of the appeal in this Court and in the Court of Appeal against the respondent and that there be no order as to costs as far as the Intervener is concerned.

3. Pursuant to the directions of the Court, the parties filed written submissions seeking to vary the order nisi to the following extent:

(a) The appellant asks for

(1) the costs of and occasioned by the intervention of the Intervener in this Court be borne by the Intervener or the respondent; and

(2) the costs of the proceedings before the Tribunal be awarded to the appellant against the respondent payable on full indemnity basis.

(b) The respondent seeks an order that

(1) there be no order as to costs in this Court, the Court of Appeal and the Tribunal;

(2) alternatively, there be no order as to costs in the Court of Appeal and the Tribunal, but that the appellant do have one third of the costs of appeal in this Court; and

(3) insofar as the appellant is entitled to the costs of arguing the constitutional issue, these costs be borne by the Intervener.

4. The Intervener opposes the orders proposed in paragraphs 3(a)(1) and 3(b)(3) above and argues that the order nisi insofar as it affects the Intervener be upheld, i.e. that there be no order as to costs as far as the Intervener is concerned.

Proceedings before the Tribunal

5. Under the provisions of the Legal Practitioners Ordinance, the respondent has a statutory duty to refer to a Solicitors Disciplinary Tribunal for investigation matters which give rise to concern regarding suspected breaches of the Solicitors' Practice Rules or the Solicitors' Practice Promotion Code. In the present case, the appellant's promotional materials did give rise to such concern and the Tribunal did find that such materials were inaccurate and misleading and hence in breach of paragraph 6(a) of the Code. This finding was upheld by the majority of the Court of Appeal and by this Court. There was cause for concern and some of the allegations were well founded, although the sanction imposed by the Tribunal was considered by this Court to be plainly wrong in the special circumstances of this case. For these reasons, there should be no order as to the costs of the proceedings before the Tribunal.

Appeal before the Court of Appeal

6. The appeal before the Court of Appeal was slightly more complicated. The appellant appealed against the order of the Tribunal on three main grounds: that the complaints laid against the appellant were bad for duplicity; that there was procedural impropriety at the hearing before the Tribunal; and that the Tribunal's finding that the appellant was in breach of paragraph 6(a) of the Code was wrong. After the appeal was adjourned on 24 July 2001, the appellant raised an alternative and new argument in respect of the 3rd ground to the effect that his promotional materials, namely, the statements in the two household circulars were correct in that the appellant's services were in fact assessed by the HKQAA. The Court of Appeal unanimously rejected the appellant's arguments on the first two grounds and the majority upheld the Tribunal's finding on the 3rd ground. Subsequent to the judgment of the Court of Appeal given on 14 June 2002, the appellant applied to set aside the sanction imposed by the Tribunal by way of two summonses filed on 18 and 21 October 2002. At a separate hearing, the Court of Appeal refused to re-open the issue.

7. Of all the appellant's grounds of appeal that failed in the Court of Appeal, the first two grounds were not pursued on further appeal and this Court affirmed the majority's decision on the 3rd ground. It was the late challenge to the sanction imposed by the Tribunal which was successful in this Court with the result that the appeal was allowed. In these circumstances, taking the matter globally, it is only fair that the appellant should be awarded only half of his costs in the Court of Appeal.

Appeal before the Court of Final Appeal

8. In this Court, the appellant took two points: the jurisdiction question and the merits question, both of which were opposed by the respondent. This Court held against the respondent on both points. There is no good reason to depart from the usual order that costs should follow the event, that is, the appellant should have the costs of the appeal in the Court of Final Appeal against the respondent.

9. Unless this Court sees fit to make any order in relation to the Intervener who was granted leave to address the Court on the jurisdiction question, the order in favour of the appellant and against the respondent in respect of the costs of the appeal in this Court covers both the jurisdiction question and merits question.

The Intervener's position

10. The jurisdiction question involved the constitutionality of s.13(1) of Legal Practitioners Ordinance, Cap 159. The appellant accepts that as a general rule an intervener who appears in constitutional cases are not liable for costs. (See M v. H; Attorney General of Ontario, Intervener (1996) 137 D.L.R. (4th) 569; B. et al. v. Children's Aid Society of Metropolitan Toronto et al.; Attorney General of Canada et al., Interveners (1995) 122 D.L.R. (4th) 1; Little Sisters Book and Art Emporium et al. v. Minister of Justice et al. (1996) 134 D.L.R. (4th) 286.) The reason behind this rule is that the intervener, usually the Attorney General or in the Hong Kong context, the Secretary for Justice, is there to assist the court on important public issues. It is also clear that an order to award costs against the intervening Attorney General acting in the public interest in favour of a party who raises the constitutionality of a statute is highly unusual and should only be permitted in very rare cases. (See La Forest J, paragraph 122 in the Children's Aid Society case, with which the majority of the court concurred.) It has to be an exceptional case to justify a departure from the general rule. (See Smith J, paragraph 9 in the Little Sisters Book and Art Emporium case.)

11. The respondent in its written submissions doubts the fairness of this general rule for the reason that this might discourage a bona fide challenge to a constitutional issue. Such reason is clearly a relevant and important consideration when it comes to the making of a costs order. No doubt there will be appropriate cases where the court would exceptionally, in order to avoid such unfairness, require the government to bear the costs of a particular litigant. As L'Heureux-Dube J said in the Children's Aid Society case (paragraph 163),

"...Such a result will occur where it is in the government's interest or that of the public to have a matter decided by the courts, such as the interpretation of legislation, constitutional rulings of particular importance, etc. However, generally in such cases there is a prior understanding that the costs will be borne by the government, independently of the result."

12. There was no such prior understanding in the present case. In fact, the Intervener undertook not to seek costs.

13. We are not persuaded that this is an exceptional case to depart from the general rule. The jurisdiction question was a question on which both the appellant and the respondent joined issue and on which they would have presented opposite arguments with or without the Intervener's intervention. Even if the Intervener had not attended the hearing and addressed the Court on this issue, the appellant had still to satisfy the Court that the relevant provision in the Ordinance is unconstitutional and that this Court had jurisdiction to hear his appeal. While the Intervener was interested in the Court's decision on this question, she was not interested in the outcome of the appeal. The position was that if her submissions were accepted, this would have disposed of the appeal against the appellant. But if her arguments were rejected, as they indeed were, the appellant had still to succeed on the merits question. The case of R v. Lord Chancellor, ex parte Child Poverty Action Group [1999] 1 WLR 347 (dealing with the making of protective or pre-emptive orders for costs to charitable organisations which commenced proceedings in the public interest) which is relied on by the respondent is clearly distinguishable.

14. At the hearing before this Court, the respondent adopted the Intervener's arguments on the jurisdiction question. Having taken benefit of the Intervener's submissions, the respondent should not, after the submissions had failed, leave the Intervener to bear the costs on the jurisdiction question.

15. Section 25 of the Ordinance (relied on by the respondent in its written submissions on costs) only permits the costs incurred by the Tribunal and the Law Society in respect of any disciplinary proceedings to be paid out of general revenue. It does not affect the general incidence of costs as between the parties. Nor can it lend support to the respondent's argument that the Intervener should be ordered to pay the costs of the appeal in connection with the jurisdiction question.

Conclusion

16. For the above reasons, we would make the following orders of costs:

(1) There will be no order as to costs in respect of the proceedings before the Tribunal;

(2) The appellant shall have the costs of the appeal in the Court of Final Appeal (including the costs relating to the submissions on the question of costs) and half of the costs in the Court of Appeal against the respondent; and

(3) There will be no order as to costs as far as the Intervener is concerned.