WONG WAI KAY v. HONG KONG ECONOMIC JOURNAL COMPANY LTD AND ANOTHER

HCA 1385/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1385 OF 2010

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D E C I S I O N  O N  C O S T S

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Introduction

1.  In a judgment handed down on 26 April 2013 (“Judgment”), this action was dismissed.  The parties have subsequently provided their respective written submissions on costs.  The abbreviated terms in the Judgment will be adopted below for convenience.

2.  In short, the plaintiff asks that there be no order as to the costs of the action while the defendants seek those costs to be theirs and to be taxed if not agreed.

3.  For the reasons given below (most of which were put forth by the plaintiff), I consider that the defendants should be awarded half of the costs of this action (including any reserved costs) to be taxed if not agreed.

4.  Globally, apart from the issue of whether the subject article bore any defamatory meaning (taken as a whole), I have found against the defence on the other issues raised at trial:

(a) whether the offending parts on their own bore defamatory meaning;

(b) whether the words “膚淺” or some words to such effect have been uttered by the plaintiff;

(c) whether the defence of justification has successfully been established;

(d) whether the defence of fair comments has successfully been established.

5.  The relevance of the above to costs is this: considerable time has been spent to deal with the above issues; witnesses were called and questioned; documentary evidence has been adduced and submissions have been prepared (in written form) and put forth during the hearing.

6.  Further to the above:

(1) the credibility of the plaintiff’s witnesses has been accepted;

(2) on the other hand, the testimony of the defendants’ witness has been found to be less convincing.

7.  The defendants’ argument that they should be entitled to the costs is premised on:

(a) the usual rule that costs should follow the event (RHC Ord 62 r 3(2));

(b) in a letter dated 24 September 2010 (“without prejudice save as to costs”), reasonable offers such as the publication of a clarification and an undertaking not to publish the subject article, and an indemnity against any claim brought against the plaintiff, have been made to, but refused by, him.

8.  The matter set out in para 7(a) above is not disputed by the plaintiff (para 8, plaintiff’s submissions on costs).  What the plaintiff contends is that the matters they put forth should justify the court’s discretion to be exercised in his favour: see, for example, In re Elgindata Ltd (No 2) [1992] 1 WLR 1207:

“… The general rule [that costs should follow the event] does not cease to apply simply because the successful party raises issues or makes allegation on which he fails, but where that has caused a significant increase in the length or costs of the proceedings he may be deprived of the whole of a part of his costs. … Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party’s costs [see also Ord 62 r 7(1)] … ” (emphasis supplied) (p 1214).

Thus, it is a matter which would in any event have to be considered in an application of this kind.

9.  As regards the matter set out in para 7(b) above, I agree with the plaintiff that the letter still maintained the defence of fair comment.  Further, it did not specify what the propose clarification would involve.  The undertaking offered has little practical meaning because the subject article has already been published.  Consequently, the letter is not of such weight as would tip the balance in the defendants’ favour.

10.  Taking all of the above into consideration, I consider that half of the time and expenses of the trial of this action (and one-third of the other costs of this action) has been incurred to deal with the matters set out in para 4 above.  Thus, there has been a substantial increase in the length (or costs) of this action, to the extent indicated above.

11.  Accordingly, the appropriate costs order is:

(1) half of the costs of the trial;

(2) subject to sub-para (1) above, two-thirds of the costs of this action (including any reserved costs),

be paid by the plaintiff to the defendant to be taxed if not agreed.

12.  Neither party has been entirely successful in the application for costs.  Each party is therefore to pay its own costs of this application.

(Andrew Chung) Judge of the Court of First Instance High Court