KAISILK DEVELOPMENT LTD v. SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS

HCAL148/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.148 OF 1999

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D E C I S I O N

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To vary costs order

1. This is an application by Kaisilk Development Limited ("the applicant") to vary the costs order I had made so that it may only be required to pay costs to the Secretary for Planning, Environment and Lands ("the Secretary") and not the Land Development Corporation ("LDC").

Principles

2. Paragraph 53/14/88 of the Supreme Court Practice 1999 gives a summary on how costs should be awarded in judicial review proceedings involving multiple parties :

" Costs - The court has discretion in regard to costs generally (R. v. Woodhouse [1906] 2 K.B. 501 and S.C.A. 1981, s.51). Costs will not usually be granted to a party who has appeared although not served. Two sets of costs will not usually be granted, namely to the other party to the dispute and also the court, person, or body whose decision is under review (R. v. Industrial Disputes Tribunal, ex p. American Express Co. [1954] 1 W.L.R. 1118; [1954] 2 All E.R. 764). Where two or more parties appear in the same interest (whether as applicants or as respondents) on an application for judicial review, they will generally be allowed only one set of costs between them. But there is no inflexible rule to that effect; in exceptional circumstances the court will award more than one set of costs (R. v. Registrar of Companies, ex p. Central Bank of India [1986] Q.B. 1114 at 1162; [1986] 1 All E.R. 105, 112). (e.g. the court may award two sets of costs where the interests of the two applicants or respondents are to some extent divergent, or where the issues are very complex and important, ibid., and see also R. v. Monopolies & Mergers Commission, ex p. Matthew Brown plc, Macpherson J., July 17, 1986, and R. v. Panel on Take-overs & Mergers, ex p. Datafin Ltd, December 5, 1986, CA both unreported on this issue.)"

3. In Bolton Metropolitan District Council and Others v. Secretary for State for the Environment [1995] 1 WLR 1176, Lord Lloyd stated that :

" What then is the proper approach? As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule."

He further stated that :

"The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation. The mere fact that he is the developer will not of itself justify a second set of costs in every case."

Although Bolton was concerned with statutory appeals in planning applications, the same principle applies in judicial review hearings : see Encyclopedia of Planning Law and Practice, para.P28. See further a discussion on this issue in Judicial Remedies in Public Law by Clive Lewis and R. v. Secretary of State for the Environment and another, ex parte Kirkstall Valley Campaign Ltd [1996] 3 All ER 304 in which the court only awarded one set of costs.

LDC entitled to costs

4. How costs should be dealt with in a given case would depend on the facts of that case. In this case, in my view, the LDC is entitled to costs because it has an independent interest which requires separate representation. First, the LDC is a public body entrusted with the task of urban renewal. The challenge to the resumption of the property, if successful, would have a serious ramification on the urban renewal scheme of the Wan Chai Road / Tai Yuen Street area. This is a major redevelopment, the estimated costs involved was $4.45 billion. The scheme was a joint venture between the LDC and a private developer.

5. Second, although the challenge by the applicant was on the decision of the Secretary, the underlying theme was in fact that the LDC had failed in its statutory duty to take all reasonable steps to acquire the property. The history of the negotiation between the LDC and the applicant had to be gone into in order to meet the arguments of the challenge.

6. As a matter of fact, the original ground relied upon by the applicant was that the Secretary on the material before him could not have been satisfied that a condition precedent relating to the recommendation to resume existed. This condition related solely to whether the LDC had conducted a fair and reasonable negotiation with the applicant. The allegation was that the LDC had changed its position capriciously and unreasonably. Faced with such an allegation, the LDC was justified to attend court and to defend its position. As a matter of fact, the applicant had invited the LDC to attend court to fix the date for the hearing. Additional grounds of challenge to the decision of the Secretary were only added shortly before the hearing. While counsel for the Secretary may have covered the negotiation aspect in order to justify the decision of the Secretary and that there had been some overlapping in the arguments of counsel for the Secretary and the LDC, clearly the LDC was entitled to state its position on the criticism that had been made against it.

7. These two grounds clearly justify a separate representation by the LDC and it is entitled to a separate order for costs of the application.

Apportionment

8. Mr Ho, SC, counsel for the applicant, submitted that even if the LDC is entitled to its costs, some apportionment of costs in terms of preparation of this case should be made. I think in view of the lateness in which the additional grounds were raised, I should not apportion the costs. No arguments were raised at the hearing that the LDC should confine its submissions to matters relating to the negotiation only. Two counsel were justified in the light of the legal issues that had been argued before me in this case.

Conclusion

9. In the circumstances, the costs order nisi should not be varied and should be made absolute. Costs of the application is to the LDC.

10. I will authorize the publication of this decision.