LEE CHICK CHOI v. THE HONG KONG GOLF CLUB

DCEO 11/2019

[2023] HKDC 1318

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 11 OF 2019

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DECISION

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1.  Introduction

1.1  By a written judgment handed down on 20 April 2023 (“Judgment”), I dismissed the claimant’s claim made pursuant to the Disability Discrimination Ordinance Cap 487 (“DDO”) against the respondent. I also granted a costs order nisi[1] that the claimant do pay to the respondent the costs of the actions (and any costs reserved), including the costs of and incidental to the claimant’s application to vacate the trial, on an indemnity basis to be taxed if not agreed with a certificate for counsel (“Nisi Order”).

1.2  On 4 May 2023, the claimant issued a summons to vary the Nisi Order (“Variation Application”) and for stay of execution of a costs order made on 11 August 2022 (“11/8/22 Order”) pending the outcome of his intended appeal against the Judgment (“Stay Application”). Thereafter, by a summons dated 18 May 2023, the claimant applied for leave to appeal against the Judgment (“Leave Application”).

1.3  The parties appeared before me on 19 June 2023 (“Hearing”). It became clear that the time allotted for the Hearing (1 hour) was not sufficient to deal with the three applications, especially given the fact that the claimant, after having sight of the criticisms advanced in the respondent’s skeleton submissions, only produced his draft Notice of Appeal at the Hearing. With the parties’ agreement, I therefore gave directions to deal with the three applications on the papers and for the lodging of further written submissions by the parties.

1.4  This is my decision on the three applications. I propose to deal with the Leave Application, the Variation Application and the Stay Application in that order. In the remainder of this decision, the terms defined in the Judgment are adopted.

2.  The Leave Application

2.1  In support of the Leave Application, Lee filed a 45-page affirmation on 22 May 2023. As is apparent from the heading, Lee alleges that I was biased against him and the exercise undertaken by him is essentially a critique of a substantial portion of the Judgment, addressing various paragraphs of the Judgment in the order they are set out.

2.2  Lee did not lodge a skeleton argument in compliance with the relevant Practice Direction and he did not produce a draft Notice of Appeal before the Hearing. Unsurprisingly, in the skeleton submissions lodged on 14 June 2023, Mr Martin Kok, counsel for the Club, contended that the Leave Application was defective, not least by Lee’s failure to set out concise grounds which are reasonably arguable in a draft Notice of Appeal: Aluhouse Co Ltd v Success Lane Development Ltd [2022] HKDC 17 §8.

2.3  In the draft Notice of Appeal produced by Lee at the Hearing, the following grounds are advanced:-

“Draft Notice to Appeal based on law

(1) Was my termination due to misconduct under section 9 of EO[2]? If so why did the Club pay me one month’s notice in lieu? (See Para 51-56 of my Closing Submission). Please also refer to the last sentence of Para 2.017 in the Book of Discrimination Law and Practice in Hong Kong. (“Ground 1”).

(2) If my termination was not due to misconduct, were the 4 comparators of my Closing Submissions in Para 50(1) to (4) applicable under section 6(a) of DDO? (“Ground 2”)

Draft Notice to Appeal based on fact

(3) Please refer to Trial Bundle of C2 P.668 (June Cheng’s email to Mark Gailey at 6:01 on 22-09-2016), C2 P.900 (Status Change Form signed by Amy Lee on 22-9-2016) and C1 P.455 (Status Change Form dated 14^th December 2015) and my following questions to the Court of Appeal:

(i) Was my termination decided before the list of complaints from June Cheung to Mark Gailey at 6:01 on 22-9-2016 (C2 P.688)? (See Para 28, 31-35, 41-42 in my Closing Submissions).

(ii) If the above (1) is ascertained, did Amy Lee prepare and file the “Staff Performance Record (Internal)” to the EOC by relying on June Cheng’s email sent to Mark Gailey at 6:01 o 22-9-2016 (See Para 36 of my Closing Submission & C2 P 835).

(iii) If the above (2) is ascertained, did Amy Lee prepare and file an afterthought list of complaints to the EOC when my termination was made by her before 6:00 pm on 22-09-2016 (leading to EOC to close my complaint on 06-09-2017)? (“Ground 3”)

(4) Why did Amy Lee twist the fact from Notice of Response filed on 25^th September 2019 (Para 7(2)) to her witness statement filed on 6^th August 2020 (Para 4 of B.P. 293) within a year when she said Mark Gailey was not there in interview on 15-9-2015 (See Para 17(1) to (4), 63(a) to (g) in my Closing Submissions) contradicting her email sent to Mr Mark Gailey and Miss June Cheng at 13:46 on 15^th September 2015 (C1 P. 346)? (“Ground 4”)

(5) Why did the Club offer the “unconditional” Employment Contract to me when I was interviewed by Mark Gailey, June Cheng, and Amy Lee on 15-9-2015? Amy Lee was in the capacity of HR Manager should be familiar with the Handbook very well that all employees over 60 years old would have one year contract only. (See Para 6-16) of my Closing Submissions). (“Ground 5”)

(6) Why did Vincent Wong renew my Employment Contract to 6 months only on 2-9-2016 after I had worked with him for 15 hours only from 29-8-2016 to 2-9-2016? (See Para 19-25 of my Closing Submission). (“Ground 6”)

(7) Did Mark Gailey really go through the list of complaints in the Exit interview with me on 23-09-2016 when termination was decided on 22-09-2016 as stated in the Status Change Form (C2 P.900) prepared by Amy Lee on 22^nd September 2016 and the termination letter was laid on table (See Para 43 of my Closing Submission) (“Ground 7”)”

2.4  Despite the fact Lee had confirmed at the Hearing that the Leave Application is confined to the grounds set out in the draft Notice of Appeal, he persisted with his allegations of bias and prejudice in his written submissions lodged on 3 July 2023 (§§16-31 thereof). For completeness, I will also deal with this ground (“Alleged Bias and Prejudice Ground”).

(a)  Applicable principles

2.5  Lee does dispute the applicable principles set out by Mr Kok.

2.6  In gist, under section 63A(2) of the DCO, leave to appeal shall not be granted unless the judge hearing the application for leave is satisfied that (1) the appeal has a reasonable prospect of success or (2) there is some other reason in the interests of justice why the appeal should be heard. Lee does not rely on the interests of justice limb.

2.7  A reasonable prospect of success involves the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125 §17.

2.8  In the context of an appeal against factual findings, the appellant has to overcome a very high threshold in order to succeed. In particular, as set out at Yu Pak Kan v Busy Firm Investment Ltd [2023] HKCA 105 at §19: (1) the Court of Appeal can only intervene in a finding of fact by a primary judge where the finding is plainly wrong, (2) in an appeal, the Court of Appeal focuses on the question where the primary judge has fallen into palpable errors which could give rise to grounds for intervention by the appellate court and it is not germane that the Court of Appeal may reach a different conclusion from that of the judge, and (3) it is not helpful for counsel and litigants in person to merely repeat submissions already advanced and considered by the primary judge at the trial and the starting point should be the judgment of the primary judge and the identification of palpable errors.

(b)  Draft Notice of Appeal does not identify any palpable errors

2.9  At the Hearing, I had already pointed out to Lee that the draft Notice of Appeal merely poses a number of questions and does not identify any errors in the Judgment. In his written material lodged after the Hearing, Lee has not or has not adequately dealt with this fundamental defect. I agree with Mr Kok in his submission that this alone warrants the dismissal of the Leave Application.

(c)  The Grounds are in any event unmeritorious

2.10  Without prejudice to the observation set out in the preceding paragraph, I now proceed to deal with the Grounds set out in the draft Notice of Appeal and the Alleged Bias and Prejudice Ground.

Ground 1

2.11  Although Ground 1 is formulated as appeal on law, it is, in my view, an appeal on facts.

2.12  In respect of Ground 1, Lee refers to his Closing Submissions §§51 to 56 which he complains that I had ignored in the Judgment. Lee’s Closing Submissions §§51-55 set out various propositions including (1) even if the Club did not have any knowledge of the Disability, if there was unequal treatment made against him as compared with other employees, then the Club may be held liable under the DDO and (2) the giving of notice or payment of wages in lieu of notice only discharges an employer’s obligation under the contract of employment or under the Employment Ordinance Cap 57 and they do not exempt an employer from the liability for discrimination if the termination was an act of discrimination for the purpose of the DDO.

2.13  At his Closing Submissions §56, Lee then posed four factual questions, namely (and in gist): (1) what made Amy change the Employment Contract on 29 April 2016, (2) why did Amy not ask Lee to sign on the amended Employment Contract, (3) was the change to a 6-month contract and the term “Hope can fine tune” in the 2^nd Status Change Form related to the Disability (ie to see whether Lee’s arm would improve) and (4) what was the reason for Lee’s termination on 23 September 2016?

2.14  In his Skeleton Submissions lodged on 3 July 2023, Lee further complains that I had ignored section 3 of the DDO in the Judgment (as set out at §50(2)(c) of his Closing Submissions).

2.15  I do not regard Ground 1 as having a real prospect of success. First, I had considered the principles set out at §§50(2)(c) and 51 to 55 of Lee’s Closing Submissions: Judgment §2.7 (an express reference to section 3 of the DDO) and §2.8 (an express reference to the proposition set out at §2.12(2) above).

2.16  Secondly, in relation to the matter set out at §2.12(1) above, I do not see how it can assist Lee given that there is no appeal against Judgment §§5.1 and 5.2, in which I stated that based on the factual findings, Lee had failed to prove, on the balance of probabilities, that his termination was connected to the Disability and this is the result whether one adopts the two-stage comparator approach or the alternative approach (which primarily asks the “why” question).

2.17  Thirdly, I had made findings in respect of each of the four questions posed at Lee’s Closing Submissions: Judgment §§4.18 to 4.23, 4.40 to 4.41 and 4.51 to 4.53. Ground 1 does not identify any errors on any of the foregoing factual findings which warrant the Court of Appeal’s intervention.

Ground 2

2.18  As is plain from the formulation of Ground 2, it only arises if Lee’s termination was not due to misconduct. However, I had found at Judgment §4.37 that there existed genuine performance issues on the part of Lee and they formed the reasons for the Club’s decision to terminate Lee’s employment (Judgment §§4.51 to 4.53).

2.19  In any event, as submitted by Mr Kok, Lee has not raised any grounds of appeal in relation to my preference in applying the alternative approach: Judgment §§5.2 to 5.3, and hence any questions pertaining to the comparator approach are at most academic and cannot affect the outcome of the appeal.

2.20  Ground 2 plainly has no reasonable prospect of success.

Ground 3

2.21  As submitted at Lee’s Skeleton Submissions dated 3 July 2023, the suggestion is that the complaints made by members and visitors were afterthoughts (by reference at his Closing Submissions §36).

2.22  I had already dealt with the repercussions arising from the Club’s lack than satisfactory documentation (Judgment §§4.34 to 4.37). But despite that shortcoming, I accepted the evidence of Gailey and Wong that they were contemporaneously aware of the complaints made by members and visitors. I also found that Lee’s performance issues, and the fact that the relationship between Lee and Wong were rapidly deteriorating (Judgment §4.46 to 4.50), caused the Club to put things in motion to terminate Lee at the meeting scheduled on 23 September 2016 which was originally one for addressing Lee’s query on the offer of six months’ extension.

2.23  As observed by Mr Kok, it is a mere red herring for Lee to dwell on the timing of any list of complaints, and it is quite unjustified for Lee to escalate it as some sort of reason to cast doubt on the findings set out at the preceding paragraph for which no error has been identified. I therefore agree with Mr Kok that Ground 3 is not a viable appeal ground.

Ground 4

2.24  In his Skeleton Submissions, Lee made serious allegations that Amy, in giving evidence which departed from the Notice of Response, had committed perjury. The departure, which I considered minor, is dealt with at Judgment §4.11.

2.25  As submitted by Mr Kok, it is not open to Lee to merely attack Amy’s credibility on appeal, without suggesting how my assessment on her credibility is plainly wrong. I agree with Mr Kok that Ground 4 has no real prospect of success.

Ground 5

2.26  At Judgment §§4.21 to 4.22, I already found that there was an administrative error on the part of Zita and the same error was made in relation to another employee over the age of 60.

2.27  Apart from asserting that I had erred in the above findings, no reason has been proffered by Lee as to why my findings were wrong, or indeed plainly wrong. I agree with Mr Kok that Ground 5 has no reasonable prospect of success.

Ground 6

2.28  Ground 6 is essentially a question posed in respect of the factual findings made at Judgment §§4.36(3), 4.38 and 4.40 to 4.41. In particular, as set out at Judgment §4.38, the manner in which Lee cross-examined Wong suggested clearly that he accepted that one of the reasons for Gailey requesting Wong to take over from June was because June was unable to help Lee improve. Lee’s Closing Submissions §§19-25, to which reference is made, did not contend otherwise.

2.29  In the draft Notice of Appeal and the Skeleton Submissions filed after the Hearing, Lee simply repeated the submissions made at the trial. In particular, he repeated his submissions that the phrase “Hope can fine tune” was reference to Disability, with which I disagreed for the reasons set out at Judgment §4.41(3). I agree with Mr Kok that Ground 6 has no reasonable prospect of success.

Ground 7

2.30  Ground 7 is not a viable appeal ground. As submitted by Mr Kok, the factual findings which I made at Judgment §4.52 and 4.53 were that the performance issues were only partly discussed by Gailey at the Exit Meeting as Lee denied everything and was combative in the process. But the crucial findings, which Lee does not challenge in the draft Notice of Appeal, are (1) that the performance issues were discussed at the Exit Meeting is evidenced in Lee’s own letter of 25 September 2016 (two days after the Exit Meeting) and (2) it was his own evidence (given in cross-examination) that he left the Exit Meeting with a very clear impression that he was terminated due to his performance.

2.31  I agree with Mr Kok that Ground 7 is not a viable appeal ground.

Alleged Bias and Prejudice Ground

2.32  Lee relies on three matters.

2.33  First, it is said that I had been influenced by Mr Kok’s references made at the trial to the fact that Lee had been found in other cases to be a vexatious litigant.

2.34  This is plainly unmeritorious. As set out at Judgment §3.4, I had stated expressly that I had in my deliberation focused on the evidence as adduced at the trial and did not need to resort to Mr Kok’s references.

2.35  Secondly, Lee says that my bias and prejudice against him are also evident from my dismissal of his application to issue subpoenas at the pre-trial review (“Subpoenas Decision”).

2.36  This is equally unmeritorious. The Court of Appeal has recently handed down its decision on Lee’s application for leave to appeal against the Subpoenas Decision ([2023] HKCA 938). Although the Court of Appeal only dealt with the merits of the Lee’s application in the context of costs, the Court of Appeal expressly found that Lee’s intended appeal lacked merits and would have no reasonable prospect of success (§7 of the Court of Appeal’s Decision).

2.37  Thirdly, Lee relies on the fact that I only handed down the Judgment on 20 April 2023, later then the date indicated to the parties at the conclusion of the trial. I had explained to Lee that due to some family matters, I was unable to meet the original indicated date which was well in advance of the timeframe stipulated in Practice Direction No 37. In his submissions lodged subsequent to the Hearing, Lee then pointed out that before I handed down the Judgment (which complied with the timeframe stipulated in Practice Direction No 37), I had handed down two decisions in other cases, suggesting that I was unfair in doing so.

2.38  This is also unmeritorious. In retrospect, it was probably unwise of me to explain to Lee the reason for not complying with the original indicated date as it is only of peripheral relevance. This is because, as is established, a judgment will not be set aside on delay alone. Quite apart from the fact that the Judgment did comply with Practice Direction No 37, it remains Lee’s task to identify “omissions, errors, misunderstandings, inconsistencies and the like which invalidate [my] findings, render the judgment unsafe and have led to injustice for the appellant”: Ho Wai Ping v Ho Ka Man Carmen, CACV 17 of 2016, 1 March 2017. Therefore, Lee’s complaints that I did not comply with the original indicated date and that I had handed down decisions in other cases in the meantime, do not materially add to his argument. As set out above, I am of the view that each of the grounds set out in Lee’s draft Notice of Appeal is without merit.

2.39  For completeness, Lee has persisted on his reliance (first raised at the Hearing) on Wong To Yick Wood Lock Ointment Limited v Singapore Medicine Co (a firm) & Ors [2023] HKCA 740, implicitly accusing me of judicial copying and I had not taken into account his Closing Submissions.

2.40  I am unable to agree. As has been set out at Judgment §3.2, I had summarized the nub of Lee’s submissions made in closing, essentially relying on four planks to make good his case. The remainder of the Judgment was structured accordingly and dealt with each of the planks relied on by Lee: Judgment §§4.23, 4.37, 4.45 and 5.1 to 5.4. I note that there is no appeal by Lee against the approach adopted in the Judgment. In so far as judicial copying remains a part of Lee’s case, Lee has not identified which (or any) part of the Judgment was copied from Mr Kok’s submissions.

3.  The Variation Application

3.1  In making the Nisi Order, I had provisionally formed the view that a departure from section 73C of the DCO was warranted, on the ground that the proceedings were brought maliciously or frivolously or there are special circumstances which warrant an award of costs and that costs should be paid on an indemnity basis.

3.2  Lee seeks to vary the Nisi Order to an order that each party do bear its own costs.

3.3  Although only Lee has issued a summons to vary the Nisi Order, the legal effect of the Variation Application is to render the issues of costs as live issues and I am therefore entitled to make any appropriate costs order I think fit after hearing parties’ submissions: Cheng Ningning v King & Wood (A Firm) [2018] HKCFI 278 at §104.

3.4  Mr Kok submitted that the Nisi Order should be made absolute and further invited me to make an order that Lee should pay to the Club enhanced interest at 10% above judgment rate for costs incurred after 8 June 2020 to the date of payment, on the basis that Lee was unable to beat the sanctioned payment in the sum of HK$250,000 made by the Club on 11 May 2020 which was open for acceptance without permission of the court within 28 days (ie by 8 June 2020).

3.5  Having considered the parties’ submissions, I agree with Mr Kok for the most part.

3.6  First, in view of the findings in the Judgment, it is plain that Lee’s claim is frivolous since, when objectively considered, it is without foundation and bound to fail: Sit Ka Yin Priscilla v Equal Opportunities Commission & Ors, HCMP 1117 of 2011, 4 November 2011 at §43.

3.7  Secondly, in so far as necessary, I am also of the view that Lee’s claim was also brought maliciously. As stated at Tsang Lai Man v Wong Lung Shan & Anor, DCEO 1 of 2000, 19 September 2001 §2, a claim is brought maliciously when it is brought not only out of spite or ill-will but also where there is improper motive.

3.8  In the above regard, I refer to, for example, Judgment §§4.3, 4.15, 4.22, 4.23, 4.36. 4.41, 4.45, 4.48, 4.50, 4.53, 4.54 to 4.59. The findings made therein amply justify Mr Kok’s characterization that the whole approach to Lee’s claim was no more than a farfetched conspiracy theory, an afterthought, and an unsuccessful attempt to put illegitimate pressure on the Club to reach a settlement with him.

3.9  Thirdly, the above matters also warrant an order that costs should be paid on an indemnity basis: Huge Dragon Corp Ltd v Lung Mun Oasis [2014] 3 HKLRD 286 at §13. It is clear that Lee’s claim should never have been brought but he nevertheless unreasonably and unjustifiably persisted with it.

3.10  Fourthly, Lee does not dispute that the RDC Order 22 procedure is applicable to these proceedings. Under RDC Order 22, rule 23(4), where Lee fails to obtain judgment better than the sanctioned payment, the court may order that the Club is entitled to its costs on an indemnity basis after the latest date on which Lee could have accepted the sanctioned payment without requiring the leave of the court and to interests on costs at a rate not exceeding 10% above judgment rate unless it considers it unjust to do so.

3.11  I agree with Mr Kok that the above provides an additional reason to order indemnity costs (incurred after 8 June 2020) and that there should be enhanced interest at the rate of 10% above judgment rate. I bear in mind the factors set out at RDC Order 22, rule 23(6). In the present case, the sanctioned payment is generous and was made at a very early stage of the proceedings. Lee refused to accept the sanctioned payment because he “strongly believed” in two matters, namely his termination was due to the Disability and the complaints by members and guests were afterthoughts, both of which I have resoundingly rejected in the Judgment.

3.12  I do not, however, agree with Mr Kok on the period of enhanced interest.

3.13  I refer to Zief Incorporated v Tekchandani Ajai Mohan (t/a D’Ziner Collections (Hong Kong)) & Ors [2021] HKCFI 730 §§29-44. Although Zief is a case on RDC Order 22, rule 24, I do not see why the reasoning should not be applicable, mutadis mutandis, to RDC Order 22, rule 23. For the reasons set out therein and identified in summary below, I am also of the view that the period of enhanced interest should end on the date of the Judgment.

(1)  The powers conferred to order indemnity costs and a higher rate of interest are intended to provide a means of achieving a fairer result for the plaintiff, and to redress the perceived unfairness from the fact that damages, costs (even costs on an indemnity basis) and statutory interest will not compensate the successful plaintiff for the inconvenience, anxiety and distress of having to resort to and pursue proceedings which he had sought to avoid by an offer to settle on terms which (as events turned out) were less advantageous to him than the judgment which he achieved: McPhilemy v Times Newspapers Ltd (No 2) [2002] 1 WLR 934 at §§19 & 21 (Chadwick LJ); Golden Eagle International (Group) Ltd v GR Investment Holdings Ltd [2010] 3 HKLRD 273 at §10 (Lam J); Grupo Pacifica Incorporada v Worldwide Marine Product Ltd [2018] HKCFI 2584 at §17 (Au-Yeung J).

(2)  Such inconvenience, anxiety and distress (insofar as they exist) would ordinarily end when the successful plaintiff obtains the judgment. Moreover, as mentioned earlier, the purpose of post-judgment interest is not to compensate the successful plaintiff for such inconvenience, anxiety and distress, but to provide incentive to the losing defendant to promptly settle the judgment debt. See McPhilemy v Times Newspapers Ltd (above) at §24 (Chadwick LJ); Lo Yuk Sui v Fubon Bank (Hong Kong) Ltd [2017] 2 HKLRD 477 at §§57-59[1] (P Ng J).

3.14  I will therefore order that the period of enhanced interest should end on the date of the Judgment.

4.  Stay Application

4.1  As stated at §2.35 above, I made the Subpoenas Decision at the PTR. The 11/8/22 Order was the costs order made in respect of my dismissal of Lee’s application for leave to appeal against the Subpoenas Decision.

4.2  As stated at §2.36 above, Lee made an application for leave to appeal against the Subpoenas Decision to the Court of Appeal. As recorded in the Court of Appeal decision, Lee did not pursue the leave application and it was therefore dismissed with costs. Although the Court of Appeal only dealt with the merits briefly, it formed the view that Lee’s application lacked merits and would have no reasonable prospect of success.

4.3  The 11/8/22 Order was a forthwith costs order. The Stay Application, somewhat unusually, seeks a stay of the 11/8/22 Order pending the outcome of the appeal against the Judgment, not the Subpoena Decision.

4.4  It is established that, especially as here where the 11/8/22 Order is monetary in nature, the existence of an arguable appeal is the minimum requirement before a court would consider granting a stay: Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84.

4.5  As set out at Section 2 above, Lee has not demonstrated that he has an arguable appeal. I have no hesitation in dismissing the Stay Application.

5.  Conclusion

5.1  For the above reasons, I make the following orders:-

(1)  the Leave Application is dismissed;

(2)  on the Variation Application, I make an order that the Nisi Order is made absolute;

(3)  I further make an order that Lee is to pay interests on the costs incurred by the Club from 8 June 2020 to the date of the Judgment at the rate of 10% above judgment rate;

(4)  the Stay application is dismissed;

(5)  the sanctioned payment sum of HK$250,000 (together with interests accrued therein) be paid out to the Club.

5.2  The parties have made submissions on costs. The position taken by Lee is that the parties should be ordered to pay its own costs pursuant to section 73C of the DCO. Mr Kok submitted that Lee should pay the costs of the various applications to the Club on an indemnity basis.

5.3  I am of the view that the Leave Application and the Stay Application lack merits to the extent that they should never have been brought: §3.8 above. Lee is to pay to the Club the costs of the Leave Application and the Stay Application on an indemnity basis with a certificate for counsel.

5.4  On the Variation Application, I bear in mind that the Nisi Order was a departure from the default position set out at section 73C of the DCO and the Club was not entirely successful on the argument on enhanced interests. I make an order that Lee is to pay to the Club the costs of the Variation Application on a party and party basis with a certificate for counsel.

5.5  The Club has already lodged its Skeleton Bills of Costs. However, they are prepared on the basis that costs should be paid by Lee on an indemnity basis and in particular the Club is entitled to hourly rates in some instances in excess of HK$8,000 per hour. As stated above, the costs order made are not all on an indemnity basis. I direct that the Club do re-lodge its Skeleton Bills of Costs within 14 days, with an explanatory note justifying its departure from the District Court rates circulated by the Law Society of Hong Kong: see Hong Kong Civil Procedure 2023 Note 62/App/22 at which it is suggested that the hourly rates will not increase ipso facto merely because the taxation is on an indemnity basis.

5.6  Lee is to lodge his Statement of Objections within 14 days thereafter. I will then conduct the summary assessment on paper.